Professional Documents
Culture Documents
BY
W. V. H. ROGERS, M.A.
of Gray’s Inn, Barrister;
Senior Fellow in the University of Nottingham
First Edition (1937) The Author
Second Edition (1943) The Author
Third Edition (1946) The Author
Fourth Edition (1948) The Author
Fifth Edition (1950) The Author
Sixth Edition (1954) T. Ellis Lewis
Seventh Edition (1963) J. A. Jolowicz and T. Ellis Lewis
Eighth Edition (1967) J. A. Jolowicz with T. Ellis Lewis
Ninth Edition (1971) J. A. Jolowicz with T. Ellis Lewis and
D. M. Harris
Tenth Edition (1975) W. V. H. Rogers
Eleventh Edition (1979) W. V. H. Rogers
Twelfth Edition (1984) W. V. H. Rogers
Reprinted (1986)
Thirteenth Edition (1989) W. V. H. Rogers
Fourteenth Edition (1994) W. V. H. Rogers
Fifteenth Edition (1998) W. V. H. Rogers
Reprinted (1999)
Reprinted (2000)
Sixteenth Edition (2002) W. V. H. Rogers
Reprinted (2004)
Seventeenth Edition (2006) W. V. H. Rogers
Eighteenth Edition (2010) W. V. H. Rogers
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PREFACE TO THE EIGHTEENTH EDITION
v
vi Preface
(Elias L.J.).
(2) In Ch.22, Muuse v Secretary of State for the Home Depart-
ment is cited as illustrating that exemplary damages may be awarded
for misfeasance in a public office. The CA ([2010] EWCA Civ 453)
viii Preface
HORSFORTH W.V.H.R.
June, 2010.
CONTENTS
PAGE
Preface to Eighteenth Edition v
Table of Cases xiii
Table of Statutes xci
Table of Statutory Instruments ciii
Table of European Legislation cv
Table of Abbreviations cvii
CHAPTER
1. Nature and Functions of the Law of Tort 1
2. The Structure of Tort Law: History and Influences 59
3. General Characteristics of Tortious Liability 87
4. Trespass to the Person and Related Matters 97
5. Negligence: Duty and Breach 149
6. Negligence: Causation, Remoteness (Scope of
Liability) and Contributory Negligence 305
7. Breach of Statutory Duty and Misfeasance in a Public
Office 383
8. Employers’ Liability 411
9. Liability for Land and Structures 439
10. Liability for Defective Products 487
11. Liability for Statements 521
12. Defamation, Privacy and Related Matters 567
13. Trespass to Land 685
14. Nuisance 705
15. Strict Liability: Rule in Rylands v Fletcher 763
16. Animals 799
17. Interference with Goods 817
18. Interference with Contract or Business 859
19. Abuse of Legal Procedure 923
20. Vicarious Liability 943
21. Joint and Several Tortfeasors 987
22. Remedies 1005
23. Death in Relation to Tort 1079
24. Capacity 1097
xi
xii Contents
Index 1211
TABLE OF CASES
xiii
xiv Table of Cases
Adams (Durham) Ltd v Trust Houses Ltd [1960] 1 Lloyd’s Rep. [1970] 1 Q.B. 177 ..... 20–15
Adams v Bracknell Forest BC [2004] UKHL 29; [2005] 1 A.C. 76 ... 26–18, 26–19, 26–21
Adams v Guardian Newspapers Ltd [2003] ScotCS 131; 2003 S.L.T. 1058 .............. 12–39
Adams v L & Y Ry (1869) L.R. 4 C.P. 739 ................................................................. 6–49
Adams v Naylor [1946] A.C. 543 ................................................................................. 24–2
Adams v Rhymney Valley DC [2000] Lloyd’s Rep. P.N. 777 ..................................... 5–81
Adams v Ursell [1913] 1 Ch. 269 ................................................................................. 14–30
Adamson v Jarvis (1827) 4 Bing. 66 ............................................................................ 21–4
Adamson v Motor Vehicle Insurance Trust (1957) 58 W.A.L.R. 56 ........................... 24–26
Addis v Crocker [1961] 1 Q.B. 11 ................................................................................ 12–41
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 .................................................... 6–7
Adeels Palace Pty Ltd v Scott [2009] HCA 48 ............................................................ 5–31
Ad-Lib Club Ltd v Granville [1972] R.P.C. 673 .......................................................... 18–50
Admiralty Commissioners v SS Amerika [1917] A.C. 38 ........................................... 23–8
Admiralty Commissioners v SS Chekiang [1926] A.C. 637 ............................ 22–14, 22–43
Admiralty Commissioners v SS Susquehanna [1926] A.C. 655 .......... 22–22, 22–40, 22–43
Admiralty Commissioners v SS Valeria [1922] 2 A.C. 242 ......................................... 22–16
Admiralty Commissioners v SS Volute [1922] 1 A.C. 129 ......................................... 6–49
Adset v West [1983] Q.B. 826 ...................................................................................... 23–5
Advance Magazine Publishing v Redmond Publishing [1997] F.S.R. 449 .................. 18–45
Advanced Industrial Technology Corp. Ltd v Bond Street Jewellers Ltd [2006] EWCA
Civ 923 ................................................................................................................... 11–4
Adventure Films Ltd v Tully, The Times, October 14, 1982 ....................................... 17–15
Aer Lingus v Gildacroft Ltd [2006] EWCA Civ 4 ....................................................... 26–25
Aerospace Publishing Ltd v Thames Water Utilities Ltd [2005] EWHC 2987 ........... 22–44
Affutu-Nartey v Clarke, The Times, February 9, 1984 ................................................ 25–13
Ahmed v Shafique [2009] EWHC 618 (QB) ................................................................ 4–32
Aiken v Stewart Wrightson Members Agency Ltd [1995] 1 W.L.R. 1281 ... 5–22, 20–1, 20–22
Aikens v Wisconsin 195 U.S. 194 (1904) ..................................................................... 1–15
Airedale NHS Trust v Bland [1993] A.C. 789 ..................................................... 4–8, 22–20
Airey v Ireland (1979) 2 E.H.R.R. 305 ......................................................................... 2–10
Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 N.Z.L.R. 641, NZCA ... 20–8
Aitchison v Page Motors Ltd (1935) 154 L.T. 128 ...................................................... 20–16
Aitken v Preston [1997] E.M.L.R. 415 ......................................................................... 12–70
Aitken v Richardson [1967] 2 N.Z.L.R. 15 .................................................................. 17–8
Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2009] EWHC 1717 (QB) ... 12–13
Akenzua v Secretary of State for the Home Dept [2002] EWCA Civ 1470; [2003] 1
W.L.R. 54 ........................................................................................................ 7–20, 7–23
Akerhielm v De Mare [1959] A.C. 789 ........................................................................ 11–13
Al Amoudi v Brisard [2006] EWHC 1062 ................................................................... 12–22
Al Fagih v H H Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634;
[2002] E.M.L.R. 13 ................................................................................................ 12–27
Al Kandari v J R Brown & Co [1988] Q.B. 665 ................................................. 5–59, 5–73
Al Nakib Investments (Jersey) Ltd v Longcroft [1990] 1 W.L.R. 1390 ...................... 11–26
Al Raschid v News Syndicate Co, 191 N.E. 713 (1934) ............................................. 12–73
Al Saudi Banque v Clarke Pixley [1990] Ch. 313 ....................................................... 11–25
Al-Adsani v UK (2002) 34 E.H.R.R. 273 ..................................................................... 24–6
Albazero, The [1977] A.C. 774 ........................................................................... 5–41, 22–16
Albert v Lavin [1982] A.C. 546 .................................................................................... 4–26
Albery and Budden v BP Oil [1980] J.P.L. 586 ................................................. 5–82, 10–25
Albonetti v Wirral MBC [2008] EWCA Civ 783 ......................................................... 26–18
Alcoa Minerals v Broderick [2002] 1 A.C. 371 ........................................................... 22–44
Alcock v CC South Yorkshire [1992] 1 A.C. 310 ...... 5–61, 5–62, 5–63, 5–66, 5–68, 5–69,
5–70, 5–72, 5–74
Alcott v Miller’s Karri etc. Ltd (1940) 91 L.T. 722 ..................................................... 12–73
Aldred v Nacano [1987] I.R.L.R. 292 ................................................................. 8–11, 20–12
Aldred’s Case (1610) 9 Co. 57b .................................................................................... 16–2
Alexander v Rayson [1936] 1 K.B. 169 ........................................................................ 5–90
Alexander v Rolls Royce [1996] R.T.R. 95 .................................................................. 22–43
Alexander v Ry Executive [1951] 2 K.B. 882 .............................................................. 17–17
Alexander v Southey (1821) 5 B. & Ald.247 ............................................................... 17–12
Table of Cases xv
Anglian Water Services Ltd v Crawshaw Robbins Ltd [2001] B.L.R. 173 ....... 5–39, 14–10
Anglo-Cyrian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All E.R.
873 ........................................................................................................................... 22–7
Angus v Clifford [1891] 2 Ch.449 .................................................................... 11–10, 11–13
Angus v Glasgow Corp 1977 S.L.T. 206 ...................................................................... 20–10
Anheuser-Busch Inc v Budejovicky Budvar NP [1984] F.S.R. 413 ............................ 18–50
Animal Liberation (Vic) Inc v Gasser [1991] 1 V.R. 51 .............................................. 14–39
Annabel’s (Berkeley Square) Ltd v G Schock [1972] F.S.R. 261 ............................... 18–48
Annetts v Australian Stations Pty Ltd [2002] HCA 35 .............................. 5–61, 5–67, 5–68
Anns v Merton LBC [1978] A.C. 728 ....... 5–4, 5–6, 5–7, 5–8, 5–11, 5–24, 5–39, 5–50, 9–33,
9–35, 9–38, 9–39
Ansell Rubber Co v Allied Rubber Industries [1967] V.R. 37 .................................... 12–82
Ansett v Australian Federation of Airline Pilots (1859) 95 A.L.R. 211 .............. 18–5, 18–6
Anthony v Haney (1832) 8 Bing. 186 ........................................................................... 17–26
Antoniades v Villers [1990] A.C. 417 ........................................................................... 13–2
Apley Estates Co Ltd v De Bernales [1947] Ch. 217 .................................................. 21–3
Apollo, The [1891] A.C. 499 ......................................................................................... 11–16
Appah v Parncliffe Investments Ltd [1964] 1 W.L.R. 1064 ........................................ 13–2
Appleby v UK (2003) 37 E.H.R.R. 38 .......................................................................... 13–9
Applegate v Moss [1971] 1 Q.B. 406 ........................................................................... 26–14
Appleton v Garrett (1995) 34 B.M.L.R. 32 .................................................................. 25–5
Appleton v Grant [1996] P.I.Q.R. P1 ............................................................................ 22–8
Arab News Network v Jihad Al Khazen [2001] EWCA Civ 118 ............................... 12–12
Arcado S.P.R.L. v Haviland SA [1988] E.C.R. 1539 ................................................... 1–4
Archer v Brown [1985] Q.B. 401 ........................................................................ 22–8, 22–11
Architects of Wine Ltd v Barclays Bank plc [2007] EWCA Civ 239 ........................ 17–8
Arenson v Casson Beckman Rutley & Co [1977] A.C. 405 ........................................ 11–29
Argent v Minister of Social Security [1968] 1 W.L.R. 1749 ............................... 20–4, 20–5
Argentino, The (1881) 13 P.D. 101 ............................................................. 6–2, 6–30, 22–43
Argy Trading Development Co Ltd v Lapid Developments Ltd [1977] 1 W.L.R. 444 ... 11–18
Argyll v Argyll [1967] Ch. 302 ..................................................................................... 12–82
Arkwright v Newbold (1881) 17 Ch.D. 301 ....................................................... 11–8, 11–13
Armagas Ltd v Mundogas SA [1986] A.C. 717 ........................................................... 20–17
Armitage v Nurse [1998] Ch. 241 ................................................................................. 11–2
Armory v Delamirie (1721) 1 Stra. 505 ............................................................ 17–18, 17–27
Armstrong v British Coal, The Times, December 6, 1996 ........................................... 5–79
Armstrong v Sheppard and Short Ltd [1959] 2 Q.B. 384 ..... 13–9, 13–10, 22–48, 22–49, 25–2
Armstrong v Strain [1951] 1 T.L.R. 856 ....................................................................... 11–10
Armstrong v Times Newspapers Ltd [2004] EWHC 2928 .......................................... 12–14
Arneil v Patterson [1931] A.C. 560 ............................................................................... 21–3
Arnott v Sprake [2001] EWCA Civ 341 ....................................................................... 25–27
Arnup v M. W. White Ltd [2008] EWCA Civ 447 ...................................................... 23–16
Arpad, The [1934] P. 189 ........................................................................ 6–30, 17–27, 22–41
Arscott v The Coal Authority [2004] EWCA Civ 892; [2005] Env L.R. 6 ...... 6–21, 14–13
Arsenal Football Club Plc v Reed [2001] R.P.C. 46 ........................................ 18–45, 18–51
Arthur J S Hall & Co v Simons [2002] 1 A.C. 615 ..................................................... 5–60
Arthur v Anker [1997] Q.B. 504 ................................................... 17–8, 17–10, 17–25, 25–2
Artistic Upholstery Ltd v Art Forma (Furniture) Ltd [1999] 4 All E.R. 277 ............. 18–51
Ashby v Tolhurst [1937] 2 K.B. 242 ....................................................... 9–24, 17–11, 17–14
Ashby v White (1703) 2 Ld. Raym. 938 ................................................................ 2–18, 7–3
Ashcroft v Curtin [1971] 1 W.L.R. 1731 ...................................................................... 22–29
Ashdown v Samuel Williams Ltd [1957] 1 Q.B. 409 ............. 1–6, 8–13, 9–20, 9–21, 9–23
Asher v Whitlock (1865) L.R. 1 Q.B. 1 ........................................................... 13–16, 13–17
Ashgar v Ahmed (1984) 17 H.L.R. 25 .......................................................................... 22–11
Ashingdane v UK (1985) 7 E.H.R.R. 528 .................................................................... 4–21
Ashington Piggeries Ltd v Christopher Hill Ltd [1972] A.C. 441 ............................... 10–23
Ashley v CC Sussex [2005] EWHC 415 (QB) .... 2–2, 4–3, 4–34, 4–37, 22–8, 23–3, 25–30
Aslan v Murphy [1990] 1 W.L.R. 766 .......................................................................... 13–2
Asprey & Garrard Ltd v WRA (Guns) Ltd [2001] EWCA Civ 1499 ......................... 18–46
Aspro Travel Ltd v Owners Abroad Group [1996] 1 W.L.R. 132 ....... 12–13, 12–19, 12–48
Table of Cases xvii
Associated British Ports Ltd v TGWU [1989] 3 All E.R. 796; [1989] 1 W.L.R. 939 ........ 18–3,
18–8, 18–43
Associated Newspapers v Insert Media Ltd [1988] 1 W.L.R. 509 ....... 7–10, 18–48, 18–49,
18–51, 22–52
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223 ..... 4–28,
5–49, 5–57
Astaire v Campling [1966] 1 W.L.R. 34 ........................................................... 12–15, 12–19
Astley v Austrust Ltd (1999) 161 A.L.R. 155 .............................................................. 6–44
Aston Cantlow etc. Parochial Church Council v Wallbank [2003] UKHL 37; [2004] 1
A.C. 546 .......................................................................................................... 2–9, 12–80
Athey v Leonati (1996) 140 D.L.R. (4th) 235 ...................................................... 6–12, 6–32
Athlete’s Foot Marketing Associates Inc v Cobra Sports Ltd [1980] R.P.C. 43 ......... 18–50
Atkins v Ealing LBC [2006] EWHC 2515 (QB) .......................................................... 14–44
Atkinson v Fitzwalter [1987] 1 W.L.R. 201 ................................................................. 12–28
Atkinson v Newcastle Waterworks Co (1877) 2 Ex.D. 441 ..................................... 7–3, 7–4
Atlas Tiles v Briers (1978) 21 A.L.R. 129 ................................................................... 22–29
Att-Gen for Northern Ireland’s Reference (No. 1 of 1975) [1977] A.C. 105 ............. 4–26
Att-Gen for Ontario v Fatehi (1984) 15 D.L.R. (4th) 1323 ......................................... 5–39
Att-Gen for Ontario v Orange Productions Ltd (1971) 21 D.L.R. (3d) 257 ............... 14–2
Att-Gen of St Christopher v Reynolds [1980] A.C. 637 .............................................. 22–10
Att-Gen of Trinidad and Tobago v Ramanoop [2005] UKPC 15; [2005] 2 W.L.R.
1324 ......................................................................................................................... 22–5
Att-Gen v Blake [2001] 1 A.C. 268 ...................................................... 18–18, 22–13, 22–43
Att-Gen v Cantor [1939] 1 K.B. 326; [1938] 2 K.B. 826 ............................................ 1–10
Att-Gen v Carter [2003] NZCA 48; [2003] 2 N.Z.L.R. 160 ........................................ 5–13
Att-Gen v Connolly (1993) 64 D.L.R. (4th) 84 ............................................................ 24–26
Att-Gen v Corke [1933] Ch. 89 ..................................................................................... 15–6
Att-Gen v Cory Bros Ltd [1921] 1 A.C. 521 ......................................... 15–6, 15–13, 15–17
Att-Gen v De Keyser’s Royal Hotel [1920] A.C. 508 ................................................. 24–4
Att-Gen v Geothermal Products (NZ) Ltd [1987] 2 N.Z.L.R. 348 .................... 15–3, 20–25
Att-Gen v Guardian Newspapers Ltd (No 2) [1990] 1 A.C. 109 ...... 2–8, 12–82, 12–83, 22–10
Att-Gen v Nissan [1970] A.C. 179 ...................................................................... 24–4, 25–38
Att-Gen v Nottingham Corp [1904] Ch. 673 ................................................................ 22–52
Att-Gen v PYA Quarries Ltd [1957] 2 Q.B. 169 .......................................................... 14–2
Att-Gen v Thames Conservators (1862) 1 H. & M. 1 ................................................. 14–39
Att-Gen v Tod Heatley [1897] Ch. 560 ........................................................................ 14–21
Att-Gen v Wilcox [1938] Ch. 934 ................................................................................. 14–38
Att-Gen’s Reference (No 2 of 1999) [2000] Q.B. 796 ................................................. 8–9
Att-Gen’s Reference (No 6 of 1980) [1981] Q.B. 715 ................................................. 25–5
Attia v British Gas Plc [1988] Q.B. 304 ............................................................... 5–61, 5–72
Attwood v Monger (1653) Style 378 ............................................................................ 19–5
Aubry v Editions Vice-Versa Inc [1998] 1 S.C.R. 591 ................................................ 12–85
Auckland Electric Power Board v Electricity Corp of NZ Ltd [1993] 3 N.Z.L.R. 53 ..... 7–5
Augusto v Board of Territory Insurance Office (1990) N.T.R. 1 ................................. 6–16
Aujis v Wirth Brothers Pty Ltd (1955) 93 D.L.R. 561 ................................................. 20–4
Austin v Dowling (1870) L.R. 5 C.P. 534 .................................................................... 4–31
Austin v MPC [2005] EWHC 480 (QB); [2005] H.R.L.R. 20 ........ 4–17, 4–26, 4–28, 4–30
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 6 A.L.R. 615 ........................... 9–3
Author of a Blog v Times Newspapers Ltd [2009] EWHC 1359 (QB) ...................... 12–83
Avenhouse v Hornsby SC (1998) 44 N.S.W.L.E.R. 1, N.S.W.C.A. ............................. 5–3
Avery v London & N E Ry [1938] A.C. 613 ............................................................... 23–14
Awad v Pillai [1982] R.T.R. 266 ................................................................................... 5–21
Awoyomi v Radford [2007] EWHC 1671; [2008] Q.B. 793 ....................................... 26–18
Awwad v Geraghty & Co [2001] Q.B. 570 .................................................................. 19–15
Axa Insurance Ltd v Akther & Darby [2009] EWCA Civ 1166 ................................. 26–10
B v An Hospital Trust [2002] EWHC 429 (Fam); [2002] 2 All E.R. ......................... 4–8
B v Att-Gen of NZ [2003] UKPC 61; [2003] 4 All E.R. 833 ..................................... 5–53
B v Croydon HA [1995] Fam. 133 ............................................................................... 4–8
B v Reading BC [2009] EWHC 998 (QB) ........................................................... 5–49, 19–1
B(E) v Order of Oblates of Mary Immaculate (2003) 227 D.L.R. (4th) 298 .............. 20–14
BBC v Talksport Ltd [2001] F.S.R. 6 ........................................................................... 18–45
xviii Table of Cases
BBC Worldwide Ltd v Pally Screen Printing Ltd [1998] F.S.R. 665 .......................... 18–49
BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd [1990] 1 W.L.R. 409 ...... 17–27, 17–29
BC Hydro & Power v B G Checo International (1993) 99 D.L.R. (4th) 577 ............. 1–8
BCCI (Overseas) Ltd v Price Waterhouse (No 2) [1998] Lloyd’s Rep. Bank 85; [1998]
PNLR 564 ............................................................................................................... 11–21
BDC Ltd v Hofstrand Farms Ltd (1986) 26 D.L.R. (4th) 1 ......................................... 6–30
BMTA v Salvadori [1949] Ch. 226 ............................................................................... 18–26
BMW Financial Services (GB) Ltd v Bhagwanani [2007] EWCA Civ 1230 ............. 17–11
BWIU v Odco Pty Ltd (1991) 99 A.L.R. 735 .............................................................. 18–7
Bacardi-Martini Beverages Ltd v Thomas Hardy Packaging Ltd [2002] EWCA Civ
549; [2002] 2 Lloyd’s Rep. 379 ................................................................. 5–44, 10–10
Backhouse v Bonomi (1861) 9 H.L.C. 503 .................................................................. 26–9
Bacon v Cooper (Metals) Ltd [1982] 1 All E.R. 397 ................................................... 22–45
Badger v MoD [2005] EWHC 2941 ............................................................................. 6–48
Badham v Lambs Ltd [1946] K.B. 45 ........................................................................... 7–9
Bagley v North Herts Health Authority (1986) 136 N.L.J. 1014 .................... 23–12, 24–13
Bagot v Stevens Scanlon & Co Ltd [1966] 1 Q.B. 197 ............................................... 1–8
Bahner v Marwest Hotel (1970) 12 D.L.R. (3d) 646 ................................................... 4–20
Bailey v Rolls Royce Ltd [1984] I.C.R. 688 ................................................................ 5–77
Bailiffs of Dunwich v Sterry (1831) 1 B. &. Ad. 831 ................................................. 17–5
Baily v Ministry of Defence [2008] EWCA Civ 883 ................................................... 6–7
Bainbridge v Postmaster-General Q.B. 185 .................................................................. 24–2
Baker & Davies Plc v Leslie Wilks Associates [2005] EWHC 1179 (TCC); [2005] 3
All E.R. 603 ............................................................................................................ 26–25
Baker v Barclays Bank Ltd [1955] 1 W.L.R. 822 ........................................................ 17–15
Baker v Bolton (1808) 1 Camp. 493 ............................................................................. 23–8
Baker v Carrick [1894] 1 Q.B. 189 ............................................................................... 12–48
Baker v E Longhurst & Sons Ltd [1933] 2 K.B. 461 .................................................. 14–38
Baker v Market Harborough Co-operative Society [1953] 1 W.L.R. 1472 ................. 5–89
Baker v Quantum Clothing Group [2009] EWCA Civ 499 ......................................... 8–5
Baker v T E Hopkins & Son Ltd [1959] 1 W.L.R. 966 ................................... 25–15, 25–17
Baker v Willoughby [1970] A.C. 467 ....................................................................... 6–7, 6–8
Balden v Shorter [1933] Ch. 427 .................................................................................. 12–74
Baldwin v Rusbridger [2001] E.M.L.R. 47 ................................................................... 12–31
Balfour v Barty-King [1957] 1 Q.B. 496 .............................................. 15–15, 15–20, 20–25
Ball v Ray (1873) L.R. 8 Ch. App. 467 ....................................................................... 14–6
Ball v Street [2005] EWCA Civ 76 .............................................................................. 8–6
Ball v Wirral HA (2003) 73 B.M.L.R. 31 .................................................................... 20–6
Ballantine v Newalls Insulation Co Ltd [2000] P.I.Q.R. Q332 ........................ 22–32, 22–35
Ballard v Tomlinson (1885) 29 Ch. D. 115 .................................................................. 14–10
Ballett v Mingay [1943] K.B. 281 ................................................................................. 24–17
Ballina SC v Ringland (1994) 33 N.S.W.L.R. 680 ....................................................... 12–18
Baltinos v Foreign Language Publications Ltd (1986) 6 N.S.W.L.R. 85 .................... 12–19
Bamford v Turnley (1862) 3 B. & S. 66 ...................................... 14–4, 14–6, 14–11, 14–12
Banbury v Bank of Montreal [1918] A.C. 626 ............................................................. 11–32
Banco de Portugal v Waterlow [1932] A.C. 452 .......................................................... 22–17
Bank of East Asia Ltd v Tsien Wui Marble Factory Ltd (2000) 1 H.K.C. 1 .............. 26–12
Bank of Montreal v Dominion Guarantee etc. Co Ltd [1930] A.C. 559 ..................... 5–79
Bank of Nova Scotia v Hellenic Mutual War Risks Association [1990] 1 Q.B. 818 ..... 1–9,
6–44
Bank of NZ v Greenwood [1984] 1 N.Z.L.R. 525 ................................. 14–4, 14–10, 22–48
Bank of Scotland v Fuller Peiser, 2002 S.L.T. 574 ...................................................... 11–30
Bank of Tokyo Mitsubishi UJF Ltd v Baskan Gida Sanayive Pazarlama AS [2008]
EWHC 658 (Ch) ........................................................................................... 6–27, 18–28
Bank Voor Handel en Scheepvaart v Administrator of Hungarian Property [1954] A.C.
584 ........................................................................................................................... 24–3
Banks v Ablex Ltd [2005] EWCA Civ 173; [2005] I.C.R. 819 .................................. 4–38
Banks v Cox [2002] EWHC 2166 ................................................................................. 11–14
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd; sub nom. South
Australia Asset Management Corp [1997] A.C. 191; [1995] 2 All E.R. 769 ....... 5–23,
5–40, 5–76, 6–27, 6–28, 6–48, 7–12, 11–14, 11–31, 25–4
Table of Cases xix
Banque Keyser Ullmann SA v Scandia (UK) Insurance Co Ltd [1991] 2 A.C. 249 ..... 1–9,
6–16, 6–48
Barber v Somerset CC [2004] UKHL 13; [2004] 1 W.L.R. 1089 ............................... 5–71
Barclay v British Airways plc [2008] EWCA Civ 1419 .............................................. 1–38
Barclays Bank v Fairclough Building Ltd (No 1) [1995] Q.B. 214 ............................ 6–44
Barclays Bank v Fairclough Building Ltd (No 2) [1995] I.R.L.R. 605 ....................... 6–44
Barclays Bank v Quincecare & Unichem [1988] F.L.R. 166 ....................................... 5–83
Barclays Mercantile Business Finance Ltd v Sibec Developments Ltd [1993] 2 All
E.R. 195 .................................................................................................................. 17–17
Barcock v Brighton Corp [1949] 1 K.B. 339 ....................................................... 7–17, 7–19
Barings Plc v Coopers & Lybrand [2003] EWHC 1319, Ch; [2003] PNLR 34 ......... 6–45
Barker v Corus (UK) Ltd [2006] UKHL 20; [2006] 2 A.C. 572 ................ 6–9, 6–10, 6–11
Barker v Furlong [1891] 2 Ch. 172 ............................................................................... 17–5
Barker v Herbert [1911] 2 K.B. 633 ............................................................................. 14–21
Barkway v South Wales Transport Co Ltd [1950] A.C. 180 ..................... 5–79, 5–89, 8–12
Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37;
[2006] 1 W.L.R. 1476 ............................................................................................ 18–8
Barnard v Restormel BC [1998] 3 P.L.R.27 ................................................................. 7–22
Barnard v Scully (1931) 47 T.L.R. 557 ........................................................................ 20–19
Barnes v Commonwealth (1937) 37 S.R.N.S.W. 511 ................................................... 5–73
Barnes v Flucker, 1985 S.L.T. 142 ................................................................................ 6–48
Barnes v Irwell Valley Water Board [1938] 2 All E.R. 650 ........................................ 10–5
Barnes v Lucille Ltd (1907) 96 L.T. 680 ...................................................................... 16–6
Barnes v Nayer, The Times, December 19, 1986 .................................................. 6–44, 25–5
Barnes v St Helens MBC [2006] EWCA CIv 1372 ..................................................... 26–8
Barnet v Crozier [1987] 1 W.L.R. 272 .......................................................................... 12–66
Barnett v Allen (188) 3 H. & N. 376 ............................................................................ 12–16
Barnett v British Waterways Board [1973] 1 W.L.R. 700 ............................................ 25–6
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 A.B.
428 ........................................................................................................................... 6–6
Barnett v Cohen [1921] 2 K.B. 461 .............................................................................. 23–12
Barnett v French [1981] 1 W.L.R. 848 ......................................................................... 13–15
Barnstaple Boat Co Ltd v Jones [2007] EWCA Civ 727 ............................................. 26–4
Barr v Mussleburgh, 1912 S.C. 174 .............................................................................. 12–50
Barrett v Enfield LBC [2001] 2 A.C. 550 .................................. 2–13, 5–3, 5–50, 5–52, 7–2
Barrett v Lounova Ltd [1989] 1 All E.R. 351 .............................................................. 9–40
Barrett v Ministry of Defence [1995] 1 W.L.R. 1217 ...................... 5–30, 5–31, 5–45, 6–53
Barretts & Baird (Wholesale) Ltd v Institution of Professional Civil Servants [1987]
IRLR 3 ........................................................................................................ 18–13, 18–43
Bartholomew v Hackney LBC [1999] I.R.L.R. 246 ..................................................... 11–34
Barwick v English Joint Stock Bank (1867) L.R. 2 Ex. 259 ....................................... 20–13
Basebe v Matthews (1867) L.R. 2 C.P. 684 .................................................................. 19–6
Basely v Clarkson (1682) 3 Lev 37 .............................................................................. 13–1
Bastow v Bagley & Co Ltd [1961] 1 W.L.R. 1494 ...................................................... 22–22
Bata v Bata [1948] W.N. 366 ........................................................................................ 12–22
Batchellor v Tunbridge Wells Gas Co (1901) 84 L.T. 756 .......................................... 15–6
Batistoni v Dance (1908) 52 S.J. 202 ........................................................................... 17–9
Batts Combe Quarry Ltd v Ford [1943] Ch. 51 ........................................................... 18–5
Baturina v Times Newspapers [2010] EWHC 696 (QB) ............................................. 12–24
Baxter v Ford Motor Co, 12 P. 2d 409 (1932) ............................................................. 10–12
Baxter v Harland & Wolff [1990] I.R.L.R. 516 ............................................................ 5–79
Baxter v Obacelo Pty Ltd (2001) 184 A.L.R. 616 ....................................................... 21–3
Baxter v St Helena Hospital Management Committee, The Times, February 14,
1972 ......................................................................................................................... 8–12
Baxter v Woolcombers (1963) 107 S.J. 553 ......................................................... 5–84, 6–48
Bayley v Manchester, Sheffield and Lincolnshire Ry (1873) L.R. 8 C.P. 148 ............ 20–11
Bazley v Curry [1999] 2 S.C.R. 534 ................................................................... 20–9, 20–14
Beach v Freeson [1972] 1 Q.B. 14 ................................................................................ 12–49
Beale v Gomme Ltd (1949) 65 T.L.R. 543 ................................................................... 7–19
Beals v Hayward [1960] N.Z.L.R. 131 ......................................................................... 24–26
Beaman v ARTS Ltd [1949] 1 K.B. 550 ...................................................................... 26–14
xx Table of Cases
Bear v Reformed Mennonite Church, 341 A. (2d) 105 (1975) .................................... 18–23
Beard v London General Omnibus Co [1900] 2 Q.B. 530 .......................................... 20–11
Beart v Prison Service [2005] EWCA Civ 467 ............................................................ 6–7
Beasley v Marshal (1977) 17 S.A.S.R. 456 .................................................................. 6–50
Beaudesent SC v Smith (1966) 120 C.L.R. 145 ................................................... 1–15, 7–20
Beaulieu v Finglam (1401) Y.B. Paschc. 2 Hen. 4f. 18, pl. 6 ..................................... 15–20
Beaulne v Ricketts (1979) 96 D.L.R. (3d) 550 ............................................................. 11–14
Bebee v Sales (1916) 32 T.L.R. 413 ................................................................... 21–2, 24–18
Beckford v R [1988] A.C. 130 ...................................................................................... 4–23
Bedfordshire Police Authority v Constable [2009] EWCA Civ 64 ....................... 1–38, 4–2
Bee v Jenson [2007] EWCA Civ 923 ....................................................... 1–19, 6–33, 22–43
Beesley v New Century Group Ltd [2008] EWHC 3033 (QB) ......................... 23–5, 23–12
Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1 .......................................... 16–4, 16–7
Behrens v Richards [1905] 2 Ch. 614 ........................................................................... 22–48
Belegging BV v Witten Industrial Diamonds Ltd [1979] F.S.R. 59 ............................ 18–8
Belfast CC v Irish Football Association Ltd [1988] N.I. 290 ...................................... 14–10
Bell Canada v Cope (Sarnia) Ltd (1980) 119 D.L.R. (3d) 254 .................................... 4–35
Bell v Peter Browne & Co [1990] 2 Q.B. 495 ........................... 26–9, 26–10, 26–11, 26–12
Bellefield Computer Services v E Turner & Sons Ltd [2000] BLR 97; [2002] EWCA
Civ 1823; [2003] Lloyd’s Rep. P.N. 53 ................................................................ 9–34
Bellew v Cement Co Ltd [1948] Ir.R.62 ............................................................... 14–1, 14–8
Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch. 250 ........................ 18–25
Belmont Finance Corp Ltd v Williams Furniture Ltd (No 2) [1980] 1 All E.R. 393 ....... 18–25
Belvoir Finance Co Ltd v Stapleton [1971] 1 Q.B. 210 .............................................. 17–17
Bendall v McWhirter [1952] 2 Q.B. 466 ...................................................................... 13–10
Benham v Gambling [1941] A.C. 157 .......................................................................... 22–19
Benham v UK (1996) 22 E.H.R.R. 293 ........................................................................ 24–9
Benjamin v Storr (1874) L.R. 9 C.P. 400 ........................................................... 7–10, 14–11
Bennett v Greenland Houchen & Co [1998] P.N.L.R. 458 .......................................... 26–18
Bennett v Tugwell [1971] 2 Q.B. 267 ........................................................................... 25–11
Benning v Wong (1969) 122 C.L.R. 249 ............................................................ 15–9, 15–16
Bennison v Hulton, The Times, April 13, 1926 ............................................................ 12–12
Benson v Lee [1972] V.R. 879 ...................................................................................... 5–67
Bentley v Wright [1997] V.R. 175 ................................................................................. 11–23
Beresford v Chesterfield BC, The Times, August 14, 1989 .......................................... 11–19
Beresford v White (1914) 30 T.L.R. 591 ...................................................................... 12–41
Berezovsky v Forbes Inc [2001] EWCA Civ 1251; [2001] E.M.L.R. 45 ....... 12–13, 12–28
Berkoff v Burchill [1996] 4 All E.R. 1008 ................................................................... 12–11
Bernard v Att-Gen [2004] UKPC 47; [2005] I.R.L.R. 398 .......................................... 20–14
Bernardin & Cie v Pavilion Properties Ltd [1967] R.P.C. 581 .................................... 18–50
Bernina, The (1888) 13 App. Cas. 1 ............................................................................. 6–51
Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All E.R. 220 ................... 10–10
Bernstein v Skyviews & General Ltd [1978] Q.B. 479 ............................................... 13–7
Berriello v Felixstowe Dock & Ry Co [1984] 1 W.L.R. 695 ...................................... 22–32
Berry v British Transport Commission [1962] 1 Q.B. 360; [1961] 1 Q.B. 149 ....... 19–2, 19–5,
19–13
Berry v Humm [1915] 1 K.B. 627 ................................................................................ 23–13
Berryman v Hounslow LBC, The Times, December 18, 1996 ..................................... 9–3
Best v Wellcome Foundation [1994] 5 Med.L R. 81 (Ir.S.C.) ..................................... 5–84
Bestobell Paints Ltd v Bigg [1975] F.S.R. 421 ............................................................ 22–50
Beswick v Beswick [1968] A.C. 58 .............................................................................. 22–23
Beta Construction v Channel Four [1990] 1 W.L.R. 1042 ........................................... 12–70
Bevan v Milford Haven Dry Dock Co [1962] 2 Lloyd’s Rep. 281 ............................. 8–13
Bhamra v Dubb [2010] EWCA Civ 13 ......................................................................... 6–27
Bhoomidas v Port of Singapore [1978] 1 All E.R. 956 ............................................... 20–8
Biba Group v Biba Boutique [1980] R.P.C. 413 .......................................................... 18–46
Bici v MoD [2004] EWHC 786 (QB) .................. 3–3, 4–12, 4–34, 4–35, 5–15, 6–44, 24–4
Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008] EWCA Civ
1257 ......................................................................................................................... 20–8
Bily v Arthur Young & Co, 834 P. 2d 745 (Cal. 1992) ............................................... 5–14
Birch v University College etc NHS Foundation Trust [2008] EWHC 2237 (QB) .... 25–4
Table of Cases xxi
Cantwell v Criminal Injuries Compensation Board [2001] UKHL 36; S.L.T. 966,
HL ........................................................................................................................... 22–32
Caparo Industries Plc v Dickman [1990] 2 A.C. 605 .... 5–1, 5–4, 5–8, 5–9, 5–11, 5–12, 5–14,
5–17, 5–23, 5–24, 5–38, 5–52, 6–27, 11–1, 11–17, 11–18,
11–20, 11–25, 11–26, 11–34
Cape & Dalgleish v Fitzgerald [2002] UKHL 16 ......................................................... 21–3
Cape Distribution Ltd v O’Loughlin [2001] P.I.Q.R. Q73 ........................................... 23–16
Capital and Counties Bank Ltd v Henty (1882) 7 App. Cas.741 ........ 12–12, 12–13, 12–14
Capital and Counties Plc v Hampshire CC [1997] Q.B. 1004 ... 5–13, 5–19, 5–27, 5–33, 5–36,
5–45, 7–4
Capital Finance Co Ltd v Bray [1964] 1 W.L.R. 323 .................................................. 17–12
Capps v Miller [1989] All E.R. 333 ...................................................................... 6–46, 6–53
Carberry v Davies [1968] 1 W.L.R. 1103 ..................................................................... 20–19
Cardy & Son v Taylor [1994] N.P.C. 30 ....................................................................... 5–79
Carlgarth, The [1927] P. 93 ........................................................................................... 9–6
Carmarthenshire CC v Lewis [1955] A.C. 549 ............................................................. 5–31
Carmichael v National Power Plc [1999] 1 W.L.R. 2042 ............................................ 20–5
Carnival, The [1994] 2 Lloyd’s Rep. 14 ....................................................................... 6–21
Carr v Francis, Times & Co [1902] A.C. 176 .............................................................. 24–4
Carr-Glyn v Frearsons [1999] Ch. 326 .......................................................................... 5–59
Carrier v Bonham [2000] Q.D.C. 226 ........................................................................... 24–26
Carrington v Harway (1662) 1 Keb. 803 ...................................................................... 26–29
Carroll v Andrew Barclay & Sons [1948] A.C. 477 .................................................... 8–6
Carroll v Fearon [1998] P.I.Q.R. P416 ...................................................... 10–3, 10–7, 10–12
Carslogie SS Co Ltd v Royal Norwegian Government [1952] A.C. 292 ... 6–7, 6–12, 6–35,
22–43
Carson v John Fairfax (1993] 113 A.L.R. 577 ............................................................. 12–66
Carstairs v Taylor (1871) L.R. 6 ex. 217 ...................................................................... 15–14
Carter v Barnard (1849) 13 Q.B. 945 ........................................................................... 13–17
Carter v CC Cumbria [2008] EWHC 1072 (QB) ......................................................... 7–20
Cartwright v McLaine & Long Pty Ltd (1979) 24 A.L.R. 97 ..................................... 14–41
Carty v Croydon LBC [2005] EWCA Civ 19; [2005] 1 W.L.R. 2312 ...... 5–48, 5–50, 5–53
Carver v BAA plc [2008] EWCA Civ 412 ................................................................... 22–24
Casey v Automobiles Renault Canada Ltd (1965) 54 D.L.R. (2d) 600 ....................... 19–5
Cash v CC Lancashire [2008] EWHC 396 (Ch) ........................................................... 17–27
Cassell & Co Ltd v Broome [1972] A.C. 1027 ............... 22–8, 22–9, 22–10, 22–11, 22–12
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 K.B. 331 ............... 12–12, 12–13, 12–16
Cassidy v Imperial Chemical Industries Ltd, The Times, November 2, 1972 ............. 10–5
Cassidy v Ministry of Health [1951] 2 K.B. 343 ......................... 20–5, 20–6, 20–21, 20–28
Castellain v Preston (1883) 11 Q.B.D. 380 ......................................................... 1–19, 26–30
Castle v St Augustine’s Links (1922) 38 T.L.R. 615 ................................................... 14–11
Caswell v Powell Duffryn Collieries Ltd [1940] A.C. 152 ........................ 5–76, 6–52, 7–18
Cattanach v Melchior [2003] HCA 38, 199 A.L.R. 131 .............................................. 24–15
Cattle v Stockton Waterworks (1875) L.R. 10 Q.B. 453 .................................... 5–40, 15–19
Cavanaugh v Ulster Weaving Co Ltd [1960] A.C. 145 ................................................ 5–79
Cavanaugh v Weston HA [1992] 3 Med.L.R. 49 ......................................................... 5–81
Cave v Robinson Jarvis & Rolfe [2002] UKHL 18; [2003] 1 A.C. 184 ..................... 26–14
Cavendish, The [1993] 2 Lloyd’s Rep. 292 .................................................................. 20–5
Cekan v Haines (1990) 21 N.S.W.L.R. 296 .................................................................. 5–86
Central Motors (Glasgow) Ltd v Cessnock Garage & Motor Co 1925 S.C. 796 ....... 20–16
Central Ry of Venezuela v Kisch (1867) L.R. 2 H.L. 99 ............................................. 11–12
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] A.C.
509 ............................................................................................................... 20–10, 20–13
Chabbra Corp Pte Ltd v Jag Shakti (owners) [1986] A.C. 337 ................................... 17–19
Chadwick v British Transport Commission [1967] 1 W.L.R. 912 ............................... 25–16
Chagos Islanders v Att-Gen [2004] EWCA Civ 997 ................................. 4–17, 7–20, 24–3
Chakravarti v Advertiser Newspaper [1998] HCA 37 ...................................... 12–12, 12–60
Chamberlain v Lindon [1998] 1 W.L.R. 1252 .............................................................. 22–47
Chambers v Donaldson (1809) 11 East 65 ................................................................... 13–2
Chaplin v Hicks [1911] 2 K.B. 786 .............................................................................. 6–15
Chaplin v Westminster Corp [1901] 2 Ch. 329 ............................................................ 14–39
Table of Cases xxvii
Couch v Att-Gen [2008] NZSC 45; [2008] 3 N.Z.L.R. 725 ................................ 5–24, 5–31
Couch v Steel (1854) 3 E.& B. 402 .............................................................................. 7–3
Coudrat v Revenue and Customs Commissioners [2005] EWCA Civ 616; [2005] STC
1006 ......................................................................................................................... 19–9
Coughlin v Gillison [1899] 1 Q.B. 145 ......................................................................... 10–3
Coulson v Coulson (1887) 3 T.L.R. 846 ....................................................................... 22–50
Coulthard v Disco Mix Club Ltd [2000] 1 W.L.R. 707 ............................................... 26–15
Countryside Residential (North Thames) Ltd v Tugwell [2000] 34 EG 87 ................ 13–16
County Sound v Ocean Sound [1991] F.S.R. 367 ........................................................ 18–52
Coupe Co v Maddick [1891] 2 Q.B. 413 ...................................................................... 20–16
Courage Ltd v Crehan (C–453/99) [2002] Q.B. 507 .................................................... 18–1
Couzens v T. McGee & Co Ltd [2009] EWCA Civ 95 ............................................... 8–6
Covell v Laming (1808) 1 Camp. 497 .......................................................................... 17–3
Coward v Baddeley (1859) 4 H. & N. 478 ................................................................... 4–7
Cowell v Rosehill Racecourse Co Ltd (1937) 56 C.L.R. 605 ...................................... 13–10
Cox v Glue (1848) 5 C.B. 533 ...................................................................................... 13–6
Cox v Hockenhull [2000] 1 W.L.R. 750 ....................................................................... 23–12
Cox v Rolls Royce Industrial Power (India) Ltd [2007] EWCA Civ 1189 ................ 6–11
Coxall v Goodyear Great Britain Ltd [2002] EWCA Civ 1010; [2003] 1 W.L.R. 536 ... 5–71
Coxhead v Richards (1846) 2 C.B. 569 ........................................................................ 12–47
Craig v East Coast Bays CC [1986] N.Z.L.R. 99 ......................................................... 14–10
Craner v Dorset CC [2008] EWCA Civ 1323; [2009] I.C.R. 563 ............................... 8–5
CRE Retail Services Ltd v Taylor Young Partnership [2002] UKHL 17; [2002] 1
W.L.R. 1419 ............................................................................................................ 21–5
Cream Holdings Ltd v Bannerjee [2004] UKHL 44; [2005] 1 A.C. 253 ........ 12–86, 22–50
Credit Lyonnais Bank Nederland NV v ECGD [2000] 1 A.C. 486 ..................... 20–9, 21–2
Creed v McGeogh & Sons Ltd [1955] 1 W.L.R. 1005 ................................................ 9–28
Cressey v E Timm & Son Ltd [2005] EWCA Civ 763; [2005] 1 W.L.R. 3926 ......... 26–18
Cresswell v Eaton [1991] 1 W.L.R. 1113 ..................................................................... 23–15
Cresswell v Sirl [1948] 1 K.B. 241 ............................................................................... 16–14
Creutfeldt-Jakob Disease Litigation; Group B Plaintiffs, The v Medical Research
Council [2000] Lloyd’s Rep. Med. 161 ................................................................ 5–64
Cristina, The [1938] A.C. 485 ....................................................................................... 24–6
Crocker v British Coal (1996) 29 B.M.L.R. 159 ................................................ 26–7, 26–17
Crocker v Sundance Northwest Resorts (1988) 51 D.L.R. (4th) 321 .......................... 5–30
Crofter Hand-Woven Harris Tweed Co v Veitch [1942] A.C. 435 ....... 18–7, 18–21, 18–22,
18–23, 18–24, 18–27, 18–28, 18–32
Crogate v Morris (1617) 1 Brownl.197 ......................................................................... 15–20
Croke v Wiseman [1982] 1 W.L.R. 71 .............................................................. 22–20, 22–30
Crook v Derbyshire Stone Ltd [1956] 1 W.L.R. 432 ................................................... 20–10
Crookall v Vickers-Armstrong Ltd [1955] 1 W.L.R. 659 ............................................. 8–14
Cross v Davis Martin & Mortimer [1989] 10 E.G. 110 ............................................... 11–24
Cross v Highlands and Islands Enterprise [2001] I.R.L.R. 336 ............................. 5–71, 8–8
Cross v Kirkby, The Times, April 5, 2000 ....................................................... 25–22, 25–30
Crossland v Wilkinson Hardware Stores Ltd [2005] EWHC 481 ................................ 12–22
Crossley v Faithful & Gould Holdings Ltd [2004] EWCA Civ 293; [2004] I.C.R.
1615 ......................................................................................................................... 8–10
Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB) .................... 12–44
Crossley v Rawlinson [1982] 1 W.L.R. 369 ................................................................. 25–16
Croucher v Inglis (1889) 16 R. 774 .............................................................................. 12–47
Crowhurst v Amersham Burial Board (1878) 4 Ex. D.5 .................................... 15–6, 15–11
Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyd’s Rep. 533 .... 14–11, 14–15,
15–7, 15–8
Cruise v Express Newspapers Plc [1999] Q.B. 931 ..................................................... 12–28
Cullen v CC Royal Ulster Constabulary [2003] UKHL 39; [2003] 1 W.L.R. 1763 ..... 4–31,
7–4, 7–6, 7–9
Cullen v Trappell (1980) 29 A.L.R. 1 ........................................................................... 22–29
Culnane v Morris [2005] EWHC 2438, QBD .............................................................. 12–54
Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd 1993 S.L.T. 1318 ...... 9–5
Cumming v CC Northumbria [2003] EWCA Civ 1844 ............................................... 4–28
Cummings v Grainger [1977] Q.B. 397 ................................................................ 16–6, 16–8
Table of Cases xxxi
Davie v New Merton Board Mills [1969] A.C 604 .......................... 8–10, 8–12, 8–17, 10–7
Davies v Davies [1975] Q.B. 172 ................................................................................. 16–2
Davies v Marshall (1861) 10 C.B.(N.S.) 697 ............................................................... 13–10
Davies v Presbyterian Church [1986] 1 W.L.R. 323 ............................................ 20–3, 20–4
Davies v Solomon (1871) L.R. 7 Q.B. 112 .................................................................. 12–5
Davies v Swan Motor Co [1949] 2 K.B. 291 ............................................. 6–46, 6–47, 6–53
Davies v Taylor [1974] A.C. 207 ........................................................................ 6–15, 23–13
Davies v Whiteways Cyder Co Ltd [1975] Q.B. 262 ................................................... 23–12
Davies and Davies v Smith and Smith (1958) C.A. No. 34a ...................................... 22–19
Davis v Lisle [1936] 2 K.B. 434 ................................................................................... 9–6
Davis v New England College at Arundel [1977] I.C.R. 6 .......................................... 20–3
Davis v St Mary’s Demolition & Excavation Co Ltd [1954] 1 W.L.R. 592 ............... 9–28
Davis v Stena Line Ltd [2005] EWHC 420 (QB) ................................................ 5–27, 5–30
Davy-Chieseman v Davy-Chiesman [1984] Fam. 48 ................................................... 5–60
Dawkins v Lord Paulet (1869) L.R. 5 Q.B. 94 ............................................................. 12–43
Dawkins v Lord Rokeby (1875) L.R. 7 H.L. 744 ........................................................ 12–41
Dawnay Day & Co Ltd v Cantor Fitzgerald International [2000] R.P.C. 669 ............ 18–48
Dawson & Co v Bingley UDC [1911] 2 K.B. 149 ...................................................... 7–4
Dawson Bloodstock Agency v Mirror Newspapers [1979] 2 N.S.W.L.R. 733 ........... 12–11
Dawson v CC Northumbria [2009] EWHC 907 (QB) ................................................. 4–38
Day v Brownrigg (1878) 10 Ch.D. 294 ......................................................................... 18–46
De Sales v Ingrilli [2002] HCA 52, 193 A.L.R. 130 ................................................... 23–14
Dean v Allin & Watts [2001] EWCA Civ 758; [2001] 2 Lloyd’s Rep. 249 ...... 5–36, 5–59,
11–22
Dean v Hogg (1834) 10 Bing. 345 ................................................................................ 25–31
Deane v Clayton (1817) 7 Taunt. 489 ........................................................................... 25–31
Deatons Pty Ltd v Flew (1949) 79 C.L.R. 370 ............................................................ 20–14
De Beers Products Ltd v International General Electric Co of New York [1975] 1
W.L.R. 972 .............................................................................................................. 12–73
De Buse v McCarthy [1942] 1 K.B. 156 .......................................................... 12–49, 12–52
Deep Vein Thrombosis and Air Travel Group Litigation, Re [2005] UKHL 72; [2005]
3 W.L.R. 1320 ........................................................................................................ 1–38
De Francesco v Barnum (1890) 45 Ch.D. 430 .............................................................. 18–3
De Franco v MPC, The Times, May 8, 1987 ................................................................ 17–18
Dehn v Att-Gen [1988] 2 N.Z.L.R. 564 ............................................................ 13–11, 25–33
De Hoghton v Money (1866) L.R. 2 Ch. App. 164 ..................................................... 26–28
De Jetley Marks v Greenwood [1936] 1 All E.R. 863 ................................................. 18–25
De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914) 30 T.L.R. 257 ..................... 14–11
De La Bere v Pearson [1908] 1 K.B. 280 ..................................................................... 11–16
Delaney v T P Smith Ltd [1946] K.B. 393 ................................................................... 13–2
Delaware Mansions Ltd v Westminster CC [2001] UKHL 55; [2002] 1 A.C. 321 .... 14–13,
14–15, 22–4
Dellabarca v Storeman and Packers Union [1980] 2 N.Z.L.R. 734 ............................. 6–44
Deloitte Haskins & Sells v National Mutual Life Nominees [1993] A.C. 774 ........... 6–6
Delta Holdings Ltd v Magrum (1975) 59 D.L.R. (3d) 126 .......................................... 13–12
Dempsey v Waterford Corp [2008] IEHC 55 ..................................................... 14–13, 15–6
Denham v Midland Employers Mutual Assurance Ltd [1955] 2 G.B. 437 ................. 20–8
Dennis v Charnwood BC [1983] Q.B. 409 ................................................................... 9–38
Dennis v MoD [2003] EWHC 793, QB; [2003] Env L.R. 34 ........ 14–8, 14–15, 14–30, 14–32,
22–49
Department of Education v Thomas Bates & Son Ltd [1991] A.C. 499 ............. 9–33, 9–34
De Parell v Walker (1932) 49 T.L.R. 37 ....................................................................... 20–15
Dept of Natural Resources v Harper [2000] V.R. 1 ..................................................... 9–29
Dept of Transport v NW Water Authority [1983] 3 W.L.R. 105 ................................. 14–34
Dept of Transport v NW Water Authority [1984] A.C. 336 ........................................ 15–16
Derbyshire CC v Times Newspapers Ltd [1992] Q.B. 770, CA .................................. 2–8
Derbyshire CC v Times Newspapers Ltd [1993] A.C. 534 .......................................... 12–18
Dering v Uris [1964] 2 Q.B. 669 .................................................................................. 22–6
Derry v Peek (1889) 14 App. Cas. 337 ....................................... 11–2, 11–10, 11–14, 11–16
Design Properties Ltd v Thurloe Properties Ltd [2004] EWHC 324, Ch; [2004] 2 P. &
C.R. 594 ...................................................................................................... 22–10, 22–11
Table of Cases xxxiii
Douglas v Hello! Ltd (No 3) [2007] UKHL 21; [[2008] 1 A.C. 1 ..... 12–82, 12–83, 12–86
Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 Q.B. 738 ............ 17–13
Downs v Chappell [1997] 1 W.L.R. 426 ..................................... 11–12, 11–14, 11–15, 21–6
Downsview Nominees Ltd v First City Corp Ltd [1993] A.C. 295 ............................ 1–11
Doyle v Olby (Ironmongers) Ltd [1969] 2 Q.B. 158 ...... 6–19, 6–44, 11–14, 11–15, 22–16
Doyle v Wallace [1998] P.I.Q.R. Q146 ......................................................................... 6–15
Draon v France [2005] 3 F.C.R. 409; (2006) 42 E.H.R.R. 40 ..................................... 24–14
Draper v Hodder [1972] 2 Q.B. 556 ..................................................................... 6–21, 16–2
Drive Yourself Lessey’s Pty Ltd v Burnside [1959] S.R. (N.S.W.) 390 ..................... 9–24
Drummond-Jackson v BMA [1970] 1 W.L.R. 691 ....................................................... 12–11
Du Bost v Beresford (1801) 2 Camp. 511 .................................................................... 22–47
Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] A.C. 366 ... 20–9, 20–14, 21–6,
24–24
Ducharme v Davies [1984] 1 W.W.R. 699 .................................................................... 6–50
Duckworth v Johnson (1859) 29 L.J. Ex. 257 .............................................................. 23–12
Ducl v Mayeu [1892] 2 Q.B. 511 ................................................................................. 21–3
Dudarec v Andrews [2006] EWCA Civ 256 ................................................................ 6–8
Duffy v Thanet DC (1984) 134 N.L.J. 680 .................................................................. 20–12
Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689; [2003] I.C.R. 574 ........... 8–5
Duke of Brunswick v Harmer (1849) 14 Q.B. 185 ...................................................... 12–22
Dulieu v White [1901] 2 K.B. 669 .............................................................. 5–62, 5–63, 6–32
Dun & Bradstreet v Greenmoss Builders, 472 U.S. 749 (1985) .................................. 12–53
Duncan’s Hotel (Glasgow) Ltd v J & A Ferguson Ltd, 1972 S.L.T. (Notes) 84 ........ 14–19
Dunlop Rubber Co Ltd v Dunlop [1921] 1 A.C. 367 .................................................. 12–85
Dunlop v Macedo (1891) 8 T.L.R. 43 ........................................................................... 13–3
Dunlop v Maison Talbot (1904) 20 T.L.R. 579 ............................................................ 12–74
Dunlop v Woolahra MC [1982] A.C. 158 ............................................................. 1–15, 7–20
Dunne v NW Gas Board [1964] 2 Q.B. 806 ................. 15–3, 15–11, 15–14, 15–16, 15–18
Dunsmore v Milton [1938] 3 All E.R. 762 ................................................................... 26–7
Dunster v Abbott [1954] 1 W.L.R. 58 ........................................................................... 9–6
Duport Steels Ltd v Sirs [1980] 1 W.L.R. 142 ................................................. 18–37, 18–43
Durant v Childe (1611) 1 Brownl. 221 ......................................................................... 17–3
Durant v Financial Services Authority [2003] EWCA Civ 1746 ................................. 12–81
Durham v BAI (Run Off) Ltd [2008] EWHC 2692 (QB) ................................... 6–10, 6–11
Dutton v Bognor Regis UDC [1972] 1 Q.B. 373 ................................................. 9–34, 9–37
Dwan v Farquhar [1988] 1 Qd. R. 234 ......................................................................... 5–77
Dwek v Macmillan Publishers Ltd [2000] E.M.L.R. 284 ............................................ 12–19
Dwyer v Esmonde (1873) 2 L.R. Ir. 243 ...................................................................... 12–53
Dwyer v Mansfield [1946] K.B. 437 ............................................................................. 14–39
Dyer v Munday [1895] 1 Q.B. 742 ..................................................................... 4–14, 20–14
Dyer v Pearson (1824) 3 B. & C. 38 ............................................................................ 17–8
Dymond v Pearce [1972] 1 Q.B. 496 ............................................................................ 14–38
Dynen v Leach (1857) 26 L.J.(N.S.) Ex. 221 ............................................................... 8–2
EETPU v Times Newspapers Ltd [1980] Q.B. 585 ...................................................... 18–35
Eagle Star Insurance Co v Gale & Power (1955) 166 E.G. 37 ................................... 21–5
Eagle v Chambers [2004] EWCA Civ 1033; [2004] 1 W.L.R. 3081 ....... 22–26, 22–28, 22–35,
22–36
Eaglesfield v Marquis of Londonderry (1876) 4 Ch.D. 693 ......................................... 11–7
Easson v LNER [1944] 2 K.B. 421 ............................................................................... 5–89
East River Steamship Corp v Transamerica Delaval Inc 476 US 858 (1986) ............ 10–10
East Suffolk Rivers Catchment Board v Kent [1941] A.C. 74 ............................ 5–27, 5–33
East v Beavis Transport Ltd [2001] UKHL 22; [2002] 1 A.C. 215 ............................ 20–11
East v Maurer [1991] 1 W.L.R. 461 ........................................................................ 1–7, 5–34
East West Corp v DKBS 1912 [2003] EWCA Civ 83; [2003] Q.B. 1509 .......... 5–40, 17–4
Eastern and South African Telegraph Co Ltd v Cape Town Tramways Cos Ltd [1902]
A.C. 381 .............................................................................................. 14–9, 15–6, 15–18
Eastern Asia Navigation Co Ltd v Freemantle (1951) 83 C.L.R. 353 ........................ 15–11
Eastern Construction Co Ltd v National Trust [1914] A.C. 197 ................................. 17–19
Eastern Express Publisher Ltd v Mo [1999] 3 H.K.L.R.D. 530 ................................... 12–35
Eastgate Group Ltd v Lindsey Morden Group Inc [2001] EWCA Civ 1446 ............. 21–5
Eastman v London Country Bus Services, The Times, November 23, 1985 .............. 26–20
Table of Cases xxxv
Esso Petroleum Co Ltd v Mardon [1976] Q.B. 801 ......................................... 11–18, 11–21
Esso Petroleum Co Ltd v Southport Corp [1956] A.C. 218 ...................... 2–2, 14–1, 25–33
Esterhuizen v Allied Dunbar Assurance Plc [1998] 2 F.L.R. 668 ............................... 5–59
Ettingshausen v Australian Consolidated Press (1991) 23 N.S.W.L.R. 443 ................ 12–79
European Commission v UK [1997] All E.R. (E.C.) 481 ............................................ 10–23
Evans v Kosmar Villa Holidays plc [2007] EWCA Civ 1003; [2008] 1 W.L.R. 297 ...... 9–17
Evans v London Hospital Medical College [1981] 1 W.L.R. 184 ..................... 5–60, 12–41
Evans v Triplex Safety Glass Co [1936] 1 All E.R. 283 ..................................... 10–1, 10–7
Everett v Ribbands [1952] 2 Q.B. 198 .......................................................................... 19–6
Everitt v Martin [1953] N.Z.L.R. 29 ................................................................... 14–38, 17–3
Exel Logistics Ltd v Curran [2004] EWCA Civ 1249 ................................................. 7–9
Express and Echo Publications Ltd v Tanton [1999] I.R.L.R. 367 .............................. 20–5
Express and Star Newspapers v NGA (1982) [1985] I.R.L.R. 455 ............................. 18–35
Express Newspapers Ltd v McShane [1980] A.C. 672 ................................................ 18–37
F (in utero), Re [1988] Fam. 122 .................................................................................. 4–8
F v West Berkshire HA [1990] 2 A.C. 1 ...................................................................... 4–7
F v Wirral MBC [1991] Fam. 69 .............................................................. 11–14, 18–1, 18–8
FFSB Ltd v Seward & Kissel LLP [2007] UKPC 16 .................................................. 21–6
Fabri v Morris [1947] 1 All E.R. 315 ........................................................................... 14–39
Fagan v Goodman, unreported, November 30, 2001 (QB) .......................................... 5–63
Fagan v MPC [1969] 1 A.B. 439 .................................................................................. 4–6
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 A.C. 32 .... 2–17, 6–9,
6–10, 6–11, 6–13, 9–2, 9–3, 9–16, 21–1
Fairclaim v Shamtitle (1762) 3 Burr. 1290 ................................................................... 13–15
Fairline Shipping Corp v Adamson [1975] Q.B. 180 ............................. 9–24, 17–11, 24–23
Faleigh v Goschen [1898] 1 Ch. 73 .............................................................................. 24–2
Fallas v Mourlas [2006] NSWCA 32 ............................................................................ 25–11
Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236 ....................... 9–36
Farah v British Airways, The Times, January 26, 2000, CA ................................ 2–5, 11–35
Farah v MPC [1998] Q.B. 65 ................................................................................ 2–18, 20–7
Fardon v Harcourt-Rivington (1932) 146 L.T. 391 .................................. 5–83, 16–2, 25–27
Farley v Skinner [2001] UKHL 49 ....................................................................... 5–62, 5–72
Farmer Giles v Wessex Water [1990] E.G. 102 ............................................................ 22–44
Farmer v Hunt (1610) 1 Brownl. 220 ........................................................................... 17–3
Farmer v Hyde [1937] 1 K.B. 728 ................................................................................ 12–44
Farnworth v Manchester Corp [1929] 1 K.B. 533 ........................................................ 25–38
Farraj v Kings Healthcare NHS Trust [2009] EWCA Civ 1203 .................................. 20–6
Farrant v Thompson (1822) 5 B. & Ald. 826 ............................................................... 17–8
Farrell v John Mowlem & Co Ltd [1954] 1 Lloyd’s Rep. 437 ................................... 14–39
Farrer v Nelson (1885) 15 Q.B.D. 258 .......................................................................... 16–2
Farrington v Leigh, The Times, December 10, 1987 .................................................... 12–21
Farrugia v GW Ry [1947] 2 All E.R. 565 .................................................................... 13–5
Fashion Brokers Ltd v Clarke Hayes [2000] Lloyd’s Rep. P.N. 398 .......................... 11–20
Faulkner v Willetts [1982] R.T.R. 159 .......................................................................... 9–6
Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd [1991] 2
S.A.L.R. .................................................................................................................. 20–15
Fawcett v Smethurst (1915) 84 L.J.K.B. 473 ............................................................... 24–17
Fay v Prentice (1845) 1 C.B. 828 ................................................................................. 14–28
Fayed v Al-Tajir [1988] Q.B. 712 ................................................................................. 12–43
Fayed v MPC [2004] EWCA Civ 1579 ................................................................ 4–23, 4–24
Fellows v Fisher [1976] Q.B. 122 ................................................................................. 22–50
Femis-Bank (Anguilla) Ltd v Lazar [1991] Ch. 391 .................................................... 22–50
Fenn v Peterborough CC (1976) 73 D.L.R. (3d) 177 ................................................... 5–67
Fennell v Robson Excavations Pty Ltd [1977] 2 N.S.W.L.R. 486 ............................... 14–17
Fennelly v Connex South Eastern [2001] I.R.L.R. 390 ................................................ 20–14
Fennings v Grenville (1808) 1 Taunt. 241 .................................................................... 17–15
Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46; [2010] 1 W.L.R. 785 .... 4–38
Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 W.L.R. 1213 ......... 20–3
Ferguson v Welsh [1987] 1 W.L.R. 1553 ....................... 9–6, 9–8, 9–14, 9–16, 9–22, 20–12
Fetter v Beale (1701) 1 Ld.Raym. 339 ......................................................................... 22–2
Fiala v Cechmanek (2001) 201 D.L.R. (4th) 680 ......................................................... 24–26
Table of Cases xxxvii
Frank Warr & Co Ltd v LCC [1904] 1 K.B. 713 ......................................................... 13–10
Franklin v Att-Gen [1974] Q.B. 185 ............................................................................. 24–2
Franklin v SE Ry (1858) 3 H. & N. 211 .......................................................... 23–12, 23–13
Frans Maas (UK) Ltd v Samsung Electronics (UK) Ltd [2004] EWHC 1502 (Comm)
[2004] 2 Lloyd’s Rep. 251 ................................................................................... 11–30
Fraser v McArthur Stewart [2008] CSOH 159; 2009 S.L.T. 31 .................................. 5–59
Fraser v State Hospitals Board for Scotland, 2001 S.L.T. 1051 .................................. 5–71
Freeman and Lockyer (A Firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2
Q.B. 480 .................................................................................................................. 20–17
Freeman v Higher Park Farm [2008] EWCA Civ 1185 ....................................... 16–6, 16–8
Freeman v Home Office (No 2) [1984] Q.B. 524 ........................................................ 25–3
Freeman v Lockett [2006] EWHC 102 (QB) ...................................................... 1–19, 22–24
Freidin v St Laurent [2007] VSCA 16 .......................................................................... 6–9
French v CC Sussex [2006] EWCA Civ 312 ............................................................... 5–69
French v Sunshine Holiday Camp (Hayling Island) Ltd (1963) 107 S.J. 595 ............ 6–50
French v Sussex CC [2004] EWHC 3217, QB; [2005] P.I.Q.R. P18 .......................... 8–14
Friends’ Provident Life Office v Hillier Parker & Rowden [1997] G.B. 85 ............... 21–5
Froggatt v Chesterfield and North Derbyshire NHS Trust, unreported, December 13,
2002, QB ................................................................................................................. 5–67
Froom v Butcher [1976] Q.B. 286 .............................................................. 6–46, 6–48, 6–53
Frost v CC South Yorkshire [1999] 2 A.C. 455 ... 3–6, 3–7, 5–10, 5–61, 5–63, 5–65, 5–69,
5–72, 6–32, 24–15, 25–14
Fryer v Pearson, The Times, April 4, 2000 ................................................................... 5–89
Fullam v Newcastle Chronicle [1977] 1 W.L.R. 651 ................................................... 12–16
Fullowka v Royal Oak Ventures Inc [2008] NWTCA 4; [2008] 7 W.W.R. 411 ........ 5–77
Furniss v Fitchett [1958] N.Z.L.R. 396 ................................................................. 1–15, 5–73
Fytche v Wincanton Logistics Ltd [2004] UKHL 31; [2004] I.C.R. 975 ............. 7–14, 8–7
G E Commercial Finance Ltd v Gee [2005] EWHC 2056 (QB) ....................... 11–2, 11–10
GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd [2000] 1 W.L.R. 2571 ...... 12–49
GNER v Hart [2003] EWHC 2450, QB ........................................................................ 21–1
GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 T.L.R. 376 ................................. 17–3, 18–9
Gaca v Pirelli General Plc [2004] EWCA Civ 373 ...................................................... 22–32
Galashiels Gas Co v Millar [1949] A.C. 275 ............................................... 6–18, 7–15, 8–6
Galli-Atkinson v Seghal [2003] EWCA Civ 697; [2003] Lloyd’s Rep.Med 285 ....... 5–67
Galliford Try Infrastructure Ltd v Mott MacDonald Ltd [2008] EWHC 1570 (TCC) .... 11–21
Galloway v Bird (1827) 4 Bing. 299 ............................................................................ 17–32
Galloway v Telegraph Group Ltd [2006] EWCA Civ 17 .................... 12–33, 12–53, 12–70
Galoo Ltd v Bright Grahame Murray [1994] 1 W.L.R. 1360 ...................................... 11–27
Gammell v Wilson [1982] A.C. 27 ............................................................................... 22–30
Gandel v Mason [1953] 3 D.L.R. 65 ............................................................................. 14–9
Gandy v Jubber (1865) 5 B. & S. 485 9 B. & S. 15 ................................................... 14–26
Garbett v Hazell, Watson and Viney Ltd [1943] 2 All E.R. 359 ................................. 12–15
Garden Cottage Foods Ltd v Milk Marketing Board [1984] A.C. 130 ..... 7–10, 7–12, 18–1
Gardiner v Moore [1969] 1 Q.B. 55 ............................................................................. 21–3
Gargreaves v Bretherton [1959] 1 Q.B. 45 ................................................................... 7–11
Garrett v Att-Gen [1993] 3 N.Z.L.R. 600 ..................................................................... 7–20
Gartside v Sheffield [1983] 1 N.Z.L.R. 37 ................................................................... 5–37
Gautret v Egerton (1867) L.R. 2 C.P. 371 .................................................................... 10–3
Gawler v Raettig [2007] EWHC 373 (QB) ................................................................... 6–53
Gayler and Pope Ltd v Davies & Son Ltd [1924] 2 K.B. 75 ...................................... 16–10
Gaynor v Allen [1959] 2 Q.B. 1034 ............................................................................. 5–85
Gazelle, The (1844) 2 W.Rob.(Adm.) 279 .................................................................... 22–45
Geddis v Proprietors of the Bann Reservoir (1878) 3 App. Cas. 430 ................... 5–46, 7–3
Geest Plc v Lansiquot [2002] UKPC 48; [2002] 1 W.L.R. 3111 ................................ 6–33
General and Finance Facilities Ltd v Cook Cars (Romford) Ltd [1963] 1 W.L.R. 644 ... 17–29
General Engineering Services Ltd v Kingston and St Andrew Corp [1988] 3 All E.R.
867 ........................................................................................................................... 20–12
George and Richard, The (1871) L.R. Ad. & E. 466 ....................................... 23–10, 24–13
George v Coastal Marine 2004 Ltd [2009] EWHC 816 (Admlty); [2009] 2 Lloyd’s
Rep 356 ................................................................................................................... 9–3
George v Eagle Air Services [2009] UKPC 21 ............................................................ 5–89
Table of Cases xxxix
HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6;
[2003] 2 Lloyd’s Rep. 61 ....................................................................................... 11–30
H N Emanuel Ltd v GLC [1971] 2 All E.R. 835 ............................................. 15–20, 20–25
H West & Son Ltd v Shephard [1964] A.C. 326 ...................... 22–16, 22–19, 22–20, 22–21
Habib Bank v Habib Bank AG Zurich [1981] 1 W.L.R. 1265 .................................... 18–46
Hackshaw v Shaw (1984) 155 C.L.R. 614 .................................................................... 4–35
Haddow v Secretary of State for the Environment [2000] Env L.R. 212 ................... 11–20
Hadmor Productions Ltd v Hamilton [1983] 1 A.C. 191 ................................. 18–38, 18–40
Hagen v ICI [2002] I.R.L.R. 31 ........................................................................ 11–12, 11–21
Hahn v Conley (1971) 126 C.L.R. 378 ......................................................................... 5–29
Haigh v Royal Steam Packet Co Ltd (1883) 52 L.J.Q.B. 640 ..................................... 23–11
Haines v Florensa (1990) 8 E.G. 7 ................................................................................ 13–7
Hale v Jennings Bros [1938] 1 All E.R. 579 ........................................................ 15–6, 15–9
Haley v London Electricity Board [1965] A.C. 778 ......................... 5–22, 5–84, 5–86, 6–48
Halford v Brooks [1991] 1 W.L.R. 428 ........................................................................ 1–2
Halford v UK (1997) 24 E.H.R.R. 523 ......................................................................... 2–8
Hall v Barclay [1937] 3 All E.R. 620 ........................................................................... 17–27
Hall v Brooklands Auto Racing Club [1933] 1 K.B. 205 ............................................ 3–6
Hall v Duke of Norfolk [1900] 2 Ch. 165 .................................................................... 14–23
Hall v Gwent Healthcare NHS Trust [2005] EWCA Civ 919 ............................. 4–37, 5–71
Hall v Hebert [1993] 2 S.C.R. 159 .................................................................... 25–20, 25–21
Hall v Holker Estate Co Ltd [2008] EWCA Civ 1422 ................................................ 5–90
Hall v Lorimer 1992 S.T.C. 599 .................................................................................... 20–4
Hall v Woolston Hall Leisure Ltd [2001] 1 W.L.R. 225 .............................................. 25–22
Halsey v Esso Petroleum Co Ltd [1961] 1 W.L.R. 683 ....................................... 14–1, 14–7
Hamble Fisheries Ltd v Gardner [1999] 2 Lloyd’s Rep. 1 ...................... 10–3, 11–8, 11–23
Hambley v Shepley (1967) 63 D.L.R. (2d) 94 .............................................................. 25–12
Hambley v Trott (1776) 1 Cowp. 371 ........................................................................... 25–36
Hamilton Jones v David & Snape [2003] EWHC 3147; [2004] 1 W.L.R. 924 .......... 18–1
Hamilton v Al-Fayed [2001] A.C. 395 ............................................................. 12–39, 19–15
Hamilton v Clifford [2004] EWCA Civ 1407 .............................................................. 12–33
Hamilton v Papakura DC [2000] 1 N.Z.L.R. 265 ............................................... 14–14, 15–3
Hamps v Darby [1948] 2 K.B. 311 ............................................................................... 16–14
Hampstead Heath Winter Swimming Club v London Corp [2005] EWHC 713
(Admin); [2005] 1 W.L.R. 2930 .................................................................... 1–45, 9–17
Hampton v Minns [2001] 1 W.L.R. ............................................................................... 21–5
Hanbury v Hanbury (1892) 8 T.L.R. 559 ...................................................................... 24–26
Hancock v BW Brazier (Anerley) Ltd [1966] 1 W.L.R. 1317 ............................. 9–32, 9–38
Handcock v Baker (1800) 2 Bos. & P. 260 .................................................................. 13–11
Hankinson v Bilby (1847) 16 M. & W. 422 ................................................................. 12–16
Hannah v Peel [1945] K.B. 509 .................................................................................... 17–21
Hanrahan v Ainsworth (1990) 22 N.S.W.L.R. 73 ......................................................... 19–14
Hanson v Bloom Camillin (No.2) [2000] Lloyd’s Rep. P.N. 89 .................................. 6–15
Hanson v Waller [1901] 1 Q.B. 390 .............................................................................. 20–11
Harbutt’s ‘‘Plasticine’’ Ltd v Wayne Tank & Pump Co Ltd [1907] 1 Q.B. 447 .... 22–44, 22–45
Hardaker v Idle D C [1896] 1 Q.B. 335 ............................................... 20–21, 20–24, 20–27
Hardie & Lane Ltd v Chilton [1928] 2 K.B. 306 ......................................................... 3–6
Hardwick v Hudson [1999] 1 W.L.R. 1770 .................................................................. 22–37
Hargreave v Goldman (1963) 37 A.L.J.R. 277 ............................................................. 14–4
Hargreaves v Bretherton [1959] 1 Q.B. 45 ....................................................... 19–14, 24–10
Harnett v Bond [1925] A.C 669 .................................................................................... 6–36
Harper v Charlesworth (1825) 4 B. & C. 574 .............................................................. 13–16
Harper v Haden & Sons Ltd [1933] Ch. 298 ................................................................ 14–38
Harrhy v Thames Trains Ltd [2003] EWHC 2286 (QB) .............................................. 5–69
Harris v Birkenhead Corp [1976] 1 W.L.R. 279 ..................................................... 9–4, 9–25
Harris v Brights Asphalt Contractors [1953] 1 Q.B. 617 ................................... 8–10, 22–36
Harris v Digital Pulse Pty Ltd [2003] N.S.W.C.A. 10, 44 A.C.S.R. 390 .................... 22–12
Harris v Empress Motors Ltd [1983] 3 All E.R. 561 ....................................... 22–30, 23–15
Harris v Evans [1998] 1 W.L.R. 1285 ........................................................................... 11–20
Harris v James (1876) 45 L.J.Q.B. 545 ......................................................................... 14–25
Harris v Wyre Forest DC [1990] 1 A.C. 831 ............................................................... 11–19
Table of Cases xliii
Harrison v British Railways Board [1981] 3 All E.R. 679 .......................................... 25–17
Harrison v Bush (1855) E. & B. 355 ............................................................................ 12–48
Harrison v Duke of Rutland [1893] 1 Q.B. 142 ........................................................... 13–5
Harrison v Michelin Tyre Co Ltd [1985] I.C.R. 696; [1985] 1 All E.R. 918 ... 8–11, 20–12
Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch. 409 ................... 14–11, 14–12
Harrison v Vincent [1982] R.T.R. 8 .............................................................................. 25–13
Harriton v Stephens [2004] N.S.W.C.A. 93 .................................................................. 24–14
Harrods Ltd v Harrodian School [1996] R.P.C. 697 ..................................................... 18–48
Hartley Poynton Ltd v Ali [2005] V.S.C.A. 53 ............................................................ 23–5
Hartley v Mayoh & Co [1954] 1 Q.B. 383 ................................................................... 7–13
Hartman v South Essex Mental Health etc. NHS Trust [2005] EWCA Civ 6; [2005]
I.R.L.R. 293 .................................................................................................... 5–69, 5–71
Hartwell v Att-Gen [2004] UKPC 12; [2004] 1 W.L.R. 1273 ........................... 20–1, 20–14
Hartwell v Grayson Rollo and Clover Docks Ltd [1947] K.B. 901 ............................ 9–4
Harvey v O’Dell Ltd [1958] 2 Q.B. 78 ............................................................. 20–10, 20–18
Harvey v Plymouth CC, unreported, November 13, 2009 ........................................... 9–4
Harvey v Pocock (1843) 11 M. & W. 740 .................................................................... 13–12
Haseldine v Daw [1941] 2 K.B. 343 ................................................... 9–1, 9–15, 10–3, 10–5
Hasselblad (GB) Ltd v Orbinson [1985] Q.B. 475 ........................................... 12–41, 12–43
Hatton v Sutherland [2002] EWCA Civ 76; [2002] I.R.L.R. 613 ....... 5–68, 5–71, 8–10, 8–15,
8–16, 21–1
Hatton v UK (2003) 37 E.H.R.R. 28 ............................................................................. 14–35
Haward v Fawcetts [2006] UKHL 9 ................................................................. 26–10, 26–18
Hawkes Bay Protein Ltd v Davidson [2003] N.Z.L.R. 536 ............................... 14–7, 14–15
Hawkins v Coulsdon & Purley UDC [1954] 1 Q.B. 319 ......................................... 3–6, 9–4
Hawkins v Ian Ross (Castings) Ltd [1970] 1 All E.R. 180 ....................... 6–48, 6–52, 8–14
Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 ............................ 20–8, 21–6, 22–11
Hay v Australasian Institute (1906) 3 C.L.R. 1002 ...................................................... 12–65
Hay v Hughes [1975] Q.B. 790 ............................................................. 23–12, 23–15, 23–16
Hayden v Hayden [1992] 1 W.L.R. 986 ....................................................................... 23–16
Hayes v Leo Scaffolding Ltd, unreported, December 3, 1996, CA ................... 10–2, 10–25
Haygarth v Wearing (1871) L.R. 12 Eq. 320 ................................................................ 11–5
Haynes v Harwood [1935] 1 K.B. 147 .......................... 6–39, 25–14, 25–15, 25–16, 25–17
Haystead v CC Derbyshire [2000] 2 Cr. App. R. 339 .................................................. 4–6
Hayward v Thompson [1982] Q.B. 47 .......................................................................... 12–19
Hazell v British Transport Commission [1958] 1 W.L.R. 169 ..................................... 5–83
Healey v Healey [1915] 1 K.B. 938 .............................................................................. 17–17
Heap v Ind Cooper & Allsop Ltd [1940] 2 K.B. 476 .................................................. 14–27
Heaps v Perrite Ltd [1937] 2 All E.R. 60 ..................................................................... 22–20
Hearty v Shine (1878) 14 Cox CC ................................................................................ 25–5
Heasman v Clarity Cleaning Co [1987] I.C.R. 949 ...................................................... 20–15
Heath v Heape (1859) 1 H. & N. 478 ........................................................................... 19–11
Heath v Mayor of Brighton (1908) 98 L.T. 718 ........................................................... 14–9
Heath v MPC [2004] EWCA Civ 943 .......................................................................... 12–41
Heath’s Garage Ltd v Hodges [1916] 2 K.B. 370 ........................................................ 7–9
Heaton v Axa Equity & Law [2002] UKHL 15; [2002] 2 A.C. 329 .......................... 21–3
Heatons Transports (St Helens) Ltd v TGWU [1973] A.C. 15 .................................... 20–19
Heaven v Pender (1883) 11 Q.B.D. 503 ....................................................................... 5–5
Hebditch v MacIlwaine [1894] 2 Q.B. 54 ..................................................................... 12–49
Hebridean Coast, The [1961] A.C. 545 ............................................................. 22–15, 22–43
Hedley Byrne & Co v Heller & Partners Ltd [1964] A.C. 465 ...... 1–5, 1–14, 5–3, 5–11, 5–34,
5–37, 5–44, 11–2, 11–16, 11–17, 11–18, 11–19, 11–20,
11–21, 11–24, 11–25, 11–27, 11–29, 11–30, 11–32, 11–34,
26–11, 26–12, 26–13
Hegarty v E.E. Caledonia Ltd [1997] 2 Lloyd’s Rep 259 ........................................... 5–63
Hegel v Langsam, 273 N.E. 2d 351 (1971) .................................................................. 5–29
Heil v Rankin [2001] P.I.Q.R. Q16 ....................................................... 22–16, 22–19, 22–22
Heller v Bianco, 244 P. (2d) 757 (Cal. 1952) ............................................................... 12–19
Hellewell v CC Derbyshire [1995] 4 All E.R. 473 ...................................................... 12–82
Hellwig v Mitchell [1910] 1 K.B. 609 .......................................................................... 12–7
Hemming v Stoke Poges Golf Club [1920] 1 K.B. 720 ............................................... 13–14
xliv Table of Cases
Henderson v
CC Cleveland [2001] EWCA Civ 335; [2001] 1 W.L.R. 1103 ............. 24–11
Henderson v
Henderson (1843) 3 Hare 100 ................................................................. 22–3
Henderson v
Henry E Jenkins & Sons [1970] A.C. 282 .............................................. 5–90
Henderson v
Merrett Syndicates Lt [1995] 2 A.C. 145 ..... 1–6, 1–8, 1–9, 1–11, 2–17, 5–8,
5–34, 5–35, 5–36, 5–44, 5–58, 6–48, 11–21, 11–23
Henderson v Radio Corp Pty Ltd [1960] M.S.W.R. 576 .............................................. 18–49
Henley v Cameron (1949) 118 L.J.K.B. 989 ................................................................ 14–38
Henningsen v Bloomfield Motors, 161 A 2d 69 (1960) ............................................... 10–12
Henry Ansbacher & Co Ltd v Brinks Stern, The Times, June 26, 1997 ........... 11–9, 11–13
Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 A.C. 31 ................... 10–23
Henry v BBC [2005] EWHC 2787 (QB) ...................................................................... 12–60
Henser-Leather v Securicor Cash Services Ltd [2002] EWCA Civ 816 ..................... 8–7
Henville v Walker [2001] HCA 52 ................................................................................ 6–7
Hepburn v A Tomlinson (Hauliers) Ltd [1966] A.C. 451 ............................................ 17–19
Hepburn v CC Thames Valley [2002] EWCA Civ 1841 ......................... 4–12, 4–15, 25–30
Herald of Free Enterprise, The, The Independent, December 18, 1987 ...................... 5–79
Heranger (Owners) v SS Diamond [1939] A.C. 104 .................................................... 6–42
Herbage v Pressdom Ltd [1984] 1 W.L.R. 1160 .............................................. 12–30, 22–50
Herbert v Misuga (1994) 111 D.L.R. (4th) 193 ............................................................ 4–12
Hercules Managements v Ernst & Young (1997) 146 D.L.R. (4th) 577 ........... 5–17, 11–25
Herd v Weardale Steel Co Ltd [1995] A.C. 67 .................................................... 4–20, 4–22
Herdman v Walker (Tooting) Ltd [1956] 1 W.L.R. 209 ............................................... 20–8
Herniman v Smith [1938] A.C. 305 .................................................. 19–5, 19–7, 19–8, 19–9
Herring v Boyle (1834) 1 Cr.M. & R. 377 ................................................................... 4–16
Herring v MoD [2003] EWCA Civ 528; [2004] 1 All E.R. 44 ..................... 22–26, 22–27
Herschtal v Stewart & Ardern [1940] 1 K.B. 155 ........................................................ 10–5
Hetherington v NE Ry (1882) 9 Q.B.D. 160 ................................................................ 23–13
Hevican v Ruane [1991] 3 All E.R. 65 ......................................................................... 5–68
Hewett v Alf Brown’s Transport [1992] I.C.R. 530 ..................................................... 5–21
Hewison v Meridian Shipping Services Pte Ltd [2002] EWCA Civ 1821; [2003] I.C.R.
766 ............................................................................................................... 25–22, 25–23
Hewitt v Bonvin [1940] 1 K.B. 188 .............................................................................. 20–19
Hewitt v Grunwald [2004] EWHC 2959 ....................................................................... 12–52
Hey v Moorhouse (1839) 6 Bing. N.C. 52 ................................................................... 13–4
Hickman v Maisey [1900] 1 Q.B. 752 .......................................................................... 13–5
Hicks v British Transport Commission [1958] 1 W.L.R. 493 ...................................... 6–52
Hicks v CC South Yorkshire [1992] All E.R. 65 ................ 4–37, 5–62, 5–66, 22–19, 23–5
Hicks v Faulkner (1878) 8 Q.B.D. 167 ..................................................... 19–8, 19–9, 19–11
Higbid v Hammett (1932) 49 T.L.R. 104 ...................................................................... 20–10
Highington v Ontario (1989) 61 D.L.R. (4th) 190 ........................................................ 15–24
Highland Leasing v Paul Field [1986] 2 C.L. 276 ....................................................... 17–30
Hilal v Secretary of State for Defence [2009] EWHC 397 (QB) ................................ 24–4
Hilberry v Hatton (1864) 2 H. & C. 822 ...................................................................... 17–8
Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1 W.L.R. 1434 ........ 5–84,
14–11, 14–16
Hill v CC West Yorkshire [1989] A.C. 53 .... 2–13, 5–11, 5–17, 5–19, 5–20, 5–31, 5–33, 5–53
Hill v Church of Scientology (1995) 126 D.L.R. (4th) 129 ................. 12–68, 22–10, 22–12
Hill v Hamilton-Wentworth Regional Police Services Board [2007] SCC 41 ... 5–20, 5–53,
19–1, 19–12
Hill v J Crowe (Cases) [1978] 1 All E.R. 812 ............................................................. 10–7
Hill v Van Erp [1997] 142 A.L.R. 687 ....................................................... 5–17, 5–37, 5–38
Hillen v ICI (Alkali) Ltd [1936] A.C. 65 ............................................................... 9–6, 13–4
Hillesden Securities Ltd v Ryjack Ltd [1983] 1 W.L.R. 959 ....................................... 17–29
Hillier v Air Ministry [1962] C.L.Y. 2084 .................................................................... 15–6
Hills v Potter [1984] 1 W.L.R. 641 ............................................................................... 25–4
Hill-Venning v Beszant [1950] 2 All E.R. 1151 ........................................................... 14–38
Hillyer v St Barthoomew’s Hospital [1909] 2 K.B. 820 .............................................. 20–6
Hilton Press v White Eagle Youth Holiday Camp (1951) 68 R.P.C. 126 ................... 18–48
Hilton v Thomas Burton (Rhodes) Ltd [1961] 1 W.L.R. 705 ...................................... 20–10
Hinds v Liverpool County Court [2008] EWHC 665 (QB) ................................. 18–1, 24–9
Hinds v Sparks [1964] Crim. L.R. 717 ......................................................................... 12–29
Table of Cases xlv
Hopps v Mott Macdonald Ltd [2009] EWHC 1881 (QB) ........................................... 1–45
Hopwood v Muirson [1945] K.B. 313 .......................................................................... 12–10
Horkin v Melbourne Football Club [1983] V.R. 153 ................................................... 6–44
Hornal v Neuberger Products Ltd [1957] 1 Q.B. 247 ........................................ 11–2, 11–15
Horne v Lec Refrigeration Ltd [1965] 2 All E.R. 898 ................................................. 6–46
Horrocks v Lowe [1975] A.C. 135 .................................................................... 12–51, 12–63
Horsefall v Haywards [1999] Lloyd’s Rep. P.N. 332 ................................................... 5–59
Horsford v Bird [2006] UKPC 3 ................................................................................... 13–14
Horsham Properties Group Ltd v Clark [2008] EWHC 2327 ...................................... 13–14
Horsley v Cascade Insulation Services Ltd [2009] EWHC 2945 (QB) ....................... 21–1
Horsley v McLaren (The Ogopogo) [1971] 2 Lloyd’s Rep. 410 ................................. 5–30
Horton v Evans [2006] EWHC 2808 (QB) ................................................................... 6–37
Horton v Sadler [2006] UKHL 27; [2007] 1 A.C. 307 .................................... 26–20, 26–21
Horton v Taplin Contracts Ltd [2002] EWCA Civ 1604; [2003] I.C.R. 179 .............. 7–16
Horwell v LGO Co (1887) 2 Ex.D. 365 ........................................................................ 21–4
Hosking v Runting [2004] NZCA 34; [2005] 1 N.Z.L.R. 1 ........................................ 12–85
Hospital Products Ltd v US Surgical Corp (1984) 55 A.L.R. 417 .............................. 22–13
Hotson v East Berkshire Health Authority [1987] A.C. 750 ..................... 6–13, 6–14, 6–15
Hough v London Express Newspaper [1940] 2 K.B. 507 ................................ 12–11, 12–12
Houghton v Pilkington [1912] 3 K.B. 308 .................................................................... 20–11
Hounslow v Twickenham Garden Developments Ltd [1971] Ch. 233 ........................ 13–10
Housecroft v Burnett [1986] 1 All E.R. 332 ............................. 22–36, 22–37, 22–37, 22–38
Houston v Smith, The Times, October 26, 1991 ........................................................... 12–10
Howard Marine and Dredging Co Ltd v A Ogden (Excavations) Ltd [1978] Q.B.
801 ................................................................................................... 11–18, 11–21, 11–24
Howard Perry & Co Ltd v B R B [1980] 1 W.L.R. 1375 ......... 17–5, 17–12, 17–14, 17–32
Howard v Furness-Houlder Argentine Lines Ltd [1936] 2 All E.R. 296 .......... 10–3, 15–11
Howard v Harris (1884) Cababe & Ellis 253 ............................................................... 17–9
Howard v Walker [1947] 2 All E.R. 197 ...................................................................... 14–4
Howe v Lees (1910) 11 C.L.R. 361 .............................................................................. 12–48
Howell v Young (1826) 5 B. & C. 259 ........................................................................ 26–9
Howkins & Harrison v Tyler [2001] Lloyd’s Rep. P.N. 1, CA ................................... 21–5
Howlett v Holding [2006] EWHC 41, QB .......................................................... 4–38, 22–50
Hubbard v Pitt [1976] Q.B. 142 .......................................................................... 13–5, 14–39
Hubbuck & Sons Ltd v Wilkinson [1899] 1 Q.B. 86 ................................................... 12–73
Huckle v Money (1763) 2 Wils. 205 ............................................................................. 22–10
Hudson v Nicholson (1839) 5 M. & W. 437 ........................................................ 13–8, 22–4
Hudson v Ridge Manufacturing Co [1957] 2 Q.B. 348 ............................................... 8–11
Hughes v Dyeball (1829) Moo. & M 346 .................................................................... 13–16
Hughes v Lord Advocate [1963] A.C. 837 ................................................................... 6–20
Hughes v McKeown [1985] 1 W.L.R. 963 ................................................................... 22–38
Hughes v Percival (1883) 8 App. Cas. 443 ...................................................... 20–21, 20–23
Hughes v Richards [2004] EWCA Civ 266; [2004] P.N.L.R. 35 ........................ 5–38, 5–59
Hughes v Sunbeam Corp (Canada) Ltd (2002) 219 D.L.R. (4th) 467 ......................... 10–11
Hull v Sanderson [2008] EWCA Civ 1211 ................................................................... 6–10
Hulley v Silversprings Bleaching Co [1922] 2 Ch. 281 ............................................... 14–32
Hulton v Jones [1910] A.C. 20 .......................................................................... 12–20, 12–67
Humberclyde Finance Group Ltd v Hicks, unreported, November 14, 2001 .............. 24–21
Humbleston v Martin Tolhurst Partnership [2004] EWHC 151, Ch; [2004] P.N.L.R.
26 ............................................................................................................................. 5–59
Humphrys v Dreamland (Margate) Ltd (1930) 144 L.T. 529 ...................................... 9–4
Hunt v G N Ry [1891] 2 Q.B. 189 ............................................................................... 12–48
Hunt v Severs [1994] 2 A.C. 350 ...................................................................... 22–37, 24–13
Hunt v Star Newspaper Co Ltd [1908] 2 K.B. 309 .............................. 12–33, 12–34, 12–35
Hunt v Wallis, The Times, May 10, 1991 ..................................................................... 16–5
Hunter Area Health Service v Presland [2005] N.S.W.C.A. 33 ................................... 25–20
Hunter v British Coal [1998] Q.B. 140 ................................................................. 5–63, 5–69
Hunter v Butler, The Times, December 28, 1995 ......................................................... 23–12
Hunter v Canary Wharf Ltd [1996] 2 W.L.R. 348 ..... 5–39, 9–4, 12–79, 13–2, 14–1, 14–3,
14–4, 14–7, 14–10, 14–12, 14–15, 14–28, 14–33, 15–8,
15–9
Table of Cases xlvii
Hunter v CC West Midlands [1982] A.C. 529 ............................................ 4–14, 5–60, 5–88
Hunter v Hanley, 1955 S.C. 200 .................................................................................... 5–79
Huntley v Thornton [1957] 1 W.L.R. 321 ..................................................................... 18–23
Hurdman v NE Ry (1878) 3 C.P.D. 168 ........................................................................ 25–34
Hurley v Dyke [1979] R.T.R. 265 ............................................................... 10–4, 10–8, 11–8
Hurst v Picture Theatres Ltd [1915] 1 K.B. 1 .............................................................. 13–10
Hussain v Lancaster CC [2000] Q.B. 1 ................................................. 14–17, 14–25, 14–39
Hussain v New Taplow Paper Mills Ltd [1988] A.C. 514 ........................................... 22–32
Hussein v Chong Fook Kam [1970] A.C. 943 ............................................................. 4–28
Hussey v Eels [1990] 2 Q.B. 227 ...................................................................... 11–15, 22–32
Hutchinson v Aitchison (1970) 9 KI.R. 69 ................................................................... 18–23
Hutchinson v L & NE Ry [1942] 1 K.B. 481 .............................................................. 6–52
Huth v Huth [1915] 3 K.B. 32 ...................................................................................... 12–22
Hutterly v Imperial Oil and Calder (1956) 3 D.L.R. (2d) 719 ..................................... 25–17
Huxford v Stoy Hayward, The Times, January 11, 1989 .............................................. 11–22
Hyams v Peterson [1991] 3 N.Z.L.R. 648 .................................................................... 12–21
Hyett v G.W. Ry [1948] 1 K.B. 345 ............................................................................. 25–17
Hymans v Peterson [1991] 3 N.Z.L.R. 648 .................................................................. 12–39
I’Anson v Stuart (1787) 1 T.R. 748 .............................................................................. 12–19
IBL Ltd v Coussens [1991] 2 All E.R. 133 .................................................................. 17–29
ICI v Shatwell [1965] A.C. 656 .................................................................... 3–4, 6–46, 7–17
ID v Home Office [2005] EWCA Civ 38; [2005] I.N.L.R. 278 .......................... 5–50, 5–54
IFE Fund SA v Goldman Sachs International [2007] EWCA Civ 811 ........... 11–23, 11–30
IRC v Hoogstraten [1985] Q.B. 1007 ........................................................................... 11–29
IRC v Muller & Co’s Margarine Ltd [1901] A.C. 217 ................................................ 18–47
I S Hu w. Ha, 11 May 1971, Bundesgerichtshof (Sixth Civil Division) ..................... 5–70
Ichard v Frangoulis [1977] 1 W.L.R. 556 ..................................................................... 22–39
Ide v ATB Sales Ltd [2008] EWCA Civ 424 ............................................................... 10–18
Ilkiw v Samuels [1963] 1 W.L.R. 991 .............................................................. 20–11, 20–12
Iman Abouzaid v Mothercare (UK) Ltd, unreported, December 21, 2000, CA .......... 10–21
Imbree v McNeilly [2008] HCA 40 ...................................................................... 1–30, 5–76
Imperial Chemical Industries Ltd v Shatwell [1965] A.C. 656 ......................... 25–9, 25–12
Incledon v Watson (1862) 2 F. & F. 841 ...................................................................... 11–9
Independent Newspapers Holdings Ltd v Suliman [2004] ZASCA 57 ....................... 12–79
Independents’ Advantage Insurance Co Ltd v Cook [2003] EWCA Civ 1103; [2004]
P.N.L.R. 3 ............................................................................................................... 11–25
Indermaur v Dames (1866) L.R. 2 C.P. 311 ................................................................. 9–2
Indian Oil Corp Ltd v Greenstone Shipping SA [1988] Q.B. 345 .............................. 17–11
Infrabrics Ltd v Jaytex Ltd [1982] A.C. 1 .................................................................... 17–30
Ingram v Little [1961] 1 Q.B. 31 .................................................................................. 17–22
Initial Services v Putterill [1968] 1 Q.B. 396, CA ....................................................... 12–84
Inland Revenue Commissioners v Hambrook [1956] 2 Q.B. 641 ............................... 18–1
Innes v Wylie (1844) 1 C. & K. 257 ............................................................................ 4–6
Inniss v Att-Gen of Saint Christopher and Nevis [2008] UKPC 42 ............................ 22–5
Insurance Commissioner v Joyce (1948) 77 C.L.R. 39 ................................................ 25–10
International Factors v Rodriguez [1979] 1 Q.B. 351 .................................................. 17–17
International News Services v Associated Press, 248 US 215, (1918) ........................ 18–51
Intervention Board for Agricultural Produce v Leidig [2000] Lloyd’s Rep. P.N. 144 .... 6–28
Intruder Detection etc Ltd v Fulton [2008] EWCA Civ 1009 ..................................... 9–12
Invercargill CC v Hamlin[1996] A.C. 624 ................................................ 5–16, 9–36, 26–12
Inverugie Investments Ltd v Hackett [1995] 1 W.L.R. 713 ......................................... 13–18
Iqbal v London Transport Executive (1973) 16 K.I.R. 329 ............................. 20–11, 20–12
Iqbal v Prison Officers Association [2009] EWCA Civ 1310 ........................... 4–16, 18–39
Iqbal v Whipps Cross University NHS Trust [2007] EWCA Civ 1170 ...................... 22–30
Ira S Bushy & Sons Inc v US 398 F.2d 167 (1968) .................................................... 20–9
Iran v Barakat Galleries Ltd [2007] EWCA Civ 1374 ................................................. 17–16
Iron Trade Mutual Insurance Co Ltd v J K Buckenahm Ltd [1990] 1 All E.R. 808 ........ 26–10
Ironfield v Eastern Gas Board [1964] 1 W.L.R. 1125 .................................................. 22–41
Irvine v MPC [2004] EWHC 1536, QB; [2005] P.I.Q.R. P11 ..................................... 9–3
Irvine v Talksport Ltd [2002] EWHC 367, Ch; [2003] 1 W.L.R. 2355 ...................... 18–49
Irving v Penguin Books Ltd, unreported, April 11, 2000, QB ..................................... 12–28
xlviii Table of Cases
Jones v Amalgamated TV Services Pty Ltd (1991) 23 N.S.W.L.R. 364 ..................... 12–22
Jones v Associated Newspapers [2007] EWHC 1489 (QB) ......................................... 12–66
Jones v Boyce (1816) 1 Stark. 493 ............................................................................... 6–49
Jones v Chapman (1849) 2 Exch. 803 .......................................................................... 13–2
Jones v de Marchant (1916) 28 D.L.R. 561 .................................................................. 17–11
Jones v Dennison [1971] R.T.R. 174 ............................................................................ 24–26
Jones v Dept of Employment [1989] Q.B. 1 ...................................................... 5–16, 24–10
Jones v Dumbrell [1981] V.R. 199 ................................................................................ 11–9
Jones v Festinlog Ry (1866) L.R. 1 Ex. 265 ................................................................ 15–20
Jones v G D Searle & Co [1979] 1 W.L.R. 101 ........................................................... 26–20
Jones v Gooday (1841) 8 M. & W. 146 ........................................................................ 22–44
Jones v Gwynn (1712) 10 Mod. 148 ............................................................................. 19–5
Jones v Hipgrave [2004] EWHC 2901 (QB) ................................................................ 4–38
Jones v Jones [1916] 2 A.C. 481 ................................................................................... 12–10
Jones v Kaney [2010] EWHC 61 (QB) ......................................................................... 5–60
Jones v Lawrence [1969] 3 All E.R. 267 ...................................................................... 6–50
Jones v Livox Quarries Ltd [1952] 2 Q.B. 608 .................................................... 6–46, 6–48
Jones v Llanrwst UDC [1911] 1 Ch. 393 ........................................................... 13–2, 14–15
Jones v Manchester Corp [1952] 2 Q.B. 852 ..................................................... 20–18, 21–6
Jones v Northampton BC, The Independent, May 25, 1990 ........................................ 24–25
Jones v Port of London Authority [1954] 1 Lloyd’s Rep. 489 .................................... 22–41
Jones v Price [1963] C.L.Y. 2316 .................................................................................. 6–48
Jones v Rhondda Cynon Taff CBC [2008] EWCA Civ 1497 ...................................... 14–44
Jones v Richards [1955] 1 W.L.R. 444 ................................................................. 6–52, 8–12
Jones v Royal Devon etc NHS Foundation Trust [2008] EWHC 558 (QB) ............... 23–12
Jones v Saudi Arabia [2004] EWCA Civ 1394; [2005] Q.B. 699 ............................... 24–6
Jones v Skelton [1963] 1 W.L.R. 1362 ......................................................................... 12–14
Jones v Stones [1999] 1 W.L.R. 1739 ........................................................................... 22–49
Jones v Stroud DC [1986] 1 W.L.R. 1141, CA ............................................................ 22–43
Jones v Swansea CC [1990] 1 W.L.R. 54 ............................................................. 7–20, 7–22
Jones v Tower Boot Co Ltd [1997] 2 All E.R. 406 ..................................................... 20–9
Jones v Whippey [2009] EWCA Civ 452 ..................................................................... 5–83
Jones v Wilkins, The Times, February 6, 2001 ........................................... 6–51, 6–53, 21–6
Jordan House v Menow (1973) 38 D.L.R. (3d) 105 ..................................................... 5–30
Joyce v Motor Surveys Ltd [1948] Ch.252 ................................................................... 12–73
Joyce v Sengupta [1993] 1 W.L.R. 337 ............................................................ 12–75, 12–77
Joynt v Cycle Trade Publishing Co [1904] 2 D.B. 292 ................................................ 12–34
Judd v Hammersmith Hospital Board [1960] 1 W.L.R. 328 ........................................ 22–38
Junior Books v Veitchi [1983] 1 A.C. 520 ...... 5–4, 5–6, 5–40, 5–44, 9–33, 9–38, 10–9, 10–11
K v Secretary of State for the Home Dept [2002] EWCA Civ 775 ............................ 5–4
KD v CC Hampshire [2005] EWHC 2550 (QB) .................................................. 4–38, 21–6
KLB v British Columbia [2003] SCC 51 ...................................................................... 20–19
KR v Royal & Sun Alliance Plc [2006] EWHC 48 (QB) ............................... 22–11, 24–22
Kaberry v Freethcartwright [2003] EWCA Civ 1077; [2003] B.P.I.R. 1144 .............. 26–32
Kamar v Nightingale [2007] EWHC 2982 (QB) .......................................................... 26–21
Kandella v BEA [1981] Q.B. 158 ................................................................................. 23–13
Kane v New Forest DC [2001] EWCA Civ 878; [2002] 1 W.L.R. 312 ..................... 5–27
Kanu v King’s College NHS Trust [2005] EWHC 2759 (QB) .................................... 22–24
Kapetan Georgis, The [1988] 1 Lloyd’s Rep. 352 ....................................................... 21–7
Kapfunde v Abbey National [1999] I.C.R. 1 ...................................................... 11–35, 20–3
Karagozlu v MPC [2006] EWCA Civ 1691; [2007] 1 W.L.R. 1881 ................... 4–16, 7–23
Karling v Purdue [2005] P.N.L.R. 13, OH .................................................................... 5–60
Kars v Kars (1996) 141 A.L.R. 37 ................................................................................ 22–37
Kasapis v Laimos [1959] 2 Lloyd’s Rep. 378 ...................................................... 5–30, 8–10
Kassam v Kampala Aerated Water Co Ltd [1965] 1 W.L.R. 688 ................................ 23–14
Kate, The [1899] P. 165 ................................................................................................. 22–41
Katko v Briney 183 N.W. 2d 657 (1971) ...................................................................... 25–31
Kaur v S Russell & Sons [1973] 1 Q.B. 336 ............................................................... 26–8
Kavanagh v Akhtar (1998) 45 N.S.W.L.R. 588 ............................................................ 6–32
Kay v Hibbert [1977] Crim.L.R. 226 ............................................................................ 9–6
Kay v ITW Ltd [1968] 1 Q.B. 140 ................................................................... 20–11, 20–12
Table of Cases li
M v Calderdale and Kirklees HA [1998] 4 Lloyd’s Rep. Med. 157 ........................... 20–6
M v Home Office [1994] 1 A.C. 337 ............................................................................ 24–2
M v MPC [2007][ EWCA Civ 1361 ............................................................................. 5–10
M v Newham LBC; sub nom. X v Bedfordshire CC [1995] 2 A.C. 633; [1994] 4 All
E.R. 602 ....... 1–31, 5–46, 5–50, 5–51, 5–52, 5–53, 5–54, 7–2, 7–3, 7–4, 7–5, 7–6, 11–35
MAN Nutzfahrzeuge AG v Freightliner Ltd [2005] EWHC 2347 (Comm) .. 11–14, 11–27,
20–8
MCA Records v Charly Records [2001] EWCA Civ 1441; [2002] F.S.R. 26 ............ 24–23
MCC Proceeds Ltd v Lehman Bros [1998] 4 All E.R. 675 ......................................... 17–17
M Hasegawa & Co v Pepsi Bottling Group (Canada) Co (2002) 213 D.L.R. (4th)
663 ........................................................................................................................... 5–44
M/S Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 W.L.R. 1 ..... 10–8, 10–10,
10–17
M’Kibbon v Glasgow Corp, 1920 S.C. 590 .................................................................. 6–48
Macaulay v Screenkarn Ltd [1987] F.S.R. 257 ............................................................. 17–31
McC, Re [1985] A.C. 528 ...................................................................................... 24–8, 24–9
Maccaba v Lichtenstein [2004] EWHC 1579 (QB) .......................................... 12–10, 12–84
McCafferty v Metropolitan Police Receiver [1977] 1 W.L.R. 1073 ........ 8–9, 26–19, 26–20
McCall v Abelesz [1976] Q.B. 585 ........................................................................... 7–8, 7–9
McCallion v Dodd [1966] N.Z.L.R. 710 ....................................................................... 6–51
McCann, Farrell and Savage v UK (1995) 21 E.H.R.R. 97 ......................................... 4–26
McCarey v Associated Newspapers Ltd [1965] 2 Q.B. 86; [1964] 1 W.L.R. 855 ..... 12–44,
12–71, 22–10
McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 A.C. 227 ................. 12–62
McCarty v Pheasant Run Inc, 826 F 2d 1554 .............................................................. 5–86
McCauley v Hope (1999) 149 N.L.J. 228 ............................................................. 4–14, 5–88
McConnell v Wright [1903] 1 Ch. 546 ......................................................................... 11–14
McCord v Swansea City AFC, The Times, February 11, 1997 ................................... 25–13
McCormick v John Fairfax (1989) 16 N.S.W.L.R. 458 ............................................... 12–21
McCoubrey v Ministry of Defence [2007] EWCA Civ 17 .......................................... 26–19
McCracken v Melbourne Storm Rugby League Football Club [2005] N.S.W.S.C.
107 ........................................................................................................................... 25–13
McCreesh v Courtaulds Plc [1997] P.I.Q.R. P421 ........................................................ 7–16
McCullough v Lane Fox & Partners Ltd [1996] 1 E.G.L.R. 35 ... 11–21, 11–22, 11–23, 11–30
McDermid v Nash Dredging and Reclamation Co Ltd [1987] A.C. 906 ............ 8–14, 8–17
McDonald v North Queensland Newspaper [1997] 1 Qd. R. 62 ................................. 12–79
MacDonald v Scottish Stamping and Engineering Co 1972 S.L.T. (Notes) 73 .......... 5–79
McDonalds Hamburgers v Burger King (UK) Ltd [1986] F.S.R. 45 ........................... 12–74
McDonnell v Walker [2009] EWCA Civ 1257 ................................................. 26–20, 26–21
McDougall v Knight (1886) 17 Q.B.D. 636 ................................................................. 12–44
McFaddens v Platford [2009] EHWC 126 (TCC) ................................................ 5–60, 5–79
McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289 ....... 4–18
McFarlane v E E Caledonia Ltd [1994] 2 All E.R. 1 .......................................... 5–63, 5–66
McFarlane v Glasgow CC [2001] I.R.L.R. 7 ................................................................ 20–5
McFarlane v Tayside Health Board [2000] 2 A.C. 59 ... 1–3, 3–6, 3–7, 5–18, 11–1, 24–15,
26–18
McGarvey v Eve NCI Ltd [2002] EWCA Civ 374 ...................................................... 8–12
McGhee v NCB [1973] 1 W.L.R. 1 ........................................................................ 6–9, 8–12
McGlone v British Railways Board 1966 S.C.(H.L.) 1 ................................................ 9–25
McGowan v Northern Ireland Housing Executive [1995] 1 A.C. 233 ........................ 9–5
McGrath v CC RUC [2001] UKHL 39; [2001] 2 A.C 731 ......................................... 24–11
Macgregor, The [1943] A.C. 197 .................................................................................. 6–53
McGuinness v Key Markets Ltd (1973) 13 K.I.R. 249 ................................................ 6–53
Machado v Fontes [1897] 2 Q.B. 231 ........................................................................... 12–1
McHale v Watson (1966) 115 C.L.R. 199 .................................................................... 24–16
Machin v Adams (1997) 59 Con.L.R. 14 ...................................................................... 11–27
McIlveen v Charlesworth Developments [1982] N.I. 216 ............................................ 10–8
McInerny v Lloyd’s Bank Ltd [1973] 2 Lloyd’s Rep. 389 .......................................... 11–17
Macintosh v Dun [1908] A.C. 390 ................................................................................ 12–50
McKay v Essex Area Health Authority [1982] Q.B. 1166 .......................................... 24–14
McKeith v News Group Newspapers Ltd [2005] EWHC 1162 (QB) ......................... 12–28
Table of Cases lvii
Neil Martin Ltd v Revenue and Customs Commissioners [2007] EWCA Civ 1041;
[2007] S.T.C. 1802 ...................................................................... 5–36, 5–46, 5–48, 7–2
Neindorf v Junkovic [2005] HCA 75 ............................................................................ 9–17
Nelhams v Sandells Maintenance Ltd, The Times, June 15, 1995 ............................... 8–17
Nelms v CC Avon & Somerset, unreported, February 9, 1993, CA ................... 16–6, 16–8
Nelson v Larholt [1948] 1 K.B. 339 ............................................................................. 2–2
Nethermere (St Neots) Ltd v Taverna [1984] I.C.R. 122 ............................................. 20–5
Nettleship v Weston [1971] 2 Q.B. 691 ..................... 1–19, 5–76, 5–79, 25–8, 25–9, 25–10
Network Multi-Media Television Ltd v Jobserve Ltd, unreported, April 5, 2001, Ch
D .............................................................................................................................. 18–1
Network Rail Infrastructures Ltd v Morris [2004] EWCA Civ 172 ............................ 14–9
Nevill v Fine Arts and General Insurance Co [1895] 2 Q.B. 156 ....... 12–48, 12–51, 12–64
New South Wales Aboriginal Land Council v Jones (1998) 43 N.S.W.L.R. 300 ....... 12–18
New South Wales v Fahy [2007] HCA 20 ............................................................ 5–71, 5–85
New South Wales v Klein [2006] NSWCA 95 ............................................................. 5–20
New Testament Church of God v Stewart [2007] EWCA Civ 1004 ........................... 20–3
New York Times v Sullivan, 376 U.S. 254 (1964) ....................................................... 12–53
New Zealand Forest Products Ltd v Att-Gen [1986] 1 N.Z.L.R. 14 ........................... 5–42
New Zealand Forest Products Ltd v O’Sullivan [1975] 2 N.Z.L.R. 80 ........... 15–11, 15–21
New Zealand Insurance Co v Prudential Insurance Co [1976] 1 N.Z.L.R. 84 ........... 9–3
New Zealand Shipping Co v Satterthwaite [1975] A.C. 154 ............................... 5–13, 25–7
Newcastle CC v Shortland Management Services [2003] NSWCA 156 ..................... 14–10
Newcastle-under-Lyme Corp v Wolstanton Ltd [1947] Ch. 92 .................................... 14–4
Newell v Goldenberg [1995] 6 Med.L.R. 371 .............................................................. 5–79
Newman v Modern Bookbinders Ltd [2000] 1 W.L.R. 2559 ....................................... 4–29
News Group Newspapers Ltd v SOGAT 82 [1986] I.R.L.R. 337 ................... 14–39, 18–15
Newstead v London Express Newspapers Ltd [1940] 1 K.B. 377 .................. 12–13, 12–20
Newton Sealey v Armor Group Services Ltd [2008] EWHC 233 (QB) ..................... 8–17
Newton v Edgerley [1959] 1 W.L.R. 1031 ......................................................... 21–2, 24–18
Ng v Lee [1988] R.T.R. 296 (PC) ................................................................................. 5–90
Nice & Safe Attitude v Flook (t/a Slaam! Clothing) [1997] F.S.R. 14 ....................... 18–48
Niceto de Larrinaga [1966] P. 80 .................................................................................. 26–22
Nicholls v Ely Beet Sugar Factory [1931] 2 Ch. 84 .................. 13–2, 14–15, 14–28, 14–33
Nicholls v F Austin (Leyton) Ltd [1946] A.C. 493 ................................................ 7–14, 8–6
Nicholls v NCB [1976] I.C.R. 266 ................................................................................ 22–29
Nicholls v Taylor [1939] V.L.R. 119 ............................................................................. 11–15
Nichols v Marsland (1876) L.R. 1 Ex. 265 .................................................................. 15–17
Nickerson v Hodges 84 So. 37 (La. 1920) ................................................................... 4–1
Nicol v Allyacht Spars Pty Ltd (1987) 75 A.L.R. 1 .................................................... 8–9
Nicolls v Bastard (1835) 2 C.M. & R. 659 ............................................ 17–5, 17–17, 17–19
Nield v L & NW Ry (1874) L.R. 10 Ex. 4 .................................................................. 25–34
Nilson v Redditch BC, unreported, CA, October 31, 1994 .......................................... 5–85
Nimmo v Alexander Cowan & Sons Ltd [1968] A.C. 107 .......................................... 8–5
Nitrigin Eireann Teoranta v Inco Alloys Ltd [1992] 1 All E.R. 854; [1992] 1 W.L.R.
498 .................................................................... 10–1, 10–8, 10–10, 6–9, 26–11, 26–12
Noble v Harrison [1926] 2 K.B. 332 ..................................................... 14–21, 14–40, 15–11
Nocton v Lord Ash Burton [1914] A.C. 932 ...................................................... 5–37, 11–16
Noel v Poland [2001] B.C.L.C. 645 .............................................................................. 11–2
Nolan v Dental Manufacturing Co [1958] 1 W.L.R. 963 ............................................. 8–14
Non-Marine Underwriters at Lloyd’s v Scalera [2000] SCC 24; [2000] 1 S.C.R. 551 ....... 4–8,
25–3
Noorani v Calver [2009] EWHC 561 (QB) .................................................................. 12–5
Norberg v Wynrib (1992) 92 D.L.R. (4th) 449 ............................................................. 1–11
Nordic Oil Services v Bearman, 1993 S.L.T. 1164 ...................................................... 5–40
Norglen Ltd v Reeds Rains Prudential Ltd [1999] 2 A.C. 1 ....................................... 26–28
Norman v Ali [2000] R.T.R. 107 .......................................................................... 7–9, 26–18
Norman v Future Publishing Ltd [1999] E.M.L.R. 325 ............................................... 12–11
Normart Management Ltd v West Redhill Redevelopment Co (1998) 155 D.L.R. (4th)
627 ........................................................................................................................... 18–25
Norris v Blake (1997) 41 N.S.W.L.R. 49 ...................................................................... 22–26
North British Ry v Wood (1891) 18 R. 27, HL ............................................................ 26–3
lxiv Table of Cases
North General Wagon & Finance Co Ltd v Graham [1950] 2 K.B. 7 ........................ 17–17
North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] Q.B. 705 ..... 18–17
North v Wood [1914] 1 K.B. 629 .................................................................................. 24–18
North West Securities Ltd v Alexander Breckon Ltd [1981] R.T.R. 518 .................... 17–17
Northern Foods Plc v DEFRA [2005] EWHC 2971 (Admin) ..................................... 18–47
Northern Sandblasting v Harris (1997) 146 A.L.R. 572 .............................................. 20–25
Northern Territory v Mengel (1995) 129 A.L.R. 1 ..................................... 1–15, 5–45, 7–20
Northwestern Utilities Ltd v London Guarantee & Accident Co Ltd [1936] A.C. 108 ..... 15–8,
15–11, 15–14, 15–15, 15–16
Nor-Video Services Ltd v Ontario Hydro (1978) 84 D.L.R. (3d) 221 ......................... 14–10
Norwich CC v Harvey [1989] 1 W.L.R. 828 ............................. 1–8, 1–9, 1–19, 5–13, 25–7
Norwood v Navan [1981] R.T.R. 457 ........................................................................... 20–19
Nottingham Health Authority v Nottingham CC [1988] 1 W.L.R. 903 ....................... 21–9
Nottingham v Aldridge [1971] 3 W.L.R. 1 ....................................................... 20–10, 20–19
Nova Mink v TCA [1951] 2 D.L.R. 241 ....................................................................... 14–9
Nunan v Southern Ry [1924] 1 K.B. 223 ..................................................................... 23–11
Nutbrown v Sheffield HA [1993] 4 Mod.L.R. 188 ...................................................... 22–22
Nyberg v Handelaar [1892] 2 Q.B. 202 ........................................................................ 17–15
Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No. 2) [1997] 1 W.L.R.
1627 ............................................................................................................... 6–27, 26–10
OBG Ltd v Allan [2005] EWCA Civ 106; [2005] Q.B. 762 .... 17–7, 18–1, 18–2, 18–3, 18–4,
18–8, 18–9, 18–10, 18–12, 18–13, 18–14, 18–15, 18–19,
18–29, 18–31, 18–38
OLL Ltd v Secretary of State for Transport [1997] 3 All E.R. 897 .................... 5–27, 5–33
Oakley v Lister [1931] 1 K.B. 148 ..................................................................... 17–8, 17–13
Oakville Storage & Forwarders Ltd v Canadian National Ry (1991) 80 D.L.R. (4th)
675 ........................................................................................................................... 6–48
O’Brien v Cunard SS Co 28 N.E. 266 (Mass. 1891) ................................................... 4–8
O’Brien v Dawson (1942) 66 C.L.R. 18 ....................................................................... 18–6
Ocean Estates Ltd v Pinder [1969] 2 A.C. 19 .............................................................. 13–2
O’Connell v Jackson [1972] 1 Q.B. 270 ....................................................................... 6–46
O’Connor v BTC [1958] 1 W.L.R. 346 ........................................................................ 8–12
O’Connor v South Australia (1976) 14 S.A.S.R. 187 .................................................. 3–6
O’Connor v Swan & Edgar (1963) 107 S.J. 215 .......................................................... 9–15
Oddy v Paulet (1865) 4 F. & F. 1009 ........................................................................... 12–64
Odhavji Estate v Woodhouse [2003] SCC 69; [2003] 3 S.C.R. 263 ................... 7–20, 7–23
O’Driscoll v Dudley HA [1998] Lloyd’s Rep. Med. 210 ............................................ 26–17
Office of Government Commerce v Information Commissioner [2008] EWHC 774
(Admin) ................................................................................................................... 12–39
O’Grady v Westminster Scaffolding Ltd [1962] 2 Lloyd’s Rep. 238 .......................... 22–42
Ogwo v Taylor [1988] A.C. 431 ................................................................. 9–3, 9–12, 25–16
O’Hara v CC Royal Ulster Constabulary [1997] A.C. 286 .......................................... 4–24
O’Kelly v Trusthouse Forte [1984] Q.B. 90 ................................................................. 20–3
Oldham v Sheffield Corp (1927) 136 L.T. 30 ............................................................... 9–6
Oliver v Ashman [1962] 2 Q.B. 210 ............................................................................. 22–36
Oliver v Birmingham etc. Omnibus Co Ltd [1933] 1 K.B. 35 .................................... 6–51
Olotu v Home Office [1997] 1 W.L.R. 328 ............................................................ 4–19, 7–3
O’Loughlin v CC Essex [1998] 1 W.L.R. 364 ............................................................. 13–11
Omega Trust Co Ltd v Wright Son & Pepper (1997) 75 P. & C.R. 57 .......... 11–27, 11–30
O’Neil v van Horne (2002) 212 D.l.R. (4th) 458 ......................................................... 21–1
O’Neill v DSG Retail Ltd [2002] EWCA Civ 1139; [2003] I.C.R. 222 ..................... 8–7
Orange v CC West Yorkshire [2001] EWCA Civ 611; [2002] Q.B. 347 ............ 5–33, 5–83
Orbit Mining & Trading Co Ltd v Westminster Bank Ltd [1963] 1 Q.B. 794 ........... 17–8
Orchard v Lee [2009] EWCA Civ 295; [2009] P.I.Q.R. P16 ...................................... 5–78
Ord v Upton [2000] Ch. 352 ......................................................................................... 26–32
O’Reilly v National Rail & Tramway Appliances Ltd [1966] 1 All E.R. 499 ... 8–11, 8–13
Oren v Red Box Toy Factory Ltd [1999] F.S.R. 785 ................................................... 18–12
Organ Retention Group Litigation [2004] EWHC 644, AB; [2005] Q.B. 506 .. 5–69, 5–73,
5–79, 17–7
Orjula, The [1995] 2 Lloyd’s Rep. 395 ................................ 5–39, 5–40, 5–44, 9–35, 10–10
Orkin Exterminating Co Inc v Pestco of Canada Ltd (1985) 19 D.L.R. (4th) 90 ....... 18–50
Table of Cases lxv
Orme v Associated Newspaperes Ltd, The Times, February 4, 1981 .......................... 12–21
Ormiston v GW Ry [1917] 1 K.B. 598 ......................................................................... 12–7
Ormrod v Crosvill Motor Services Ltd [1953] 1 W.L.R. 1120 .................................... 20–19
Oropesa, The [1943] P. 32 ............................................................................................. 6–36
O’Rourke v Camden LBC [1998] A.C. 188 ............................................................. 7–4, 7–5
Osarak v Hawker Siddeley Water Engineering Ltd, The Times, October 28, 1982 .... 8–14
Osborne v Boulter [1930] 2 K.B. 226 ................................................................. 12–4, 12–52
O’Shea v MGN Ltd [2001] E.M.L.R. 40 ............................................................ 2–11, 12–20
Osman v Ferguson [1993] 4 All E.R. 344 .................................................................... 2–13
Osman v UK (1998) 29 E.H.R.R. 245 ........................................................ 2–12, 2–13, 5–17
O’Sullivan v Williams [1992] 3 All E.R. 385 .................................................. 17–19, 17–20
Otter v Church, Adams, Tatham & Co [1953] Ch. 280 ............................. 6–15, 11–7, 23–5
Otto v Bolton [1936] 2 K.B. 46 .................................................................................... 9–33
Outram v Academy Plastics [2000] I.R.L.R. 499 ......................................................... 5–36
Overseas Tankship (UK) Ltd v The Miller SS Co Pty Ltd (The Wagon Mound No.2)
[1967] 1 A.C. 617 ................ 5–63, 5–83, 5–84, 6–2, 6–18, 6–22, 14–3, 14–13, 16–12
Owen v Knight (1837) 4 Bing. N.C. 54 ........................................................................ 17–16
Owen v Lewyn (1673) 1 Ventris 223 ............................................................................ 17–2
Owens v Brimmel [1977] Q.B. 859 ................................................ 6–46, 6–48, 6–53, 25–10
Owens v Liverpool Corp [1939] 1 K.B. 394 ................................................................ 5–72
Oyston v Blake [1996] 1 W.L.R. 1326 ......................................................................... 18–22
P v B (Paternity: Damages for Deceit) [2001] 1 F.L.R. 1041 ............................. 11–1, 25–5
P v NASMUWT [2003] UKHL 8; [2003] 2 A.C. 663 ................................................. 18–37
P v Quigley [2008] EWHC 1051, QBD ........................................................................ 12–87
P (Stautory Will), Re [2009] EWHC 163 (Ch) ............................................................. 4–10
P Perl (Exporters) Ltd v Camden LBC [1984] Q.B. 342 ............................................. 5–32
P Q v Australian Red Cross Society [1992] V.R. 19 ................................................... 5–76
PRP Architects v Reid [2006] EWCA Civ 1119 .......................................................... 8–6
Pace v Culley, 1992 S.L.T. 1073 ................................................................................... 6–48
Pacific Associates Inc v Baxter [1990] 1 Q.B. 993 ...................................................... 11–21
Pacific Dunlop Ltd v Hogan (1989) 87 A.L.R. 14 ....................................................... 18–49
Padbury v Holliday and Greenwood Ltd \\\ 28 T.L.R. 494 .......................................... 20–28
Page Motors Ltd v Epsom and Ewell BC (1982) 80 L.G.R. 337 .................... 14–17, 14–20
Page v Plymouth Hospitals NHS Trust [2004] EWHC 1154 (QB) ............................. 22–29
Page v Read (1984) N.L.J. 723 ..................................................................................... 9–4
Page v Smith (No 2) [1996] 1 W.L.R. 855 ....................................... 5–61, 5–63, 5–64, 5–69
Page v Smith [1996] A.C. 155 ..................................... 5–23, 5–73, 6–21, 6–31, 6–32, 6–40
Pain v Rochester and Whitfield (1599) Cro. Eliz. 871 ................................................. 19–7
Paine v Colne Valley Electricity Supply Co [1938] 4 All E.R. 803 ............................ 10–5
Palmer Bruyn & Parker v Parsons [2001] HCA 69 ..................................................... 12–75
Palmer v Durnford [1992] Q.B. 483 ............................................................................. 5–60
Palmer v Loder [1962] C.L.Y. 2333 .............................................................................. 14–12
Palmer v National Sporting Club Ltd (1906) ................................................................ 12–79
Palmer v Tees HA [2000] P.I.Q.R. P1 ......................................................... 5–17, 5–67, 5–68
Palsgraf v Long Island Railroad 162 N.E. 99 (N.Y. 1928) .......................... 5–1, 5–21, 6–36
Pamplin v Express Newspapers Ltd (Note) [1988] 1 W.L.R. 116 ..................... 12–28, 22–6
Pankhania v Hackney LBC [2002] EWHC 2441 (Ch) ................................................. 11–7
Pannett v P McGuinness & Co Ltd [1972] 2 Q.B. 599 ............................................... 9–25
Pao On v Lau Yiu [1980] A.C. 614 .............................................................................. 18–17
Papadimitropoulos v R (1957) 98 C.L.R. 249 .............................................................. 25–5
Pape v Cumbria CC [1992] I.C.R. 132 ......................................................................... 8–14
Parabola Investments Ltd v Browallia Cal Ltd [2009] EWHC 901 (Comm) ....... 11–12, 11–14
Paris v Stepney B C [1951] A.C. 367 ......................................................... 5–79, 5–84, 8–15
Park v Jobson & Son [1945] 1 All E.R. 222 ................................................................ 25–2
Parker & Son (Reading) Ltd v Parker [1965] R.P.C. 323 ............................................ 18–46
Parker v British Airways Board [1982] Q.B. 1004 ...................................................... 17–21
Parker v Godin (1728) 2 Stra. 813 ................................................................................ 17–11
Parker v Langly (1713) 10 Mod. 145 ............................................................................ 19–5
Parker v Miller (1926) 42 T.L.R. 408 ........................................................................... 20–19
Parker-Knoll Ltd v Parker-Knoll International Ltd [1962] R.P.C. 265 ........................ 18–46
Parkins v Scott (1862) 1 H. & C. 153 .......................................................................... 12–17
lxvi Table of Cases
Parkinson v St James etc. University Hospital NHS Trust [2001] EWCA Civ 530;
[2002] Q.B. 266 ............................................................................................ 5–10, 24–15
Parmer v Big Security Co Ltd [2008] EWHC 1414 (QB) ........................................... 6–44
Parmiter v Coupland (1840) 6 M. & W. 105 ................................................................ 12–11
Parry v Cleaver [1970] A.C. 1 ................................................... 22–16, 22–26, 22–32, 22–33
Parvin v Morton Machine Co [1952] A.C. 515 ............................................................ 8–6
Pasley v Freeman (1789) 3 T.R. 51 ............................................................................... 11–2
Pass of Ballater, The [1942] P. 112 ................................................................... 20–21, 20–27
Patchett v Swimming Pool and Allied Trades Association Ltd [2009] EWCA Civ
717 ........................................................................................................................... 11–17
Patel v Hooper & Jackson [1999] 1 W.L.R. 1792 .............................................. 22–2, 22–44
Patel v London Transport Executive [1981] R.T.R. 29 ................................................ 22–41
Patel v WH Smith [1987] 1 W.L.R. 853 ....................................................................... 22–48
Paterson v Costain and Press (Overseas) Ltd [1979] 2 Lloyd’s Rep. 204 .................. 20–10
Paterson Zochonis & Co Ltd v Merfarken Pack Ltd [1986] 3 All E.R. 522 .... 5–31, 18–52
Patience v Andrews [1983] R.T.R. 447 ......................................................................... 6–53
Patrick v Colerick (1838) 3 M. & W. 483 .................................................................... 17–26
Paul v Rendell (1981) 34 A.L.R. 569 ........................................................................... 22–26
Paul v Summerhayes (1878) 4 Q.B.D. 9 ....................................................................... 16–2
Payling v T Naylor (Trading as Mainstreet) [2004] EWCA Civ 560; [2004] P.I.Q.R.
P36 .......................................................................................................................... 9–16
Payne v John Setchell Ltd [2002] P.N.L.R. 146 ................................................... 9–35, 9–38
Payne v Rogers (1794) 2 H.Bl. 350 .............................................................................. 14–27
Peach Publishing Ltd v Slater & Co [1998] P.N.L.R. 364 ........................................... 11–27
Pearce v Ove Arup Partnership Ltd [2000] Ch. 403 .................................................... 24–6
Pearce v Round Oak Stel Works Ltd [1969] 1 W.L.R. 595 ......................................... 8–12
Pearce v United Bristol Healthcare NHS Trust (1998) 48 B.M.L.R. 118 ................... 25–4
Pearson Education Ltd v Charter Partnership Ltd [2007] EWCA Civ 130 ................. 10–8
Pearson v Coleman Bros [1948] 2 K.B. 359 ................................................................ 9–6
Pearson v Sanders Witherspoon [2000] Lloyd’s Rep. 151 ........................................... 6–15
Peck v Tribune Co 214 US 185 (1909) ........................................................................ 12–12
Peck v UK (2003) 36 E.H.R.R. 719 .............................................................................. 12–80
Peco Arts Inc v Hazlitt Gallery Ltd [1983] 1 W.L.R. 1315 ......................................... 26–14
Peech v Best [1931] 1 K.B. 1 ........................................................................................ 16–2
Peek v Gurney (1873) L.R. 6 H.L. 377 ........................................ 11–4, 11–8, 11–11, 11–26
Pegasus Management Holdings v Ernst & Young [2010] EWCA Civ 181 ................ 26–10
Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45 ............... 22–13
Pemberton v Southwark LBC [2000] 1 W.L.R. 672 ..................................................... 14–15
Penarth Dock Engineering Co Ltd v Pounds [1963] 1 Lloyd’s Rep. 359 ......... 13–8, 22–13
Penfold v Westcote (1806) 2 B. & P. (N.R.) 335 ......................................................... 12–17
Penfolds Wines Pty Ltd v Elliott (1946) 74 C.L.R. 204 ...................................... 17–4, 17–5
Penner v Mitchell [1978] 4 W.W.R. 328 ....................................................................... 6–8
Pennington v Norris (1956) 96 C.L.R. 10 ..................................................................... 6–53
Penny v Wimbledon UDC [1899] 2 Q.B. 72 ................................................................ 20–24
Pentney v Anglian Water Authority [1983] I.C.R. 464 ................................................ 5–84
People Express Airlines v Consolidated Rail, 495 A. 2d 107 (1985) ......................... 5–42
Percy v Church of Scotland [2005] UKHL 73 ............................................................. 20–4
Percy v Hall [1997] Q.B. 24 .......................................................................................... 4–19
Pereira v Keleman [1995] 1 F.L.R. 428 ........................................................................ 24–13
Perera v Peiris [1949] A.C. 1 ........................................................................................ 12–53
Performance Cars Ltd v Abraham [1962] 1 Q.B. 33 ................................................... 6–7
Periscinotti v Brighton West Pier (1961) 105 S.J. 526 ................................................. 9–6
Perkins v Glyn [1976] R.T.R. ........................................................................................ 15–11
Perkins v Shone [2004] EWHC (Ch) 2249 ................................................................... 18–45
Perl v Camden LBC [1984] Q.B. 342 ........................................................................... 6–38
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 164 A.L.R. 606 ................................ 5–42
Perrett v Collins [1998] 2 Lloyd’s Rep. 25 ........................... 5–10, 5–13, 5–16, 5–19, 10–4
Perruche, Cass, Ass. Plen., November 17, 2000 ........................................................... 24–14
Perry v Clissold [1907] A.C. 773 ...................................................................... 13–16, 13–17
Perry v Kendricks Transport [1956] 1 W.L.R. 85 .................................. 15–9, 15–11, 15–15
Perry v Sidney Philips & Son [1982] 1 W.L.R. 1297 .................................................. 22–44
Table of Cases lxvii
Pollard v Tesco Stores Ltd [2006] EWCA Civ 393 ..................................................... 10–19
Polly Peck (Holdings) Plc v Trelford [1986] Q.B. 1000 .............................................. 12–28
Polsue and Alfieri v Rushmer [1907] A.C. 121 ............................................................ 14–7
Pontardawe RDC v Moore-Gwyn [1929] 1 Ch. 656 ........................................ 14–21, 15–10
Ponting v Noakes [1894] 2 Q.B. 281 .................................................................. 15–6, 15–18
Poppleton v Portsmouth Youth Activities Committee [2008] EWCA Civ 646 ........... 9–9
Port Swettenham Authority v TW Wu & Co [1979] A.C. 580 ................................... 20–15
Porter (JP) & Co Ltd v Bell [1955] 1 D.L.R. 62 .......................................................... 15–2
Porter v MPC, unreported, October 20, 1999, CA ....................................................... 13–10
Posluns v Toronto Stock Exchange (1964) 46 D.L.R. (2d) 210 ................................... 18–7
Possfund Custodian Truste Ltd v Diamond [1996] 1 W.L.R. 1351 ............................. 11–26
Post Office v Union of Communication Workers [1990] 1 W.L.R. 617 ...................... 18–41
Post-Traumatic Stress Disorder Litigation Multiple Claimants, Re v MoD [2003]
EWHC 1134 (QB) .......................................................................................... 5–15, 24–3
Pou v British American Tobacco (N.Z) Ltd [2006] NZHC 451 .................................. 10–22
Poulton’s Trustee v MoJ [2010] EWCA Civ 392 ......................................................... 7–6
Povey v Governors of Royal School [1970] 1 All E.R. 841 ....................................... 22–36
Povey v Qantas Airways Ltd [2005] HCA 33 .............................................................. 1–38
Powell v Boladz [1998] 1 Lloyd’s Rep. Med. 116 ....................................................... 18–29
Powell v Fall (1880) 5 Q.B.D. 597 ............................................................................... 15–20
Powell v Philips [1972] 3 All E.R. 864 ........................................................................ 5–82
Prager v Times Newspapers Ltd [1988] 1 W.L.R. 77 .................................................. 12–28
Pratley v Surrey CC (2003) EWCA Civ 1067; [2004] ICR 159 ................................. 6–21
Pratt v Scottish Ministers [2009] CSOH 31; [2009] S.L.T. 429 .................................. 5–65
Pratt v Swaine (1828) B. & C. 285 ............................................................................... 26–8
Prebble v Televison NZ [1995] 1 A.C. 321 .................................................................. 12–39
Precis (521) Plc v William M Mercer Ltd [2005] EWCA Civ 114; [2005] P.N.L.R.
28 ................................................................................................................. 11–27, 11–31
Prendergast v Sam & Dee Ltd, The Times, March 14, 1989 ....................................... 6–37
Preston v Chow (2002) 211 D.L.R. (4th) 456, Man CA .............................................. 24–13
Preston v Torfaen BC (1993) Con.L.R. 48 ................................................................... 11–26
Pretty v Bickmore (1873) L.R. 8 C.P. 401 .................................................................... 14–26
Price v Helyer (1828) 4 Bing. 597 ................................................................................ 17–8
Pride of Derby and Derby Angling Association Ltd v British Celanese Ltd [1953] Ch.
149 ............................................................................................................... 14–28, 15–11
Pride v Insitute for Animal Health [2009] EWHC 685 (QB) ...................................... 15–19
Pride Valley Foods Ltd v Hall & Partners [2001] EWCA Civ 1001 ................... 6–53, 21–6
Priestley v Fowler (1837) 3 M. & W. 1 ........................................................................ 8–2
Prince Albert v Strange (1849) 1 De G. & Sm. 652 .................................................... 12–82
Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2008]
Ch.57 ....................................................................................................................... 12–83
Prison Service v Johnson [1997] I.C.R. 275 ................................................................. 22–8
Pritchard v Briggs [1980] Ch. 338 ........................................................................ 18–5, 18–7
Pritchard v J H Cobden Ltd [1988] Fam. 22 .............................. 6–26, 22–26, 22–36, 22–38
Pritchard v MoD [1995] C.L.Y. 4726 ............................................................................ 4–17
Prole v Allen [1950] 1 All E.R. 476 ..................................................................... 9–6, 24–25
Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381; 55 N.S.W.L.R.
659 ........................................................................................................................... 5–32
Prosser v Levy [1955] 1 W.L.R. 1224 .............................................................. 15–13, 15–15
Proulx v Quebec (Att-Gen) 2001 SCC 66 .................................................................... 19–11
Provender Millers (Winchester) Ltd v Southampton CC [1940] Ch. 131 ................... 15–16
Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch. 204 ........ 24–21
Pryke v Advertiser Newspapers (1984) 37 S.A.S.R. 175 ............................................. 12–21
Public Transport Commission (NSW) v Perry (1977) 14 A.L.R. 273 ................... 9–6, 13–1
Pullman v Hill [1891] 1 Q.B. 524 ................................................................................. 12–22
Purdew v Serres-Smith, The Times, September 9, 1992 ............................................... 12–41
Purdue v Devon Fire and Rescue Service [2002] EWCA Civ 1538 ........................... 5–85
Purkis v Walthamstow BC (1934) 151 L.T. 30 ............................................................ 9–6
Pwllbach Colliery Co v Woodman [1915] A.C. 634 .................................................... 14–25
Pym v GN Ry (1862) 2 B. & S. 759, 4 B. & S. 396 ....................................... 23–11, 23–14
Qualcast (Wolverhampton) Ltd v Haynes [1959] A.C. 74 ...... 3–6, 5–83, 8–12, 8–14, 8–15
Table of Cases lxix
Quaquah v Group 4 Securities Ltd (No 2), The Times, June 27, 2001 ................. 2–9, 20–3
Quartz Hill Gold Mining Co v Eyre (1883) 11 Q.B.D. 674 .................. 19–2, 19–13, 24–21
Queenstown Lakes DC v Charterhall Trustees Ltd [2009] NZCA 374 ....................... 9–36
Queenstown Lakes DC v Palmer [1999] 1 N.Z.L.R. 549 ............................................ 1–40
Quick v Taff-Ely BC [1986] Q.B. 809 .......................................................................... 9–40
Quilty v Windsor [1999] S.L.T. 346 .............................................................................. 12–11
Quinland v Governor of Swaleside Prison [2002] EWCA Civ 174; [2003] Q.B. 306 ...... 4–19,
5–60, 24–3
Quinn v Leatham [1901] A.C. 495 ................................... 6–29, 18–8, 18–11, 18–22, 18–23
Quinn v Scott [1965] 1 W.L.R. 1004 .................................................................. 5–85, 14–40
Quintas v National Smelting Co [1961] 1 W.L.R. 401 ........................................ 6–52, 6–53
R, Re [1992] Fam. 11 .................................................................................................... 4–11
R. (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 ............................. 24–4
R. (Giles) v Parole Board [2003] UKHL 42 ................................................................. 24–11
R (on the application of A) v Secretary of State for the Home Dept [2004] 1 EWHC
1585 (Admin) ......................................................................................................... 5–50
R (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003;
[2005]3 W.L.R. 1132 ...................................................................................... 4–8, 5–27
R (on the application of Daly) v Home Secretary [2001] UKHL 26; [2001] 2 A.C.
522 ........................................................................................................................... 5–49
R. (on the application of Gentle) v Prime Minister [2008] UKHL 20 ........................ 5–50
R (on the application of Gillan) v MPC [2006] UKHL 12 .......................................... 4–30
R (on the application of Greenfield) v Secretary of State for the Home Dept [2005]
UKHL 14; [2005] 1 W.L.R. 673 ......................................................... 2–9, 22–5, 22–15
R. (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL
55; [2007] 2 A.C. 105 ............................................................................................ 4–26
R (on the application of McCann) v CC Manchester [2002] UKHL 39; [2003] 1 A.C.
787 ........................................................................................................................... 22–48
R. (on the application of Miller) v The Independent Assessor [2009] EWCA Civ
609 ........................................................................................................................... 19–1
R (on the application of Munjaz) v Ashworth Hospital Authority [2005] UKHL 58 ...... 4–21
R (on the application of Williamson) v Secretary of State for Education [2005] UKHL
15; [2005] 2 A.C. 246 ............................................................................................ 24–28
R. (on the application of Wright) v Secretary of State for Health [2009] UKHL 3 ... 12–80
R (Smith) v Oxfordshire Assistant Deputy Coroner [2009] EWCA Civ 1441; [2009]
3 W.L.R. 1099 ........................................................................................................ 5–15
R. v Barnard (1837) 7 C. & P. 784 ............................................................................... 11–4
R. v Barnes [2004] EWCA Crim 3246; [2005] 1 W.L.R. 910 .................................... 4–2
R. v Bournewood etc. NHS Trust [1999] 1 A.C. 458 .............................. 4–16, 4–30, 25–32
R. v Brown [1994] 1 A.C. 212 .............................................................................. 4–11, 25–5
R. v Burstow [1998] A.C. 147 ...................................................................................... 4–6
R. v CC Devon and Cornwall ex p. CEGB [1982] Q.B. 458 .......................... 22–46, 25–31
R. v CC Liverpool ex p. Cooke [1997] 1 W.L.R. 700 ................................................. 14–1
R. v CC Sussex ex p. International Trader’s Ferry Ltd [1999] 2 A.C. 418 ................ 5–47
R. v CC West Midlands ex p. Wiley [1995] 1 A.C. 274 ............................................. 12–43
R. v Chalkely [1998] Q.B. 848 ...................................................................................... 4–29
R. v Chappell (1984) 128 S.J. 629 ................................................................................ 4–2
R. v Collins ex p. Brady, unreported, March 10, 2000 ................................................ 4–8
R. v Criminal Injuries Compensation Board ex p. K [1999] Q.B. 1131 ..................... 23–16
R. v Croydon HA (1997) 40 B.M.L.R. 40 .................................................................... 11–35
R. v Customs and Excise ex p. F & I Services Ltd [2000] S.T.C. 364 ...................... 11–20
R. v Denyer [1926] 2 K.B. 258 ..................................................................................... 3–6
R. v Deputy Governor of Parkhurst Prison ex p. Hague [1992] 1 A.C. 58 ......... 4–21, 7–3, 7–4
R. v Dica [2004] EWCA Crim 1103; [2004] Q.B. 1257 ..................................... 4–37, 25–5
R. v Dudley (1884) 15 Cox CC 624 ............................................................................. 25–35
R. v Duffy [1967] 1 Q.B. 63 ......................................................................................... 25–30
R. v Evans [2009] EWCA Crim 650 ............................................................................ 5–27
R. v Governor of Brockhill Prison ex p. Evans (No. 2) [2001] 2 A.C. 19 ...... 4–16, 4–19, 4–22
R. v Harvinder Singh Jheeta [2007] EWCA Crim 1609 .............................................. 25–5
R. v Home Secretary ex p. Bring [1991] 1 A.C. 696 ................................................... 2–8
R. v Home Secretary ex p. Fire Brigades Union [1995] 2 A.C. 513 .......................... 4–2
lxx Table of Cases
Reynolds v Times Newspapers [2001] 2 A.C. 127 ........ 2–8, 12–35, 12–45, 12–53, 12–54,
12–55, 12–60, 12–63, 22–6
Rhind v Astbury Water Park Ltd [2004] EWCA Civ 756 ........................................... 9–26
Rhodes v Smethurst (1838) 4 M. & W. 42; (1840) 6 M. & W. 351 ........................... 26–8
Ribee v Norrie [2001] P.I.Q.R. P128 ................................................................ 14–15, 15–20
Rice v Secretary of State for Trade and Industry [2007] EWCA Civ 289; [2007] I.C.R.
1469 ......................................................................................................................... 5–46
Rich v LCC [1953] 1 W.L.R. 895 ....................................................................... 5–79, 24–18
Richards v Naum [1967] 1 Q.B. 620 ............................................................................ 12–43
Richards v State of Victoria [1969] V.R. 136 ............................................................... 6–31
Richardson v Howie [2004] EWCA Civ 1127; [2005] P.I.Q.R. Q3 ............................ 22–8
Richardson v LRC [2000] P.I.Q.R. P164 ...................................................................... 10–19
Richardson v Mellish (1824) 2 Bing. 229 ..................................................................... 5–18
Richardson v Pitt-Stanley [1995] Q.B. 123 ....................................................... 7–8, 7–9, 8–1
Richardson v Schultz (1980) 25 S.A.S.R. 1 .................................................................. 22–37
Richardson v Schwarzenegger [2004] EWHC 2422 (QB) ........................................... 12–65
Richardson v Stephenson Clarke Ltd [1969] 1 W.L.R. 1695 ....................................... 8–12
Riches v News Group Newspapers Ltd [1986] Q.B. 256 ............................................ 22–11
Richley v Faull [1965] W.L.R. 1454 ............................................................................. 5–89
Rickards v Lothian [1913] A.C. 263 ..................................................... 15–10, 15–11, 15–15
Ricketts v Erith BC [1943] 2 All E.R. 629 ................................................................... 24–18
Ricketts v Thomas Tiling Ltd [1915] 1 K.B. 644 ........................................................ 20–11
Rickless v United Artists Corp [1988] Q.B. 40 ............................................................ 7–8
Riddick v Thames Board Mills Ltd [1977] Q.B. 881 ................................................... 12–22
Ridehalgh v Horsefield [1994] Ch. 205 ........................................................................ 5–60
Riden v Billings & Sons [1957] 1 Q.B. 46 ............................................................. 9–3, 9–30
Rider v Rider [1973] Q.B. 505 ...................................................................................... 14–44
Rigby v CC Northamptonshire [1985] 1 W.L.R. 1242 ....... 5–85, 13–4, 15–7, 15–8, 15–18,
25–33
Rigby v Hewitt (1859) 5 Ex. 240 .................................................................................. 6–17
Rigby v Sun Alliance & London Insurance Ltd [1980] 1 Lloyd’s Rep. 359 .............. 14–18
Rimmer v Liverpool CC [1985] Q.B. 1 .......................................... 9–34, 9–36, 9–39, 14–23
Ringgold v Norway (2003) Application No. 34964/97 ................................................ 4–14
River Wear Commissioners v Adamson (1877) 2 App. Cas. 743 ...................... 13–1, 14–38
Rivers v Cutting [1982] 1 W.L.R. 1146 ........................................................................ 20–27
Rivtow Marine v Washington Iron Works (1973) 40 D.L.R. (3d) 530 ........................ 9–36
Riyad Bank v Ahli United Bank (UK) [2006] EWCA Civ 780 .................................. 11–21
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 ............................... 9–17
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009]
NSWCA 263 ................................................................................................... 5–47, 5–86
Robb v Salamis (M&I) Ltd [2006 UKHL 56 ............................................................... 8–6
Robbins v Jones (1863) 15 C.B.(N.S.) 221 ................................................................... 9–39
Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358 ......... 9–2, 9–25, 9–27
Roberts v Bass [2002] HCA 57 ..................................................................................... 12–63
Roberts v CC Cheshire [1999] 1 W.L.R. 662 ....................................................... 4–16, 4–31
Roberts v CC Kent [2008] EWCA Civ 1588 ............................................................... 16–2
Roberts v Gable [2007] EWCA Civ 721; [2008] Q.B. 502 ......................................... 12–55
Roberts v J Hampson & Co [1990] 1 W.L.R. 94 ......................................................... 11–24
Roberts v J Ward & Son (1981) 126 S.J. 120 .............................................................. 6–7
Roberts v Johnstone [1989] Q.B. 878 ........................................................................... 22–36
Roberts v McDougall (1887) 3 T.L.R. 666 ................................................................... 17–8
Roberts v Ramsbottom [1980] 1 W.L.R. 823 ............................................................... 24–26
Roberts v Roberts (1864) 5 B. & S. 384 ...................................................................... 12–5
Roberts v Rose (1865) L.R. 1 Ex. 82 ............................................................................ 22–47
Roberts v Taylor (1845) 1 C.B. 117 .............................................................................. 25–31
Robertson v Forth Road Bridge 1996 S.L.T ................................................................. 5–69
Robertson v Lestrange [1985] 1 All E.R. 950 .............................................................. 22–26
Robertson v Ridley [1989] 2 All E.R. 474 ................................................................... 24–25
Robertson v Turnbull 1982 S.C., HL 1 ......................................................................... 5–40
Robinson v Balmain Ferry Co Ltd [1913] 3 K.B. 771; [1910] A.C. 295 ................... 4–20
Robinson v Chambers [1946] N.I. 148 ......................................................................... 12–4
Table of Cases lxxiii
Shendish Manor Ltd v Coleman [2001] EWCA Civ 913 ............................................ 22–10
Sheperd v Wakeman (1662) 1 Sid. 79 ........................................................................... 12–73
Shepherd v Post Office, The Times, June 15, 1995 ...................................................... 23–10
Shevill v Presse Aliance SA [1992] 1 W.L.R. 1239 ..................................................... 12–19
Shiffman v Order of St John [1936] 1 All E.R. 557 .................................................... 15–6
Ship v Crosskill (1870) L.R. 10 Eq. 73 ........................................................................ 11–9
Shire of Gingin v Coombe [2009] WASCA 92 ............................................................ 5–77
Shore v Ministry of Works [1950] 2 All E.R. 228 ....................................................... 24–25
Shore v Sedgwick Financial Services Ltd [2008] EWCA Civ 863 ............................. 26–10
Shorey v P T Ltd [2003] HCA 87 ................................................................................. 6–32
Short v J & W Henderson Ltd (1946) 62 T.L.R. 427 .................................................. 20–5
Short’s Ltd v Short (1914) 31 R.P.C. 294 ..................................................................... 18–46
Shufflebottom v Allday (1857) 28 L.T. O.S. 292 ......................................................... 12–41
Sidaway v Bethlehem Royal Hospital and Maudsley Hospital [1985] A.C. 871 .... 5–79, 5–81,
25–4, 25–5
Siddique v Swain [1979] R.T.R. 474 ............................................................................ 4–28
Siddorn v Patel [2007] EWHC 1248 (QB) ................................................................... 9–9
Sidhu v British Airways [1997] A.C. 430 ..................................................................... 1–38
Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159; [2010] 2 W.L.R. 951 .. 6–9, 6–10,
6–11
Silkin v Beaverbrook Newspapers Ltd [1958] 1 W.L.R. 743 .......................... 12–34, 12–35
Silkman v Heard, unreported, February 28, 2001, QBD .............................................. 12–30
Sim v Stretch (1936) 52 T.L.R. 669 .............................................................................. 12–11
Simaan General Contracting Co v Pilkington Glass Ltd (No.2) [1988] Q.B. 758 ...... 10–9
Simkiss v Rhondda BC (1983) 81 L.G.R. 460 ............................................................. 9–11
Simmons v Mitchell (1880) 6 App. Cas. 156 ............................................................... 12–7
Simmons v Pennington & Sons [1955] 1 W.L.R. 183 ................................................. 5–79
Simms v Leigh Rugby Football Club Ltd [1969] 2 All E.R. 923 ............................... 9–8
Simpson & Co v Thompson (1877) 3 App. Cas. 279 .................................................. 5–40
Simpson v CC South Yorkshire, The Times, March 7, 1991 ....................................... 4–23
Simpson v Norwest Holst Southern Ltd [1980] 1 W.L.R. 968 .................................... 26–18
Simpson v Robinson (1848) 12 Q.B. 511 ..................................................................... 12–64
Simpson v Savage (1856) 1 C.B.(N.S.) 347 ................................................................. 14–15
Sims v Foster Wheeler Ltd [1996] 1 W.L.R. 156 ......................................................... 21–7
Sims v Wran [1984] 1 N.S.W.L.R. 317 ........................................................................ 12–24
Sindell v Abbot Laboratories, 607 P. 2d 924 (1980) .................................................... 6–3
Singapore Bus Co v Lim [1985] 1 W.L.R. 1075 .......................................................... 23–12
Singh v Aitkin [1998] P.I.Q.R. Q37 .............................................................................. 6–7
Singh v Ali [1960] A.C. 167 ......................................................................................... 25–21
Sirocco v Geary (1853) 3 Cal. 69 ................................................................................. 25–33
Sirros v Moore [1975] Q.B. 118 ............................................................... 24–8, 24–9, 24–11
Site Developments (Ferndown) Ltd v Barrett Homes Ltd [2007] EWHC 415 (Ch) ....... 22–53
Sivand, The [1998] 2 Lloyd’s Rep. 97 ........................................................ 6–32, 6–33, 6–36
Six Carpenters’ Case (1610) 8 Co. Rep. 146a .............................................................. 13–12
Skelton v Collins (1966) 115 C.L.R. 94 ....................................................................... 22–20
Skinner v Scottish Ambulance Service [2004] S.L.T. 834, IH .................................... 8–6
Slade & Stewart Ltd v Haynes (1969) 5 D.L.R. (3d) 736 ........................................... 18–7
Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264 .................................................... 9–2, 25–11
Slater v Swann (1730) 2 Stra. 872 ................................................................................ 17–3
Slim v Daily Telegraph Ltd [1968] 2 A.B. 157 ............................................................ 12–13
Slipper v BBC [1991] 2 Q.B. 283 ................................................................................. 12–24
Slough Estates Plc v Welwyn Hatfield DC [1996] 2 P.L.R. 50 ................................... 11–14
Smeaton v Ilford Corp [1954] Ch. 450 ....................................... 14–20, 15–7, 15–11, 15–16
Smedley’s Ltd v Breed [1974] A.C. 839 ...................................................................... 10–6
Smith Kline & French Laboratories Ltd v Long [1989] 1 W.L.R. 1 ........................... 22–41
Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd
[1997] A.C. 254 ................................................... 6–7, 6–19, 6–27, 11–8, 11–14, 11–15
Smith v ADVFN plc [2008] EWHC 1797 (QB) .......................................................... 12–17
Smith v Ainger, The Times, June 5, 1990 ............................................................. 16–6, 16–7
Smith v Austin Lifts [1959] 1 W.L.R. 100 ........................................................... 8–13, 8–14
Smith v Baker & Sons [1891] A.C. 625 ............................................. 8–2, 8–3, 25–2, 25–11
Table of Cases lxxvii
Smith v
Baveystock & Co [1945] 1 All E.R. 531 ........................................................ 7–19
Smith v
Bradford Metropolitan Council (1982) 44 P. & C.R. 171 .............................. 9–40
Smith v
Bridgend CBC [2001] UKHL 58; [2002] 1 A.C. 336 .................................... 17–17
Smith v
Cammell Laird & Co Ltd [1940] A.C. 242 .................................................... 20–27
Smith v
Carter, 1995 S.L.T. 295 .................................................................................... 11–27
Smith v
Cawdle Fen Commissioners [1938] 4 All E.R. 64 ......................................... 6–7
Smith v
CC Sussex [2008] UKHL 50 ......................................................... 2–11, 2–12, 5–20
Smith v
Chadwick (1884) 9 App. Cas. 187 ........................................................ 11–3, 11–13
Smith v
Cribbens [1994] P.I.Q.E. P218 ........................................................................ 5–27
Smith v
Eric S Bush [1990] 1 A.C. 831 ....... 1–30, 5–13, 5–14, 5–34, 5–36, 11–17, 11–18,
11–19, 11–21, 11–24, 11–26 11–30
Smith v Finch [2009] EWHC 53 (QB) ....................................................... 6–46, 6–48, 6–53
Smith v Giddy [1904] 2 K.B. 448 ................................................................................. 13–4
Smith v GW Ry (1926) 135 L.T. 112 ................................................................. 15–6, 15–15
Smith v Hughes (1871) L.R. Q.B. 597 ......................................................................... 1–5
Smith v Jenkins (1970) 119 C.L.R. 397 ........................................................................ 25–18
Smith v Kay (1859) 7 H.L. Cas. 750 ............................................................................ 11–12
Smith v Kenrick (1849) 7 C.B. 515 .............................................................................. 15–10
Smith v Leech Brain & Co Ltd [1962] 2 Q.B. 405 ............................................. 6–31, 6–32
Smith v Leurs (1945) 70 C.L.R. 256 ............................................................................ 5–31
Smith v Linskills [1996] 1 W.L.R. 763 ................................................................. 5–60, 19–5
Smith v Littlewoods Organisation Ltd [1987] A.C. 241 ... 5–4, 5–18, 5–26, 5–32, 6–16, 6–38,
6–39, 14–13, 14–20
Smith v Manchester Corp (1974) 17 K.I.R. 1 .............................................................. 22–29
Smith v Morrison [1974] 1 W.L.R. 659 ........................................................................ 18–14
Smith v National Coal Board [1967] 1 W.L.R. 871 ............................................. 8–13, 8–14
Smith v Northamptonshire CC [2009] UKHL 27 ..................................................... 8–6, 8–7
Smith v Prendergast, The Times, October 18, 1984 ...................................................... 16–2
Smith v Scot Bowyers [1986] I.R.L.R. 315 .................................................................. 8–14
Smith v Scott [1973] Ch. 314 ........................................................................................ 14–25
Smith v Stages [1989] A.C. 928 .................................................................................... 20–10
Smith v Stone (1647) Style 65 ............................................................................ 13–1, 25–37
Smith v Streatfield [1913] 3 K.B. 295 .......................................................................... 12–65
Smith v Youth Justice Board [2010] EWCA Civ 99 .................................................... 6–40
Smithies v National Association of Operative Plasterers [1909] 1 K.B. 310 .............. 18–7
Smoker v London Authority [1991] 2 A.C. 502 ........................................................... 22–32
Smoldon v Whitworth [1997] P.I.Q.R. P133 ................................................................ 25–13
Sniezek v Bundy (Letchworth) Ltd [2000] P.I.Q.R. P213 ............................................ 26–19
Snook v Mannion [1982] Crim.L.R.601 ........................................................................ 9–6
Soblusky v Egan (1960) 103 C.L.R. 215 ...................................................................... 20–20
Sochaki v Sas [1947] 1 All E.R. 344 ...................................................... 5–89, 15–11, 15–21
Societe Commerciale de Reassurance v ERAS (International) Ltd [1992] 2 All E.R.
82 ............................................................................................................................. 26–10
Society of Accountants and Auditors v Goodway [1907] 1 Ch. 489 .......................... 18–51
Society of Lloyd’s v Henderson [2007] EWCA Civ 930 ............................................. 7–20
Society of Lloyd’s v Jaffray [2002] EWCA Civ 1101 ................................................. 11–10
Sole v W J Hallt [1973] Q.B. 574 ................................................................................. 9–3
Solihull MBC v National Union of Teachers [1985] I.R.L.R. 211 .............................. 18–4
Solloway v McLaughlin [1938] A.C. 247 ..................................................................... 17–27
Solomons v R Gertzenstein Ltd [1954] 2 Q.B. 243 ............................................. 7–11, 9–38
Somasundaram v M Julius Melcher & Co [1989] 1 All E.R. 129 .............................. 5–60
Somerville v Hawkins (1851) 10 C.B. 583 ................................................................... 12–36
Sorrell v Paget [1950] 1 K.B. 252 ................................................................................. 17–23
Sorrell v Smith [1925] A.C. 700 ........................................................... 18–13, 18–22, 18–23
Source Ltd v T U V Rheinland Holdings [1998] Q.B. 54 ........................................... 1–8
Souter v P & O Resorts Pty Ltd [1999] 2 Qd.R. 106 .................................................. 7–5
South Hetton Coal Co v North Eastern News Association Ltd [1984] 1 Q.B. 133 .... 12–18,
24–21
South Pacific Mfg Co v NZ Consultants & Investigations [1992] 2 N.Z.L.R. 282 .... 11–25
South Staffs Water Co v Sharman [1896] 2 Q.B. 44 ................................................... 17–21
Southam v Snout [1964] 1 Q.B. 308 ................................................................. 13–11, 13–12
lxxviii Table of Cases
Steedman v BBC [2001] EWCA Civ 1534; [2002] E.M.L.R. 17 ................................ 26–24
Steel & Morris v UK [2005] E.M.L.R. 15, ECtHR ...................................................... 12–18
Steel v Glasgow Iron and Steel Co 1944 S.C. 237 ...................................................... 25–17
Steel v UK [2005] E.M.L.R.15, ECHR ......................................................................... 12–68
Steel v United Kingdom (C–24838/94) (1999) 28 E.H.R.R. 603; 5 B.H.R.C. 339 ...... 4–26,
4–30
Stella, The [1900] P. 161 ............................................................................................... 23–11
Stennett v Hancock [1939] 2 All E.R. 578 ..................................... 10–1, 10–3, 10–5, 20–21
Stephens v Anglia Water Authority [1987] 1 W.L.R. 1381 ......................................... 14–10
Stephens v Avery [1988] Ch. 449 ..................................................................... 12–82, 12–83
Stephens v Myers (1840) 4 C. & P. 349 ....................................................................... 4–12
Stephenson v Waite Tileman Ltd [1973] N.Z.L.R. 152 ................................................ 6–32
Stern v Piper [1997] Q.B. 123 ........................................................................... 12–27, 12–44
Stevedoring and Haulage Services Ltd v Fuller [2001] I.R.L.R. 62 ............................ 20–5
Stevens v Broadribb Sawmilling Co Pty Ltd (1986) 6 A.L.R. 513 ............................. 20–25
Stevens v Midland Counties Ry (1854) 10 Ex. 352 ..................................................... 19–11
Stevenson v Glasgow Corp, 1908 SC 1034 .................................................................. 9–11
Stevenson, Jordan and Harrison Ltd v Macdonald and Evans [1952] 1 T.L.R. 101 ... 20–5
Stewart v Pettie (1994) 121 D.L.R. (4th) 222 ............................................................... 5–31
Stewart v Ronalds [2009] NSWCA 277 ............................................................. 5–53, 12–39
Stewart v West African Terminals Ltd [1964] 2 Lloyd’s Rep. 371 ............................. 6–20
Stickel v Gordy [2008] SKCA 100 ............................................................................... 20–9
Stockdale v Hansard (1839) 9 A. & E. 1 ...................................................................... 12–40
Stocznia Gdanska SA v Latvian Shipping Co [2002] EWCA Civ 889; [2002] 2
Lloyd’s Rep. 436 .................................................................................................... 18–5
Stokes v Guest, Keen and Nettleford (Bolts and Nuts) Ltd [1968] 1 W.L.R. 1776 ... 5–86
Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] 3 W.L.R. 455 ... 11–25, 24–22,
25–21, 25–23, 25–24
Stone v Bolton [1950] 1 K.B. 210 ................................................................................ 14–11
Stone v Taffe [1974] 1 W.L.R. 1575 ................................................... 9–4, 9–6, 9–18, 20–12
Stoneman v Lyons (1975) 133 C.L.R. 550 ................................................................... 20–23
Stongel v Clark [2006] HCA 37 .................................................................................... 26–18
Storey v Ashton (1869) L.R. 4 Q.B. 476 ...................................................................... 20–10
Stormer v Ingram (1978) 21 S.A.S.R. 93 ..................................................................... 16–4
Stott v Gamble [1916] 2 K.B. 504 ................................................................................ 18–7
Stott v West Yorkshire Road Car Co Ltd [1971] 2 Q.B. 651 ...................................... 21–9
Stovin v Wise [1996] A.C. 923 .... 5–14, 5–16, 5–17, 5–26, 5–27, 5–33, 5–39, 5–47, 5–50,
5–56, 14–42
Strand Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 Q.B. 246 .......... 22–13
Street v Mountford [1985] A.C. 809 ............................................................................. 13–2
Street v Union Bank of Spain and England (1885) 30 Ch.D. 155 ............................... 18–46
Stretch v Romford Football Club (1971) 115 S.J. 741 ................................................. 14–9
Strickland v Hertfordshire CC [2003] EWHC 287 ....................................................... 5–3
Stringer v Peat Marwick Mitchell & Co [2000] 1 N.Z.L.R. 450 ................................. 11–25
Stringfellow v McCain Foods [1984] R.P.C. 501 ......................................................... 18–48
Stringman v McArdle [1994] 1 W.L.R 1653 ................................................................ 6–53
Stuart v Bell [1891] 2 Q.B. 341 ........................................................................ 12–47, 12–63
Stubbings v UK (1997) 23 E.H.R.R. 213 ..................................................................... 26–18
Stubbings v Webb [1993] A.C. 498 ...................................................................... 5–2, 24–13
Stubbs v Russell [1913] A.C. 386 ................................................................................. 12–13
Stupple v Royal Insurance Co Ltd [1971] 1 Q.B. 50 ................................................... 5–88
Sturge v Hackett [1962] 1 W.L.R. 1257 ........................................................................ 15–21
Sturges v Bridgman (1879) 11 Ch.D. 852 ........................................................... 14–7, 14–32
Subiah v Att-Gen of Trinidad and Tobago [2008] UKPC 47 ...................................... 22–5
Sugar v Associated Newspapers Ltd, unreported, February 6, 2001, QBD ................ 12–36
Sullivan v Gallagher & Craig, 1960 S.L.T. 70 ............................................................. 8–9
Sullivan v Moody [2001] HCA 59 ........................................................................ 5–24, 5–53
Sulzinger v CK Alexander Ltd (1971) 24 D.L.R. 137 ................................................. 11–22
Sun Life Assurance Co of Canada v W H Smith & Son Ltd (1934) 150 L.T. 211 ... 12–22,
12–23
Sungravure Pty Ltd v Middle East Airlines (1978) 5 A.L.R. 147 ............................... 12–11
lxxx Table of Cases
Surtees v Kingston on Thames BC [1992] P.I.Q.R. P101; [1991] 2 F.L.R. 559 ....... 5–29, 5–76
Surzur Overseas Ltd v Koros [1999] 2 Lloyd’s Rep. 611 ................... 18–26, 19–12, 19–13
Sutcliffe v Pressdram [1991] 1 Q.B. 153 ............................................................ 22–9, 22–10
Sutcliffe v Thackrah [1975] A.C. 727 ........................................................................... 11–29
Sutherland SC v Heyman (1985) 60 A.L.R. 1 .............................................................. 5–47
Sutherland v Canada [2002] BCCA 416, 215 D.L.R. (4th) 1 ...................................... 14–3
Sutherland v Stopes [1925] A.C. 47 .............................................................................. 12–37
Sutradhar v National Environment Research Council [2006] UKHL 33; [2006] 4 All
E.R. 490 ................................................................................................ 5–3, 5–12, 11–28
Sutton’s Hospital, Case of (1613) 10 Co. Rep. 23a ..................................................... 24–22
Swadling v Cooper [1931] A.C. 1 ................................................................................. 6–49
Swain v Hillman [2001] 1 All E.R. 91, CA ................................................................. 12–70
Swain v Puri [1996] P.I.Q.R. P442 ................................................................................ 9–26
Swaine v GN Ry (1864) 4 De G.J. & S. 211 ............................................................... 14–11
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 ................................................ 20–3
Sweetman v Shepherd, The Times, March 29, 2000 .................................................... 22–3
Swinney v CC Northumbria [1997] Q.B. 464 ...................................................... 5–71, 5–73
Swire v Leach (1865) 18 C.B. (N.S.) 479 .................................................................... 17–19
Sydney Water Corp. V Turano [2009] HCA 42 ........................................................... 5–23
Sykes v Harry [2001] EWCA Civ 167; [2001] Q.B. 1014 .......................................... 9–40
Sykes v NE Ry (1875) 44 L.J.C.P. 191 ......................................................................... 23–12
Szalatnay-Stacho v Fink [1946] 1 All E.R. 303 ........................................................... 12–43
T (Adult, Refusal of Treatment), Re [1993] Fam. 95 ................................................... 4–8
T v Surrey CC [1994] 4 All E.R. 577 ........................................................................... 5–47
TA v DPP [1997] 2 F.L.R. 887 ..................................................................................... 24–18
TCD v Harrow Council [2008] EWHC 3048 (QB) ...................................................... 26–21
TP v UK (2002) 34 E.H.R.R. 2 ............................................................................. 5–53, 18–1
TV3 Network Services v Broadcasting Standards Authority [1995] 2 N.Z.L.R. 720 ..... 13–9
T & N Ltd, Re [2005] EWHC 2870, Ch ...................................................................... 26–31
Tadd v Eastwood [1985] I.C.R. 132 .............................................................................. 12–41
Taff Vale Ry Co v Amalgamated Society of Ry Servants [1901] A.C. 426 ... 18–34, 18–35
Taff Vale Ry v Jenkins [1913] A.C. 1 ........................................................................... 23–13
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] A.C. 80 ....... 1–9, 11–21, 11–23
Taittinger v Allbev Ltd [1993] F.S.R. 641 .................................................................... 18–47
Takitoka v Att-Gen of the Bahamas [2009] UKPC 12 ....................................... 22–5, 22–26
Talbot v Berkshire CC [1994] Q.B. 290 ....................................................................... 22–3
Tame v New South Wales [2002] HCA 35 ........................................................... 5–61, 5–74
Tamlin v Hannaford [1950] 1 K.B. 18 .......................................................................... 24–3
Tand v Capacious Investments Ltd [1996] A.C. 514 ................................................... 26–2
Tang Man Sit v Capacious Investments Ltd [1996] A.C. 514 ..................................... 21–3
Tang Nin Mun v Secretary for Justice 2000–2 H.K.C. 749, HKCA ........................... 7–20
Tanks and Vessels Industries Ltd v Devon Cider Co Ltd [2009] EWHC 1360 (Ch) ....... 17–29
Target Holdings Ltd v Redferns [1996] A.C. 421 ........................................................ 1–11
Targett v Torfaen BC [1992] 3 All E.R. 27 .................................................................. 9–34
Tarleton v M’Gawley (1793) Peake N.P. 270 ..................................................... 18–9, 18–13
Tarrant v Rowlands [1979] R.T.R. 144 ......................................................................... 14–44
Tarry v Ashton (1876) 1 Q.B.D. 314 ..................................................... 14–41, 14–40, 20–24
Tart v GW Chitty & Co Ltd [1933] 2 K.B. 453 ........................................................... 14–38
Tasci v Pekalp of London Ltd [2000] I.C.R. 633 ......................................................... 8–15
Tate & Lyle Industries Ltd v GLC [1983] 2 A.C. 509 ....................................... 14–3, 14–39
Taunoa v Att-Gen [2007] NZSC 70 .............................................................................. 22–5
Taylor v Auto Trade Supply Ltd [1972] N.Z.L.R. 102 .................................... 22–44, 22–51
Taylor v CC Thames Valley [2004] EWCA Civ 858; [2004] 1 W.L.R. 3155 .... 4–29, 4–31
Taylor v Director of the Serious Fraud Office [1999] 2 A.C. 177 .............................. 12–41
Taylor v Rover Co Ltd [1966] 1 W.L.R. 1491 ..................................................... 10–6, 10–8
Taylor v Smyth [1991] I.R. 158 .................................................................................... 18–25
Tear v Freebody (1858) C.B. (N.S.) 228 ....................................................................... 17–8
Telnikoff v Matusevitch [1992] 2 A.C. 343 ...................................................... 12–33, 12–36
Te-Mata Properties Ltd v Hastings District Council [2008] NZCA 446; [2009] 1
N.Z.L.R. 460 ................................................................................................... 5–24, 9–36
Tench v GW Ry (1873) 33 Up. Can. Q.B. 8 ................................................................ 12–52
Table of Cases lxxxi
Tennant Radiant Heat Ltd v Warrington Devt Corp [1988] 11 E.G. 71 ...................... 6–44
Tennent v Earl of Glasgow (1864) 2 M. (H.L.) 22 ...................................................... 15–17
Tesco Stores Ltd v Guardian News & Media Ltd [2009] E.M.L.R. 5 ............ 12–67, 12–77
Tesco Stores v Constable [2008] EWCA Civ 362 ........................................................ 5–40
Tetley v Chitty [1986] 1 All E.R. 663 .......................................................................... 14–25
Thacker v Steeples, June 22, 2005 ................................................................................ 22–24
Thai Trading Co v Taylor [1998] Q.B. 781 .................................................................. 19–15
Thake v Maurice [1986] Q.B. 644 .......................................................................... 1–9, 5–79
Thames Trains v HSE [2003] EWCA Civ 720 ....................................................... 5–47, 7–4
Thames Water Utilities Ltd v London Regional Transport [2004] EWHC 2021 (TCC),
95 Con.L.R. 127 ..................................................................................................... 6–7
Tharpe v Stallwood (1843) 5 M. & G. 760 .................................................................. 17–5
Theaker v Richardson [1962] 1 W.L.R. 151 ................................................................. 12–22
Thelma, The v The Endymion [1953] 2 Lloyd’s Rep. 613 .......................................... 20–20
Theodore Kohl KB v Ringelhaan & Rennett SA [1985] 3 C.M.L.R. 340 .................. 18–51
Thomas & Evans Ltd v Mid-Rhondda Co-operative Society [1941] 1 K.B. 381 ....... 15–11
Thomas Saunders Partnership v Harvey (19900 7 Tr.L.R. 78 ..................................... 20–13
Thomas v Bristol Aeroplane Co [1954] 1 W.L.R. 694 ................................................. 8–13
Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233; [2002] E.M.L.R. 4 ... 4–38,
12–85
Thomas v NUM (South Wales Area) [1986] Ch. 20 .................................................... 4–12
Thomas v Quartermaine (1887) 18 Q.B.D. 683 ............................................................ 25–11
Thomas v Sawkins [1935] 2 K.B. 249 .......................................................................... 13–11
Thomas v Sorrell (1672) Vaughn 330 ........................................................................... 13–10
Thompson v Arnold [2007] EWHC 1875 (QB) ........................................................... 23–11
Thompson v Brown [1981] 1 W.L.R. 744 ........................................................ 26–20, 26–21
Thompson v Cremin [1953] 2 All E.R. 1181 ............................................................... 9–15
Thompson v Gibson (1841) 7 M. & W. 456 ................................................................ 14–17
Thompson v Johnson & Johnson [1991] 2 V.R. 449 .................................................... 10–5
Thompson v LCC [1899] 1 Q.B. 840 ........................................................................... 21–3
Thompson v MPC [1998] Q.B. 498 .............................................. 4–23, 22–8, 22–10, 22–11
Thompson v Park [1944] K.B. 408 ............................................................................... 13–10
Thompson v Smiths Ship Repairers (North Shields) Ltd [1984] Q.B. 405 .... 5–79, 8–10, 21–1
Thompson v T Lohan [1987] 1 W.L.R. 649 ................................................................. 20–8
Thompson-Schwab v Costaki [1956] 1 W.L.R. 335 ..................................................... 14–4
Thompstone v Tameside and Glossop etc NHS Trust [2008] EWCA Civ 5; [2008] 1
W.L.R. 2207 ...................................................................................... 5–10, 22–16, 22–24
Thomson v Clanmorris [1900] 1 Ch. 718 ..................................................................... 26–8
Thorley v Kerry (1812) 4 Taunt. 355 ................................................................ 12–10, 12–17
Thorne v Motor Trade Association [1937] A.C. 797 ................................................... 3–6
Thornhill v Sita Metal Recycling Ltd [2009] EWHC 2037 (QB) ............................... 14–15
Thornton v Swan Hunter (Shipbuilders) Ltd [1971] 1 W.L.R. 1759 ........................... 6–52
Thornton v Telegraph [2009] EWHC 2863 (QB) ......................................................... 12–34
Thorpe v Brumfitt (1873) L.R. 8 Ch.App. 650 ............................................................. 14–31
Three Rivers DC v Bank of England (No 3) [2001] UKHL 16; [2001] UKHL 2 A.C.
1 ........................................... 2–5, 3–3, 3–9, 5–7, 5–55, 7–12, 7–20, 7–21, 7–22, 12–43
Thunder Air Ltd v Hilmarsson [2008] EWHC 355 (Ch) ................................... 17–7, 17–29
Tibbs v Islington BC [2002] EWCA Civ 1682; [2003] B.P.I.R. 743 .......................... 19–13
Tidman v Reading BC [1994] E.G.C.S. 180 ................................................................. 11–20
Tidy v Battman [1934] 1 K.B. 319 ............................................................................... 14–38
Timeplan Education Group v NUT [1996] I.R.L.R. 457 .............................................. 18–7
Timms v Clift [1998] 2 Qd. R. 100 .............................................................................. 12–24
Tinsley v Dudley [1951] 2 K.B. 18 ..................................................................... 9–24, 17–11
Tinsley v Milligan [1994] 1 A.C. 340 ................................................... 17–20, 25–22, 25–23
Titan Steel Wheels Ltd v Royal Bank of Scotland plc [2010] EWHC 211 (Comm) ....... 11–24
Titchener v Railways Board [1983] 1 W.L.R. 1427 ..................................................... 25–9
Tithe Redemption Commission v Runcorn UDC [1954] Ch. 383 ............................... 13–5
Tock v St John’s Area Metro Board (1989) 64 D.L.R. (4th) 620 ................................ 15–11
Tollemache & Cobbold Breweries Ltd v Reynolds (1983) 268 E.G. 52 ..................... 22–51
Tolley v Fry [1930] 1 K.B. 467 ............................................................. 12–13, 12–16, 12–79
Tom and Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013 .... 12–22
lxxxii Table of Cases
Tomlin v Standard Telephones & Cables Ltd [1969] 1 W.L.R. 1378 .................. 26–3, 26–4
Tomlinson v Congleton BC [2003] UKHL 47; [2004] 1 A.C. 46 ....... 1–45, 5–23, 5–85, 5–86,
9–3, 9–9, 9–17, 9–26, 9–29
Toogood v Spyring (1834) 1 C.M. & R. 181 ................................................... 12–46, 12–48
Topp v London Country Bus [1993] 1 W.L.R. 976 .............................................. 5–32, 6–39
Toronto General Trusts Corp v Roman (1962) 37 D.L.R. (2d) 16 .............................. 22–4
Toronto Power Co v Paskwan [1915] A.C. 734 ........................................................... 8–12
Toropdar v D [2009] EWHC 567 (QB) ........................................................................ 26–7
Torquay Hotel Co Ltd v Cousins [1969] 2 Ch. 106 ........................................... 18–3, 22–52
Total Transport Corp v Arcadia Petroleum Ltd, The Times, December 16, 1997 ....... 6–4
Towers & Co Ltd v Gray [1961] 2 Q.B. 351 ............................................................... 13–2
Townsend v Wathen (1808) 9 East 277 ........................................................................ 15–18
Toyota Finance Australia Ltd v Dennis [2002] NSWCA 605 ..................................... 17–25
Trafigura Beheer BV v Mediterranean Shipping Co SA [2007] EWCA Civ 794 ...... 17–29
Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1 ........ 1 4–13, 14–14, 14–15,
14–17, 15–1, 15–3, 15–6, 15–7, 15–8, 15–9, 15–11, 15–13,
15–17
Transfield Services (Australia) v Hall [2008] NSWCA 294 ........................................ 20–25
Trapp v Mackie [1979] 1 W.L.R. 377, HL ................................................................... 12–41
Trawnik v Lennox [1985] 1 W.L.R. 532 ....................................................................... 24–3
Tremain v Pike [1969] 1 W.L.R. 1556 .......................................................................... 6–21
Tremayne v Hill [1987] R.T.R. 131 .............................................................................. 6–48
Trendtex Trading Corp v Credit Suisse [1980] Q.B. 657 ..................... 26–27, 26–28, 26–29
Trepca Mines Ltd (No 2), Re [1963] Ch. 199 .............................................................. 19–15
Trevett v Lee [1955] 1 W.L.R. 113 ................................................................... 14–36, 14–39
Trevor Ivory Ltd v Anderson [1992] 2 N.Z.L.R. 517 .................................................. 24–23
Trust Co Ltd, The v De Silva [1956] 1 W.L.R. 376, PC ............................................. 20–19
Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117 ........................ 24–25
Truth (NZ) Ltd v Avery [1959] N.Z.L.R. 274 .............................................................. 12–34
Tsikata v Newspaper Publishing [1997] 1 All E.R. 655 .................................. 12–60, 12–61
Tuberville v Stamp (1697) 1 Ld. Raym. 264 ................................................................ 15–20
Tumelty v MoD (1988) 4 B.N.I.L. 140 ......................................................................... 6–44
Turbervell v Savadge (1669) 1 Mod. 3 ......................................................................... 4–13
Turcu v Group Newspapers Ltd [2005] EWHC 799 (QB) .............................. 12–27, 12–68
Turner v Ambler (1847) 10 Q.B.D. 252 ........................................................................ 19–11
Turner v MGM Pictures Ltd [1950] 2 All E.R. 449 ................ 12–11, 12–35, 12–36, 12–51
Turner v News Group Newspapers Ltd [2005] EWHC 892 (QB) ............................... 12–28
Turner v Stallibrass [1898] 1 Q.B. 56 ........................................................................... 1–12
Turner v Sterling (1671) 2 Vent. 24 .............................................................................. 7–20
Tutin v Chipperfield Promotions Ltd (1980) 130 N.L.J. 807 ............................. 16–4, 16–12
Tuttle v Buck (1909) 119 N.W. 946 .............................................................................. 18–32
Tutton v A D Walter [1986] Q.B. 61 ............................................................................ 9–27
Twine v Bean’s Express (1946) 185 L.T. 131 .................................................... 20–1, 20–12
Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 A.C. 164 ................................. 18–8
Twycross v Grant (1877) 2 C.P.D. 469 ......................................................................... 11–14
UBAF Ltd v European Banking Corp [1984] Q.B. 713 ............................................... 11–32
UCB Bank Plc v Hepherd Winstanley & Pugh [1999] Lloyd’s Rep. P.N. 963 .......... 6–44
UCL Hospitals NHS Trust v UNISON [1999] I.C.R. 204 ........................................... 18–37
US v Carroll Towing Co, 159 F. 2d 169, 173 (1947) .................................................. 5–86
US v Holmes (1842) 1 Wall Jr.1 ................................................................................... 25–35
USA v Dollfus Mieg et Cie [1952] A.C. 582 ............................................................... 17–5
USA v Laird Line Ltd [1924] A.C. 286 ....................................................................... 6–49
Ucktos v Mazetta [1956] 1 Lloyd’s Rep. 209 .............................................................. 22–41
Uddin v Associated Portland Cement Manufacturers Ltd [1965] 2 Q.B. 582 ............. 6–52
Ulsterbus v Connelly [1982] 13 N.I.J.B ........................................................................ 22–42
Ultramares Corp v Touche, 174 N.E. 441 ..................................................................... 5–42
Underhill v Corser [2009] EWHC 3058 (QB) .............................................................. 12–2
Unger v City of Ottawa (1989) 58 D.L.R. (4th) 98 ...................................................... 9–8
Uni-Jet Industrial Pip Ltd v Canada (Att-Gen) (2001) 198 D.L.R. (4th) 577 ............. 7–23
Unilan Holdings Pty Ltd v Kerin (1992) 107 A.L.R. 709 ........................................... 11–20
Union of India v Kumar [2008] INSC 802 ................................................................... 15–3
Table of Cases lxxxiii
Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All E.R. 385 ...... 17–17
United Africa Co v Saka Owoade [1955] A.C. 130 ..................................................... 20–13
United Australia Ltd v Barclays Bank Ltd [1941] A.C. 1 ........................................... 26–2
United Biscuits (UK) Ltd v Asda Stores Ltd [1997] R.P.C. 513 ..................... 18–44, 18–45
United Telecasters Sydney Ltd v Hardy (1991) 23 N.S.W.L.R. 323 ........................... 19–14
Unitex Ltd v Union Texturing Co Ltd [1973] R.P.C. 119 ............................................ 18–48
Unitque Pub Properties Ltd v Beer Barrels and Minerals (Wales) Ltd [2004] EWCA
Civ 586; [2005] 1 All E.R. (Comm.) 181 ............................................................. 18–4
Universe Tankships Inc of Monrovia v ITWF [1983] A.C. 366 ...................... 18–17, 18–37
University of Essex v Djemal [1980] 1 W.L.R. 1301 .................................................. 13–15
University of Oxford v Broughton [2008] EWHC 75 (QB) ........................................ 4–38
Urbanski v Patel (1978) 84 D.L.R. (3d) 650 ................................................................. 25–16
Uren v John Fairfax & Sons Pty Ltd (1967) 117 C.L.R. 118 ............................ 22–8, 22–12
Uxbridge Permanent Society v Pickard [1939] 2 K.B. 248 ............................. 20–13, 20–17
Vacwell Engineering v B D H Chemicals [1971] 1 Q.B. 88 ..................... 6–31, 10–4, 10–5
Vairy v Wyong SC [2005] HCA 62 .................................................... 5–8, 5–33, 5–83, 9–17
Valpy v Sanders (1848) 5 C.B. 886 ............................................................................... 26–2
Van Heeren v Cooper [1999] 1 N.Z.L.R. 731 ....................................................... 19–5, 19–6
Van Open v Bedford School [1989] 1 All E.R. 273 ..................................................... 11–23
Van Open v Bedford School [1990] 1 W.L.R. 235 ............................................... 5–29, 5–30
Van Oppen v Tredegars (1921) 37 T.L.R. 504 .............................................................. 17–13
Van Soest v Residual Health Management Unit [2000] 1 N.Z.L.R. 179 ............. 5–67, 5–74
Van Wees v Karkour [2007] EWHC 165 (QB) ............................................................ 22–26
Vancouver General Hospital v McDaniel (1934) 152 L.T. 56 ..................................... 5–79
Vanderpant v Mayfair Hotel Co [1930] 1 Ch. 138 ....................................................... 14–39
Vandyke v Fender [1970] 2 Q.B. 292 ........................................................................... 20–19
Vanek v Great Atlantic etc. Co of Canada (1999) 180 D.L.R. (4th) 748 .................... 5–66
Varawa v Howard Smith Co (1911) 13 C.L.R. 35 ....................................................... 19–14
Vasey v Surrey Free Inns [1995] C.L.Y. 3735 .............................................................. 20–14
Vaughan v Menlove (1837) 3 Bing N.C. 468 ............................................................... 3–4
Vaughn v McKenzie [1969] 1 Q.B. 557 ....................................................................... 13–11
Veedfald v Arhus Amtskommune [2001] E.C.R. I–3569 ............................................. 10–25
Vellino v CC Greater Manchester [2001] EWCA Civ 1249; [2001] 1 W.L.R. 218 ..... 5–33,
25–18, 25–20, 25–23, 25–24
Venables v News Group Newspapers Ltd [2001] Fam. 430 ........................................ 12–83
Venables v Smith (1877) 2 Q.B.D. 279 ......................................................................... 20–8
Vernon v Bosley (No 1) [1997] 1 All E.R. 577 ................................................... 5–61, 5–68
Vernon v Bosley (No 2) [1999] Q.B. 18 ....................................................................... 5–61
Vernon v Keys (1812) 4 Taunt. 488 .............................................................................. 11–5
Verrall v Great Yarmouth BC [1981] Q.B. 202 ............................................................ 13–10
Verschures Creameries Ltd v Hall and Netherlands SS Co [1921] 2 K.B. 608 .......... 26–2
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ
1151; [2005] 4 All E.R. 1181 ................................................................................ 20–8
Vicars v Wilcocks (1806) 8 East 1 ................................................................................ 12–5
Victorian Ry Comrs v Coultas (1888) 13 App Cas 222 ....................................... 4–37, 5–62
Videan v British Transport Commission [1963] 2 Q.B. 650 .............................. 9–27, 25–15
Villers v Monsley (1769) 2 Wils. 403 ........................................................................... 12–8
Vincent v Southern Ry [1927] A.C. 430 ....................................................................... 7–19
Vine Products Ltd v Mackenzie & Co Ltd [1969] R.P.C. 1 ........................................ 18–47
Vine v Waltham Forest LBC [2000] 1 W.L.R. 2383 ................................ 17–8, 17–10, 25–2
Vinnyey v Star Paper Mills Ltd [1965] 1 All E.R. 175 ............................................... 8–14
Viridian Inc v Bovar Inc (2002) 216 D.L.R. (4th) 122 ................................................ 10–8
Viscount de L’Isle v Times Newspapers Ltd [1988] 1 W.L.R. 1042 ........................... 12–70
Vizetelly v Mudie’s Select Library Ltd [1900] 2 Q.B. 170 ......................................... 12–23
Voaden v Champion (The Baltic Surveyor) [2002] EWCA Civ 89; [2002] 1 Lloyd’s
Rep. 623 ...................................................................................................... 22–43, 22–45
Vodden v Gayton [2001] P.I.Q.R. P4 ............................................................................ 9–25
Voli v Inglewood v SC [1963] Qd.R. 256 .................................................................... 5–23
Voller v Dairy Produce Packers Ltd [1962] 1 W.L.R. 960 .......................................... 23–13
Von Hannover v Germany (2005) 40 E.H.R.R. 1 ......................................................... 2–12
Vorvis v Insurance Corp of BC (1989) 58 D.L.R. (4th) 193 ....................................... 22–12
lxxxiv Table of Cases
Vose v Lancs & Yorks Ry (1858) 27 L.J. Ex. 249 ....................................................... 8–2
Vowles v Evans [2003] EWCA Civ 318; [2003] 1 W.L.R. 1607 ........................ 5–19, 5–36
Vukelic v Hammersmith & Fulham LBC [2003] EWHC 188 (TCC) ......................... 26–18
Vulcan Metals Co v Simmons Mfg Co, 248 F. 853 (1918) ......................................... 11–6
W, Re [1993] Fam. 64 .................................................................................................... 4–11
W v Egdell [1990] Ch.359 ............................................................................................. 12–83
W v Essex CC [1999] Fam. 90 ..................................................................................... 4–36
W v Essex CC [2001] 2 A.C. 592 ............................................................... 5–53, 5–69, 5–71
W v Home Office [1997] Imm. A.R. 302 ..................................................................... 5–50
W v JH [2008] EWHC 399 (QB) .................................................................................. 12–45
W v Westminster CC [2004] EWHC 2866 (QB) .......................................................... 12–68
WH Smith & Son v Clinton (1908) 99 L.T. 841 .......................................................... 21–7
WHPT Housing Association Ltd v Secretary of State for Social Services [1981] I.C.R.
737 ........................................................................................................................... 20–4
W B Anderson & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All E.R. 850 ...... 11–13, 11–32
W B v H Bauer Publishing Ltd [2002] E.M.L.R. 8 ..................................................... 12–82
Wade v State of Victoria [1999] 1 V.R. 121 ................................................................. 11–34
Wadsworth v Lydall [1981] 1 W.L.R. 598 .................................................................... 6–33
Wagner v International R R (1921) 133 N.E. 437 ........................................................ 25–16
Wagon Mound, The (No 1) [1996] A.C. 388 ........ 6–17, 6–18, 6–20, 6–21, 6–22, 6–23, 6–25,
6–26, 6–29, 6–32, 7–14, 11–18, 15–19, 16–12
Wain v Sherwood & Sons Transport Ltd [1999] P.I.Q.R. P159 .................................. 22–3
Wainer v Rippon [1981] V.R. 129 ................................................................................. 12–4
Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406 ..... 2–11, 3–2, 4–9, 4–37,
5–62, 12–78, 12–80
Walker Estate v York Finch General Hospital [2001] SCC 23 .................................... 10–8
Walker v Geo H Medlicott & Son [1999] 1 W.L.R. 727 ............................................. 5–59
Walker v Northumberland CC [1995] I.C.R. 702 ................................................. 5–71, 5–84
Walking v South Manchester HA [1995] 1 W.L.R. 1543 ............................................ 26–18
Walkley v Precision Forgings Ltd [1979] 1 W.L.R. 606 .................................. 26–20, 26–21
Wall v Radford [1991] 2 All E.R. 741 .................................................................. 5–21, 21–6
Wallace v Litwiniuk (2001) 92 Alta. L.R. (3d) 149 ..................................................... 21–5
Wallace v Newton [1982] 1 W.L.R. 375 ....................................................................... 16–7
Walsh v Ervin [1952] V.L.R. 361 .................................................................................. 14–39
Walsh v Holst & Co Ltd [1958] 1 W.L.R. 800 ............................................................ 20–24
Walsh v Sprecher Grier Halbertstam LLP [2008] EWCA Civ 1324 ........................... 11–7
Walter v Ashton [1902] 2 Ch. 282 ................................................................................ 18–51
Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792; [2003] Lloyd’s
Re.Med. 49 ............................................................................................................. 5–68
Walters v WH Smith & Son Ltd [1914] 1 K.B. 595 .......................................... 4–25, 25–30
Wandsworth LBC v A [2000] 1 W.L.R. 1246 .............................................................. 13–10
Wandsworth LBC v NASMUWT [1994] I.C.R. 81 ...................................................... 18–37
Wandsworth LBC v Railtrack Plc [2001] EWCA Civ 1236 .............................. 14–21, 16–2
Waple v Surrey CC [1998] 1 W.L.R. 860 ..................................................................... 12–42
Ward v Cannock Chase DC [1986] Ch. 546 ....................................................... 6–38, 22–44
Ward v Foss, The Times, November 29, 1993 ............................................................. 23–5
Ward v Hobbs (1878) 4 App. Cas. 13 ......................................................... 10–4, 11–4, 11–8
Ward v James [1966] 1 Q.B. 273 .................................................................................. 22–22
Ward v LCC [1938] 2 All E.R. 341 .............................................................................. 5–85
Ward v Leeds Teaching Hospital NHS Trust [2004] EWHC 2106 ............................. 5–68
Ward v Macaulay (1791) 4 T.R. 489 ..................................................................... 13–2, 17–4
Ward v Tesco Stores Ltd [1976] 1 W.L.R. 810 ............................................................ 5–90
Ward v Weeks (1830) 7 Bing. N.C. 211 ....................................................................... 12–24
Wardell-Yerburgh v Surrey CC [1973] R.T.R. 462 ....................................................... 5–85
Wardlaw v Farrar [2003] EWCA Civ 1719; [2004] P.I.Q.R. P19 ............................... 6–13
Ware & De Freville Ltd v Motor Trade Association [1921] 3 K.B. 40 ...................... 18–24
Ware v Garston Haulage Co Ltd [1944] K.B. 30 ......................................................... 14–38
Warner v Riddiford 4 C.B.(N.S.) 180 (1858) ........................................................ 4–15, 4–16
Warner v Sampson [1959] 1 Q.B. 297 .......................................................................... 13–17
Warren v Henlys Ltd [1948] 2 All E.R. 935 ................................................................ 20–14
Warren v Random House Group Ltd [2008] EWCA Civ 834 ..................................... 12–67
Table of Cases lxxxv
Western Engraving Co v Film Laboratories Ltd [1936] 1 All E.R. 106 ..................... 15–13
Western Silver Fox Ranch Ltd v Ross and Cromarty CC, 1940 S.C. 601 .................. 17–18
Western Suburbs Hospital v Currie (1987) 9 N.S.W.L.R. 511 ..................................... 5–86
Westminster CC v UNISON [2001] EWCA Civ 443; [2001] I.C.R. 1046 ................. 18–37
Weston v Lawrence Weaver Ltd [1936] 1 Ch. 343 ...................................................... 14–15
Westripp v Baldock [1939] 1 All E.R. 279 ................................................................... 13–4
Westwood v Post Office [1974] A.C. 1 ......................................................... 6–48, 6–52, 9–6
Wettern Electric Ltd v Welsh Development Agency [1983] Q.B. 796 ........................ 9–39
Whale v Hitchcock (1876) 34 L.T. 163 ........................................................................ 13–16
Whalley v Lancashire and Yorkshire Ry (1884) 13 Q.B.D. 131 .................................. 25–34
Whatford v Carty, The Times, October 29, 1960 .......................................................... 17–25
Whatman v Pearson (1868) L.R. 3 C.P. 422 ................................................................. 20–10
Wheat v Lacon & Co Ltd [1966] A.C. 552 .................................................... 9–4, 9–8, 9–18
Wheeler v J J Saunders Ltd [1996] Ch. 19 ................................................................... 14–7
Wheeler v Somerfield [1966] 2 Q.B. 94 ............................................................. 12–5, 12–15
Wheeler v St Mary’s Hall, The Times, October 10, 1989 ............................................ 9–8
Whitby v Burt, Bolton & Hayward Ltd [1947] K.B. 918 ............................................ 7–19
White Hudson & Co Ltd v Asian Organisation Ltd [1964] 1 W.L.R. 1466 ............... 18–45
White v Bayley (1861) 10 C.B.(N.S.) 227 .................................................................... 13–2
White v Blackmore [1972] 2 Q.B. 651 ................................................................. 9–19, 9–20
White v Jamieson (1874) L.R. 18 Eq. 303 ................................................................... 14–19
White v John Warwick & Co [1953] 1 W.L.R. 1285 ................................................... 10–3
White v Jones [1995] 2 A.C. 207; 1993] 3 W.L.R. 730 ..... 1–7, 2–17, 5–16, 5–34, 5–35, 5–37,
5–38, 5–40, 5–59, 11–1, 11–21, 11–22, 11–34, 26–11,
26–12
White v Mellin [1895] A.C. 154 ....................................................................... 12–73, 12–75
White v Morris (1852) 11 C.B. 1015 ............................................................................ 17–5
White v St Alban’s District CC, The Times, March 12, 1990 ..................................... 9–26
White v White [2001] 2 All E.R. 43 ............................................................................. 3–4
White v Withers LLP [2009] EWCA Civ 1122 .................................. 2–2, 17–3, 17–4, 17–8
Whiteford v Hunter [1950] W.N. 533 ........................................................................... 5–79
Whitehead v Searle [2008] EWCA Civ 285 ................................................................. 6–8
Whitehouse v Jordan [1981] 1 W.L.R. 246 ................................................................... 5–76
Whitfield v H & R Johnson (Tilers) Ltd [1991] I.C.R. 109 ......................................... 5–77
Whitmores Ltd v Stanford [1909] 1 Ch. 427 ................................................................ 15–15
Whittaker v Minister of Pensions and National Insurance [1967] 1 Q.B. 156 ........... 20–4
Whittaker v Sandford, 85 A. 399 (1912) ...................................................................... 4–22
Whitwham v Westminster Brymbo Coal and Coke Co [1896] 2 Ch. 538 .................. 22–13
Whycer v Urry [1955] C.L.Y. 1939 .............................................................................. 14–9
Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 W.L.R. 295 ............... 17–27
Widdowson v Newgate Meat Corp [1998] P.I.Q.R. P138 ............................................ 5–89
Wieland Cyril Lord Carpets Ltd [1969] 3 All E.R. 100 ...................................... 6–32, 6–40
Wiffen v Bailey and Romford UDC [1915] 1 K.B. 600 .............................................. 19–2
Wiffin v Kincard (1807) 2 Bos. & Pul. 471 ................................................................. 4–7
Wilchick v Marks [1934] 5 K.B. 56 .............................................................................. 14–26
Wild v National Bank of NZ [1991] 2 N.X.L.R. 45 .................................................... 11–9
Wilde v Waters (1855) 24 L.J.C.P. 193 ......................................................................... 17–26
Wildgust v Norwich Union [2006] IESC 19 ................................................................. 11–31
Wildtree Hotels Ltd v Harrow LBC [2001] 2 A.C. 1 .................................................. 14–34
Wilkes v Hungerford Market Co (1835) 2 Bing. N.C. 281 ......................................... 14–39
Wilkes v Lord Halifax 19 State Trials 1466 ................................................................. 22–10
Wilkes v Wood (1763) Lofft. 1 ........................................................................... 22–10, 24–2
Wilkie v LPTB [1947] 1 All E.R. 258 .......................................................................... 9–20
Wilkins v Leighton [1932] 2 Dh. 106 ........................................................................... 14–23
Wilkinson v Downton [1897] 2 Q.B. 57 .............. 1–15, 2–3, 4–13, 4–36, 4–37, 5–62, 11–1
Wilkinson v King (1809) 2 Camp. 335 ......................................................................... 17–8
Wilks v Cheltenham Home Guard Motor Cycle and Light Car Club [1971] 1 W.L.R.
668 ........................................................................................................................... 25–13
Willemstad, The (1976) 136 C.L.R. 529 ............................................................. 5–42, 11–28
William Edge & Sons Ltd v William Niccolls & Sons Ltd [1911] A.C. 693 ............. 18–45
Williams & Glyns Bank Ltd v Barnes [1981] Com.L.R. 205 ...................................... 11–23
Table of Cases lxxxvii
Williams v Birmingham Battery and Metal Co [1892] 2 Q.B. 338 ............................. 8–12
Williams v Fanshaw Porter and Hazelhurst [2004] EWCA Civ 157; [2004] 1 W.L.R.
3185 ......................................................................................................................... 26–14
Williams v Holland (1833) 10 Bing. 112 ...................................................................... 4–33
Williams v Humphrey, The Times, February 20, 1975 ............................................. 3–2, 4–6
Williams v John I Thornycroft Ltd [1940] 2 K.B. 658 ................................................ 23–13
Williams v Jones (1865) 3 H. & C. 602 ....................................................................... 20–10
Williams v Leatherdale & Francis [2008] EWHC 2574 (QB) ..................................... 5–79
Williams v Mersey Docks and Harbour Board [1905] 1 K.B. 804 ............................. 23–11
Williams v MGN Ltd [2009] EWHC 3150 (QB) ......................................................... 12–12
Williams v Natural Life Health Foods Ltd [1998] 1 W.L.R. 830 ........ 11–19, 11–22, 24–23
Williams v Reason [1988] 1 W.L.R. 96 ........................................................................ 12–28
Williams v Spautz (1992) 174 C.L.R. 509 .................................................................... 19–14
Williams v The Curzon Syndicate Ltd (1919) 35 T.L.R. 475 ...................................... 20–15
Williams v Thompson Leatherdale [2008] EWHC (QB) 2574 .................................... 5–79
Williams v Welsh Ambulance Service NHS Trust [2008] EWCA Civ 81 ...... 23–12, 23–16
Williamson v CC West Midlands [2003] EWCA Civ 337; [2004] 1 W.L.R. 14 ........ 4–26
Williamson v Freer (1884) L.R. 9 C.P. 393 .................................................................. 12–52
Willis v Brooks [1947] 1 All E.R. 191 ......................................................................... 24–21
Willis v Castellain [1993] 3 N.Z.L.R. 103 .................................................................... 9–36
Willmore v Knowsley MBC [2009] EWCA Civ 1211 ................................................. 6–9
Willson v MoD [1991] 1 All E.R. 838 ......................................................................... 22–23
Wilsher v Essex Area Health Authority [1987] Q.B. 730; [1988] A.C. 1090 ..... 5–79, 6–9,
6–10, 20–6
Wilson v Donaldson [2004] EWCA Civ 972 ................................................................ 16–2
Wilson v Lombank Ltd [1963] 1 W.L.R. 1294 ............................. 17–3, 17–5, 17–18, 17–19
Wilson v Merry (1868) L.R. 1H.L.(Sc.) 326 ................................................................ 8–2
Wilson v New Brighton Panelbeaters Ltd [1989] 1 N.Z.L.R. 74 .................... 17–22, 17–23
Wilson v Pringle [1987] Q.B. 237 ................................................................... 4–6, 4–7, 4–34
Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088 ...................................... 17–27
Wilson v Tyneside Window Cleaning Co [1958] 2 Q.B. 110 ...................................... 8–13
Wilson v Waddell (1876) 2 App. Cas. 95 ..................................................................... 15–10
Wilson v Westney [2001] EWCA Civ 839 ................................................................... 12–41
Wilsons and Clyde Coal Co v English [1938] A.C. 57 .................... 8–3, 8–10, 8–17, 20–26
Wilts CC v Frazer [1986] 1 W.L.R. 109 ....................................................................... 13–1
Wilts United Dairies v Robinson & Sons [1958] R.P.C. 94 ............................. 12–73, 12–74
Wiltshire Police Authority v Wynn [1981] Q.B. 95 ..................................................... 20–7
Winch v Mid-Bedfordshire DC., unreported, July 22, 1002, QB ................................ 14–19
Winkfield, The [1902] P. 42 ............................................................................... 17–19, 22–41
Winnipeg Child and Family Services v G [1997] 3 S.C.R. 925 .................................. 4–8
Winnipeg Condominium Corp v Bird Construction Co (1995) 121 D.L.R. (4th) 193 .... 9–36
Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] A.C.
173 ........................................................................................................................... 13–10
Winter v Bancks (1901) 84 L.T. 504 ............................................................................. 17–23
Winter v Cardiff RDC [1950] 1 All E.R. 819 .............................................. 8–3, 8–10, 8–14
Winter v GP Putnam’s Sons 938 F. 2d 1033 (C9, 1991) ............................................. 10–16
Winterbottom v Lord Derby (1867) L.R. 2 Ex. 316 ..................................................... 14–3
Winward v TVR Engineering [1986] B.T.L.C. 366 ...................................................... 10–3
Wise v Kaye [1962] 1 Q.B. 638 ........................................................................ 22–19, 22–20
Wisely v John Fulton (Plumbers) Ltd [2000] 1 W.L.R. 820 ........................................ 22–34
Wiseman v Booker (1878) 3 C.P.D. 184 ....................................................................... 16–9
With v O’Flanagan [1936] Ch. 575 ............................................................................... 11–9
Withers v Perry Chain Co [1961] 1 W.L.R. 1314 ........................................................ 8–16
Wivenhoe Port v Colchester BC [1985] J.P.L. 175 ...................................................... 14–1
Wong v Kwan Kin Travel Services [1996] 1 W.L.R. 39 ......................... 20–1, 20–22, 21–6
Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721; [2003] 3 All E.R. 932 ........ 4–6,
4–14, 4–36, 4–37
Wood v Bentall Simplex [1992] P.I.Q.R. P332 ............................................................. 23–16
Wood v Leadbitter (1845) 13 M. &. W. 838 ................................................................ 13–10
Wood v Manley (1839) 11 A. & E. 34 ......................................................................... 13–10
Wood v MPC [2009] EWCA Civ 414 .......................................................................... 12–85
lxxxviii Table of Cases
Yuille v B & B Fisheries (Leigh) Ltd [1958] 2 Lloyd’s Rep. 596 .............................. 24–23
Z v UK (2002) 34 E.H.R.R. 3 ............................................................... 2–13, 5–3, 5–53, 7–5
Zabihi v Janzemini [2009] EWCA Civ 851 .................................................................. 17–27
Zepeda v Zepeda 190 N.E. 2d 849 (1963) .................................................................... 24–14
Zhu v Treasurer of NSW [2004] HCA 56 ............................................................ 18–2, 18–8
Ziemniak v ETBM Deep Sea Ltd [2003] EWCA Civ 636 .......................................... 7–1
TABLE OF STATUTES
xci
xcii Table of Statutes
ciii
civ Table of Statutory Instruments
cv
TABLE OF ABBREVIATIONS
BC Borough Council
cvii
cviii Table of Abbreviations
Co Company
Corp Corporation
County Ct. County Court
CPR Civil Procedure Rules
edn edition
E.G. Estates Gazette
E.H.R.R. European Human Rights Reports
no. Number
Nos numbers
N.S.W.L.R. New South Wales Law Reports
N.Z.L.R. New Zealand Law Reports
p. page
pp. pages
para. Paragraph
paras Paragraphs
Table of Abbreviations cix
PD Practice Direction
P.I.Q.R. Personal Injury and Quantum Reports
Plc Public limited company
P.N.L.R. Professional Negligence Law Reports
Pt Part
Pts Parts
P.T.S.R. Public and Third Sector Reports
r. Rule
rr. Rules
RDC Rural District Council
reg. Regulation
regs Regulations
Ry Railway
s. Section
ss. Sections
S.C. Session Cases
Sch. Schedule
Schs Schedules
S.C.R. Supreme Court Reports (Canada)
SI Statutory Instrument
S.J. Solicitor’s Journal
S.L.T. Scots Law Times
subs. subsection
subss. subsections
Vol. Volume
Vols Volumes
V.R. Victoria Reports
1. Nature of the Law of Tort .................... 1–1 D. Social Security ................................ 1–23
A. Aims of the Law of Tort ................ 1–2 i. Non-Industrial Injuries ........... 1–24
B. Definition of Tortious Liability: Tort ii. Industrial Injuries .................... 1–25
and Other Sources of Liability ...... 1–4 E. Recoupment of Social Security Pay-
C. Contract and Tort ............................ 1–5 ments ............................................... 1–26
D. Concurrence of Contract and Tort . 1–8 4. Paying for the Operation of the Tort
E. Tort and the Law of Restitution ..... 1–10 System ................................................... 1–27
F. Tort and Equitable Liability Distin- 5. Criticisms of the Tort System in the
guished ............................................ 1–11 Context of Personal Injuries ................. 1–28
G. Tort and Liability on Bailment ...... 1–12 A. The ‘‘fault principle’’ ...................... 1–28
H. Tort and Crime Distinguished ........ 1–13 B. Tort and Deterrence ........................ 1–29
I. Law of Obligations? ....................... 1–14 C. Tort and Responsibility .................. 1–32
2. Foundation of Tortious Liability .......... 1–15 D. Expense and Inefficiency ............... 1–34
3. Tort and Other Sources of Compensa- 6. Alternatives ........................................... 1–37
tion ......................................................... 1–18 A. Strict Liability ................................. 1–38
A. Damage to Property: Tort and In- B. Non-Tort Compensation ................. 1–39
surance ............................................ 1–19 7. Tort and the Compensation Culture ..... 1–43
B. Personal Injuries and Death ........... 1–21
C. Private Insurance, Occupational
Pension, etc. .................................... 1–22
1
2 Nature and Functions of the Law of Tort
1
This is not the same thing as ‘‘compensating for misfortune’’. See para.1–28 et seq.,
below.
2
An award of damages against A may also have a ‘‘preventive’’ function in deterring B
from behaving in the same way, but how far this works is controversial: para.1–29,
below.
Nature of the Law of Tort 3
3
Vindication of rights may play a role even in cases of negligence. See, e.g. the award of
damages in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1
A.C. 309 (para.24–15, below) or the modification of causation principles in Chester v
Afshar [2004] UKHL 41; [2005] 1 A.C. 345 (para.6–12, below).
4
[2008] UKHL 25; [2008] 1 A.C. 962.
5
Strictly speaking there were claims (a) by family members under the Fatal Accidents Act
1976 and (b) by A’s estate: see Ch.23. Acquittal on the criminal charge and liability in the
civil action are not necessarily inconsistent: both the burden of proof and the content of
self-defence differ in the criminal and civil law (see para.25–30, below).
4 Nature and Functions of the Law of Tort
There have also been cases in which a civil claim has been
brought in order to provoke the prosecuting authorities into
acting.7
It is perhaps unkind to call tort the dustbin of the law of obliga-
tions, but it is certainly the great residuary category. No one theory
explains the whole of the law.
1–3 Even where we are concerned with material or financial loss the
law clearly cannot decree that whenever one suffers loss he should
automatically be entitled to redress from the author of that loss. If,
for example, A begins to trade in a commodity in a district in which
B has previously had a monopoly, A can clearly foresee that if he
adopts superior methods of business he will cause loss to B—indeed
it might be said in one sense that his purpose was to cause loss to
B—but he is clearly not liable to compensate B for this loss. Indeed,
the law takes quite the opposite stance by providing that many
agreements between traders to restrict competition are unlawful.8
There must be some reason in any given case for calling on the law
to provide the redress sought, to shift the loss as otherwise it lies
where it falls. With comparatively few exceptions this reason is fault
of some kind on the part of the defendant. However, the law cannot
even go so far as to order every person whose action may be
regarded as ‘‘faulty’’ to make redress to those who suffer by it:
paradoxical as it may seem, the law of tort is as much about non-
liability as it is about liability.9
6
At [69] per Lord Rodger. See also Grant v Roche Products (Ireland) Ltd [2008] IESC 35.
Contrast Birkenfeld v Kendall [2008] NZCA 531; [2009] 1 N.Z.L.R. 499, where wilful
misconduct was not alleged and the defendant had made an offer of the maximum damages
payable under a statutory limitation. See also para.4–3 below.
7
See Halford v Brookes [1991] 1 W.L.R. 428 (successful civil action arising from murder;
defendant subsequently prosecuted and convicted: The Times, August 1, 1996).
8
Competition Act 1998; and see art.81 (ex art.85) of the Treaty of Rome.
9
Jolowicz, ‘‘The Law of Tort and Non-Physical Loss’’ (1972) 12 J.S.P.T.L. 91.
10
Donoghue v Stevenson [1932] A.C. 562 at 580, per Lord Atkin.
Nature of the Law of Tort 5
It is the business then of the law of tort to determine when the law
will and when it will not grant redress for damage suffered or
threatened, and the rules for liability whereby it does this are the
subject of this book. We may say, therefore, that if a claimant has
suffered damage (which is by no means always confined to injury to
his body or damage to his property) in circumstances covered by the
rules for liability stated in a book on the law of tort, then, assuming
the rules to be correctly stated, the claimant has been the victim of
a tort; by this we mean no more than that a tort is a wrong, the victim
of which is entitled to redress.12 Of course, if the claimant is unable
to establish a tort, it does not follow that he is without some other
form of redress. The act or omission of the other party may be some
other sort of wrong for which a remedy may lie in contract or
restitution or according to the rules of equity governing breach of
trust, matters which are briefly considered in the next section.
However, all these categories of private law are, like tort, concerned
with questions of liability. An action founded upon tort or other
wrong is an action between persons, either natural or artificial (i.e.
corporations), and the outcome can only be that one of them, the
defendant, is or is not liable to do or refrain from doing something
at the suit of the other. If there is no defendant whose liability can
be established according to the principles of the law, then the
claimant is left without redress so far as private law is concerned. He
may, of course, look to the Welfare State or to a private loss
insurance contract he may have made.13 The relationship, present
and future, between the law of tort and such sources of compensa-
tion must be considered in the concluding part of this chapter.
11
McFarlane v Tayside Health Board [2000] 2 A.C. 59 at 83, per Lord Steyn. See
para.24–15, below.
12
See S.C.M. (UK) Ltd v Whittall & Son Ltd [1971] 1 Q.B. 337 at 347–348, per Winn
L.J.
13
Insurance of course depends on the private law of contract, but one can hardly describe the
insurer’s payment on the occurrence of the insured event as ‘‘redress’’. When a person has
to pay damages for failing to deliver the goods he has promised under a contract of sale
one can fairly say that he is redressing the breach of an obligation to deliver. The insurer
does not promise that the insured event will not happen, he simply promises to pay a sum
of money if it does.
6 Nature and Functions of the Law of Tort
28
Sale of Goods Act 1979; Unfair Contract Terms Act 1977.
29
Lister v Romford Ice & Cold Storage Co Ltd [1957] A.C. 535 at 594, per Lord Tucker;
Liverpool CC v Irwin [1977] A.C. 239 at 257, 258, per Lord Cross.
30
Occupiers’ Liability Act 1957 s.2(1); Ashdown v Samuel Williams Ltd [1957] 1 Q.B. 409.
This case would be decided differently since the Unfair Contract Terms Act 1977 but is
still illustrative of the general principle of law.
31
See Burrows, Understanding the Law of Obligations (1998) Ch.1, who adopts ‘‘wrongful
interference’’ as the hallmark of tort in order to avoid this overlap.
32
If the defendant delivers non-conforming goods which cause physical damage to existing
property of the claimant then that loss, too, is recoverable in contract even though it is also
the type of damage dealt with by tort. Godley v Perry [1960] 1 W.L.R. 9 is a good example
from personal injury law. The claimant’s complaint was not ‘‘my catapult doesn’t work’’
but ‘‘it broke and put my eye out’’.
10 Nature and Functions of the Law of Tort
33
See para.5–33, below.
34
See para.5–34, below.
35
Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145.
36
But not always: see para.5–36, below.
37
The claim would not accord with the law governing negligent misstatements or ‘‘assump-
tion of responsibility’’ in general.
Nature of the Law of Tort 11
38
White v Jones [1995] 2 A.C. 207, para.5–37, below. See Stapleton, ‘‘The Normal Expec-
tancies Measure in Tort Damages’’ (1997) 113 L.Q.R. 257, who therefore argues that from
the damages point of view there is nothing revolutionary in White v Jones.
39
Fraud (deceit) is a tort and subject to the tort measure of damages: para.11–14, below.
40
East v Maurer [1991] 1 W.L.R. 461. But see Clef Aquitaine S.A.R.L. v Laporte Materials
(Barrow) Ltd [2001] Q.B. 488, para.11–14, below, which appears to go further.
12 Nature and Functions of the Law of Tort
‘‘[T]he result may be untidy but, given that the tortious duty is
imposed by the general law, and the contractual duty is attributa-
ble to the will of the parties, I do not find it objectionable that the
41
[1932] A.C. 502.
42
See Ch.10.
43
Norwich CC v Harvey [1989] 1 W.L.R. 828.
44
Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch. 560 (the principal will be responsible
to the claimant for the acts of the agent and may recover an indemnity under his contract
with the agent. The point is significant for the claimant where the principal is insolvent).
See para.11–22, below.
45
See para.24–23, below.
46
See generally Weir in XI International Encyclopedia of Comparative Law, Ch.12.
47
See, e.g. Groom v Crocker [1939] 1 K.B. 194; Bagot v Stevens Scanlan & Co Ltd [1966]
1 Q.B. 197.
48
[1995] 2 A.C. 145.
49
See para.26–11, below.
50
[1995] 2 A.C. at 194.
Nature of the Law of Tort 13
57
Thake v Maurice [1986] Q.B. 644 shows that a court will require very clear evidence to
establish such a warranty against a doctor. Compare Platform Funding Ltd v Bank of
Scotland Plc [2008] EWCA Civ 930; [2009] Q.B. 426, where it was held that although a
valuer undertook only to use skill in the valuation he did undertake without qualification
that he had valued the correct property. Similarly if a surgeon mixes up two patients and
performs the wrong operation he commits trespass even if the confusion was someone
else’s fault.
58
Norwich CC v Harvey, above, fn.43, in the three-party situation.
59
[1986] A.C. 80. Applied in Yorkshire Bank Plc v Lloyds Bank Plc [1999] 1 All E.R.
(Comm.) 154 so as to prevent a claim by paying bank against drawee bank when cheque
fraudulently altered by person unknown.
60
National Bank of Greece S.A. v Pinios Shipping Co (No.1) [1989] 3 W.L.R. 185 (on appeal,
but not on this point) [1990] 1 A.C. 637.
61
Bank of Nova Scotia v Hellenic Mutual War Risks Association [1990] 1 Q.B. 818 reversed
on the construction of the contract, [1992] 1 A.C. 233. See also Banque Keyser Ullmann
S.A. v Skandia (UK) Insurance Co Ltd [1991] 2 A.C. 249.
Nature of the Law of Tort 15
62
See Design Services Ltd v Canada [2008] SCC 22; [2008] 1 S.C.R. 737, where there
appears to have been a collateral contract between the invitor and the main contractor
bidders.
63
In the past the greater part of this area of law was known as quasi-contract because
recovery was granted on the basis of fictional contracts.
64
See paras 22–13 and 26–2, below.
16 Nature and Functions of the Law of Tort
65
See further para.22–13, below. A claim for the return of money paid under a void contract
is neither a ‘‘matter relating to a contract’’ nor a ‘‘matter relating to tort, delict or quasi-
delict’’ for jurisdiction purposes under the Brussels Convention: Kleinwort Benson Ltd v
Glasgow CC [1999] 1 A.C. 153. Presumably, however, a case where the plaintiff had
suffered a tort and claimed damages on a restitutionary basis would fall within the latter
category.
66
But the fact that the claimant claims a specific sum in his pleadings (e.g. £5,000 as the
value of a wrecked car) does not make it liquidated.
67
e.g. the price of goods sold and delivered at so much a unit or wages at so much a
week.
68
See, e.g. Att Gen v Cantor [1938] 2 K.B. 826 (affirmed [1939] 1 K.B. 326).
69
But the claimant may be able to obtain a quia timet injunction before his cause of action
is complete by suffering damage: para.22–52, below.
70
e.g. the economic torts and nuisance.
Nature of the Law of Tort 17
71
See Millett L.J. in Bristol and West Building Society v Mothew [1998] Ch.1 at 17–18.
72
Norberg v Wynrib (1992) 92 D.L.R. (4th) 449.
73
See S. v G. [1995] 3 N.Z.L.R. 681. But see the warning against the assumption that this
is always an alternative to a tort claim in H. v R. [1996] 1 N.Z.L.R. 299 at 307: ‘‘An
otherwise admirable end cannot be met by utilising an important concept, and one which
has a distinct moral and functional presence in the law, by watering down the basic concept
of a fiduciary.’’ For an optimistic attempt to establish a fiduciary duty see Calvert v William
Hill Credit Ltd [2008] EWCA Civ 1427; [2009] Ch 330.
74
A tactical reliance on the equitable duty in order to avoid principles of causation and
damage applicable at common law will meet with a hostile response: Target Holdings Ltd
v Redferns [1996] A.C. 421; Bristol and West Building Society v Mothew, above, fn.71. Cia
de Seguros Imperio v Heath (REBX) Ltd [2001] 1 W.L.R. 112 (limitation) goes further.
75
[1995] 2 A.C. 145 at 205.
76
See Birks, ‘‘Definition And Division’’ in The Classification of Obligations (1997).
18 Nature and Functions of the Law of Tort
77
Downsview Nominees Ltd v First City Corp Ltd [1993] A.C. 295; Medforth v Blake [2000]
Ch. 86. But see the remark of Scott V.C. at [2000] Ch. 102: ‘‘I do not accept that there is
any difference between the answer that would be given by the common law to the question
what duties are owed by a receiver managing a mortgaged property to those interested in
the equity of redemption and the answer that would be given by equity to that question. I
do not, for my part, think it matters one jot whether the duty is expressed as a common law
duty or as a duty in equity. The result is the same. The origin of the receiver’s duty, like
the mortgagee’s duty, lies, however, in equity and we might as well continue to refer to it
as a duty in equity.’’ A liquidator or administrator owes no duty to individual creditors:
Nam Tai Electronics v Hague [2008] UKPC 13; [2008] P.N.L.R. 27; Kyrris v Oldham
[2003] EWCA Civ 1506.
78
Palmer, Bailment, 3rd edn (2009).
79
It seems inaccurate to say that the bailor gives up any right to the return of the goods upon
the exercise of the option since that right would only arise if the hire charges were not paid.
In Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2009] 3 W.L.R. 118 a
transaction under which A put goods in B’s custody on terms that the goods were to be
used according to A’s wishes in certain circumstances but under which they could not be
restored to A was a bailment.
Nature of the Law of Tort 19
for bailment to exist without contract and where this is the case, as
in the gratuitous loan of something for the use of the borrower, what
is the nature of the liability? Winfield’s opinion was that the bailee’s
liability is not tortious because, he said, the duty arises from a
relation, that of bailor and bailee, which is created by the parties. No
one need be a bailee if he does not wish to be one and no one can
have liability for the safe custody of goods thrust upon him against
his will.80 It is certainly true that a person cannot be subjected to the
duties of a bailee without his consent but as we have already seen,
there are duties which are undoubtedly tortious and which can only
exist if there has been some prior agreement between the parties, so
it may be argued that there is no good reason for distinguishing the
common law duties of a bailee from duties of this kind. Assumption
of responsibility has been an important idea in the expansion of the
modern law of negligence81 but a little before this occurred it was
said on high authority that the obligation of the bailee, ‘‘arises
because the taking of possession in the circumstances involves an
assumption of responsibility for the safe keeping of the goods’’.82
Furthermore, while it is a requirement of a bailment that the bailee
voluntarily takes custody of the goods, it seems that it is not
necessary that the bailor should consent to their custody.83 If the
bailor’s claim is necessarily founded upon some specific provision
in a contract, then, no doubt, the bailee’s liability is not tortious but
contractual; but if the bailor’s claim rests upon a breach by the
bailee of one of the bailee’s common law duties, then might one not
contend that his liability as much attributable to the law of tort as is
the claim of a visitor against the occupier of premises under the
Occupier’s Liability Act?84 However, the Court of Appeal has held
that a gratuitous bailment may create a legal obligation independent
of that in tort, though on the facts there was also a parallel liability
under that head.85 Sometimes the legislature lays down rules by
reference to the contract/tort distinction and no other. For example,
the legislation on limitation of actions contains elaborate provisions
on contract and tort but says nothing about bailment. The courts
80
See para.17–9, below. Winfield’s view is set out in full in Province of the Law of Tort,
Ch.5, where he makes the point that bailment is more fittingly regarded as a distinct branch
of the law of property under the title ‘‘Possession’’ than as appropriate to either the law of
contract or the law of tort.
81
See para.5–34, below.
82
Gilchrist Watt and Sanderson Pty. Ltd v York Products Pty. Ltd [1970] 1 W.L.R. 1262 at
1268, PC.
83
The Pioneer Container [1994] 2 A.C. 324.
84
Turner v Stallibrass [1898] 1 Q.B. 56 at 59, per Collins L.J.; Morris v C. W. Martin & Sons
Ltd [1966] 1 Q.B. 716; Chesworth v Farrar [1967] 1 Q.B. 716; Gilchrist, Watt and
Sanderson Pty Ltd v York Products Pty Ltd [1970] 1 W.L.R. 1262.
85
Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2009] 3 W.L.R. 118. Where
the bailment involves specific undertakings by the bailee the measure of damages may be
more akin to that in contract than tort: at [50].
20 Nature and Functions of the Law of Tort
86
See, e.g. Chesworth v Farrar [1967] 1 Q.B. 716. See also American Express Co v British
Airways Board [1983] 1 W.L.R. 701 (protection from action in tort under Post Office Act
1969 extended to bailment or the legislation would be ineffective).
87
See Ch.7.
88
But not always, e.g. perjury: para.24–10, below.
89
There is no law of ‘‘attempted tort’’.
90
But with the rather anomalous exceptions of manslaughter and causing death by careless
or reckless driving, the occurrence of damage is generally irrelevant to criminality.
91
See para.22–8, below.
92
See para.4–2, below.
Nature of the Law of Tort 21
the law may only be returning to its roots. Furthermore, the com-
pensatory sums awarded under these provisions are, until the court
specifies their exact amount, quite uncertain and are therefore just as
‘‘unliquidated’’ as are damages in tort. There is, however, one
peculiarity which marks them off from damages in tort. In every
case they are obtainable only as a result of a process the primary
purpose of which, when it is initiated, is the imposition of punish-
ment, or something in the nature of punishment. In crime, the award
of compensation is ancillary to the criminal process: in tort it is
normally its very object.
It should also be borne in mind that criminal proceedings may act
in an auxiliary role to a civil case. For example, a prosecution in
respect of a traffic accident is likely to take place before the trial or
settlement of a civil action arising from it and a conviction may be
used as evidence of negligence in the civil action.93
I. Law of Obligations?
At this stage we may, perhaps, claim to have given some reason 1–14
why a book on the law of tort need not concern itself with restitu-
tion, crime or breach of trust, and to have gone a little way towards
distinguishing tortious from contractual liability. As to the last, we
have seen that the boundaries between the two types of liability are
by no means easy to state (nor are they immutable)94 and that there
are plentiful opportunities for both forms of liability to coexist on
one and the same set of facts. The claimant in such a case cannot
recover damages twice over under different heads of legal liability.
Would it not, therefore, be advantageous to bring tortious and
contractual liability together in one book under some such titles as
‘‘The Law of Obligations’’? There is a great deal to be said for this
and it will be essential where one aims at a study of a particular
factual area of legal liability, such as product liability or ‘‘pro-
fessional negligence’’. However, the practicality of the exercise
depends on the level of detail required. A general book on the law
of obligations ought to include the whole of the law of contract and
torts, the law of restitution and, even if it did not include the whole
law of trusts, should certainly contain a good deal of equity, and thus
risks becoming unmanageably large. Furthermore, while there are
undoubtedly points at which our legal categories interconnect and
93
See para.5–88, below.
94
With changes in the law a topic may ‘‘move’’ from contract into tort, an important example
being the imposition of a tortious duty to take care in making statements in Hedley, Byrne
& Co Ltd v Heller & Partners Ltd [1964] A.C. 465, Ch.11, below.
22 Nature and Functions of the Law of Tort
cross, and it is vital that the lawyer should grasp the implications of
this, there are also large areas where they travel alone. The law of
tort is concerned with the incidence of liability.95 Books on contract
or on trusts are, no doubt, concerned with the incidence of liability
for loss or damage suffered, as are those on tort, but there, liability
only forms a part, and sometimes a small part, of their subject
matter. Equally, if not more important, are such questions as the
ways in which a contract may be concluded or a trust set up, the
various modes of discharge or dissolution and the nature of the
property rights these institutions may create. But the central ques-
tion for the law of tort is always that of liability, and it is this which
really forms the link between the various topics covered in this
book. We are not here concerned with the creation of legal relation-
ships or rights of property, though it may be necessary to mention
them incidentally from time to time.
95
In this sense tort most closely resembles crime.
96
Torts, 2nd edn (1910), pp.8–9.
Foundation of Tortious Liability 23
97
To take two modern examples, in Furniss v Fitchett [1958] N.Z.L.R. 396 at 401, Barrow-
clough C.J. said: ‘‘The well known torts do not have their origin in any all-embracing
general principle of tortious liability.’’ In Bollinger v Costa Brava Wine Co Ltd [1960] Ch.
262 at 283, Danckwerts J. said: ‘‘The substance of [the argument for the defendants] was
that, before a person can recover for loss which he suffered from another person’s act, it
must be shown that his case falls within the class of actionable wrongs. But the law may
be thought to have failed if it can offer no remedy for the deliberate act of one person
which causes damage to the property of another.’’
98
R.C.A. Corp v Pollard [1983] Ch. 135. See Dunlop v Woolahra MC [1982] A.C. 158;
Lonrho Ltd v Shell Petroleum Co Ltd (No.2) [1982] A.C. 173.
99
e.g. Mogul SS Co Ltd v McGregor Gow & Co (1889) 23 Q.B.D. 598 at 663, per Bowen
L.J. The High Court of Australia’s flirtation in Beaudesert SC v Smith (1966) 120 C.L.R.
145 with the principle that independently of the ‘‘nominate’’ torts, ‘‘a person who suffers
harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of
another is entitled to recover damages from the other’’ no longer represents the law there:
Northern Territory v Mengel (1995) 185 C.L.R. 307.
100
Aikens v Wisconsin 195 U.S. 194 (1904), per Holmes J. But see Dobbs, ‘‘Tortious
Interference with Contractual Relationships’’ (1980) 34 Ark. L.Rev. 335.
101
The American doctrine was primarily focused on interference with economic interests. We
have had similar problems in attempting to generalise the economic torts.
102
Wilkinson v Downton [1897] 2 Q.B. 57, para.4–36, below.
24 Nature and Functions of the Law of Tort
103
See para.5–3, below.
104
For an entertaining perspective on the fissiparous nature of the common law of torts, see
Rudden, ‘‘Torticles’’ (1991–92) 617 Tulane Civil Law Forum 105.
105
Damage for which compensation is not recoverable is known as damnum sine injuria;
where a tort is actionable per se (without proof of loss, e.g. trespass) there is said to be
injuria sine damno.
Foundation of Tortious Liability 25
‘‘The first school has shown that the rules of liability are very
wide. The second school has shown that some rules of absence of
liability are also very wide. Neither school has shown that there
is any general rule, whether of liability or of non-liability, to cover
novel cases that have not yet received the attention of the courts.
In a case of first impression—that is, a case that falls under no
established rule or that falls equally under two conflicting rules
—there is no ultimate principle directing the court to find for one
party or the other . . . Why should we not settle the argument by
saying simply that there are some general rules creating liabil-
ity . . . and some equally general rules exempting from liabil-
ity . . . Between the two is a stretch of disputed territory, with the
courts as an unbiased boundary commission. If, in an unprovided
case, the decision passes for the claimant, it will be not because
of a general theory of liability but because the court feels that here
is a case in which existing principles of liability may properly be
extended.’’
As will be seen, much of the law of tort in practice is concerned with 1–18
the problem of accidental injury to the person or damage to property,
and the general approach of the law to these problems rests on two
broad principles. Both are subject to a very large number of excep-
tions and qualifications but by and large it is the case first that the
victim of accidental injury or damage is entitled to redress through
the law of tort if, and only if, his loss was caused by the fault of the
defendant or those for whose fault the defendant must answer, and
secondly that the redress due from the defendant whose liability is
established should be ‘‘full’’ or should, in other words, be as nearly
equivalent as money can be to the claimant’s loss. Nevertheless,
even in those accidents which can be attributed to another’s fault,
the role played by the law of tort should not be exaggerated. A
106
‘‘What is justifiable conduct? This, of course, is the whole question of tortious liability. If
it means justifiable in law, the statement merely means that you must compensate for
harms (and it will be noticed that what kind of harms is not specified) unless the law says
you are not obliged to. In other words we still have to decide what losses the law deems
worthy of compensation, and what are the circumstances producing such harm which will
be considered sufficient to entail liability’’: Wright, ‘‘Introduction to the Law of Torts’’
(1944) 8 C.L.J. 240.
107
‘‘The Foundation of Tortious Liability’’ (1939) 7 C.L.J. 131.
26 Nature and Functions of the Law of Tort
century or so ago the law of tort was probably the primary vehicle
of compensation, but poverty, ignorance or economic pressure
deprived many injured persons of access to the law and threw them
back on the Poor Law, charity or the assistance of a trade union or
friendly society. In more recent times the development of insurance
and social security has tended to relegate tort law to a more secon-
dary role.108 We must, therefore, turn to look at some of these other
sources of compensation and their relationship with the law of tort
and in doing so consider further some of the assumptions which
underpin the tort system.
108
This type of phenomenon is not, of course, unique to the law of tort but lawyers may tend
to exaggerate the overall practical effect of legal liability. It is likely, for example, that the
practice of administrative challenge to unfair exemption clauses is a much more potent
protector of ‘‘consumers’’ than the possibility that a court may strike such clauses down:
Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083.
109
However, the Riot (Damages) Act 1886 makes the police authority liable for property
damage caused by a riot within its area, presumably on the basis that it has failed to uphold
order (cf. the Criminal Injuries Compensation Scheme, para.4–2, below). The Act can be
relied on by a company carrying out public functions on a ‘‘contracted out’’ basis: Yarl’s
Wood Immigration Ltd v Bedfordshire Police Authority [2009] EWCA Civ 1110.
110
In an emergency such as flood or fire the social security authorities would assist with
clothing, bedding and other immediate needs. Provision may sometimes be made on an ad
hoc basis for widespread disasters. For various mechanisms (including, in France, a
compulsory ‘‘disaster extension’’ to property insurance (underwritten by the state)) see
Faure and Hartlief, Financial Compensation for Victims of Disasters: a comparative legal
approach (2005).
111
Indeed, the insured could normally claim on the policy even if the property was damaged
through his own negligence (but not his own deliberate act) though the policy may restrict
cover in certain circumstances, for example where the key is left in the car and it is then
stolen.
Tort and Other Sources of Compensation 27
policy,112 which will (a) cover the insured against legal liability to
other road users and passengers and (b) entitle the insured to claim
from his insurer the cost of repairs should his vehicle be damaged or
the value of the vehicle if it becomes a ‘‘write-off’’.113
Loss insurance is of very great significance in relation to damage
to property, and it is safe to assume that very much more is paid out
every year on property loss policies than is recovered in tort actions
in such cases. The fundamental stance of the law on loss insurance
is that it is irrelevant to tort liability.114 If D damages C’s property
and this is fully covered by an insurance policy, that in no way
precludes C suing D for the cost of repairing the property.115 Indeed,
even if C has collected on his insurance that would not provide D
with a defence.116 In fact, it is inconceivable that C would sue in the
latter case because, property loss policies generally being contracts
of indemnity, he would then have to reimburse the insurer with the
damages recovered. A more likely outcome is that the insurer will
exercise his right to be subrogated to C’s rights against D, and sue
D (in reality probably D’s liability insurers) in C’s name.117 The
principle of subrogation therefore means that the wrongdoer ends up
having to save harmless someone who has already taken a premium
for doing the same for the claimant. Nevertheless, the attitude of the
courts is not entirely consistent. No one has yet gone so far as to
hold that the fact that the claimant is insured is in itself enough to
defeat his claim but the presence (or likely presence) of loss insur-
ance has sometimes been used in combination with other factors to
reach that conclusion.118 We may note, on the other side of the
112
The majority of motor policies are comprehensive, though all that is required by law is
cover against liability for personal injuries and, from 1989, property damage to third
parties. A standard householder’s policy will also combine both loss and liability
insurance.
113
The fact that the accident is the assured’s own fault will not prevent a claim under (b),
though there will normally be conditions as to the use of the vehicle and its maintenance
in a roadworthy condition, breach of which will entitle the insurer to repudiate liability. In
no circumstances can the insured claim under (a) in respect of his own injuries, though
many policies contain a limited element of ‘‘no-fault’’ loss insurance for injury to driver
and passengers.
114
See para.22–42, below. And in relation to ‘‘collateral benefits’’ in personal injury cases (a
similar issue), para.22–32, below.
115
Informal settlements of minor motor claims without calling on the insurance are probably
quite common because of the concern of both parties to maintain their no claims
bonuses.
116
Bee v Jenson [2007] EWCA Civ 923; [2007] 4 All E.R. 791 (hire charges). But it might
have an impact on costs: Hobbs v Marlowe [1978] A.C. 16.
117
See Castellain v Preston (1883) 11 Q.B.D. 380; Caledonia North Sea Ltd v British
Telecommunications Plc [2002] UKHL 4; [2002] S.C. (HL) 117 (a case of subrogation of
a liability insurer).
118
See, e.g. Lord Denning M.R. in Lamb v Camden LBC [1981] Q.B. 625 at 637–638, though
his Lordship was probably wrong on the facts to assume that there was cover. In Norwich
CC v Harvey [1989] 1 W.L.R. 828 the fact that D was in a chain of building contracts, one
of which, between C and X, required C to maintain insurance on the works, was held to
be a good reason for holding D not liable to C.
28 Nature and Functions of the Law of Tort
equation, that the fact that D has (or is likely to have) liability cover
is equally not a good reason for making him liable but that, too, has
sometimes been a strong influence in favour of liability.119
1–20 The opportunities for an effective exercise of the insurer’s rights
of subrogation may vary considerably from one type of case to
another. In marine cases the right is probably commonly exercised
because the size of the individual claim makes it worthwhile to do
so; in home and contents insurance subrogation is probably almost
nonexistent since if the loss is anyone’s fault it is likely to be the
householder’s (against whom it cannot be exercised) or that of
persons, like burglars, who will not be worth pursuing. In the case
of road accidents, repairing or replacing vehicles probably repre-
sents their largest single cost. For many years nearly all motor
insurers operated a ‘‘knock for knock’’ agreement, so that if there
was a collision between car A, comprehensively insured by Com-
pany X, and car B, insured by Company Y, and the accident was
caused by the fault of car A and led to damage to both vehicles, each
insurer would bear its own loss in respect of the vehicle it insured
and would not pursue subrogation rights against the other in that
other’s capacity as liability insurer. There has been no such general
agreement since 1994, though that does not mean that subrogation
rights will be regularly pursued. However, one should not under-
estimate the incidence of property-related claims, as witness the
litigation about ‘‘credit hire’’ for fault-free drivers involved in
accidents.120
It can be argued that to allow a tort claim in respect of property
damage when loss insurance is widely held or easily available is
wasteful and that this is compounded by subrogation litigation,
which only shifts money around the system from one insurer to
another. On the other hand, it would require a pretty major change
in our intuitive ideas of corrective justice to take away C’s right to
claim against D when D’s fault has damaged C’s property, and there
would still remain the problem of uninsured losses, whether by total
absence of cover,121 inadequate cover or ‘‘excess’’ thresholds.122 If,
as is likely, the subrogation system is of limited application in
119
Again, most notably, Lord Denning M.R. in Nettleship v Weston [1971] 2 Q.B. 691,
para.5–76, below. In German law a person who is immune from liability because of mental
disorder may nevertheless be ordered to pay compensation if he has sufficient assets: BGB
§829. This includes having compulsory liability insurance.
120
See para.22–43, below. Individually these involve small amounts. However, damage to
property sometimes leads to litigation on an heroic scale. It was estimated that the cost of
the hearing arising from the Buncefield oil depot explosion in 2005 were £250 a minute
and claimants’ costs were £16 million: Colour Quest Ltd v Total Downstream UK Plc
[2009] EWHC 823 (Comm); [2009] 2 Lloyd’s Rep. 1 at [3].
121
Compulsion to insure one’s property could hardly be justified.
122
In motor cases the loss of no claims bonus is also a significant factor.
Tort and Other Sources of Compensation 29
D. Social Security
1–23 The social security system is hugely complex and it would be
impossible to summarise it here. It is not even easy to define what
‘‘the system’’ is. The Criminal Injuries Compensation Scheme, for
example, is a major provider of state assistance to a group of victims
of misfortune, but it has not, since its inception, been within the
legal framework of benefits nor has it been administered by the
Department of Work and Pensions. It is outlined below in connec-
tion with intentional torts to the person, since those are generally
also criminal.130 With regard to benefits usually regarded as being in
this category we still have to draw a distinction between industrial
and non-industrial injuries.
outside the Industrial Injuries Scheme are dealt with in the same way
as sickness and the primary short-term benefit is in fact now paid by
employers in the form of ‘‘statutory sick pay’’ for up to 28 weeks.
Employers could formerly recoup the greater part of statutory sick
pay payments by deducting them from national insurance contribu-
tions due to the Inland Revenue, but this is no longer so.131 When
the statutory sick pay entitlement has been exhausted it is replaced
by employment and support allowance (formerly incapacity benefit)
supplemented for adult and minor dependants.132 In addition, a
claimant who needs constant care or assistance or is unable to walk
may receive disability living allowance or attendance alowance.133
138
The threshold disability is now 14 per cent but disabilities between 14 and 19 per cent are
paid at the 20 per cent rate.
139
The preference was probably retained in the implementation of the Beveridge reforms in
the 1940s because work-related accidents had for 50 years received a ‘‘preference’’ under
the Workmen’s Compensation Acts. At the inception of the national insurance scheme the
preference was 73 per cent in cases of short-term injury.
140
See para.22–34, below.
141
See Lewis, ‘‘England and Wales’’ in Magnus (ed.), The Impact of Social Security Law on
Tort Law (2003).
142
Well over half of those who do make a tort claim make a full recovery within two years
of the accident: Law Com. No.257, §3.37.
143
See para.22–36, below. Note that the number of NHS ‘‘bed days’’ attributable to house
accidents in 1994/1995 was nearly six times that attributable to road accidents: Hansard,
H.L., January 27, 1998, col.WA26.
Paying for the Operation of the Tort System 33
144
Thus a motor policy may provide for legal services to pursue claims arising out of an
accident which is the other driver’s fault.
145
More accurately, litigation funding provided by the Community Legal Service: Access to
Justice Act 1999.
146
This is not the same as the American contingency fee, where the fee is an agreed-upon-
in-advance proportion of the damages.
147
C.P.R. 44.12A introduced ‘‘costs-only’’ proceedings where the parties have settled but the
amount of recoverable costs remains in dispute.
148
‘‘After the event’’ (insurance). Where the claimant has some form of legal expenses cover
(BTE or ‘‘before the event’’ insurance), it may be reasonable, for costs purposes, for him
to look to that cover first: Sarwar v Alam [2001] EWCA Civ 1401; [2002] 1 W.L.R. 125.
Yet another permutation is that BTE cover may be available to a claimant under the
defendant’s policy. Since this will give the defendant’s insurer control of the proceedings,
this is less likely to be a reasonable course to require the claimant to take.
149
Callery v Gray [2002] UKHL 28, [2002] 1 W.L.R. 2000. The ATE may cover the claimant
against expenses for which he is liable to his lawyers under the terms of the conditional
fee agreement (e.g. disbursements) but the whole premium, if reasonable, is recoverable
from the defendant: Callery v Gray (No.2) [2001] EWCA Civ 1246; [2001] 1 W.L.R.
2142.
34 Nature and Functions of the Law of Tort
though that does not answer the criticism that the system is ineffi-
cient in expending large amounts of money in the transfer process
(see below). The amount of the recoverable success fee quickly
became a matter of great controversy, since the legislation simply
set a maximum figure of 100 per cent but the House of Lords held
that in ‘‘modest and straightforward damages claims’’ following
road traffic accidents the normal maximum would be 20 per cent.150
This did not entirely settle the matter and since October 2003 there
has been an agreement for motor cases between the insurance
industry and solicitors’ representatives providing for a fixed solici-
tors’ success fee of 12.5 per cent in cases which settle and one of
100 per cent in cases which go to trial.151 A further strand in the
story was that new players entered the game in the form of ‘‘claims
farmers’’, claims management companies which advertised widely,
collected potential cases and, after an initial vetting, ‘‘sold’’ them in
bulk to firms of solicitors. Some of these went into liquidation152
and there was concern about the marketing practices of some. The
Compensation Act 2006 introduced a scheme for the regulation of
these businesses.
This system has led to a very large increase in the costs faced by
liability insurers. The Review of Civil Litigation Costs
commented153:
150
Callery v Gray, above fn.149.
151
Subsequently a similar agreement was made in respect of employers’ liability cases, but
with a success fee of 25 per cent for settled cases. For the implementation of both
agreements (including counsel’s costs) see CPR Pt 45 (and for the background see http:/
/www.civiljusticecouncil.gov.uk). The rules also provide for ‘‘predictable costs’’ (excluding
disbursements, success fee and insurance premium) for low value motor cases based on the
formula of £800 plus 20 per cent of agreed damages up to £5,000 plus 15 per cent of
agreed damages between £5,000 and £10,000.
152
In Claims Direct Test Cases, Re [2003] EWCA Civ 136; [2003] P.I.Q.R. P31 the court held
that a large part of the charges made by the company were not an ATE premium within the
meaning of the legislation and hence were not recoverable from the defendant.
153
2010 (ISBN 9780117064041), Ch.10, 1.10.
Paying for the Operation of the Tort System 35
Although the conditional fee system with its associated ATEs and
success fees largely replaced legal aid, the latter was based upon an
assessment of financial need (though over the years it covered less
and less people), whereas a conditional fee arrangement is available
to:
1. Neither the success fee nor the ATE premium should be recov-
erable from unsuccessful defendants. It would still be open to
claimants to make conditional fee agreements with their law-
yers but success fees (capped in personal injuries cases at 25
per cent of the damages recovered, excluding damages for
future care and future losses) and ATE premiums would be
their responsibility alone.155 It would also be possible to make
a contingency fee agreement (subject to independent advice
and regulatory safeguards) whereby the fee would be a propor-
tion of the damages. Costs would be recoverable by the claim-
ant on the normal basis and in so far as the fee exceeded the
normal charge for the work it would come out of the
damages.156
2. To counter the impact of this on claimants two further changes
should be made. First, ‘‘general damages’’ (i.e. for pain and
suffering and loss of amenities157) should be raised by 10 per
cent. Secondly, the traditional principle that the loser pays the
costs of both sides should be radically modified so that the
amount an unsuccessful claimant could be made to pay would
reflect the means of the parties and their conduct of the
proceedings.158
154
Ch.10, 4.8 of the Review, above, fn.153.
155
This would be similar to the position when CFAs were first introduced. Success fees and
ATE premiums became recoverable from defendants in 2000 under the Access to Justice
Act 1999.
156
Ch.12 of the Review, see fn.153.
157
See Chap.22, below, see fn.153.
158
See Ch.10, Section 4 of the Review, see fn.153.
36 Nature and Functions of the Law of Tort
159
BTE insurers (see fn.148, above) may also receive referral fees under the system com-
monly known as BTE 2 because rather than instructing and paying solicitors they will
‘‘sell’’ the claim to solicitors, who will then conduct it under a CFA.
160
It seems that there is widespread non-compliance by solicitors with the rules governing
referral to them by claims management companies: Claims Management Regulation,
Impact of Regulation, One Year Assessment, Ministry of Justice (2008), Ch.8, appendix.
161
Ch.20, 4.7, see fn.153.
Criticisms of the Tort System 37
162
Industrial disablement benefit, above, is however based upon loss of faculty.
163
Lord Parker C.J. in (1965) 18 Current Legal Problems 1 was one of the earliest critics of
the present system. The leading academic monograph is Cane, Atiyah’s Accidents, Com-
pensation and the Law, 6th edn. Sugarman, Doing Away With Personal Injury Law (1989)
gives a United States perspective.
164
Earlier law was perhaps more inclined to admit specific defences than to postulate a
general requirement of fault.
165
See para.18–36, below.
38 Nature and Functions of the Law of Tort
166
Statutory duties are often (but not always) more precise in this respect. Breach of such
duties often gives rise to civil liability (see Ch.7, below) but does not generally do so in
the field of road traffic. Statements that merely exceeding the statutory speed limit does not
automatically amount to civil negligence are commonplace.
167
But car users can wear safety belts and it is interesting that the courts held that failure to
take this preliminary precaution amounted to contributory negligence even before their use
became compulsory: para.6–53, below. A number of surveys have found a correlation
between the introduction of ‘‘no fault’’ motor schemes and increased accident rates:
Laudes (1982) 25 J.L. & Econ. 49; McEwin (1989) 9 International Rev. L. & Econ. 13;
Sloan (1994) 14 International Rev. L. & Econ. 53. However, the figures may be affected
by factors unrelated to tort liability, e.g. guarantees of compensation to drivers (thereby
reducing the self-preservation deterrent), changes in traffic laws or in reporting or car use
patterns.
168
This argument would be particularly applicable to work accidents, defective products and
some medical misadventures. However, some argue that liability may have the opposite
effect in tending to encourage a lack of openness among those responsible for
accidents.
169
‘‘If it were not for insurance, the common law would operate with intolerable harshness in
its application to driving’’: Imbree v McNeilly [2008] HCA 40 at [23] per Gleeson C.J.
Damages may be much larger than any fine likely to be imposed by a criminal court for
comparable conduct.
Criticisms of the Tort System 39
179
See Linden (1973) 51 Can. Bar Rev. 155.
180
G. Schwartz, ‘‘Reality in the Economic Analysis of Tort Law: Does Tort Law Really
Deter?’’ (1994) 42 U.C.L.A. Law Rev. 377. He is speaking in a context in which the
predominant requirement is ‘‘fault’’ but with a major enclave of strict product liability.
Criticisms of the Tort System 41
However, in the same case Sir Thomas Bingham M.R. said that he
could not:
casualties. The first has had no sleep the night before and knows full
well that he is unfit to drive; the second merely commits a momen-
tary piece of inattention. As far as tort law is concerned the outcome
of both cases is the same: the driver (in reality his insurer) pays all
the resulting damages in full.
At a less theoretical level, there are other criticisms of the tort
system.
185
The figures, however, favour social security because they conceal the fact that the cost of
collection of contributions falls outside the account, i.e. on the employer. However, the
estimate by the Civil Justice Review (Cm. 394, 1986) was that the cost of the tort system
was between 50 and 70 per cent of personal injury damages awarded. According to the
Association of British Insurers (Delivering a Fair and Efficient Compensation System,
2005) claimant’s costs (which are usually higher than defendant’s) average 38 per cent of
sums recovered in motor claims.
186
See para.1–27, above. One sample (Review of Civil Litigation Costs: Preliminary Report
(2009), Vol 1, Appendix 1a) of 280 successful personal injury claims provided to the
Review showed a costs/damages ratio of 1:8:1 (and this seems not to include insurers’
in-house costs). Compare the figures in Appendix 10, base costs without ATE premium
and success fee.
187
Graph A11 in Appendix 21 to Vol 1, above, is instructive in the medical negligence
context. Only one case where the damages exceeded £500,000 incurred greater total legal
costs; most of those between £25,000 and £50,000 did so.
44 Nature and Functions of the Law of Tort
Since then there has been a major shift of personal injury cases to
the county court (where all claims for less than £50,000 must now
be started) and the Civil Procedure Rules of 1999 have led to a
fundamental change in responsibility for the handling of civil litiga-
tion from the parties to the courts, based on an interventionist
judicial role in case management. There is some evidence that this
can actually increase costs by leading to steps being taken earlier,
and therefore sometimes unnecessarily (‘‘front-loading’’), than
would have been the case in the past, though it has been concluded
that in a personal injury context the benefits of the changes in
promoting settlement outweigh this factor.189 In any event , there is
not a great deal that procedural reform can do about delay prior to
the issue of proceedings, which need not be done for (normally)
three years after the injury.
1–36 Thirdly, the unpredictability of the result of cases based upon
fault liability may put claimants under pressure to settle their claims
for amounts less than they would receive if their claim went success-
fully to trial. The vast majority of personal injury claims are settled
without trial, most of them without even the issue of proceedings. It
is true that of claimants who make a claim most will receive some
payment but, though there is no clear statistical evidence on the
point, many of those payments will be for substantially less than
would be awarded if the matter went to trial. Since there is always
188
Graph A3.
189
Review of Civil Litigation Costs (2010), Ch.35, Section 7, 7.2.
Criticisms of the Tort System 45
some risk that the claimant’s claim will founder in whole or in part
at the trial, the defendant’s insurers are in a position to exploit this
factor by making a discount in the amount they offer in settle-
ment.190 This element of risk, leading to pressure to settle, is of
course present in virtually all litigation but it is peculiarly powerful
in the case of personal injuries because a very large part of the
claimant’s future wealth may be at stake. The problem is exacer-
bated—though the matter may be of more direct concern to his
lawyers than to him—by the fact that even if he wins at the trial on
liability there may be a large element of irrecoverable costs if the
defendant’s insurers have made an accurately-calculated Part 36
offer of settlement.191 On the other hand, a claimant may now also
make a Part 36 settlement offer, with penal consequences to the
defendant on interest and costs if a higher award is made at trial. The
Review of Civil Litigation Costs192 proposes that the effects of
refusal of a claimant’s Part 36 offer be given teeth comparable to
those of the claimant’s refusal in the reverse situation by entitling
him to an uplift of 10 per cent in his damages as well as the costs
sanctions.193 Not surprisingly perhaps, small claims may be over-
compensated: their ‘‘nuisance value’’ may make insurers willing to
buy-off claimants with fairly generous offers. Under-compensation
in serious cases may also have been contributed to by the practice of
assessing damages on a lump-sum basis; until very recently pay-
ment by instalments was only available via an out-of-court
settlement.194
We have already noted that the victim of a mass disaster may have
a valuable ally in the form of public opinion. Such a claimant is also
now likely to find his claim handled by a specialist firm of solicitors
(or by a co-ordinated group of them) who are adept at using
publicity and who can match the experience and expertise in claims
handling of a major insurer.195 Such cases are also likely to be
handled so that selected ‘‘lead claims’’ will be used to determine the
main issues.196
190
See Genn, Hard Bargaining (1987); Phillips and Hawkins, ‘‘Some Economic Aspects of
the Settlement Process: A Study of Personal Injury Claims’’ (1976) 39 M.L.R. 497.
191
Under CPR Pt 36 the defendant may offer a sum in satisfaction of the claim. If the claimant
does not accept it and the action goes to trial, the judge is not informed of the offer and,
if his award is not more advantageous than the offer, the claimant bears the costs of the
action from the date of the offer.
192
See para.1–27, above.
193
See Ch.41 of the Review.
194
See para.22–23, below.
195
Apart from experience, specialism may produce a difference in attitude to initiating
litigation.
196
But we are still a long way from the American ‘‘class action’’ where one claim is made on
behalf of the group. For American experience with ‘‘mass torts’’ see Fleming, The
American Torts Process, Ch.7.
46 Nature and Functions of the Law of Tort
6. ALTERNATIVES
A. Strict Liability
1–38 Despite the continuing dominance of fault liability, the English
law of tort does contain certain limited principles of strict liability198
with regard to personal injuries. Some of these are of common law
origin and of respectable antiquity, others have been the creation of
modern statutes and have either been limited in their practical
importance199 or of rather haphazard application.200 It is unlikely
that any consistent policy has been followed in the creation of these
areas of strict liability, though it is perhaps possible to discern
behind some of them a very hazy idea of unusual or increased risk.
However, the strictness of the liability varies considerably along a
spectrum from near absolute liability to little more than a reversed
burden of proof, and in nearly every case the defendant may plead
the contributory fault of the claimant as a defence or in diminution
of damages. While there may be some merit in a system of strict
liability for unusual risks it can hardly make much contribution to
the accident compensation problem as a whole when common risks
197
Other criticisms voiced to the Pearson Commission were that the system was difficult for
the injured person to understand and operate (Vol.1, para.250); that the adversarial nature
of the system had a damaging effect on family relations, friendships and employment
relations (para.260); and that the system could be unfair to the tortfeasor, particularly
where his reputation was affected by allegations made in litigation (para.256).
198
Some would argue that a strict liability is not a liability in tort at all. But the CA in
Bedfordshire Police Authority v Constable [2009] EWCA Civ 64 was clear that there could
be strict liability torts and that they were based on responsibility. However, the issue in the
case was not whether the statutory liability to pay compensation was a liability in tort but
whether it was a liability to pay ‘‘damages’’ for the purposes of an insurance policy and
it was held that it was.
199
The liability under the Nuclear Installations Act 1965 (para.15–24, below) is probably the
strictest known to English law.
200
See, e.g. the many statutory duties arising under industrial safety legislation, some of
which are considered in Ch.8, below.
Alternatives 47
201
See Spencer, ‘‘Motor Cars and the Rule in Rylands v Fletcher’’ [1983] C.L.J. 65, who,
while conceding that social security may be a better method of handling road accidents
than liability in tort, concludes that this is a case where the best is the enemy of the
good.
202
See Ch.10, below.
203
A majority of European countries have some form of strict liability for motor accidents.
204
Loi no.85–677.
205
Art.12 puts the onus upon the liability insurer to make an offer of amends to the victim
within eight months and there are stiff financial penalties for failure to do so or for making
an inadequate offer.
206
For some unusual situations see Disley v Levine [2001] EWCA Civ 1087; [2002] 1 W.L.R.
785 and Laroche v Spirit of Adventure (UK) Ltd [2009] EWCA Civ 12; [2009] 3 W.L.R.
351.
207
Morris v KLM Royal Dutch Airlines [2002] UKHL 7; [2002] 2 A.C. 628.
48 Nature and Functions of the Law of Tort
B. Non-tort Compensation
1–39 An alternative approach is to abandon tort liability and create
direct compensation rights. This can be done either by ad hoc
compensation schemes for particular types of accidents or by a
broader extension of social security rights.
The Workmen’s Compensation Scheme, abolished in England in
1948 (but still existing in various forms in the United States and
Australia) was an early form of ad hoc no-fault compensation, but
although it was not tort, it involved adversarial litigation between
the claimant and his employer, who was liable to pay the compensa-
tion. No-fault, insurance-based schemes have, however, proliferated
and about half the states in the United States operate them in the
field of road accidents, as do some Australian states. However, while
they generally take the form of cover bought by the motorist which
allows any person injured as a result of the operation of the vehicle
to claim against the insurer, they vary greatly in the amount and
range of benefits and in the extent to which they limit the right to
claim tort damages. Generally they do not cover non-pecuniary loss
such as pain and suffering, but in order to reduce the number of tort
claims for this, some jurisdictions impose a minimum threshold on
this loss.
Though nearly all ad hoc, selective no-fault schemes have been
created in the context of transport accidents or criminal injuries,210
there are instances of their application to other types of case, for
example, the medical accident schemes which operate in Sweden
and Finland.211
1–40 Much more far reaching than anything we have mentioned so far
is the scheme now operating in New Zealand. The origin of the
scheme is the Report of the Woodhouse Commission, which had
been appointed to deal only with compensation for work injuries but
208
Deep Vein Thrombosis and Air Travel Group Litigation, Re [2005] UKHL 72; [2006] 1
A.C. 495; Povey v Qantas Airways Ltd [2005] HCA 33; Barclay v British Airways Plc
[2008] EWCA Civ 1419; [2009] 3 W.L.R. 369.
209
Sidhu v British Airways [1997] A.C. 430.
210
For the English scheme on this see para.4–2, below.
211
See Brahams (1988) 138 N.L.J. 14. But the schemes by no means guarantee compensation.
For example, in Sweden a causative link with the treatment must be shown and it does not
apply if the injury constitutes an unavoidable complication of a measure which was
justified from a medical viewpoint.
Alternatives 49
which felt unable to limit itself to its terms of reference and pro-
posed an all-embracing no-fault system of compensation financed
by the State and based on the five guiding principles of community
responsibility, comprehensive entitlement, ‘‘real’’ compensation
(including non-pecuniary loss), the promotion of rehabilitation, and
administrative efficiency. Most of the proposals were implemented
by the Accident Compensation Act 1972.212 The scheme was some-
what restricted in its coverage by changes in 1992 and has been
further modified several times; the law is now to be found in the
Injury Prevention, Rehabilitation and Compensation Act 2001 as
amended. Claims are handled administratively with reviews and
ultimate appeals on a question of law to the High Court and Court
of Appeal.
The statutory definition is complex but, broadly speaking, the
scheme gives cover for personal injury by accident, for occupational
disease and for personal injury by medical ‘‘treatment injury’’ . The
last concept213 replaced the former ‘‘medical misadventure’’, which
took two forms: medical error, such as failure to diagnose (which
was effectively the same as common law negligence) or medical
mishap (a severe adverse reaction to proper treatment likely to occur
in less than 1 per cent of cases and of the risk of which the patient
was unaware). Now treatment injury is defined negatively as an
injury which is not a necessary part or ordinary consequence of the
treatment and which is not (a) wholly or substantially caused by the
person’s underlying health nor (b) solely attributable to a resource
allocation decision nor (c) the result of unreasonably withholding
consent to treatment. In practice this may not be very different from
what went before.214 Cover for mental injury (other than that related
to physical injury) is now confined to cases involving certain sexual
offences and to a single work-related event which the person experi-
ences directly. As injury arising from an intentional act is ‘‘acci-
dental’’ as far as the victim is concerned, there is no need for a
separate criminal injuries compensation scheme in New Zealand.
The original plan envisaged the extension of the scheme to disease
in general and to disability; there now seems no prospect of this
happening.
Where the compensation scheme applies the right of action in tort
is abolished (though it remains for cases outside the scheme215). In
212
For a full account of the current scheme see Todd, Law of Torts in New Zealand, 5th edn
(2009). In Australia, a National Committee of Inquiry in 1974 proposed a scheme that
would cover all incapacity, whether caused by accident or illness, but the proposal was lost
with a change of government in 1975.
213
Introduced by the Injury Prevention, Rehabilitation and Compensation Amendment Act
(No.2) 2005.
214
See Todd, above, fn.212, 2.4.04.
215
Hence there is still common law litigation in New Zealand in ‘‘nervous shock’’ cases. See
e.g. Queenstown Lakes DC v Palmer [1999] 1 N.Z.L.R. 549.
50 Nature and Functions of the Law of Tort
220
Ch.33.
221
For many years, Germany had a two-track system for road accidents, a strict liability
regime with a cap on total liability and no damages for non-pecuniary loss, and full
recovery under the general fault provisions of the BGB. The latter restriction on strict
liability was removed in 2002. See Fedtke, ‘‘Germany’’ in Koziol and Steininger (eds)
European Tort Law 2001 (2002).
52 Nature and Functions of the Law of Tort
222
Department of Health, Making Amends, 2003. This is the basis of the NHS Redress Act
2006 (para.1–33, above, which will make alternative provision for handling smaller
claims, though still on the basis of tort).
223
The estimates of likely claimants were based partly on Swedish experience and partly on
a survey of patients.
224
See Stapleton, Disease and the Compensation Debate.
225
More so since the 1992 changes.
Alternatives 53
1–44 ‘‘Tort reform’’ has long been a matter of debate in the United
States and has led to various forms of legislative action, most
commonly in the form of putting caps on damages, especially for
non-pecuniary loss, and abolishing or modifying the traditional
common law rule that each of a number of tortfeasors causing
indivisible harm is liable for the whole loss.229 More recently there
has been very large scale legislative action in most Australian states,
driven by a perceived insurance crisis. The New South Wales Civil
Liability Act 2002 is typical and contains provisions of three main
types. First, some basic principles of the common law are ‘‘restated’’
in a way presumably intended to render them immune from judicial
tampering.230 So, for example, under s.5I(2) a person is not liable for
a risk which cannot be avoided by the exercise of reasonable care
and skill (except in so far as it is appropriate to require him to warn
of such a risk). In this way, at least part of the common law in this
area has been ‘‘codified’’. Secondly, certain recent developments
extending liability under the local common law are reversed. Thus
it is provided that a person may not recover damages in respect of
the cost of upbringing of a normal but unwanted child231 and a
person whose conduct amounting to a criminal offence punishable
by six months or more materially contributed to his injury cannot
recover damages.232 Thirdly, radical restrictions are introduced on
the quantum of damages for personal injury. Pecuniary loss damages
are capped at three times average earnings.233 Furthermore, the fund
of damages is assumed to earn 5 per cent per annum net,234 twice the
figure in England, something which has a dramatic effect on the
amount. An index-linked cap (about £220,000 at the end of 2008)
was put on non-pecuniary loss. Perhaps the impact is even greater
on smaller claims. There is now no payment at all for non-pecuniary
loss unless there is long-term impairment of at least 15 per cent,
which cuts out many, many cases of the ‘‘trip and fall’’ or ‘‘whiplash
injury’’ variety. If the impairment is more than 15 per cent but less
than 33 per cent damages are not based on a percentage of the
maximum, but on a reduced sliding scale, so someone with a 25 per
cent impairment gets 6.5 per cent of the maximum, i.e. a little over
£14,000.235 To give a simple comparison, the victim of a broken leg
229
See Dobbs, Law of Torts, Chs 25 and 26.
230
The High Court of Australia may fairly be said to have shown a pro-claimant inclination
until the mid-90s, but that was rather reversed before the legislation.
231
Civil Liability Act 2002 (NSW) s.71. On this issue see para.24–15, below.
232
Section 54 of the NSW Act.
233
Section 12 of the NSW Act.
234
Section 14 of the NSW Act.
235
Direct comparison is difficult because in England such damages are not directly assessed
on impairment percentages. However, we may assume the maximum figure of about
£250,000 here to represent 100 per cent impairment.
Tort and the Compensation Culture 55
Some may consider that a rather futile exercise in the sense that
not only is it implicit or explicit in the current approach taken by the
courts246 but it is hardly of such strength as to deter a court deter-
mined to go in the opposite direction (unlikely as that may be).247
243
See para.1–27, above.
244
For an example, see Hampstead Heath Winter Swimming Club v London Corp [2005]
EWHC 713 (Admin); [2005] 1 W.L.R. 2930, para.9–17, below.
245
Tomlinson v Congleton BC [2003] UKHL 47; [2004] 1 A.C. 46, para.9–17, below.
246
See, e.g. Tomlinson v Congleton BC, above, fn.245; and Bolton v Stone [1951] A.C. 850.
In Hopps v Mott Macdonald Ltd [2009] EWHC 1881 (QB) it is said at [92] that its
purpose, ‘‘is to draw attention to, and to some extent, to expound the principle of the
common law expounded by the House of Lords in Tomlinson.’’
247
Fulbrook, Outdoor Activities, Negligence and the Law (2005) is an interesting and detailed
examination of the ‘‘law in action’’ in the context of outdoor activities, one of the contexts
in which the charge of restriction of worthwhile activities by tort law has been most
prominent.
Tort and the Compensation Culture 57
1. The Forms of Action: Trespass and B. The Human Rights Act 1998 ......... 2–9
Case ....................................................... 2–2 C. A European Tort Law? ................... 2–15
2. New Influences on English Tort Law .. 2–7 3. Torts not Treated in this Book ............. 2–18
A. Tort Law and Human Rights ......... 2–8
A PRACTICAL legal system could hardly avoid the practice of, to 2–1
some degree, attaching labels to different types of tortious wrong-
doing: in most systems, for example, ‘‘tort’’ embraces both defama-
tion and accidents causing bodily injury1 but it would be surprising
if the rules of liability were identical for both types of case. So a
French or German lawyer will in practice make use of the limited
categories such as those we call ‘‘nuisance’’ or ‘‘defamation’’. Yet
the codified, civil law systems typically have a rather broad, unified
theory of tort liability, even if it is not usually wholly compre-
hensive. France is the best known example, for the framers of the
Code civil at the beginning of the 19th century managed to get all of
tort law into five short articles (two of which were about tumble-
down buildings, and animals, both of which seem to attract a special
rule in most legal systems). Certainly the laconic words of the Code
have been interpreted (in some areas one might even say perverted2)
by a mass of subsequent case law and supplemented by much
special legislation (for example on road accidents) but the core
remains—in France the basic source of the law is a legislative
statement of a very broad nature. Here, on the other hand, the
substance of tort law is a mass of case law stretching back hundreds
of years. Of course the French core is 200 years old and life was in
some respects simpler then, but a modern product in the European
1
But not all: in New Zealand personal injury accidents are largely outside the tort system
(see para.1–40, above) and some systems regard defamation as criminal only.
2
As in the case of liability for damage caused by things in one’s care under art.1384, which
was probably intended simply as an introduction for the articles on buildings and
animals.
59
60 The Structure of Tort Law: History and Influences
style may not be very different. The newest European Code is that
of the Netherlands,3 the relevant part of which came into force in
1992, and it is instructive to look at art.6.3.1.14:
7
The sense is the Latin iniuria, ‘‘wrong’’.
8
See Pritchard, ‘‘Trespass, Case and the Rule in Williams v Holland’’ [1964] C.L.J. 234.
9
Nelson v Larholt [1948] 1 K.B. 339 at 343 per Denning J.
10
For an example see Watkins v Home Office [2006] UKHL 17; [2006] 2 A.C. 395
(misfeasance in a public office), para.7–23, below.
62 The Structure of Tort Law: History and Influences
still rule us from their graves’’.11 In the course of time certain types
of claim acquired more specific names, such as assault, battery, libel,
slander, nuisance, negligence and so on. The fact that they acquired
such names was due to mere accidents of terminology traceable
probably to their frequent occurrence, but they still have their roots
in the ancient categories, so that even now (although trespass and
case are long gone) a lawyer might explain that the reason why a
claim for negligence requires proof of damage, whereas a claim for
battery does not, is that the former is (or was) an action on the case,
the latter one is trespass. Of course the fact that the explanation is
historical does not mean that there might not then have been, and
may still continue to be, a good policy reason for the distinction:
those torts which are actionable per se might be regarded as con-
cerned with the vindication of rights12 or with situations where
damage is likely but very hard to prove.13
2–3 So we cannot point, at least without some distortion, to any
single, comprehensive concept of wrongdoing which leads to tor-
tious liability. One might get the impression from a reading of
modern case law that there was such a concept in the idea of
‘‘negligence’’, which dominated tort law through most of the 20th
century (and which dominates tort courses even more than text-
books) but common sense and simple morality tell us that wherever
there is liability for negligence there must also be liability for
intentional harm; indeed, liability for intentional wrongdoing is, and
probably should be, wider than that for negligence.14 In the Euro-
pean systems both types of conduct are easily accommodated under
the name of ‘‘fault’’, or at least they are both placed under the same
heading.15 As a practical matter one may say that fault is as much a
dominant feature of tort liability here as in those systems,16 but to
say that we had a general concept of fault would be to over-simplify
11
Maitland, Equity, p.296. Thus the distinction between trespass to land and private nuisance
still turns upon the old distinction between trespass and case. See, e.g. Esso Petroleum Co
Ltd v Southport Corp [1956] A.C. 218.
12
See Ashley v CC Sussex [2008] UKHL 25; [2008] 1 A.C. 962, para.1–2, above.
13
Libel is in some respects an example of this. However, in libel and other torts actionable
per se the courts are nowadays quite ready to strike out a claim as an abuse of process
where it is clear that the damage is trivial or nonexistent and the claim is ‘‘not worth the
candle’’. ‘‘The claim for a shilling in damages in order to prove a point and obtain an award
of costs is history’’: White v Withers LLP [2009] EWCA Civ 1122 at [72]. So in these cases
it might now be better to say, not that damage is unnecessary, but that it is presumed.
14
Compare para.4–36, below and Ch.18 (economic torts).
15
As in the German Civil Code, BGB §823(1): ‘‘A person who, wilfully or negligently,
unlawfully injures the life, body, health, freedom, property or other right of another is
bound to compensate him for any damage arising therefrom.’’
16
Indeed more so. In France strict liability under art.1384 of the CC (Code Civil) is now
probably more important in practice than the liability for fault under arts 1382 and 1383.
Furthermore, some systems which do not have a wide-ranging strict liability under the
general Code, have strict liability for traffic injuries, which are a very major source of tort
claims.
The Forms of Action: Trespass and Case 63
the law, for our intentional torts such as battery and deceit came into
existence long before any general conception of negligence, and
they continue to carry some of their history with them. For example,
battery, as a form of trespass to the person, requires a ‘‘direct’’ injury
to the victim. There is no doubt that if wilful physical harm is done
indirectly that leads to liability in tort, but we cannot call it either
battery or negligence, so we were reduced to describing it by the
name of the case at the end of the 19th century—which was thought
to establish that there was liability in such circumstances.17 The
current view is that the case is not in fact a good example of this idea
so we are denied even that convenience.18
There is, therefore, no doubt that we have a collection of torts
rather than a single principle but this does not prevent the courts
creating new heads of liability to meet changing circumstances or
changing perceptions of the need for protection from harm. Some-
times this may occur very suddenly, as happened in the middle of
the 19th century, when the tort of inducing breach of contract was
established19; on other occasions the process may involve more of a
synthesis of existing principles, the culmination of an evolution
rather than a revolution, as happened when the foundation of the
general law of negligence was laid in 1932.20 In the case of the latest
addition to the family there is some doubt about the parentage of the
offspring. The modern law has seen a marked development of the
law of confidence and, propelled by the Human Rights Act 1998,
this has now cut loose from any strict requirement that the informa-
tion should have been imparted in confidence by the person to
whom it relates. There is a growing tendency to refer to it as
‘‘misuse of private information’’, though it seems not quite to have
become a general basis for the protection of privacy against wrong-
ful intrusion.21 The predominant view has been that the law of
confidence rests upon equitable principles rather than upon tort22 but
in practical terms this is perhaps a distinction without a difference,
as witness the occasional judicial reference to the ‘‘tort of breach of
confidence’’ or the ‘‘tort of misuse of private information’’.23 The
traffic is, of course, not all one way: a head of tortious liability may
17
Wilkinson v Downton [1897] 2 Q.B. 57.
18
See below, para.4–37.
19
Lumley v Gye (1853) 2 El. & Bl. 116. See para.18–2, below.
20
Donoghue v Stevenson [1932] A.C. 653. See para.5–5, below. Of course, the common law
judge is always reluctant to admit that a completely new departure has been made. In
Lumley v Gye there were old cases about ‘‘enticing’’ servants away from their duty but the
court was really making new law.
21
See para.12–82, below.
22
Though some years ago the Law Commission proposed that it should be codified as a
statutory tort.
23
See para.12–82, below.
64 The Structure of Tort Law: History and Influences
24
This seems to be the effect of the Protection from Harassment Act 1997 (para.4–38, below)
upon the common law tort rather tentatively advanced in Khorasandjian v Bush [1993]
Q.B. 272.
25
Kingdom of Spain v Christie, Manson & Woods Ltd [1986] 1 W.L.R. 1120 at 1129.
26
See para.2–8, below.
27
In Watkins v Home Office [2006] UKHL 17; [2006] 2 A.C. 395 the court rejected an
attempt to fashion an extension of tort liability based on ‘‘constitutional rights’’.
28
In most European countries the Convention has been incorporated in domestic law for a
good many years but its influence on the basic structure of private law has been
limited.
29
CPR 16.2(1)(a).
30
CPR 16.4(1)(a).
31
British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1994) 45 Con.
L.R. 1 at 4.
The Forms of Action: Trespass and Case 65
i.e. a set of facts for which there is a legal remedy.32 It is, therefore,
open to the claimant to assert that the factual situation gives rise to
a basis of liability which has never before been expressly recog-
nised. In practice, however, it is normally prudent,33 and may in
practical terms be essential for the claimant, to identify by name the
cause of action on which he relies: judges are presumed to know the
law, but they are entitled to and should receive the assistance of
counsel. Furthermore, subject to the court’s power to allow amend-
ment of pleadings (probably now to be exercised less generously
than in the past) no one is allowed to lead evidence of facts which
he has not pleaded. If the facts alleged in the claim do not show a
sustainable legal basis for the claim even if they are all proved, the
defendant may apply to have the claim struck out34 or apply for
summary judgment on the ground that the claim has no reasonable
prospect of success.35 So, what is necessary to get to trial is that the
facts alleged should include those essential to liability under at least
one tort, without at the same time including any which are fatal to
that liability. For this purpose the court is not concerned with
evidence, i.e. with whether the facts alleged can be proved, but with
whether the facts if proved can realistically be regarded36 as being
the possible basis of a claim.37 However, the whole sequence of
events leading up to the claimant’s damage may include the essen-
tials of more than one tort, and where this is so the position is simply
that there is more than one reason why the claimant should
succeed.
Put shortly, therefore, it is necessary for counsel for the claimant,
in settling the particulars of claim,38 to plead all the facts which are
32
Letang v Cooper [1965] 1 Q.B. 232 at 242–244, where Diplock L.J. states that a ‘‘cause
of action’’ is simply a factual situation the existence of which entitles one person to obtain
from the court a remedy against another person. An alternative definition is, ‘‘every fact,
though not every piece of evidence, which it would be necessary for the plaintiff to prove,
if traversed, to support his right to judgment of the court’’: Read v Brown (1888) 22 Q.B.D.
128 at 131. Black v Yates [1992] Q.B. 526.
33
If only because lack of clarity in the presentation of the case risks running foul of the
overriding objective of the Civil Procedure Rules (CPR), to enable the court to deal with
the case justly, which includes the saving of expense and allocation of resources propor-
tionate to the complexity of the issues: CPR 1.1(2).
34
CPR 3.4.2(a). This is the successor of what in former times was known as the demurrer
procedure.
35
CPR 24.2(a)(i). Under the old Rules of the Supreme Court summary judgment was
available only to the person asserting the claim (now 24.2(a)(ii)).
36
It is not necessary for the court to be satisfied that the claim will succeed as a matter of law
and it is undesirable to decide complex issues of law on hypothetical facts: Farah v British
Airways, The Times, January 26, 2001.
37
However, under CPR 24, where the issue is simply whether the claimant has a real
prospect of success, the defendant may seek summary judgment on the ground that the
evidence available to the claimant is too weak. See Three Rivers DC v Bank of England
(No.3) [2001] UKHL 16; [2003] 2 A.C. 1, especially the speech of Lord Hutton at [120],
where the distinction is drawn between the ‘‘attack on the pleadings’’ point and the ‘‘no
real prospects of success’’ point.
38
Cases decided under the old RSC will refer to the ‘‘statement of claim’’.
66 The Structure of Tort Law: History and Influences
39
See para.12–72, below.
40
See para.12–6, below.
41
But compare Cornwall Gardens Pte Ltd v R.O.Garrard & Co Ltd [2001] EWCA Civ 699,
where the court refused to allow the claimant to dress up what was in substance a claim
for malicious falsehood as one for interference with rights by unlawful means, in order to
escape the limitation period.
42
[1993] 1 W.L.R. 337.
43
Such claims are no longer funded under the Community Legal service: Access to Justice
Act 1999 Sch.2.
44
See also Spring v Guardian Assurance [1995] 2 A.C. 296 (claim for negligence as a way
of sidestepping privilege blocking defamation claim): para.11–33, below.
The Forms of Action: Trespass and Case 67
We may say, therefore, that the law of tort is divided over the
various torts which we are now to consider, but life itself is not
similarly divided. The law of tort may say, ‘‘If A, B and C, then
liability in negligence’’ and also ‘‘If A, B and D, then liability in
nuisance’’. Life may produce A, B, C, D, E, F, G, H. If it does, and
assuming E, F, G, and H to be legally irrelevant, the claimant should
plead and prove A, B, C, D. If he does he is entitled to succeed under
the rules both of negligence and of nuisance but this conclusion
cannot, of course, be reached by one who is not familiar with the
essentials of each particular tort.
The grouping of particular torts which have acquired names in 2–6
any sort of classification is of no value except for purposes of
exposition. And even for that it cannot possibly be scientifically
complete. Following his definition of tortious liability, Winfield
made the liability of the defendant, and not the interest of the
claimant which is infringed, the root of his classification, while there
is nowadays a tendency to adopt the other course. The order fol-
lowed in the succeeding chapters adheres strictly to neither course
but has as its principal aim no more than the avoidance, so far as
reasonably possible, of repetition and of references forward to later
chapters. The object is comprehensibility and the convenience of the
reader who wants to begin at the beginning and go on to the end.
The result is neither ‘‘historical’’ nor ‘‘scientific’’. If it is convenient,
that is enough.
Reference has already been made to the contrast in ‘‘style’’ between 2–7
the common law and the codified European systems. Our courts
have tended to look not to Europe but to the development of the
common law in the Commonwealth and the United States; but we
are also now part of a complex of European institutions which have
a political as well as an economic agenda and this has implications
for the development of tort law. Of most immediate concern for any
student is the impact of the European Convention on Human
Rights.
45
[1993] 1 W.L.R. 337 at 342 per Nicholls V.C.
68 The Structure of Tort Law: History and Influences
46
‘‘ECHR’’ All references to decisions are to final decisions of the Court unless otherwise
indicated (e.g. ‘‘Commission’’). Since 1998 the Commission (which was primarily con-
cerned with admissibility) has been merged with the Court.
47
This must not be confused with the Court of Justice of the European Communities,
commonly known as the European Court of Justice.
48
art.41 of the Convention. Thus in Halford v UK (1997) 24 E.H.R.R. 523, the sum of
£10,000 was awarded for intrusion into privacy by telephone tapping.
49
R v Home Secretary Ex p. Brind [1991] 1 A.C. 696.
50
Rantzen v Mirror Group Newspapers [1994] Q.B. 670 at 691.
51
Among the clearest examples are Rantzen v Mirror Group Newspapers (1986) Ltd [1994]
Q.B. 670 and the speech of Lord Goff in Att Gen v Guardian Newspapers Ltd (No.2)
[1990] 1 A.C. 109 at 283. In Derbyshire CC v Times Newspapers Ltd [1992] Q.B. 770 the
CA relied on the Convention to come to the conclusion that a local authority could not sue
for defamation. The HL ([1993] A.C. 534) thought it unnecessary to rely on the Conven-
tion. In John v Mirror Group Newspapers [1997] Q.B. 586 (para.12–71, below) the CA
thought it unnecessary to rely on the Convention but said that its conclusion was ‘‘but-
tressed’’ by it.
52
[2001] 2 A.C. 127, below, para.12–53.
New Influences on English Tort Law 69
a case concerning libel and ‘‘political speech’’, Lord Steyn could say
that it was:
At common law (and now under the Police and Criminal Evi-
dence Act 1984) a person arrested has a similar right to be informed
of the reason for his arrest61 and if he is not, he has a claim for the
tort of false imprisonment, which may lead to the award of sub-
stantial damages. However, some infringements of the Convention
rights by a public body would not be a tort under the common law.
For example, under art.8.1 everyone has the, ‘‘right to respect for his
private and family life, his home and his correspondence’’.62 Now
although the English common law of torts has always protected
privacy in various indirect ways63 and the law of confidence has
been developed into a wrong of misuse of private information,
which covers much of the ground, there is no general tort of
infringement of privacy under that name. However, where the
defendant is a public authority there is now a statutory wrong under
the Act. This is not an action in tort for breach of statutory duty,64
because the remedy in damages is discretionary and even where they
are awarded they will be in line with the Strasbourg practice, not
that of English courts in tort cases, but otherwise there is some
similarity with such an action.65 It would be impracticable in this
book to provide a full account of the various Convention rights but
it will be necessary to refer to them when they overlap with or
qualify the common law. There is no comprehensive definition of a
public authority in the Act but it includes a court or tribunal or, ‘‘any
person certain of whose functions are of a public nature’’.66 Organs
of central or local government and the police are obviously public
59
Human Rights Act 1998 s.8(3).
60
R. (Greenfield) v Secretary of State for the Home Dept [2005] UKHL 14; [2005] 1 W.L.R.
673; Gillan v UK, January 12, 2010, Application No.4158/05. See generally Law Com.
No.266, Damages under the Human Rights Act 1998 (2000).
61
See below, para.4–29.
62
Subject to art.8.2, which allows lawful interference which is necessary in a democratic
society for national security, the prevention of crime, etc.
63
See below, para.12–78.
64
See Ch.7.
65
See Law Com. No.266, §4.20 (‘‘in effect a form of action for breach of statutory
duty’’).
66
Human Rights Act 1998 s.6(3). But not Parliament.
New Influences on English Tort Law 71
authorities in the ordinary sense of that expression and the same may
be true of many regulatory bodies and the BBC. In some cases, it
may be difficult to decide whether a body is a public authority in this
ordinary sense or only in the extended sense quoted above, a point
which is of significance because in the latter case the Act does not
apply to acts of the body which are of a private nature.67
Although a court is a public authority for the purposes of the Act, 2–10
a claim in respect of a judicial act is only to be brought by way of
appeal (or in some cases judicial review) and damages may not be
awarded in respect of judicial acts done in good faith except with
regard to wrongful detention under art.5(5) of the Convention.68
However, that takes us to the central area of difficulty in mapping
the relationship of the Act, the Convention and the common law of
tort. Despite the fact that the act of a court may not be subject to an
award of damages, it is still a public authority which must not act in
a way incompatible with the Convention. Does that mean that a
court, in declaring and applying the common law, is required to do
so in a way which is compatible with the Convention rights? Or, is
it enough that they simply give effect to the Convention rights by
means of the mechanisms created by the Human Rights Act? The
first approach would have very significant implications: it would
make the common law a subsidiary regime shaped by the Conven-
tion, which is expressed in terms of very broad, general rights quite
different from the common law’s method of building up principle
from case to case; and, since it is plain that the international
obligations under the Convention may extend to creating and imple-
menting a legal regime which protects the right in question against
acts in the private sphere,69 it would have the potential to create new
causes of action against private persons, even though the Human
Rights Act applies only to public authorities. It was not the intention
of the promoters of the Act to create this ‘‘full horizontal’’
effect—the Lord Chancellor said that the Act would not allow:
‘‘trump card’’ (at least where the matter in question had not been
considered by a higher court in the context of the Convention) which
would enable him to escape otherwise binding decisions. The
Human Rights Act does not ‘‘incorporate’’ the Convention into
English law and it is potentially misleading to say, metaphorically,
that it does.71
2–11 As one would expect there is no single, simple answer to the
question, though in tort law it is certainly not quite a case of
Argentoratum locutum, judicium finitum.72
In one type of case a Convention right does not so much create a
cause of action as militate against an existing liability at common
law—for example, the right of freedom of expression under art.6 has
at least the potential to restrict the ability of the law to impose
liability for defamation. In such a case the court really has no choice
but to alter the common law to make it compatible with the Conven-
tion, as has happened in relation to qualified privilege and reporting
of matters of public concern.73 In one case a judge declined to apply
the common law rule of strict liability in ‘‘mistaken identity’’ libel
cases even though that rule was supported by decisions of the Court
of Appeal and the House of Lords before the Act (and indeed before
the Convention).74 Nonetheless, where the Convention protects a
right which is not recognised or protected by the common law of tort
the general tendency since the Human Rights Act 1998 has been to
take the line that there may be two parallel regimes governing the
situation and the court’s duty not to act inconsistently with the
Convention is fulfilled by its giving a remedy, via the Act, for the
infringement of the Convention right itself, even if one is denied
under the common law. In Wainwright v Home Office75 where the
events took place before the Act, the House of Lords declined to
create a ‘‘high level’’ general tort of invasion of privacy so as to
allow the United Kingdom to comply with its international obliga-
tions under art.8 and it is clear that the result is the same after the
Act. A:
71
McKerr, Re [2004] UKHL 12; [2004] 1 W.L.R. 708 at [65] per Lord Hoffmann.
72
Secretary of State for the Home Department v AF [2009] UKHL 28; [2009] 3 W.L.R. 74
at [98] per Lord Rodger (‘‘Strasbourg has spoken so the matter is closed’’).
73
See para.12–54, below. In the context of defamation we are now encountering the reverse
problem, i.e. that the common law gives too much protection to freedom of expression,
because defences like truth and privilege give absolute protection to the defendant and
unless they can be tempered with an element of proportionality, they risk art.8, which is
now regarded as protecting reputation as well as privacy: para.12–2, below.
74
O’Shea v MGN Ltd [2001] E.M.L.R. 40, see para.12–20, below.
75
[2003] UKHL 53; [2004] 2 A.C. 406.
New Influences on English Tort Law 73
‘‘[I]n order to find the rules of the English law [on this matter] we
now have to look in the jurisprudence of articles 8 and 10. Those
articles are now not merely of persuasive or parallel effect but . . .
are the very content of the domestic tort that the English court has
to enforce.’’85
82
Mitchell v Glasgow CC, above, fn.79, at [68].
83
See para.12–2, below.
84
A better example comes from housing law rather than tort law. Article 8 guarantees respect
for one’s home, but in all but the most exceptional cases the court is entitled to assume that
the various statutory mechanisms for gaining possession are art.8-compliant and there is no
need for a full judicial art.8 hearing in every eviction case: Kay v Lambeth LBC [2006]
UKHL 10; [2006] 2 A.C. 465.
85
McKennitt v Ash [2006] EWCA Civ 1714; [2008] Q.B. 73 at [11].
86
Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 A.C. 465.
New Influences on English Tort Law 75
87
Murray v Express Newspapers Ltd [2008] EWCA Civ 446; [2009] Ch 481.
88
Von Hannover v Germany (2005) 40 E.H.R.R. 1.
89
Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 A.C. 457.
90
[2003] EWCA Civ 1151; [2004] Q.B. 558.
91
[1995] 2 A.C. 633.
92
J.D. v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2 A.C.
373.
93
At [118]. Cf. Lord Bingham dissenting at [50]: ‘‘[The question arises] whether the law of
tort should evolve, analogically and incrementally, so as to fashion appropriate remedies
to contemporary problems or whether it should remain essentially static, making only such
changes as are forced upon it, leaving difficult and, in human terms, very important
problems to be swept up by the Convention. I prefer evolution.’’ See also Lord Bingham’s
dissent in Smith v CC Sussex [2008] UKHL 50; [2009] 1 A.C. 225 at [58].
76 The Structure of Tort Law: History and Influences
are few doctrines of the common law which are immune to mod-
ification by the Supreme Court.94
2–13 Article 6 of the Convention requires special treatment. It pro-
vides, in the context of civil litigation, that:
the striking out of the claim without any investigation of the facts
constituted a violation of art.6. Each claimant was awarded £10,000
compensation for the violation.99
The reasoning of the European Court of Human Rights was as
follows100: the basis of the exclusionary rule in Hill was a conclu-
sion that to allow actions against the police in respect of the
investigation of crime would jeopardise the efficiency of the force
and the effectiveness of the battle against crime; but a blanket rule
of ‘‘immunity’’ would be disproportionate because it would not
balance the harm suffered by the victim and the gravity of the
negligence in the individual case against the harm to the public
interest in imposing liability; therefore to dismiss the claim under a
procedure which did not allow for determination of the facts was a
contravention of art.6. This gave rise to some very serious difficul-
ties. Although art.6 is concerned with procedural fairness in the
adjudication of rights granted by the domestic law, the effect of the
decision was to pass upon the validity of the substantive rules of the
domestic law in granting or withholding the right in the first place:
the decision proceeds upon the basis of the claimants being deprived
of a civil right which Hill plainly stated that they did not possess.
Logically there seemed to be no limits to this power to pass upon the
validity of the domestic law. Suppose, for example, that A is con-
victed of a crime because of the evidence of B and it now turns out
that this evidence was incorrect because B was stupid and credulous.
If A sues B for negligence it has hitherto been plain beyond argu-
ment that the claim would be struck out. Since there is a clear rule
of law that even perjured evidence does not give rise to civil
liability,101 then a fortiori the same must apply to evidence given
without due care: the law decided centuries ago that a witness must
not be under even the remotest threat of any civil consequences102
arising from his evidence and that the only sanction is to be the
comparatively narrow one of the criminal law of perjury. Was it now
to be said that because in some individual cases this rule may act
disproportionately its universality was now liable to attack via
art.6?103 However, in Z v UK104 the majority of the European Court
of Human Rights reconsidered the scope of art.6 in the context of a
99
In practical terms, the claimants were awarded compensation for not being allowed to
make a full presentation of a claim which would probably have failed, but the Convention
is about the vindication of rights.
100
Lord Browne-Wilkinson in Barrett v Enfield LBC [2001] 2 A.C. 550 at 558 confessed that
he found it ‘‘extremely difficult to understand’’.
101
See para.24–10, below.
102
See also the defamation rule: para.12–41, below.
103
This is in fact much more of a ‘‘blanket exclusionary rule’’ than that in Hill, which did not
say that the police could never be sued for failing to prevent crime: the decision might well
have been different if they had allowed Paget-Lewis to escape from custody and make the
attack.
104
(2002) 34 E.H.R.R. 3. See also Fogarty v UK (2002) 34 E.H.R.R. 12.
78 The Structure of Tort Law: History and Influences
an act or omission unlawful under civil law has caused death. But
I do not see it as any part of the function of article 2(1) to add to
the class of persons who under ordinary domestic law can seek
financial compensation for a death an undefined, and perhaps
undefinable, class composed of persons close to the deceased who
have suffered distress and anguish on account of the death.’’111
111
[2008] UKHL 74; [2009] 1 A.C. 681 at [5].
112
See para.22–5, below.
113
See Ch.10, below.
114
i.e. very broadly speaking, the law governing relations between persons but not the law
governing the special powers of the State. Contract, tort and property are therefore private
law. However, in the common law the distinction, while it undoubtedly exists, is hard to
draw. Many of the modern cases on negligence involve actions against public authorities
for carrying out their functions badly or failing to carry out those functions and such cases
are undoubtedly part of the law of torts (see, e.g. Watkins v Home Office [2006] UKHL 17;
[2006] 1 A.C. 395). In France, on the other hand, the liability of a public authority for
damage depends upon principles which are to a considerable extent separate and distinct
from those of private law in the Code civil and such cases are even heard in separate courts.
See Bell, Boyron and Whitaker, Principles of French Law, 2nd edn (2008).
115
Principles of European Tort Law, Text and Commentary (2005).
New Influences on English Tort Law 81
DCFR:
‘‘VI. –2:101 Meaning of legally relevant damage
(1) Loss, whether economic or non-economic, or injury is
legally relevant damage if
(a) one of the following rules of this Chapter so provides;
(b) the loss or injury results from a violation of a right other-
wise conferred by the law; or
(c) the loss or injury results from a violation of an interest
worthy of legal protection.
(2) In any case covered only by sub-paragraph (b) or (c) of
paragraph (1) loss or injury constitutes legally relevant damage
only if it would be fair and reasonable for there to be a right to
reparation121 . . .
(3) In considering whether it would be fair and reasonable for
there to be a right to reparation . . . regard is to be had to the
ground of accountability, to the nature and proximity of the
116
Lando and Beale (eds), Principles of European Contract Law, Parts I and II (2000); Lando
and others (eds), Principles of European Contract Law, Part III (2003).
117
The Interim Outline Edition of 2008 contains the text and an introduction. The full version
(2009) with comments and notes runs to six volumes.
118
Eidenmüller, Faust, Grigoleit, Jansen, Wagner, Zimmermann, ‘‘The Common Frame of
Reference for European Private Law—Policy Choices and Codification Problems’’ (2008)
28 O.J.L.S. 659 at 661.
119
Introduction, para.4.
120
Resolution of May 1989.
121
Equivalent provisions relating to prevention of damage are here omitted.
82 The Structure of Tort Law: History and Influences
2–18 There are some wrongs which are certainly torts but which are rather
outside the scope of an elementary book. First, there are those
matters which are commonly treated as specialised legal subjects in
their own right. Technically speaking, actions for infringement of
the intellectual property rights of copyright, patents, and trade marks
are actions in tort (albeit statutory) but these matters are far too
specialised and complex for inclusion in a book of this kind126 and
the statutory causes of action for wrongful discrimination are best
looked at in the context of employment law, where they most
commonly arise.127 Then there is a range of minor tort causes of
action based on the common law.128 For example, there is a group of
wrongs concerned with interference with a franchise—a royal privi-
lege, or branch of the Queen’s prerogative, subsisting in the hands
of a subject.129 The forms of it are various, but examples are the
franchise of a number of persons to be incorporated and subsist as
124
Consider the example of product liability. The current Directive (EC 85/374) applies to
personal injury and a very limited range of property damage but it leaves it to English law
to determine what types of damages are obtainable. A replacement Directive which
legislated by reference to the DCFR might bring in rules about damages which are either
not reconcilable with English law or which are expressed in such imprecise terms that a
question would arise whether there was a ‘‘margin of appreciation’’ for more specific local
rules: e.g. VI-2:202, 6:101(2), 6:103, 6:202, 6:203.
125
Three well-known examples are Henderson v Merrett Syndicates [1995] 2 A.C. 145, White
v Jones [1995] 2 A.C. 207 and Fairchild v Glenhaven Funeral Services [2002] UKHL 22;
[2003] 1 A.C. 32. Such overt external references, even to another civil law system, would
be very unusual in Europe.
126
Even the comprehensive Clerk & Lindsell, Torts, 19th edn, deals with them all in an
abbreviated form in one chapter (q.v. for references to specialised works).
127
But note that these may overlap on the facts with common law claims: see Farah v MPC
[1998] Q.B. 65 at 69.
128
See Rudden, ‘‘Torticles’’ (1991–92) 6–7 Tulane Civ L.F. 105.
129
Blackstone, Comm, ii, 37.
Torts Not Treated in this Book 85
130
See Clerk & Lindsell, Torts, 14th edn, Ch.26 (not in the current edition). Some of this is
by no means obsolete, see, e.g. Iveagh v Martin [1961] 1 Q.B. 232; Wyld v Silver [1963]
1 Q.B. 169; Sevenoaks DC v Patullo [1984] Ch. 211.
131
(1703) 2 Ld. Raym. 938.
132
Representation of the People Act 1985.
133
See para.18–2, below.
134
See the 13th edn of this work, p.554.
CHAPTER 3
THERE are different ways in which liability in tort may arise: 3–1
A. Intention
Some torts require intention on the part of the wrongdoer. It is, of 3–2
course, impossible for the law to do more than to infer a person’s
1
See Ch.20, below.
87
88 General Characteristics of Tortious Liability
intention, or indeed any other mental state, from his conduct.2 The
law may frequently attribute to him an intention which a met-
aphysician would at most consider very doubtful. Centuries ago,
Brian C.J. said: ‘‘It is common knowledge that the thought of man
shall not be tried, for the Devil himself knoweth not the thought of
man.’’3 On the other hand, Bowen L.J. in 1885 had no doubt that,
‘‘the state of a man’s mind is as much a fact as the state of his
digestion’’.4 There is no contradiction in these dicta. All that Brian
C.J. meant was that no one can be perfectly certain of what passes
in the mind of another person but Brian would certainly not have
dissented from the proposition that in law what a person thinks must
be deduced from what he says and does and that is all that Bowen
L.J. meant.
Given this basic premise that intention can only be inferred from
conduct we are still left with the problem of defining intention.
Everyone agrees that a person intends a consequence if it is his
desire or motive to bring it about, but beyond that it is probably not
possible to lay down any universal definition for the purposes of
tort. In crime, the law now is that the jury is entitled (but not, it
seems, required) to infer intention where the defendant was aware
that the harm was ‘‘virtually certain’’ to result from his act.5 There
has been much less discussion of intention in tort and there are
probably at least two reasons for this (apart from the relative
infrequency of cases on intentional torts). First, since the abolition
of the forms of action the claimant may sometimes be able to fall
back upon a wider principle of liability for negligence: if I strike
you, then provided I cause you hurt and that hurt could have been
foreseeable to a reasonable man then my conduct amounts to the tort
of negligence even if the court is in doubt whether I acted intention-
ally.6 Secondly, while the criminal law may insist that the defen-
dant’s intention must extend to all the elements and consequences of
his act making up the definition of the crime, the law of tort may
separate the initial interference with the victim from the conse-
quences of that interference (remoteness of damage7) and while
intention or foresight may be necessary as to the former it may not
be as to the latter. Thus if A strikes B intending some slight harm but
B suffers greater harm (because, for example, he falls as a result of
the blow) A is responsible for the greater harm if it is a direct
consequence of the blow: he need not even foresee the possibility of
2
Including his conduct in the witness box.
3
Year Book Pasch. 17 Edw. 4, fol. 2, pl. 2.
4
Edgington v Fitzmaurice (1885) 29 Ch. D. 459 at 483.
5
R. v Nedrick [1986] 1 W.L.R. 1025 (intent in murder).
6
However, the limits of this freedom are not entirely clear: see the next section.
7
See Ch.6, below.
Intention or Negligence or the Breach of Strict Duty 89
the greater harm, let alone intend it.8 Indeed, the defendant is liable
for the greater harm even if it is the result of some unusual suscepti-
bility of the claimant, a principle developed primarily in the context
of negligence9 but applying with even more force to intentional
wrongdoers.10
In one tort, conspiracy to injure, intention has the very narrow 3–3
meaning of single-minded purpose to do harm, so that the defendant
does not ‘‘intend’’ even what he foresees as inevitable if his purpose
is to advance his own interests.11 Other torts in the area of unlawful
interference with economic interests now require either that very
narrow ‘‘purpose’’ intention or that the defendant acts so as to cause
harm to the claimant as the means to some other end which it is his
purpose to achieve: the claimant must therefore be the ‘‘target’’ of
the defendant’s actions.12 In the context of trespass to land it has
been said that indifference to a risk that trespass will occur by
animals in the defendant’s charge amounts to intention13 and it is
thought that the same approach should be taken in all the trespass
torts: if D throws his coffee dregs out of the window of his office,
knowing that others may be passing, that should be trespass if
anyone is hit, whether the street is so crowded that it is a virtual
certainty or is comparatively unfrequented.14 Or to take a more
realistic example, consider the case of someone who places a bomb
for political reasons; he may give a warning on the basis of which
the emergency services may be expected to act and he may not
‘‘intend’’ personal injury in the sense of desiring it but he can hardly
deny that he appreciates the real risk of something going wrong.15
This is the state of mind referred to in the criminal law as ‘‘sub-
jective recklessness’’, that is to say, the wrongdoer is conscious of
the risk he is taking.16 Where recklessness as to consequences will
do in tort, so will recklessness as to circumstances. Thus the tort of
misfeasance in a public office is committed when a public officer
acts knowingly outside the scope of his powers with the intent that
the claimant will thereby be injured or if he is recklessly indifferent
8
Wainwright v Home Office [2001] EWCA Civ 2081; [2002] Q.B. 1334 at [69] (on appeal
[2003] UKHL 53; [2004] 2 A.C. 406); Williams v Humphrey, The Times, February 20,
1975.
9
See para.6–32, below.
10
Allan v New Mount Sinai Hospital (1980) 109 D.L.R. (3d) 634.
11
para.18–23, below.
12
para.18–13, below.
13
See League Against Cruel Sports v Scott [1986] Q.B. 240 at 252.
14
This is the view taken in Bici v MoD [2004] EWHC 786 (QB), The Times, June 11, 2004,
but cf. Restatement of Torts, 3d, Tentative Draft No.1, §1 (‘‘substantial certainty’’).
15
See Breslin v McKenna [2009] NIQB 50.
16
Though using ‘‘intention’’ to embrace this state of mind is a convenient shorthand it is
open to criticism as being wider than the proper usage. As Finnis points out, ‘‘Intention in
Tort Law’’ in Owen (ed.) Philosophical Foundations of Tort Law (1995), lecturers know
that what they say will inevitably confuse some of their audience but it would be difficult
to say that they intend to do so.
90 General Characteristics of Tortious Liability
to the legality of his acts and the damage he may inflict on the
claimant.17
B. Negligence
3–4 ‘‘Negligence’’ is an independent tort with a number of elements.
What we are concerned with at this point18 is negligence as the state
of mind which is one element of the tort (and of course of some
other torts). In this sense it usually signifies inadvertence by the
defendant to the consequences of his behaviour, simple examples
being the motorist who daydreams, the solicitor who forgets about
the approach of the limitation period or the doctor who forgets that
the patient is allergic to a treatment. It may be that the word should
only be used in this sense19 but for the purposes of the tort of
negligence a defendant clearly cannot always escape liability
because he adverted to the risk if the case is one where even
inadvertence would saddle him with liability. An illustration of
advertence is Vaughan v Menlove,20 where the defendant had been
warned that his haystack was likely to overheat and catch fire, which
might spread to the land of his neighbour. He said that he would
‘‘chance it’’ and he was held liable for the damage which occurred
when the stack actually took fire. There is, therefore, a certain
degree of overlap between negligence and recklessness in the sense
described under the previous heading, though recklessness is not an
independent tort, merely an alternative element to intention in cer-
tain torts where mere negligence will not do. Liability for intentional
or reckless behaviour in those torts is generally more rather than less
extensive than liability for negligence21 but in the past there was ,
paradoxically, at least one case in which the reverse was true. Thus
the general limitation period (the period within which the claim
must be brought) for tort is six years. For the tort of negligence
(where it causes personal injury) it is three years but with the two
important qualifications that (1) time does not begin to run until the
claimant knows or ought to know that he has a claim and (2) even
when the period has expired the court may ‘‘disapply’’ the limitation
period.22 At one time it was held that the fixed, six-year period
17
Three Rivers DC v Bank of England (No.3) [2001] UKHL 16; [2003] 2 A.C. 1. See also
White v White [2001] 2 All E.R. 43 (a requirement that a person ‘‘knows’’ something will
generally be satisfied if he suspects that it is so but takes the attitude that he will not ask
further because he would rather not know).
18
As to the other elements of the tort, see Chs 5 and 6, below.
19
See the remarks of Lord Reid in I.C.I. v Shatwell [1965] A.C. 656 at 672.
20
(1837) 3 Bing N.C. 468.
21
e.g. (i) liability for certain sorts of loss (in particular economic loss) may be recoverable
if the conduct is intentional, but not if it is negligent (ii) the remoteness of damage rules
may be more severe on the defendant (see para.6–19, below) and (iii) exemplary or
aggravated damages may be available (see para.22–8, below).
22
See Ch.26.
Intention or Negligence or the Breach of Strict Duty 91
34
L.P.T.B. v Upson [1949] A.C. 155 at 173 per Lord Uthwatt, and at 176 per Lord de Parcq;
Lang v London Transport Executive [1959] 1 W.L.R. 1168 at 1175 per Havers J. See the
Restatement of Torts, 2d, §289, 290: ‘‘What is customarily regarded as requisite for the
protection of others, rather than that of the average man in the community’’.
35
A. C. Billings & Sons Ltd v Riden [1958] A.C. 240 at 255 per Lord Reid. For a brilliant
caricature of ‘‘this excellent but odious creature’’ see Sir Alan Herbert, Uncommon Law,
pp.1–5.
36
General and approved practice may, however, fall below the standard of the reasonable
man, and if so, it is not a good defence.
37
The latter tendency is dominant at the present day, but with the disappearance of juries in
civil cases and the expansion of law reporting, there is a danger that judges’ decisions of
fact may come to be treated as laying down detailed rules of law: Qualcast (Wolverhamp-
ton) Ltd v Haynes [1959] A.C. 743, especially per Lord Somervell at 757–758 per Lord
Denning at 759–761.
94 General Characteristics of Tortious Liability
3–8 Motive may be conveniently treated here. It signifies the reason for
conduct. Unfortunately it has become entangled with the word
‘‘malice’’ which is used quite differently in the law of tort. It may
mean what the layman usually takes it to be—‘‘evil motive’’ or
spite—or the purpose of causing harm to someone, or it may simply
signify doing an act wilfully without just cause or excuse. The last
two senses have really nothing to do with motive but refer to
intention, a term which ought to be confined to advertence to
38
Glasgow Corp v Muir [1943] A.C. 448 at 457 per Lord Macmillan, who deals with some
of the attributes of a reasonable man. Though invested with power to decide what is
reasonable, it does not follow that the judge will always behave like a reasonable man
himself: O’Connor v State of South Australia (1976) 14 S.A.S.R. 187.
39
R. v Denyer [1926] 2 K.B. 258; Hardie & Lane Ltd v Chilton [1928] 2 K.B. 306. This
conflict was resolved in Thorne v Motor Trade Association [1937] A.C. 797, cf. the
differing views expressed in the Court of Appeal and in the House of Lords in Woods v
Duncan [1946] A.C. 401.
40
Winfield, ‘‘Ethics in English Case Law’’ (1931) 45 Harv. L. Rev. 112–135, reprinted in
Select Legal Essays (1952), pp.266–282.
41
See the speeches of Lord Hoffman in Frost v CC South Yorks [1999] 2 A.C. 455
(para.5–69, below) and Lord Steyn in McFarlane v Tayside Health Board [2000] 2 A.C.
59 (para.24–15, below).
42
See para.5–17, below.
Motive and Malice 95
‘‘[N]ot the motive for the act that must be regarded. If the act,
apart from motive, gives rise merely to damage without legal
injury, the motive, however, reprehensible it may be, will not
supply that element.’’44
43
[1895] A.C. 587.
44
[1895] A.C. 587 at 601. See further as to this case, para.14–12, below.
45
[1898] A.C. 1.
46
Many Civil Law systems recognise the concept of abuse of rights. See, e.g. the Dutch Civil
Code, art.3–13(2): ‘‘Instances of abuse of right are the exercise of a right with the sole
intention of harming another or for a purpose other than that for which it was granted or
the exercise of a right where its holder could not reasonably have decided to exercise it,
given the disproportion between the interest to exercise the right and the harm caused
thereby’’. See also van Gerven, Lever and Larouche, Tort Law (Common Law of Europe
Casebooks) (2000), p.231.
96 General Characteristics of Tortious Liability
47
One exception, misfeasance in a public office (see Three Rivers DC v Bank of England
[2003] 2 A.C. 1 at 191 and Ch.7 below) had been almost forgotten when Bradford v
Pickles was decided but is now a rather fashionable cause of action, though success in it
seems rare.
CHAPTER 4
1. Assault and Battery ............................... 4–5 (a) The burden and standard
A. Meaning of Force ........................... 4–6 of proof ............................ 4–28
B. Hostility .......................................... 4–7 (b) Information of charge ...... 4–29
C. Consent and Battery ....................... 4–8 (c) The European Convention
D. Assault ............................................ 4–12 on Human Rights ............. 4–30
E. Relationship to Criminal Proceed- (d) Detention after arrest ....... 4–31
ings .................................................. 4–14 E. Distinction from Abuse of Proce-
2. False Imprisonment ............................... 4–15 dure ................................................. 4–32
A. Knowledge of Claimant ................. 4–16 3. Trespass to the Person and Negligence .. 4–33
B. Restraint must be Complete ........... 4–17 4. Acts Intended to Cause Physical Harm,
C. Means of Escape ............................ 4–18 Other than Trespass to the Person ....... 4–36
D. Defences .......................................... 4–19 5. The Protection from Harassment Act
i. Reasonable condition .............. 4–20 1997 ....................................................... 4–38
ii. Imprisonment, arrest and de-
tention ..................................... 4–21
1
Milsom, Historical Foundations of the Common Law, 2nd edn, p.285; Milsom, ‘‘Trespass
from Henry III to Edward III’’ (1958) 74 L.Q.R. 195, 407, 561.
2
By force and arms.
3
See, e.g. the case of 1317, cited by Milsom, Historical Foundations of the Common Law,
2nd edn, p.289.
97
98 Trespass to the Person and Related Matters
goods and to the person, but the first two are today more conven-
iently considered in separate chapters.
There is no doubt that as a matter of history trespass to the person
might be committed negligently, i.e. inadvertently as well as by
intention,4 though this is probably not the law in England today. We
return to this point later,5 but for the moment we shall treat trespass
to the person as requiring intention. There are three main forms,
namely, assault, battery and false imprisonment6 and their common
element is that the wrong must be committed by ‘‘direct means’’.
What precisely this means is difficult to say. The classical illustra-
tion was of throwing a log into the highway and hitting a passer-by.
In contrast if someone were to stumble on the log that would be
indirect, or ‘‘case’’. The broad idea of the notion is easy enough to
understand in the case of battery, where it seems to mean something
in the nature of a blow (though even that may be hard to define with
precision).7 It is more difficult to give directness a clear meaning in
the related torts of assault and false imprisonment: the former
requires no physical contact and may now, it seems, be committed
by making threats over the telephone,8 and while the obvious form
of the latter is physical seizure of the claimant by an officer, it is
clear that the tort is equally committed if the claimant submits to a
legal authority asserted by the officer.9 In neither case is there much
meaning in ‘‘directness’’, save that both situations involve a threat,
express or implied, of the infliction of force, though in the latter it
is qualified. The point is really of very limited importance because
where some physical harm is intentionally inflicted by indirect
means liability in tort still arises,10 and where harm has been caused
negligently that, in the modern law, is the tort of negligence.11
However, these forms of liability do not cover all the ground
covered by trespass. For example, where there is a trespass to the
person the claimant may recover substantial damages for distress or
humiliation even though he suffers no physical injury whatever
—trespass is actionable per se—but, if the defendant uses indirect
means to inflict humiliation or distress on the claimant it seems that
4
Weaver v Ward (1616) Hob. 134; Dickensen v Watson (1681) T. Jones 205; Dodwell v
Burford (1670) 1 Mod. 24; Gibbon v Pepper (1695) 2 Salk. 637; Scott v Shepherd (1773)
2 W.Bl. 892.
5
See para.4–33, below.
6
Trespass to the person was also the parent of some torts, now abolished, which protected
family and service relationships: see para.18–1, below.
7
See para.4–6, below.
8
See para.4–13, below.
9
See para.4–15, below.
10
See para.4–36, below.
11
In earlier times both intentional and negligent indirect infliction of injury would have
fallen under the ‘‘action on the case’’.
Trespass to the Person and Related Matters 99
12
But in some cases there may be liability for the statutory wrong under the Protection from
Harassment Act 1997: para.4–38, below.
13
Unless of course the conduct amounts to some other tort actionable per se, such as
libel.
14
Cf. Nickerson v Hodges 84 So. 37 (La. 1920) (the ‘‘pot of gold’’ case).
15
See Ch.6, below.
16
Thus in the classical example, when the wayfarer stumbled over the log on the highway
his damage was surely not too remote for the purposes of an action on the case.
17
Marc Rich v Bishop Rock Marine [1996] A.C. 211, para.5–13, below.
18
The conduct complained of (failing to prevent a vessel sailing with a defective hull) could
plainly have never amounted to trespass to goods. However, the example given of direct
harm (causing a fire by dropping a cigarette) presumably could be, if done with the
requisite mental state.
19
See below, para.4–6.
20
It may be that the criminal law has a rather broader notion of battery (see para.4–6, below)
and it is in any case not required in the more serious offences involving grievous bodily
harm. Poisoning is a specific offence.
21
One cannot, however, assume that the mens rea of the crimes always equates exactly with
the mental element of the torts. There is perhaps a certain ambivalence in R. v Barnes
[2004] EWCA Crim 3246; [2005] 1 W.L.R. 910 on whether the court is simply giving
advice on prosecutorial policy or stating substantive differences between tort and crime.
100 Trespass to the Person and Related Matters
caused by a riot. This was held to fall within a standard public liability policy in
Bedfordshire Police v Constable [2009] EWCA Civ 64 ( as to the scope of the Act see
Yarl’s Wood Immigration Ltd v Bedfordshire Police [2009] EWCA Civ 1110).
32
In its first year of operation the Scheme made 1,164 awards. By 1992–1993 there were
37,000 awards and the cost had increased 38-fold to £152 million.
33
See Cm. 2434 (1993). The combination of a sharp reduction in awards in more serious
cases and simpler administration was expected to cut the cost of the Scheme by about a
half.
34
R. v Home Secretary, Ex p. Fire Brigades Union [1995] 2 A.C. 513.
35
The Act is the barest of frameworks. The substance is found in the Scheme itself (currently
2008). Since 2006 there has been a Europe-wide requirement for Member States to have
schemes, ‘‘on compensation to victims of violent intentional crimes committed in their
respective territories, which guarantee fair and appropriate compensation to victims’’:
Directive 2004/80/EC, art.12.
36
In the last two cases the applicant must have been taking an exceptional and justifiable
risk: para.12 of the Scheme.
37
para.9. See para.5–61, below.
38
Thus the loss of one arm attracted a civil award of not less than £87,500 in 2009 but under
the Scheme the awards are £33,000 and £55,000 for non-dominant and dominant arm
respectively. In the period after 1995 some awards under the Scheme were higher than
awards of civil damages because the tariff figures under the abortive planned scheme were
based on average awards under the original scheme, which included loss of earnings.
102 Trespass to the Person and Related Matters
These tariff figures were carried forward into the 1995 scheme even though that did allow
payments for loss of earnings. Since then civil awards have increased substantially. Awards
for ‘‘bereavement’’ and loss of dependency may be made in fatal cases but there are
considerable differences of detail compared with the provisions of the Fatal Accidents Act
1976: para.38.
39
However, charitable payments or certain payments made under privately effected insur-
ance are not deductible. Sums received from a civil action against the offender or under a
compensation order made by the criminal court are deductible.
40
para.35(c).
41
para.32. See para.22–26, below. There is no provision for periodical payments as such
under the Scheme but with the applicant’s consent an annuity may be purchased with the
lump sum.
42
Power to seek recovery from the offender was given by s.57 of the Domestic Violence,
Crime and Victims Act 2004.
Trespass to the Person and Related Matters 103
negligence, civil actions for trespass to the person are not common.
No doubt this has always been so, for in trivial cases the claimant is
likely to hesitate at the risks of civil litigation once tempers have
cooled, and in serious cases the defendant may well not be worth
pursuing. Furthermore, even in serious cases the existence of the
Criminal Injuries Compensation Scheme and the power of the crimi-
nal court to make direct compensation orders against defendants
nowadays do much to remove the incentive to bring a civil action.
Though there may be cases in which an award of damages against
a private defendant will exceed the sum awarded under the Criminal
Injuries Compensation Scheme, the number of cases in which the
necessary conditions are fulfilled and in which the defendant is
worth suing is likely to be small.43 In less serious cases the modest
sums the criminal court may award by way of direct compensation
from the offender are likely to be as much as the claimant would
receive in practice by enforcing a civil judgment, whatever the size
of that judgment might be. However, as we have seen, civil suits are
sometimes brought for rather indirect motives, for example to make
a ‘‘point of principle’’ or to get an individual investigation or to
provoke the prosecution authorities into acting.44 In other cases
there may be the prospect of recovery of large damages because
from a civil point of view someone is vicariously liable for the act
of the wrongdoer, even though it amounts to a crime. The best
example is the large number of actions brought in respect of abuse
in children’s homes, sometimes many years after the event.45 What
appears to be (and what has probably been for 200 years) the most
important context of these trespass torts is suits against the police
and other public bodies. Here the law of tort may be serving more
as a vindicator of personal liberty than as a vehicle for compensating
harm, a point emphasised by the court’s power to award exemplary
damages in such cases.46 Even in this context, however, the use of
tort law is often said to be primarily motivated by perceived defi-
ciencies in the procedures for complaints and discipline in respect of
police conduct.47
From a practical point of view the law has now become more 4–4
complicated in the area of conduct covered by the trespass torts. An
adviser may, for example, have to consider civil liability under the
43
Cf. Raja v van Hoogstraten [2005] EWHC 2890 (Ch) (arranging murder); Lawson v
Glaves-Smith [2006] EWHC 2865 (QB) (rape and false imprisonment; £239,000 under
various heads).
44
See para.1–2, above.
45
The limitation difficulties in these cases were ameliorated by A v Hoare [2008] UKHL 6;
[2008] 1 A.C. 844, para.26–18, below.
46
See para.22–9, below.
47
See Ashley v CC Sussex [2008] UKHL 25; [2008] 1 A.C. 962, para.1–2, above; but
vindication is not confined to police action: Breslin v McKenna [2009] NIQB 50.
104 Trespass to the Person and Related Matters
A. Meaning of Force
4–6 If there is a forcible contact no damage is necessary, for trespass
is actionable per se. Any physical contact with the body of the
claimant (or his clothing) is sufficient to amount to ‘‘force’’: there is
a battery when the defendant shoots the claimant from a distance
48
See para.4–38, below.
49
Sometimes in law. Thus ‘‘common assault’’ in the Criminal Justice Act 1988, s.40,
embraces battery as well as assault in the strict sense: R. v Lynsey [1995] 3 All E.R. 654.
See also under the Offences Against the Person Act 1861, s.47: R. v Ireland [1998] A.C.
147. Williams, Criminal Law, 2nd edn, p.172, points out that while ‘‘assault’’ is a verb in
common use, there is no such verb to describe the action of battery.
50
Pursell v Horne (1838) 3 N. & P. 564 and, as Pollock noted (Torts, 15th edn, p.159), there
is much older authority in Reg. Brev (ed. 1687), 108b (de liquore calido super aliquo
projecto). So also, to spit at a person is an assault, and if the spittle hits him that is a
battery.
51
Per Gibbs C.J. in Hopper v Reeve (1817) 7 Taunt. 698 at 700.
Assault and Battery 105
just as much as when he strikes him with his fist and the same is
probably true when the defendant deliberately runs into the car in
which the claimant is sitting, shaking him up.52 Whether the inflic-
tion of such things as heat or light53 or blowing smoke54 on a person
would be battery is uncertain, though the answer is probably no.
Smoke is, from a scientific point of view, particulate matter but for
the purposes of trespass to land it has been treated as an intangible
and therefore falling into the realm of nuisance. If exposing a person
to smoke were to be treated as trespass to the person we would have
to decide whether the defendant was liable for exposure which he
merely foresaw: it can hardly be the law that a smoker commits
battery on all the non-smokers near him, even if they show they
object.55 Of course, if injury were intended and caused by exposure
to such things it would be actionable even though it was not
battery.56 Mere passive obstruction has been said not to be battery,57
though in a criminal case there was held to be a battery where the
defendant innocently drove his car on to the victim’s foot and
declined to move it.58
Some situations raise the problem of ‘‘directness’’, which we have
already touched on. Depending on the view one takes of this in the
modern law it may not be battery if I daub with filth a towel which
I hope that you will use and you unwittingly do so and befoul your
face59—a case in which one cannot fall back on liability for inten-
tional harm because there seems to be no ‘‘damage’’; but again in a
modern criminal case putting acid in a hand dryer so that it injured
the next person to use it was held to amount to battery.60 However,
a rather similar uncertainty about ‘‘directness’’ is to be found in the
criminal cases. In R. v Martin,61 where the defendant barred the
doors of a theatre and then caused a panic in which patrons were
injured trying to get out, two of the judges thought that this, or
52
Clark v State 746 So. 2d 1237 (Fla. 1999).
53
It has been held in Northern Ireland that photographing a person is not an assault: Murray
v Ministry of Defence [1985] 12 N.I.J.B. 12.
54
‘‘Secondary smoking’’ claims in this country have tended to be against employers for
negligence in allowing smoking so as to injure the claimant’s health.
55
There are some entertaining American cases collected in 46 A.L.R. 5th 813.
56
In Kaye v Robertson [1991] F.S.R. 62 Glidewell L.J. thought it might well be that if a
bright light was shone into a person’s eye and injured his sight or damaged him in some
other way that would be a battery but this seems to ignore the fact that damage is irrelevant
to liability in trespass. If the harm to sight was intended it is actionable as intentionally
inflicted harm, if it ought to have been foreseen it is negligence.
57
Innes v Wylie (1844) 1 C. & K. 257 at 263 per Lord Denman.
58
Fagan v MPC [1969] 1 Q.B. 439.
59
This is battery according to the Restatement of Torts, 2d, s.18, comment, but US law has
clearly abandoned the ‘‘direct’’ requirement: see Dobbs, Torts (2000) §28.
60
DPP v K (1990) 1 W.L.R. 1067 (offence of ‘‘assault’’ under s.47 of the Offences Against
the Person Act 1861). In Breslin v McKenna [2009] NIQB 50 (a civil action) planting a
bomb set to go off later was held to be trespass.
61
(1881) 8 Q.B.D. 54.
106 Trespass to the Person and Related Matters
Of course in the civil law, if the baby had been injured, there
would have been the plainest possible case of negligence even if the
defendant never gave any thought to the likely effect on the baby.
For battery there must be a voluntary act by the defendant
intended to bring about the contact with the claimant. I do not
commit battery against you if X seizes my arm and uses it like a
club—here X and X alone is liable but the act need be intentional
only as to the contact, and intention to bring about the harmful
consequence is not required: if D pushes C into a swimming pool
and injury occurs, then, assuming D’s act to be ‘‘hostile’’, there is
liability for the injury even though it was neither desired nor even
foreseen by D.66 However, it seems clear that for the purposes of
this tort intention includes conscious and unjustifiable risk
taking—recklessness.67
62
This is regarded as indirect for civil purposes in Wong v Parkside Health NHS Trust [2001]
EWCA Civ 1721; [2003] 3 All E.R. 932 at [9].
63
R. v Burstow [1998] A.C. 147 at 160, 164.
64
[2000] 2 Cr. App. R. 339.
65
The court did not consider an alternative approach based on ‘‘transferred malice’’ but was
dubious about its success: see para.4–35, below.
66
Wilson v Pringle [1987] Q.B. 237 at 249; Williams v Humphrey, The Times, February 20,
1975.
67
See para.3–3, above.
Assault and Battery 107
B. Hostility
Life would be difficult if all bodily contact were actionable unless 4–7
it could be brought within a specific justification or defence and the
courts have struggled to find some further ingredient to distinguish
battery from legally unobjectionable contact. In Cole v Turner68
Lord Holt C.J. said that, ‘‘the least touching of another in anger is a
battery’’ but this would be too narrow, for an unwanted kiss is as
much actionable as a blow and ‘‘anger’’ might well be an inapt
description of the defendant’s motive. In Collins v Wilcock69 Robert
Goff L.J. said that, quite apart from specific defences such as lawful
authority in effecting an arrest or the prevention of crime, bodily
contact was not actionable if it was generally acceptable in the
ordinary conduct of everyday life. This is more satisfactory than the
somewhat artificial approach whereby a person is deemed to consent
to the multitude of minor contacts, including physical contacts,
which take place in, for example, a crowded Underground station in
the rush hour. Of course, absence of consent is often relevant in the
sense that it is open to a person to make it plain that he objects to
contacts that most people find trivial and thereby render actionable
what would not be so if done to others, but there must be limits on
this: the passenger on the crowded Underground train can hardly be
allowed to appropriate to himself a disproportionate share of the
space because he objects to being touched by others.70 In Wilson v
Pringle,71 however, the Court of Appeal, while not rejecting what
was said in Collins, laid down that a battery involves a ‘‘hostile’’
touching. The actual decision was that the trial judge had been
wrong to grant summary judgment to the claimant under Order 14 of
the Rules of the Supreme Court (which was based upon there being
no triable defence to the claim72) where the defendant, a schoolboy,
had on his own admission pulled the claimant’s bag from his
shoulder and thereby caused him to fall to the ground and injure
himself: such horseplay, it seems, may or may not be battery,
according to whether the tribunal of fact can discern the ingredient
of ‘‘hostility’’.73 However, since the court expressly said that hostil-
ity did not require ill will or malevolence, the requirement seems
hardly to mean any more than that the defendant has interfered in a
way to which the claimant might object. Perhaps the closest we can
get to the central idea is to say that the interference must be
68
(1704) 6 Mod. 149.
69
[1984] 1 W.L.R. 1172. See also the same judge in F, Re; F v West Berkshire HA [1990] 2
A.C. 1. Collins applied in McMillan v CPS [2008] EWHC 1457 (Admin).
70
And consider the example above of smoking in a place where that is permitted.
71
[1987] Q.B. 237.
72
See now CPR Pt 24 (‘‘defendant has no real prospect of successfully defending the claim
or issue’’).
73
The point gains significance now that it is clear that for the purposes of negligence the
standard is that of a reasonable child of that age: see para.5–78, below.
108 Trespass to the Person and Related Matters
Into the assessment of this must enter not only any limitations laid
down by the claimant but also the relationship (or lack of it) between
the parties. An embrace of a complete stranger may be a battery78;
an embrace in an attempt to settle a lovers’ tiff may not be, even if
the other has forbidden it.
74
The Restatement, 2d, §18 says ‘‘harmful or offensive to personal dignity’’ but there is some
difficulty in saying that there is a battery where the act is neither offensive nor intended to
cause harm: see Dobbs, Torts, §30.
75
The Times, March 13, 1953.
76
Wiffin v Kincard (1807) 2 Bos. & Pul. 471; Coward v Baddeley (1859) 4 H. & N. 478.
77
Collins v Wilcock [1984] 1 W.L.R. 1172 at 1178.
78
But even here de minimis non agit sapiens.
79
It seems that the claimant has to prove absence of consent: see para.25–3, below. For a
discussion of the relationship between consent and ‘‘offensiveness’’ see Non-Marine
Underwriters at Lloyd’s v Scalera [2000] SCC 24; [2000] 1 S.C.R. 551.
80
See, e.g. O’Brien v Cunard SS Co 28 N.E. 266 (Mass. 1891) (holding up arm in
vaccination line).
Assault and Battery 109
81
St George’s Healthcare NHS Trust v S [1999] Fam. 26; Airedale NHS trust v Bland [1993]
A.C. 789 at 891; T (Adult, Refusal of Treatment), Re [1993] Fam. 95; A (Children)
(Conjoined Twins: Surgical Separation), Re [2001] Fam. 147; R. (Burke) v General
Medical Council [2005] EWCA Civ 1003; [2005] 3 W.L.R. 1132.
82
St George’s Healthcare NHS Trust v S [1999] Fam. 26; and see Winnipeg Child and Family
Services v G [1997] 3 S.C.R. 925 (mentally competent woman addicted to glue sniffing).
It is not possible to sidestep the problem via the wardship procedure for that does not arise
until the child is born: F (in utero), Re [1988] Fam 122.
83
B v Croydon HA [1995] Fam. 133 at 137.
84
See Leigh v Gladstone (1909) 26 T.L.R. 139.
85
This seems clearly to be accepted in Reeves v MPC [2001] 1 A.C. 360, though that case
involved the question of whether the gaoler could be liable to the prisoner for failing to
take steps to ensure that the suicide was not facilitated: see para.5–33, below. In Secretary
of State for the Home Dept v Robb [1995] Fam 127, a declaration was granted that the
prison authorities might lawfully abide by the prisoner’s refusal to take food. However,
despite the negative form of the declaration the tenor of the judgment is plainly that the
prison authorities would have been behaving unlawfully if they had chosen not to abide by
the prisoner’s decision. Yet in R. v Collins, Ex p. Brady, Unreported, March 10, 2000,
Maurice Kay J. inclined to the view, without deciding the issue, that a custodian might be
entitled to prevent the suicide of a person with full mental capacity. He remarked that it,
‘‘would be somewhat odd if there is a duty to prevent suicide by an act (for example, the
use of a knife left in a cell) but not even a power to intervene to prevent self-destruction
by starvation’’. However, the applicant was mentally disordered and the case turned on
s.63 of the Mental Health Act 1983. Note also that the European Commission on Human
Rights has held that forcible feeding of a person in custody can be justified under the
Human Rights Convention on the basis of art.2 (right to life): X v Federal Republic of
Germany (1984) (10565/83).
86
Malette v Shulman (1990) 67 D.L.R. (4th) 321. Compare B v An NHS Hospital Trust
[2002] EWHC 429 (Fam.); [2002] 2 All E.R. 449, where the claimant sought only nominal
damages and £100 was awarded.
110 Trespass to the Person and Related Matters
4–9 These principles apply if the person has full capacity87 to make
decisions but although it is clear at common law that the court must
not infer incapacity from the fact that the decision is ‘‘irrational’’ in
the sense that it is not one that would be made by the vast majority
of sane adults,88 where this is the case it is obviously likely that in
any litigation the capacity will be called into question. This issue
most frequently arises in the context of medical care and treatment
and the law is now to be found in the Mental Capacity Act 2005,89
though this is generally similar to the common law.
The first point is that the Act does not confer any right to impose
treatment unless the person lacks capacity (or, in certain cases, is
reasonably believed to lack it) and it is presumed that a person has
capacity unless the contrary is shown; nor is he to be treated as
lacking capacity merely because the decision he makes is an unwise
one.90 A person lacks capacity in relation to any matter91:
87
Even where the claimant has the mental capacity to give a valid consent, any consent must
be given freely and not under threats or improper pressure or undue influence. See T
(Adult, Refusal of Treatment), Re [1993] Fam. 95 (mother’s religious influence). It seems
possible that nowadays a case like Latter v Braddell (1881) 50 L.J.Q.B. 448 (housemaid
compelled to submit to medical examination on suspicion of pregnancy) would go the
other way and that threats of violence would not be required. In Wainwright v Home Office
[2003] UKHL 53; [2004] 2 A.C. 406 this issue was not pursued because the limits on the
strip-search procedure to which the claimant was said to have consented were exceeded by
the defendants.
88
So in C, Re [1994] 1 W.L.R. 291 an injunction was granted restraining amputation of the
claimant’s leg even though he was a paranoid schizophrenic committed to Broadmoor. In
Matter of Gordy 658 A. 2d 613 (Del. 1994) an American court found a 96-year-old with
Alzheimer’s disease sufficiently competent to refuse treatment.
89
In force October 1, 2007.
90
Mental Capacity Act 2005 s.1. So Re C, above, would be decided in the same way. The
mere fact that a person is mentally ill does not necessarily mean that he lacks capacity.
91
Clearly there will be many cases in which a person has full capacity to decide matters
relating to issue A but not issue B.
92
Mental Capacity Act 2005 s.2(1). This may be permanent or temporary. The definition is
amplified by s.3 by reference to understanding, retaining and using information and
communication decisions.
93
Mental Capacity Act 2005 s.1(5).
94
Mental Capacity Act 2005 s.4(9).
Assault and Battery 111
95
Mental Capacity Act 2005 s.5(2).
96
If it can be, the person administering the treatment is likely to fall foul of s.4(3).
97
Mental Capacity Act 2005 s.6(4). This section does not cover ‘‘deprivation of liberty’’
under art.5 of the European Convention on Human Rights. Restraint amounting to this is
governed by amendments to the Act (ss.4A, 4B, 16A and Sch.A1) inserted by the Mental
Health Act 2007.
98
Mental Capacity Act 2005 s.25(5),(6).
99
(1990) 67 D.L.R. (4th) 321, para.4–8, above.
112 Trespass to the Person and Related Matters
100
It seems odd that an oral statement should be irrelevant.
101
This is the effect of s.26(1).
102
This is the approach taken to s.4 in the context of making a will for an incapable person
in Re P (Statutory Will) [2009] EWHC 163 (Ch); [2010] 2 W.L.R. 253 at [42]: ‘‘Although
the fact that P makes an unwise decision does not on its own give rise to any inference of
incapacity . . . , once the decision-making power shifts to a third party (whether a carer,
deputy or the court) I cannot see that it would be a proper exercise for the third party
decision-maker consciously to make an unwise decision merely because P would have
done so.’’
103
Gillick v West Norfolk AHA [1986] A.C. 112.
104
R, Re [1992] Fam. 11.
105
This is the effect of s.8(3) of the 1969 Act: W, Re [1993] Fam. 64.
106
W, Re [1993] Fam. 64.
107
Where the child has no capacity to consent the doctor should respect the parents’ refusal
to consent, but may apply to the court, which may override the parents’ decision: A
(Children) (Conjoined Twins: Surgical Separation), Re [2001] Fam. 147. The Mental
Capacity Act has no relevance in such cases because although the child lacks capacity it
is not because of, ‘‘an impairment of, or a disturbance in the functioning of, the mind or
brain’’.
108
e.g. testing of blood to determine paternity (S v McC [1972] A.C. 240); ritual circumcision
or ear-piercing (R. v Brown [1994] 1 A.C. 212 at 231) but not tattooing: Tattooing of
Minors Act 1969. A parent clearly could not give a valid consent to the sterilisation of a
minor (as opposed to a necessary therapeutic procedure of which sterility was a byprod-
uct). Where it is thought that sterilisation would be in the best interests of a minor because
of mental incapacity the leave of the court should be sought as in the case of a mentally
incompetent adult.
Assault and Battery 113
D. Assault
Assault of course requires no contact because its essence is 4–12
conduct which leads the claimant to apprehend the application of
force. In the majority of cases an assault precedes a battery, perhaps
by only a very brief interval, but there are examples of battery in
which the claimant has no opportunity of experiencing any appre-
hension before the force is applied, for example a blow from behind
inflicted by an unseen assailant.109 Just as there can be a battery
without an assault, so also there can be an assault without a battery,
as where the defendant does not carry his threat through or even has
no intention of doing so but knows that the claimant is unaware of
this.110 Similarly if the blow is intercepted or prevented by some
third person. In Stephens v Myers111 the defendant, advancing with
clenched fist upon the claimant at a parish meeting, was stopped by
the churchwarden, who sat next but one to the claimant. The defen-
dant was held to be liable for assault. It is irrelevant that the claimant
is courageous and is not frightened by the threat or that he could
easily defeat the defendant’s attack: ‘‘apprehend’’ is used in the
sense of ‘‘expect’’. The claimant must, however, have reason to
apprehend that the defendant has the capacity to carry out the threat
immediately.112 It would not be an assault for the defendant to wave
his fist (as opposed to pointing a gun) at the claimant on a passing
train, nor where the claimant was under the effective protection of
the police.113 Pointing a loaded pistol at someone is of course an
assault, but despite a curious statement to the contrary,114 the law is
exactly the same if the pistol is unloaded, unless the person at whom
it is pointed knows this (or unless his distance from the weapon is
so great that any reasonable person would have realised he was out
of range, in which case there would be no assault even if it was
loaded).115 Assault involves reasonable apprehension of impact of
something on one’s body and, unless some such factor as is men-
tioned above is present, that is exactly what occurs when a firearm
is pointed at one by an aggressor.
109
A Biblical instance in point is the slaying of Sisera by Jael, the wife of Heber the Kenite.
She drove a tent-peg through his head while he was asleep. The shooting of F.B. in Bici
v MoD [2004] EWHC 786 (QB), The Times, June 11, 2004 seems to be a modern
example.
110
e.g. Herbert v Misuga (1994) 111 D.L.R. (4th) 193.
111
(1840) 4 C. & P. 349.
112
See, e.g. Mbasogo v Logo Ltd [2006] EWCA Civ 1370; [2007] Q.B. 846 (presence of coup
plotters in city insufficient); Darwish v Egyptair Ltd [2006] EWHC 1399 (QB). Holding
out a baton in such a way as to show an intent to prevent the claimant’s exit was an assault
in Hepburn v CC Thames Valley [2002] EWCA Civ 1841.
113
What is sufficiently ‘‘immediate’’ is a question of fact. Perhaps Thomas v NUM (South
Wales Area) [1986] Ch. 20 is a rather ‘‘tough-minded’’ decision in this respect (violent
threats and gestures by pickets at persons going into work in vehicles by a police
cordon).
114
Blake v Barnard (1840) 9 C. & P. 626 at 628.
115
See the Restatement, 2d s.29.
114 Trespass to the Person and Related Matters
4–13 For many years it was said that some bodily movement was
required for an assault and that threatening words alone were not
actionable. This was rejected by the House of Lords in R. v Ire-
land,116 a criminal case, but there seems no reason to doubt that the
reasoning also applies to tort. Hence threats on the telephone may be
an assault provided the claimant has reason to believe that they may
be carried out in the sufficiently near future to qualify as ‘‘immedi-
ate’’.117 In fact the court in Ireland went further and held that an
assault could be committed by malicious silent telephone calls. The
defendant’s purpose was to convey a message to the victim just as
surely as if he had spoken to her.118
116
[1998] A.C. 147.
117
[1998] A.C. 147 at 162, Lord Steyn refers to a threat which is to be carried out ‘‘in a minute
or two’’. No doubt that should not be taken as the outer limit of ‘‘immediate’’ but it is
submitted that a threat in a call which the claimant knows is coming from Australia is not
an assault.
118
Per Lord Hope at 166.
119
Per Lord Steyn at 162.
120
Turbervell v Savadge (1669) 1 Mod. 3.; cf. R. v Light (1857) Deers & B. 332, where the
physical act was perhaps rather more immediate.
121
See para.4–36, below.
122
See para.18–15, below.
123
See para.4–38, below.
Assault and Battery 115
124
Reed v Nutt (1890) 24 Q.B.D.; Ellis v Burton [1975] 1 All E.R. 395 (guilty plea).
125
Where D has been prosecuted and convicted this precludes not only a civil action for
assault, but also an action using the assault as the basis for some other cause of action:
Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721; [2003] 3 All E.R. 932.
126
Dyer v Munday [1895] 1 Q.B. 742.
127
Hunter v CC West Midlands [1982] A.C. 529.
128
This is not inconsistent with art.6(2) of the European Convention on Human Rights,
provided the civil proceedings do not question the acquittal: Ringvold v Norway (2003)
Application No.34964/97.
129
J v Oyston, The Times, December 11, 1998. Brinks-Mat Ltd v Abu-Saleh [1995] 1 W.L.R.
116 Trespass to the Person and Related Matters
2. FALSE IMPRISONMENT130
1478 cannot be supported if it lays down any other rule: McCauley v Hope (1999) 149
N.L.J. 228.
130
It is a crime as well as a tort.
131
Warner v Riddiford 4 C.B.(N.S.) 180 (1858).
132
Blackstone, Comm., iii, 127. Cf. the wedding guest detained by Coleridge’s Ancient
Mariner:
‘‘He holds him with glittering eye—
The wedding-guest stood still,
And listens like a three years’ child,
The Mariner hath his will.’’
Would restraint by post-hypnotic suggestion suffice? There seems to be no reason why
it should not be false imprisonment if the victim would not have assented to it. On false
imprisonment by brainwashing, see Dobbs, Torts (2000) §37.
133
Its first edition was about 1520.
134
A person bailed is theoretically in the custody of his sureties; a person mainprized (now
wholly obsolete) is at large.
135
(1920) 122 L.T. 44 at 51, 53.
136
He is entitled to resist by force (Hepburn v CC Thames Valley [2002] EWCA Civ 1841)
but resistance to arrest is generally unwise, because the arrest may turn out to be
lawful.
False Imprisonment 117
A. Knowledge of Claimant138
It had been held in Grainger v Hill139 that imprisonment is 4–16
possible even if the claimant is too ill to move in the absence of any
restraint. In Meering’s case the court went much further by holding
that the tort is committed even if the claimant did not know that he
was being detained.140 The facts were that the claimant, being
suspected of stealing a keg of varnish from the defendants, his
employers, was asked by two of their police to go with them to the
company’s office. He assented and at his suggestion they took a
short cut there. On arrival he was taken or invited to go to the
waiting room, the two policemen remaining in the neighbourhood.
In an action for false imprisonment the defence was that the claim-
ant was perfectly free to go where he liked, that he knew it and that
he did not desire to go away but it was held by a majority of the
Court of Appeal that the defendants were liable because the claimant
from the moment that he came under the influence of the police was
no longer a free man. Atkin L.J. said:
137
See Prosser and Keeton, Torts, 5th edn, pp.50–51. Thus there is no false imprisonment
when the claimant complies with a police request to accompany them to the police station,
but the tort is committed if the ‘‘request’’ is made in such a manner as to lead the claimant
to believe he has no choice in the matter. See Myer Stores Ltd v Soo [1991] 2 V.R.
597.
138
Authority is not very clear on the state of mind of the defendant. Historically, there is
something to be said for the view that negligence should suffice (e.g. locking a room
without checking whether there is anyone inside) but false imprisonment is a species of
trespass to the person and intention is probably now required for all forms of this wrong.
That was the view of Smith L.J. in Iqbal v Prison Officers Association [2009] EWCA Civ
1310. In R. v Governor of Brockhill Prison Ex p. Evans (No.2) [2001] 2 A.C. 19 at 28 it
is said to be a tort of strict liability; but the point at issue there was different: the defendant
knew he was detaining the claimant, he simply mistakenly thought he had lawful authority
to do so. It is one thing to say that a person exercising a power to deprive another of liberty
must get it right at his peril, another to impose liability for a restraint of which the
defendant is wholly unconscious. However, if damage is suffered, an action on the case for
negligence will lie and being deprived of one’s liberty for a substantial period is damage:
Karagozlou v MPC [2006] EWCA Civ 1691; [2007] 1 W.L.R. 1881 (misfeasance in a
public office).
139
(1838) 4 Bing. N.C. 212.
140
Contra the Restatement of Torts, 2d, ss.35, 42, but the Restatement imposes liability if the
claimant is harmed by the confinement and gives a wide meaning to harm.
141
Even if it be accepted that the tort is committed in these cases, did not Meering consent
to remaining in the room?
118 Trespass to the Person and Related Matters
The learned Lord Justice’s ground for this opinion was that,
although a person might not know he was imprisoned, his captors
might be boasting elsewhere that he was.142 This point might be
regarded as more relevant to defamation than to false imprisonment,
but Atkin L.J.’s view has been approved, obiter,143 by the House of
Lords in an appeal from Northern Ireland, Murray v Ministry of
Defence144 though with the rider that a person who is unaware that
he has been falsely imprisoned and has suffered no harm can
normally145 expect to recover no more than nominal damages. The
basis of the law as stated in Meering and Murray is no doubt that
personal liberty is supremely important so that interference with it
must be deterred even where there is no consciousness nor harm.
There must, however, be a detention. A patient who is in a coma
after an accident is not ‘‘detained’’ by the hospital. A more difficult
case is R. v Bournewood etc. NHS Trust,146 where a patient, who
because of mental disorder lacked the capacity to consent or to
object, was admitted as a ‘‘voluntary’’ patient. In fact the court held
that the hospital’s actions were justified at common law by necessity
but the majority were of the view that he was not ‘‘detained’’ by
being kept in an unlocked ward, even though he was sedated and
closely supervised and, if he had attempted to leave, the hospital
would have considered his compulsory detention under the Mental
Health Act.147
142
(1920) 122 L.T. 44 at 53–54.
143
On the facts the claimant was aware she was under restraint.
144
[1988] 1 W.L.R. 692; Herring v Boyle (1834) 1 Cr.M. & R. 377 must be regarded as
wrongly decided.
145
Perhaps this is intended as a reference to the possibility of exemplary damages where there
is arbitrary, oppressive or unconstitutional action: para.22–9, below. However, a person
who is aware that he is detained is imprisoned during periods thereafter when he is asleep:
Roberts v CC Cheshire [1999] 1 W.L.R. 662.
146
[1999] 1 A.C. 458.
147
Compare Lord Steyn, dissenting on this issue: ‘‘The suggestion that L was free to go is a
fairy tale’’ (at 495). Even the majority, however, were of the view that he was detained
while being taken to the hospital by ambulance. The European Court of Human Rights
held that he had been deprived of his liberty for the purposes of art.5 of the Convention:
H.L. v UK [2004] E.H.R.R. 32. While it did not—indeed could not—question the
correctness of the decision on false imprisonment, the difference seems odd.
148
(1845) 7 Q.B. 742.
False Imprisonment 119
C. Means of Escape
If a person has the reasonable153 means of escape, but does not 4–18
know it, it is submitted that his detention is nevertheless false
imprisonment unless any reasonable person would have realised that
he had an available outlet. Thus, if I pretend to turn the key of the
door of a room in which you are and take away the key, it would
seem unreasonable if you made no attempt to see whether the door
was in fact locked. A more difficult case is that in which you have
149
But if the claimant suffers damage by being prevented from going in a certain direction
(e.g. misses an important appointment), an action on the case might lie. Obstruction of the
highway may be a public nuisance even though the claimant is not totally detained.
150
Or marooned on an island: Napoleon was certainly imprisoned on St Helena. Cf. Guzzardi
v Italy (1980) 3 E.H.R.R. 333. By these standards there could be no argument but that
detaining people in Oxford Circus was imprisonment: Austin v MPC [2007] EWCA Civ
989; [2008] Q.B. 660 (on appeal on other issues [2009] UKHL 5; [2009] 1 A.C. 564).
151
Pritchard v MoD [1995] C.L.Y. 4726.
152
See Louis v Commonwealth (1986) 87 F.L.R. 277. Protocol 4, art.2 of the European
Convention on Human Rights guarantees the rights to liberty of movement and to leave a
country, but these have not been enacted by the Human Rights Act 1998. There is no
common law tort of imposing exile upon a person, even though it is forbidden by Magna
Carta. It is necessary to show trespass to the person or some other tort: Chagos Islanders
v Att Gen [2004] EWCA Civ 997.
153
See McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289 for
a full discussion.
120 Trespass to the Person and Related Matters
D. Defences
4–19 Most of the defences depend upon conditions which in general
negate liability in tort.154 Some particular cases may be mentioned
here. It must be emphasised that these matters are defences in the
true sense, that is to say, it is for the defendant to raise and to
establish them155: it is for an officer who effects an arrest to show
that he had lawful authority to do so, not for the claimant to show
that he did not, and the claimant certainly does not have to prove
negligence or malice, the question is whether the detention was
justified or not. In R. v Governor of Brockhill Prison, Ex p. Evans
(No.2)156 the claimant was released from prison by habeas corpus
when a decision of the Divisional Court disapproved earlier cases
dealing with the method of calculation of the release date for
prisoners with concurrent sentences, and he recovered £5,000 dam-
ages for the 59 days he had spent in prison after his proper release
date. This was despite the fact that before the new ruling was given
the prison governor would plainly have had no authority to release
him. The governor was acting in accordance with the law as it was
then perceived to be, but the general rule of the law157 is that
decisions which are overruled are regarded as never having had
legal force, subject to any issue being res judicata between parties
who have previously litigated the issue.158 However, in some situa-
tions a person may be justified in acting on facts as he reasonably
believes them to be: a power of arrest which depended upon the
arrested person being guilty of the offence would be a very risky
thing to exercise and the law therefore generally provides that there
154
See Ch.25.
155
R. v Deputy Governor of Parkhurst Prison, Ex p. Hague [1992] 1 A.C. 58 at 162.
156
[2001] 2 A.C. 19.
157
It is not a universal rule, for example it does not apply in procedural matters. The HL in
Evans declined to embark on a full review of the declaratory theory, while accepting that
it might need further modification. See also Kleinwort Benson v Lincoln CC [1999] 2 A.C.
349 and National Westminster Bank Plc v Spectrum Plus Ltd [2005] UKHL 41; [2005] 2
A.C. 680.
158
A governor is not guilty of false imprisonment for detaining a prisoner under a sentence
which the court, it is subsequently held, had no power to impose, for he must obey an order
of the court unless at that time it is invalid on its face, but that was not the position in
Evans: the governor misinterpreted the effect of the sentence. The sentence of the court
was X years and the issue was the impact on the actual time served of the legislation
governing the period on remand. Olotu v Home Office [1997] 1 W.L.R. 328 is also different
from Evans. Although the claimant was detained beyond the proper period of her detention
she was to be released on the order of the court and until the court did so her detention was
lawful as far as the governor was concerned. See also Quinland v Governor of Swaleside
Prison [2002] EWCA Civ 174; [2003] Q.B. 306.
False Imprisonment 121
164
A right denied in Bahner v Marwest Hotel (1970) 12 D.L.R. (3d) 646. The claimant in
Robinson’s case was, after a short time, allowed to leave by squeezing past the turnstile.
Could the defendants have kept him there indefinitely?
Winfield also put the cases of a person getting on the wrong bus and not being allowed
to leave without paying the minimum fare and of a student who mistakenly enters the
wrong lecture room and is not allowed by the lecturer to leave until the end of the hour on
the ground that he will interrupt the discourse (though one would have thought that the
effort of keeping him there would cause a good deal more interruption). He suggested that
in each case the decision must turn upon whether, (1) the mistake was a reasonable one,
and (2) the condition as to exit was a reasonable one.
Tan Keng Fen in ‘‘A Misconceived Issue in the Tort of False Imprisonment’’ (1981) 44
M.L.R. 166 argues that neither Robinson’s case nor Herd v Weardale Steel Co, below,
supports the view stated in the text, and that a person may always withdraw his consent to
restraints upon his liberty, though he may not demand instant release if that would be
unduly inconvenient. However, he admits that the result of neither case is easily reconcil-
able with this view.
165
R. v Deputy Governor of Parkhurst Prison, Ex p. Hague [1992] 1 A.C. 58. Similarly, art.5
(as opposed to arts 3 and 8) of the European Convention on Human Rights is concerned
with the lawfulness of detention, not its conditions: Ashingdane v UK (1985) 7 E.H.R.R.
528 at [44]; R. (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 A.C. 148
(cf. the dissent of Lord Steyn); Davies v Secretary of State for Justice [2008] EWHC 397
(Admin). The fact that the Parole Board has acted unlawfully in administrative law terms
in relation to considering the prisoner’s release does not render his detention unlawful for
the purpose of false imprisonment: Dunn v Parole Board [2008] EWCA Civ 374; [2009]
1 W.L.R. 728.
166
Where action is taken in bad faith there may be liability for misfeasance in a public office:
Hague at 123: Karagozlou v MPC [2006] EWCA Civ 1691; [2007] 1 W.L.R. 1881 (move
to closed prison; however, the claim was based on false information said to have been
supplied by the police).
167
On ordinary principles this would require a physical injury or injury to health, but Lord
Bridge in Hague’s case contemplates intolerable pain or discomfort as sufficient. Nor do
the Prison Rules give rise to an action for breach of statutory duty.
False Imprisonment 123
184
An arrestable offence was one in respect of which the penalty was fixed by law or which
was punishable with five years’ imprisonment or which was specified by legislation.
185
The Police Reform Act 2002 gives a chief constable power to designate civilians such as
police authority employees and contracted-out staff to perform certain police functions.
Their powers depend upon the designation.
186
The ‘‘he’’ is important. If the officer knows that the arrested person is not about to commit
an offence but a reasonable observer would think he was, there is no power of arrest.
187
In practice, of course, a claim will be brought against the chief constable on the basis of
vicarious liability for the acts of D.
126 Trespass to the Person and Related Matters
188
O’Hara v Chief Constable, Royal Ulster Constabulary [1997] A.C. 286; cf. Keegan v CC
Merseyside [2003] EWCA Civ 936; [2003] 1 W.L.R. 2187.
189
Raissi v MPC [2008] EWCA Civ 1237; [2009] Q.B. 564 at [33]. The European Conven-
tion on Human Rights, art.5, may be less restrictive: O’Hara’s case at 292.
190
[1997] A.C. 286 at 293 per Lord Steyn.
191
The statute in question in O’Brien was the Prevention of Terrorism (Temporary Provisions)
Act 1984, but for this purpose it was identical with the Police and Criminal Evidence Act
1984 s.24, and there seems to be no material difference in the new version of s.24. The
arresting officer does not, of course, have to investigate the matter himself: he may rely on
apparently reliable information given to him by another officer: Clarke v CC North Wales,
April 5, 2000, CA. Any deficiencies in his briefing do not invalidate the arrest, though they
may render the briefing officer liable for some other tort, e.g. misfeasance in a public
office: Alford v CC Cambridgeshire [2009] EWCA Civ 100.
192
s.24(5)(a),(b).
193
s.24(5)(c).
194
This applies only where members of the public going about their normal business cannot
reasonably be expected to avoid the person in question: s.24(6).
False Imprisonment 127
199
There is therefore preserved the somewhat anomalous rule in Walters v WH Smith & Son
Ltd [1914] 1 K.B. 595, whereby the liability of a private person for false imprisonment
may depend upon the outcome of a criminal trial (not necessarily of the person arrested)
which takes place after the arrest was made. A private person arresting on suspicion of an
arrestable offence must prove not only reasonable grounds for his suspicion but also that
the arrestable offence in question has been committed by someone. See R. v Self [1992] 1
W.L.R. 657. In Davidson v CC North Wales [1994] 2 All E.R. 597 the police officer was
protected but if the store detective had made the arrest herself she would have been liable
for false imprisonment.
200
Police and Criminal Evidence Act 1984 s.24A(4)(a)–(c).
201
PACE 1984 s.24A(4)(d).
202
PACE 1984 s.24A(3)(b).
203
Albert v Lavin [1982] A.C. 546.
204
Clearly there must be some proportionality between the force and the crime prevented, but
the issue is treated as one of fact: Att Gen for Northern Ireland’s Reference (No.1 of 1975)
[1977] A.C. 105. This is open to criticism, inter alia, on the ground that it gives insufficient
guidance to persons using force. See generally Doran (1987) 7 L.S. 291. Compare the
European Convention on Human Rights, art.2, which allows fatal force where ‘‘absolutely
necessary’’ to prevent unlawful violence, to effect a lawful arrest or quell riot or insurrec-
tion. However, art.2 allows the law enforcement authority to act on the basis of the
situation as it reasonably believes it to be: McCann, Farrell and Savage v UK (1995) 21
E.H.R.R. 97.
205
Criminal Law Act 1967 s.3.
False Imprisonment 129
offence; or to apprehend the offender) and that his act was not
grossly disproportionate in the circumstances.211 ‘‘Belief’’ here is
actual belief even if unreasonable.212 So if the defendant (whether a
police officer or a private person) arrests the claimant for, say,
burglary on totally inadequate evidence but matters which later
come to light lead to his conviction (for that or any other imprison-
able offence) no action can be brought unless what the defendant did
was ‘‘grossly disproportionate’’. The claimant requires the court’s
permission to bring proceedings and this can only be given if there
is evidence that the condition as to the defendant’s belief was not
satisfied or that his act was grossly disproportionate.213
4–28 (a) The burden and standard of proof. In an action for false
imprisonment the burden of proof of justifying an arrest is upon the
person effecting it214 and if he fails to do so he is liable for false
imprisonment and, where there has been a threatened or actual use
of force (no matter how minor) for assault or battery as well. Unless
it can be shown that the claimant was guilty of the offence or was
about to commit it, the power of arrest depends on reasonable
grounds for suspicion and in this connection it is obviously neces-
sary first to establish that the arrester actually did suspect the
claimant215; but there must also be an objective basis for that state
of mind. It also seems clear as a matter of statutory language that the
burden of proof lies on the arrester in respect of the presence of one
of the ‘‘reasons’’ which justify arrest.216 Reasonable suspicion is less
than prima facie proof,217 if only because the latter must be based on
admissible evidence, whereas suspicion can take into account other
matters as well218 and Lord Devlin said that:
211
This is a paraphrase: for the precise wording see the section.
212
Criminal Justice Act 2003 s.329(8)(b).
213
Criminal Justice Act 2003 s.329(3). Failure to seek permission does not render the
proceedings a nullity: Adorian v MPC [2009] EWCA Civ 18; [2009] 1 W.L.R. 1859.
214
Where action short of arrest such as detaining a crowd is taken on the basis of necessity
(see above) it is for the police to show that the general course they took was necessary but
for the individual claimant to show that the refusal to release him was Wednesbury
unreasonable: Austin v MPC [2007] EWCA Civ 989; [2008] Q.B. 660 at [70].
215
Siddique v Swain [1979] R.T.R. 474.
216
s.24(5) and 24A(4). See paras 4–24 and 4–25, above. Note, however, that the arrester must
have reasonable grounds for believing in the existence of the reason, not suspecting it. It
is suggested above (para.4–24) that these reasons replace the ‘‘unreasonable exercise of
discretion’’ issue which was present under the previous law. On that, the burden of proof
was on the claimant: see Fayed v MPC [2004] EWCA Civ 1579 at [83].
217
Where a small number of people could be identified as the only ones capable of having
committed the offence, that may afford reasonable grounds for suspecting each of them, in
the absence of any information that could or should enable the police to reduce the number
further: Cumming v CC Northumbria [2003] EWCA Civ 1844; The Times, January 2,
2004.
218
Hussien v Chong Fook Kam [1970] A.C. 943 at 949.
False Imprisonment 131
219
Hussien v Chong Fook Kam [1970] A.C. 943 at 948. See also Raissi v MPC [2008] EWCA
Civ 1237; [2009] Q.B. 564 at [20]. Code A under the Police and Criminal Evidence Act
1984 dealing with police powers of ‘‘stop and search’’ provides that reasonable suspicion,
‘‘can never be supported on the basis of personal factors alone without reliable supporting
intelligence or information or some specific behaviour by the person concerned. For
example, a person’s race, age, appearance, or the fact that the person is known to have a
previous conviction, cannot be used alone or in combination with each other’’ as a basis
for reasonable suspicion. Code G, dealing with arrest simply says that, ‘‘there must be
some reasonable, objective grounds for the suspicion, based on known facts or information
which are relevant to the likelihood the offence has been committed and the person to be
questioned committed it’’ but it would be curious if there were a difference.
220
[1965] 1 Q.B. 348, decided under the common law where the test was whether there was
reasonable and probable cause for the arrest.
221
(1858) 27 L.J.Ex. 443.
222
[1947] A.C. 573.
223
However, if the arrested person is convicted of an imprisonable offence committed on that
occasion s.329 of the Criminal Justice Act 2003 (above) would appear to block any claim
unless failure to inform of the grounds is automatically ‘‘grossly disproportionate’’ (which
seems unlikely).
224
But if there is a charge in respect of which the officer has reasonable grounds for
suspecting guilt, an arrest in respect of that is lawful even if the officer’s real purpose is
to investigate a more serious offence. In this sense a ‘‘holding charge’’ is a ‘‘well known
and respectable aid to justice’’: R. v Chalkely [1998] Q.B. 848.
132 Trespass to the Person and Related Matters
225
Quaere whether this is more onerous than ‘‘reasonably practicable’’. In Murray v Ministry
of Defence [1988] 1 W.L.R. 692, where the arrest was under emergency legislation, it was
held lawful to postpone the words of arrest until the premises had been searched, for fear
of violent resistance from other persons.
226
Not necessarily by the arresting officer: Dhesi v CC W Midlands, The Times, May 9,
2000.
227
Lewis v CC South Wales [1991] 1 All E.R. 206.
228
Taylor v CC Thames Valley [2004] EWCA Civ 858; [2004] 1 W.L.R. 3155.
229
Fox, Campbell and Hartley v UK (1990) 13 E.H.R.R. 157 at [40]. However, the Conven-
tion requires that the information be given ‘‘promptly’’ whereas the 1984 Act requires it
at the time of arrest or as soon as practicable thereafter, which may be more stringent. Thus
it seems that in Taylor information given in the custody suite would have been too late but
cf. Fox, Campbell and Hartley at [42].
230
Hence ‘‘you are under arrest for killing X’’ would be sufficient and if the ground given was
‘‘the murder of X’’ the arrest is valid even if the charge is eventually manslaughter.
231
R. v Telfer [1976] Crim.L.R. 562; Newman v Modern Bookbinders Ltd [2000] 1 W.L.R.
2559.
False Imprisonment 133
232
art.5(1)(c).
233
See para.2–8, above. A right to compensation is specifically granted by art.5(5).
234
So also there may be an overlap between the torts of assault and battery and inhuman or
degrading treatment under the Convention. The Constitution of the Bahamas contains
guarantees against deprivation of liberty and inhuman or degrading treatment in terms
similar to those in the Convention. In Merson v Cartwright [2005] UKPC 38 the JCPC said
at [9] that, ‘‘in some cases the overlap may be complete—two concentric circles of equal
radius, so to speak. In other cases, the circles may simply intersect, with each having a
segment common to both’’.
235
See Guenat v Switzerland, Application No.24722/94 (admissibility decision). However,
the conduct might have been justifiable in English law on the basis of necessity.
236
False imprisonment was not in issue in R. (Gillan) v MPC [2006] UKHL 12; [2006] 2 A.C.
307 where the court considered the stop and search provisions of the Terrorism Act 2000.
The European Court of Human Rights found a violation of art.8 but found it unnecessary
to decide on art.5: Gillan v UK, January 12, 2010, Application No.4158/05.
237
See para.4–16, above.
238
H.L. v UK (2005) 40 E.H.R.R. 32. If D keeps C under house arrest for large portions of
the day but allows him to go out alone for a few hours C would not be ‘‘imprisoned’’
during the latter periods; but in some circumstances there might be a deprivation of liberty
throughout such a regime: see Secretary of State for the Home Dept v JJ [2007] UKHL 45;
[2008] 1 A.C. 385.
239
art.5(1)(e).
240
Steel v UK (1999) 28 E.H.R.R. 603.
134 Trespass to the Person and Related Matters
4–31 (d) Detention after arrest. Where the arrest is by a private individ-
ual the arrested person must be taken before a magistrate or a police
officer, not necessarily forthwith, but as soon as is reasonably
possible. For example, a person arrested in the street by a store
detective on suspicion of shoplifting may be taken back to the store
while the matter is reported to the store manager, and may be
detained there while the police are sent for.245 It is unlikely that he
would be allowed to take the suspect to the suspect’s house to see
whether any of the stolen property is there, though it was held that
a police officer could do so.246
The position after a police arrest was radically modified by the
Police and Criminal Evidence Act 1984. By s.30 a person arrested
otherwise than at a police station must be taken to a police station as
soon as practicable after his arrest, unless his presence elsewhere is
necessary in order to carry out such investigations as it is reasonable
to carry out immediately.247 The time for which and the conditions
in which he may be held are then governed by Part IV of the Act and
since s.34(1) provides that a person, ‘‘shall not be kept in police
detention’’ except in accordance with Part IV, a contravention of this
creates a case of false imprisonment.248 These provisions are much
too detailed to examine here but very broadly the position is that
there must be periodic reviews of the detention by the police and,
241
See para.4–26, above. Thus while art.5(1) allows ‘‘detention’’ as well as arrest, this is only
for the purpose of bringing him before the court or to prevent his committing an offence
and not, on the face of it, for the general public order and safety purpose in Austin v MPC
[2007] EWCA Civ 989; [2008] Q.B. 660. However, both the CA and HL declined to give
a concluded view on the scope of the justifications in art.5(1): [2009] UKHL 5; [2009] 1
A.C. 564.
242
[2009] UKHL 5; [2009] 1 A.C. 564.
243
[2007] EWCA Civ 989; [2008] Q.B. 660. This issue was not on appeal to the HL.
244
It is significant that art.2 of the Fourth Protocol gives the right to liberty of movement but
that has not been ratified by the UK.
245
John Lewis & Co Ltd v Tims [1952] A.C. 676.
246
Dallison v Caffery [1965] 1 Q.B. 348.
247
Thus preserving Dallison v Caffery [1965] 1 Q.B. 348.
248
Roberts v CC Cheshire [1999] 1 W.L.R. 662.
False Imprisonment 135
with the authority of a senior officer the detainee may be held for up
to 36 hours without charge. Thereafter, the authority of a magis-
trates’ court is required for further detention without charge up to 96
hours. After that period the suspect must either be released or
charged and brought before a magistrates’ court as soon as practica-
ble.249 In any event, even if these time limits have not been
exceeded, an arrested person must be released as soon as the need
for detention has ceased to apply and if he is not, there is false
imprisonment from that time, notwithstanding that the initial arrest
was lawful.250
Various matters ancillary to detention are dealt with in Part V.
Contravention of the provisions on searches and fingerprinting will
presumably lead to liability for battery but will not render the
detention unlawful. There is no damages sanction attached to the
provisions dealing with the suspect’s right to have someone
informed of his arrest or access to legal advice. Contravention does
not render the detention unlawful, and there is no claim for breach
of statutory duty; nor is any right under the European Convention on
Human Rights infringed unless the effect is to deprive the claimant
of a fair trial.251
249
When the suspect has been charged the Prosecution of Offences Act 1985 and regulations
made thereunder prescribe time limits within which the prosecution must proceed.
250
Taylor v CC Thames Valley [2004] EWCA Civ 858; [2004] 1 W.L.R. 3155.
251
Cullen v CC Royal Ulster Constabulary [2003] UKHL 39; [2003] 1 W.L.R. 1763.
However, if access is refused in bad faith there might be liability for misfeasance in a
public office: at [71]. The case concerned s.15 of the Northern Ireland (Emergency
Provisions) Act 1987 but this is modelled on the equivalent provision of the Police and
Criminal Evidence Act 1984 and the reasoning would seem to apply.
252
(1870) L.R. 5 C.P. 534.
253
Austin v Dowling (1870) L.R. 5 C.P. 534 at 540 per Willes J.; Sewell v National Telephone
Co Ltd [1907] 1 K.B. 557.
136 Trespass to the Person and Related Matters
4–33 In terms of cases coming before the courts, negligence is the domi-
nant tort of the modern law. Having outlined the elements of the
various forms of trespass to the person, it is now necessary to
consider in some detail the structural relationship of trespass and
negligence and then to deal with the residual category of intentional
wrongdoing which is neither trespass nor negligence.
It is unlikely that it was ever the law that a person could be held
liable in trespass if he was wholly without fault.258 However, it
certainly was once the law that if the defendant inflicted a ‘‘direct’’
injury on the claimant he was liable unless he established some
defence. This is still the case in many situations: for example, if the
claimant sues a police officer for false imprisonment there is no
doubt that it is up to the officer to prove the exercise of a lawful
power of arrest. The claimant must prove that he was arrested; the
officer must prove that he was lawfully arrested if this is the case. At
one time this approach was also taken to the basic, mental element
254
See, e.g. Davidson v CC North Wales [1994] 2 All E.R. 597 (so held even though the
informant was a store detective).
255
Ahmed v Shafique [2009] EWHC 618 (QB). Cf. Coles Myer Ltd v Webster [2009] NSWCA
299 (invention of allegation led to liability).
256
A claim for defamation will fail because it is now held that even a malicious informant is
protected by absolute privilege: see para.12–41, below.
257
Melia v Neate [1863] 3 F. & F. 757; Roy v Prior [1971] A.C. 470. See Ch.19.
258
Winfield, ‘‘The Myth of Absolute Liability’’ (1926) 42 L.Q.R. 37 cf. Milsom (1958) 74
L.Q.R. at 582–583. See also Winfield and Goodhart, ‘‘Trespass and Negligence’’ (1933) 49
L.Q.R. 359; Fowler v Lanning [1959] 1 Q.B. 426 at 433 per Diplock J.
Trespass to the Person and Negligence 137
‘‘I would go this one step further: when the injury is not inflicted
intentionally but negligently, I would say the only cause of action
is negligence and not trespass.’’270
267
[1965] 1 Q.B. 232.
268
Nowadays the court might simply ‘‘disapply’’ the limitation period: see para.26–20,
below.
269
This view was subsequently declared to be wrong but has now been restored to favour. See
para.26–18, below.
270
[1965] 1 Q.B. at 240.
271
As to this, see para.3–3, above.
272
[1965] 1 Q.B. at 242–244.
273
His Lordship would also presumably have accepted that claims for unintentional trespass
to the person fall within the Law Reform (Contributory Negligence) Act 1945. As to
intentional conduct, see para.6–44, below.
274
In Wilson v Pringle [1987] Q.B. 237, the CA referred to the necessity for the touching in
trespass to be ‘‘deliberate’’ and that is really the only view reconcilable with the require-
ment of hostility emphasised in that case.
Trespass to the Person and Negligence 139
275
See Bici v MoD [2004] EWHC 786 (QB), The Times, June 11, 2004, where Elias J. held
that intention or subjective recklessness was required.
276
However, this view has not found favour in some other parts of the common law world.
There is some support in Australia for the view that unintentional trespass to the person
survives as an alternative to negligence, even to the extent of giving the claimant an
advantage on the burden of proof. However, the High Court in Hackshaw v Shaw (1984)
155 C.L.R. 614 did not find it necessary to decide the issue. In Canada among cases
supporting the survival of trespass, see Larin v Goshen (1975) 56 D.L.R. (3d) 719 and Bell
Canada v Cope (Sarnia) Ltd (1980) 119 D.L.R. (3d) 254.
277
See Ashley v CC Sussex [2008] UKHL 25; [2008] 1 A.C. 962, para.1–2, above.
278
For a similar reason aggravated damages may be obtained for trespass but not for
negligence: see para.22–8, below.
279
D unlawfully shoots at X, misses and hits C. If D ought to have been aware of the risk to
C, no doubt it is a case of negligence. However, C’s presence may have been unforeseeable
or C may wish to pursue a claim for aggravated or exemplary damages, obtainable only if
there is a trespass. The criminal law has a well-developed doctrine of ‘‘transferred intent’’,
which would make D guilty of assault of C in such circumstances. In the USA this is firmly
embedded in tort law (see Prosser, ‘‘Transferred Intent’’ (1967) 45 Texas L.Rev. 650) and
was applied by the Northern Ireland CA in a civil action in Livingstone v MoD [1984] N.I.
356 (D fired baton round and hit C, liable for battery even if he intended to hit another
person unless he could show justification. Of course, if D was justified with regard to the
other person, that would not necessarily preclude a claim for negligence by C). Followed
in Bici v MoD [2004] EWHC 786 (QB), The Times, June 11, 2004, but with doubt whether
the principle could be applied to assault as opposed to battery.
140 Trespass to the Person and Related Matters
280
See para.5–3, below.
281
The major type of personal injury case where the duty of care has been restricted is the
case arising out of nervous shock suffered from witnessing injury to others (see para.5–66,
below). But it is hard to see how a trespass-based claim could be relevant in such a case
since the claimant is ex hypothesi not within the area of danger and not fearful for his own
safety. Nevertheless in Breslin v McKenna [2009] NIQB 50 some claimants appear to have
recovered damages for psychiatric injury on the basis of trespass even though they were
not in the vicinity of the explosion.
282
See fn.279, above.
283
Of course it might be better if history were different. Compare the simple provision of
§823(1) of the German BGB: ‘‘A person who wilfully or negligently unlawfully injures the
life, body, health, freedom, property or other right of another is bound to compensate him
for any damage arising therefrom.’’
Acts Intended to Cause Physical Harm 141
284
[1897] 2 Q.B. 57.
285
In comparison with other nervous shock victims the claimant was perhaps treated gen-
erously, no doubt because of the outrageous behaviour of the defendant. Note that if D had
in fact injured C’s husband in the way stated and she had suffered this shock on being told
by X, she could not have recovered damages from D: see para.5–68, below.
286
[1897] 2 Q.B. 57 at 58–59. Described by Stuart-Smith L.J. in W v Essex CC [1999] Fam.
90 at 114 as ‘‘the peculiar tort’’.
287
[1919] 2 K.B. 316.
288
See [1897] 2 Q.B. 57 at 59; Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721;
[2003] 3 All E.R. 932 at [8]. But in Janvier v Sweeney the jury specifically found that the
defendant knew that injury might be caused.
142 Trespass to the Person and Related Matters
probable result289 and it is the latter which fits the facts.290 It has
since been pointed out291 that the real problem in Wilkinson v
Downton was a different one, namely that a few years before, the
Privy Council in Victorian Ry Commrs v Coultas292 had held that
‘‘nervous shock’’ was not a recoverable head of damage in a claim
arising from a negligent act and that Wright J. seems really to have
been concerned to escape the shackles of that case by declining to
apply it to an imputed or ‘‘deemed’’ intention. Although the liability
for nervous shock is still very different from that for other forms of
injury arising from negligence,293 the Coultas restriction disap-
peared from the law within a few years of Wilkinson v Downton and
it has been said in Wainwright v Home Office that, ‘‘there is no point
in arguing about whether the injury was in some sense intentional if
negligence will do just as well’’ and that Wilkinson v Downton, ‘‘has
no leading role in the modern law’’.294 This, however, seems to go
too far, if we are talking about principle rather than the mechanism
by which that case would be decided today. If harm is inflicted
intentionally (that is to say, with the purpose of causing it or
knowingly reckless as to its occurring) it is surely a misuse of
language to describe it as falling within a claim for negligence, even
if the historical origin of our law of negligence is an action on the
case which also comprehended intentional harm. Many other cases
could be imagined where the source of the harm is something other
than a statement or where the harm is something other than psychiat-
ric injury. For example, I might scare a person into nervous shock by
dressing up as a ghost295 or subject the claimant to some terrifying
spectacle.296 Nor need the principle be confined to shock. If I
289
Thus ‘‘calculated to’’ in the Defamation Act 1952, s.3, plainly means ‘‘likely to’’ whether
or not the defendant actually foresaw the consequence.
290
Cf. Hall v Gwent Healthcare NHS Trust [2005] EWCA Civ 919, an even more terrible
warning against practical joking, where the lies were told to a third person who inflicted
the damage and which would not even have passed the latter threshold.
291
Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406 at [37] per Lord
Hoffmann.
292
(1888) 13 App. Cas. 222.
293
See paras 5–61 to 5–74, below.
294
Wainwright, above, fn.29, at [41]. However, it was applied in C v D [2006] EWHC 166
(QB) where the defendant was found to be reckless as to the causing of psychiatric
injury.
295
Although a claim for shock based on negligence by a person who is abnormally susceptible
may not be sustainable (see para.5–66, below) there is no reason to apply such a rule to
wilful conduct, even, perhaps, if D is not aware of C’s susceptibility.
296
See Blakely v Shortal’s Estate 20 N.W. 2d 28 (1945) (D cut his throat in C’s kitchen). Cf.
Bunyan v Jordan (1937) 57 C.L.R. 1 and Bradley v Wingnut Films Ltd [1994] E.M.L.R.
195 (where it was found that the defendants had no reason to anticipate causing shock).
Liability for negligence is well established where, in C’s presence, D negligently kills or
injures (or even puts in danger) C’s loved one (see para.5–66, below). A fortiori, there
must be liability where D wilfully harms the loved one. See, e.g. Johnson v Com-
monwealth (1927) 27 S.R. (N.S.W.) 133. One might question whether, in view of D’s
wilful behaviour one should insist in such cases on a tie of love and affection between C
and the person attacked.
Acts Intended to Cause Physical Harm 143
trespass to the person or other torts, such as libel, which are action-
able per se; equally plainly, it does not amount to sufficient damage
to found an action for negligence303 or any other action stemming
from ‘‘case’’. On the existing authorities English common law does
not go so far as American law in this respect.304 Lord Hoffmann has
reserved his opinion on whether the law should be extended, but
only on the basis that a real intention is present and with the caveat
that:
One reason for caution in extending the common law is that the
statutory tort of harassment306 allows recovery of damages for
‘‘among other things . . . anxiety’’.
303
For an extreme illustration, see Hicks v CC South Yorkshire [1992] 2 All E.R. 65 (fear of
approaching death). However, where physical injury has been suffered, matters like worry
and anxiety may increase those damages in their non-pecuniary aspect: see para.22–19,
below.
304
Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721; [2003] 3 All E.R. 932 at [11].
See also Giller v Procopets [2008] VSCA 236.
305
Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406 at [46]. Cf. Lord Scott at
[62]: it does not and it should not extend to such ‘‘harm’’. However, there are now
extensive statutory provisions rendering unlawful harassment at work on the basis of
matters on which the law forbids discrimination. The definition of harassment is not
identical with that in the Protection from Harassment Act 1997 and there is no express
requirement of repetition. See, e.g. s.3B of the Disability Discrimination Act 1995, added
by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI
2003/1673.
306
Below.
307
Conduct includes speech: s.7(3).
308
But this is to be decided without reference to any mental illness or characteristic of the
accused: R. v C [2001] EWCA Crim 1251; The Times, June 14, 2001; and see Banks v
Ablex Ltd [2005] EWCA Civ 173; [2005] I.C.R. 819.
309
A corporate body is incapable of being harassed within the meaning of the Act: Daiichi
UK Ltd v Stop Huntington Animal Cruelty [2003] EWHC 2337 (QB); [2004] 1 W.L.R.
1503 (but see SmithKlineBeecham Plc v Avery [2009] EWHC 1488 (QB)).
The Protection from Harassment Act 1997 145
318
S & D Property Investments Ltd v Nisbet [2009] EWHC 1726 (Ch). This may enable the
claimant to set off the damages against the debt sought to be enforced.
319
Allen v Southwark LBC [2008] EWCA Civ 1478; Ferguson v British Gas Trading Ltd
[2009] EWCA Civ 46; [2010] 1 W.L.R. 785. A corporate defendant cannot necessarily
escape by saying, ‘‘Oh well, everyone knows computerised systems produce silly errors
and you cannot prove that anyone particular person here knew about it’’: Ferguson. Cf.
Bowden v Spiegel Inc. 216 P.2d 571 (Cal. 1950) where a claim under the Act would fail,
because the conduct was only on one occasion.
320
Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233; [2002] E.M.L.R. 4. But
press criticism which is robust and likely to cause distress is not harassment unless it is an
abuse of press freedom.
321
Howlett v Holding, above, fn.313.
322
Thus the journalists’ doorstepping would be trespass and the conduct by the neighbour
would be nuisance. The rather protean nature of the Act makes it difficult to decide where
to place it in a book like this. There is also some overlap with the power to make anti-social
behaviour orders under the Crime and Disorder Act 1998.
323
The conduct must be targeted at an individual: Thomas v News Group Newspapers Ltd
[2001] EWCA Civ 1233; [2002] E.M.L.R. 4 at [30] but presumably in an employment
context this condition might be satisfied if the claimant made it known that he objected to
persistent conduct not particularly directed at him.
324
Even where the incidents arise out of the same matter, it has been said that the fewer the
incidents and the wider apart they are, the less likely they are to constitute harassment: Lau
v DPP, The Times, March 29, 2000.
325
s.1(2) provides that, ‘‘the person whose course of conduct is in question ought to know that
it amounts to harassment of another if a reasonable person in possession of the same
information would think the course of conduct amounted to harassment of the other.’’ This
would cover, e.g. conduct directed at the victim which the defendant regards as a joke but
which a reasonable person would regard as going beyond that.
The Protection from Harassment Act 1997 147
326
See s.5.
CHAPTER 5
1. Duty of Care: General .......................... 5–2 iii. Administrative law invalidity . 5–49
A. The Place of the Duty Issue in the iv. Whether duty fair, just and rea-
Law ................................................. 5–3 sonable .................................... 5–52
B. Law Before Anns v Merton ............ 5–5 v. Procedure ................................ 5–54
C. Law as Stated in Anns v Merton ... 5–6 vi. The Law Commission’s provi-
D. Present Law .................................... 5–7 sional proposals ...................... 5–55
i. Proximity ................................ 5–11 E. Lawyers and Negligence: Third Par-
ii. Fair, just and reasonable ......... 5–13 ties and Litigation ........................... 5–58
E. Relationship with Other Legal Prin- i. Third parties ............................ 5–59
ciples ............................................... 5–16 ii. Litigation: the demise of the
F. Relationship between Proximity and former immunity ..................... 5–60
what is Fair, Just and Reasonable .. 5–17 F. Psychiatric Injury ............................ 5–61
G. Judicial Approaches to ‘‘Policy’’ ... 5–18 i. A recognised psychiatric ill-
H. Duty to this Claimant ..................... 5–21 ness .......................................... 5–62
I. Overlap of Duty and Breach .......... 5–23 ii. Claimant physically threatened
J. Other Jurisdictions .......................... 5–24 by the negligence—a primary
2. Duty of Care: Specific Problems ......... 5–25 victim ...................................... 5–63
A. Failure to Act .................................. 5–26 iii. Claimant a witness of danger to
i. Cases where there is not a true others—a secondary victim .... 5–66
omission .................................. 5–27 iv. Participants other than mere
ii. Relationships ........................... 5–28 bystanders ............................... 5–69
(a) Relationships of depend- v. Claimant shocked by defen-
ence .................................. 5–29 dant’s exposure of himself to
(b) Other relationships with danger ...................................... 5–70
the victim ......................... 5–30 vi. Other situations ....................... 5–71
(c) Relationship with person vii. The future ............................... 5–74
causing the harm .............. 5–31 3. Breach of Duty ..................................... 5–75
iii. Property owners ...................... 5–32 A. Criterion of the ‘‘Reasonable Man’’ . 5–75
iv. Safety services ........................ 5–33 B. ‘‘Reasonable’’ Varies with the Cir-
B. Assumption of Responsibility ........ 5–34 cumstances ...................................... 5–76
i. Responsibility without reli- C. ‘‘Abnormal’’ Defendants ................ 5–78
ance ......................................... 5–37 D. Professional and Industry Stan-
C. Economic Loss ............................... 5–39 dards ................................................ 5–79
i. Economic loss resulting from E. Factors of the Objective Standard . 5–83
damage to property belonging i. Magnitude of the risk ............. 5–84
to a third party or from injury ii. The importance of the object to
to a third party ........................ 5–40 be attained ............................... 5–85
ii. Defects of quality in goods or iii. Practicability of precautions ... 5–86
property supplied .................... 5–44 4. Proof of Negligence .............................. 5–87
D. Negligence and Public Law ........... 5–45 A. Criminal Convictions ...................... 5–88
i. Statutory duties and powers B. Res Ipsa Loquitur ........................... 5–89
and the common law .............. 5–46 C. Rebutting the Inference .................. 5–90
ii. Direct and vicarious liability .. 5–48 5. Consequent Damage ............................. 5–91
149
150 Negligence: Duty and Breach
1
For history, see Winfield, ‘‘The History of Negligence in the Law of Torts’’ (1926) 42
L.Q.R. 184; Fifoot, History of the Common Law, Ch.8.
2
This approach has been said to be ‘‘technically wrong’’ but since in the same case it is said
to be ‘‘commonplace’’ and ‘‘convenient’’ we shall stick to it: Sam v Atkins [2005] EWCA
Civ 1452; [2006] R.T.R. 171 at [14].
3
Roe v Minister of Health [1954] 2 Q.B. 66 at 86, CA per Denning L.J.
4
See Palsgraf v Long Island R.R. 162 N.E. 99 (N.Y. 1928), para.5–21, below.
5
See further, para.5–23, below.
Duty of Care: General 151
rejects the claim because the defendant had checked the tyres on
Monday, as he always did. One might very well say that the defen-
dant ‘‘owed no duty to check the tyres before each trip’’ but the issue
is clearly one of breach ((2) above) not of duty of care. It is self-
evident that he owes other road users a duty to take care for their
safety and that this includes the maintenance of the vehicle; what we
are concerned with is how he must behave in order to fulfil it.
It is also important to be aware of the relationship between
elements (1) and (3) above. It has been said to be meaningless to ask
whether D owes C a duty of care without also considering the type
of damage in question: while the defendant may be under a duty to
safeguard the claimant against one type of damage (for example,
physical damage to his property) he may not be under such a duty
in respect of another type of damage (for example, pure financial
loss).6
Although the tort of negligence is of very general application it
frequently occurs in a number of standard situations: accidents on
the road or at work, medical misadventure, defective premises,
professional advice and so on. In some of these cases, although
liability is essentially based upon negligence it is put into statutory
form7 or there are important additional statutory provisions which
rest on some other basis8; in others, although there has been little
statutory intervention, there are enough special features in the way
the law is applied to justify a separate treatment.9 The first part of
this chapter is concerned with the theoretical basis of the duty of
care concept and examines certain areas in which this problem has
been particularly prominent in the modern law. Some of the other
areas form the basis of subsequent chapters.
It is not for every careless act that a person may be held responsible 5–2
in tort law, nor even for every careless act that causes damage. He
will only be liable in negligence if he is under a legal duty to take
care. It may be objected that ‘‘duty’’ is not confined to the law of
negligence and that it is an element in every tort, because there is a
legal duty not to commit assault or battery, not to commit defama-
tion, not to commit nuisance and so on. In a sense that is true, but
all that ‘‘duty’’ signifies in those torts is the comparatively simple
proposition that you must not commit them: they have their own,
6
Caparo Industries Plc v Dickman [1990] 2 A.C. 605 at 627; S v Gloucestershire CC [2001]
2 W.L.R. 909 at 932. See para.6–27, below.
7
See occupiers’ liability: Ch.9.
8
See employer’s liability for work accidents, Ch.8, and liability for defective products,
Ch.10.
9
See Ch.11, liability for statements.
152 Negligence: Duty and Breach
where the case would be decided on the assumption that the facts
alleged by the claimant could be proved at the trial. For a while it
looked as if this expedited procedure would be blocked altogether
by the fair trial guarantee in art.6 of the European Convention on
Human Rights. It now seems clear that this is not so and that it is
legitimate, in the context of art.6,21 for the substantive law to lay
down that liability may be excluded in all situations of a particular
type so long as that is a proper and proportionate response to what
it conceives to be the needs of public policy.22 However, the ques-
tion of what is fair, just and reasonable may not lend itself to ‘‘bright
line’’ rules established without close examination of the facts23 and
this is particularly so:
In the sense now being considered, the issue of duty arises 5–4
comparatively rarely in the day-to-day business of the courts and
tends to be the preserve of the Court of Appeal and the House of
Lords.29 Most cases of negligence arise from acts directly causing
physical damage to persons or property and there the law is much
more straightforward. No one would think of opening a running-
down case by citing authorities to show that a duty of care was owed
by a driver to a pedestrian.30 Speaking of damage to property (and
if anything the proposition must be even more true with regard to
personal injury) the Privy Council31 has said that:
29
The issue of the duty of care has come before the House of Lords or Privy Council
remarkably frequently since 1970.
30
Compare Langley v Dray [1998] P.I.Q.R. P314, an unsuccessful attempt to complicate a
simple road traffic case with a duty issue.
31
Speaking through Lord Brandon, whose dissent in Junior Books v Veitchi [1983] 1 A.C.
520 marks a turning point in the reaction against liability for other types of loss in the
1980s.
32
Mobil Oil Hong Kong Ltd v Hong Kong United Dockyards Ltd [1991] 2 Lloyd’s Rep. 309
at 328.
33
[1990] 2 A.C. 605 at 633.
34
Sandhar v Dept of Transport [2004] EWCA Civ 1440; [2005] P.I.Q.R. P13 at [38] per May
L.J. Note the ‘‘directly’’—the position is by no means necessarily the same where the
injury is directly inflicted by a third party and the complaint is that the defendant failed to
prevent that: see para.5–26 below. In K v Secretary of State for the Home Dept [2002]
EWCA Civ 775; The Times, July 22, 2002, Laws L.J. attempted a synthesis whereby the
role of a ‘‘third agency’’ (which might include market forces as well as the actions of
human beings) in the infliction of the harm explained most of the cases, whether of
economic loss or of physical damage, in which the law drew back from imposing a duty
of care. However, Arden L.J. had reservations and Simon Brown L.J. preferred to express
no opinion.
156 Negligence: Duty and Breach
mismanaging the gelignite,35 and there are cases where the imposi-
tion of liability even for physical damage might be undesirable
because it would cut across some other legal regime governing
damage of that type.36 Nevertheless, it remains true that in physical
damage cases there are few ‘‘duty’’ problems of this type. It would,
therefore, be wrong to envisage negligence as a sea of non-liability
surrounding areas of liability. If anything, the true picture is the
reverse, for as Lord Goff said37:
35
See para.25–20, below.
36
See Marc Rich & Co A.G. v Bishop Rock Marine Co Ltd [1996] A.C. 211, para.5–13,
below.
37
Smith v Littlewoods Organisation Ltd [1987] A.C. 241 at 280, HL.
38
Lord Goff was referring to the speech of Lord Wilberforce in Anns v Merton London
Borough [1978] A.C. 758: see below.
39
[1932] A.C. 562, para.5–5, below.
40
Earlier editions of this book referred to the first question as the ‘‘notional duty’’ and to this
as ‘‘duty in fact’’.
41
See para.5–23, below.
Duty of Care: General 157
but nonetheless firmly fixed in the law, though they may still be in
the course of development (for example, the duty of a person who
has ‘‘assumed responsibility’’ for a task42). Is there any universal
principle which explains the duties of care which exist and those
cases where a duty has been rejected? Alternatively, since in a novel
case the court must take a decision as to whether a new duty should
be recognised,43 is there any principle to guide it in this task? Three
periods in the history of the law must be distinguished.
‘‘In English law there must be, and is, some general conception of
relations giving rise to a duty of care, of which the particular
cases found in the books are instances. The liability for negli-
gence, whether you style it such or treat it as in other systems as
a species of ‘culpa,’ is no doubt based upon a general public
sentiment of moral wrongdoing for which the offender must pay.
But acts or omissions which any moral code would censure
42
See para.5–34, below.
43
An extreme view was sometimes advanced that liability for negligence could only exist
where there was a duty recognised by previous judicial decision. See Landon (1941) 57
L.Q.R. 183: ‘‘Negligence is not actionable unless the duty to be careful exists. And the
duty to be careful exists where the wisdom of our ancestors has deemed that it shall exist.’’
There are echoes of this in the dissent of Viscount Dilhorne in Home Office v Dorset Yacht
Co Ltd [1970] A.C. 1004, HL, but it is quite inconsistent with the law since 1932. To
emphasise the need for respect for precedent, as the courts now do (para.5–8, below) is not
at all the same thing as saying that new duties cannot be created: Mills v Winchester
Diocesan Board [1989] 1 All E.R. 317 at 332.
44
(1883) 11 Q.B.D. 503 at 509.
45
[1932] A.C. 562. For the history of litigation and of Mrs Donoghue, see A. Rodger, QC,
‘‘Mrs. Donoghue and Alfenus Varus’’ [1988] C.L.P. 1.
46
[1932] A.C. at 580.
158 Negligence: Duty and Breach
47
Emphasis added.
48
A duty which was stated with greater precision in a subsequent passage: see para.10–2,
below.
49
The case came before the House of Lords from Scotland as what in modern English
procedural terms would be called a preliminary issue of law (see CPR 3.1(2)) and no trial
of the truth of the averments seems to have taken place: see Rodger, [1988] C.L.P. 1 and
Heuston (1957) 20 M.L.R. 2.
50
i.e. duty in the second sense above.
51
[1932] A.C. at 619.
52
Thus in the Court of Appeal in Home Office v Dorset Yacht Co Ltd [1969] 2 Q.B. 412 no
reference was made to Donoghue v Stevenson.
Duty of Care: General 159
D. Present Law
After three decisions at the highest level in the mid-1980s which 5–7
had cast doubts on the Anns approach,60 the decisive case in the
‘‘counter-revolution’’ was probably the decision of the Privy Coun-
cil in Yuen Kun Yeu v Attorney-General of Hong Kong,61 in which
Anns was subjected to reinterpretation. A statutory officer, the Com-
missioner of Deposit-taking Companies, registered as a deposit-
53
[1970] A.C. 1004 at 1027.
54
[1978] A.C. 728.
55
[1978] A.C. 728 at 751–752.
56
Whether as to its scope or the class of persons to whom it was owed or the damages to
which a breach of it might give rise.
57
The actual decision concerned liability for defective premises. Even in this respect it is
virtually dead: para.9–33, below.
58
[1983] 1 A.C. 520.
59
See the dissenting speech of Lord Brandon at 551. The case is dealt with more fully,
para.5–44, below.
60
Governors of the Peabody Donation Fund v Sir Lindsay Parkinson Ltd [1985] A.C. 210,
HL; Candlewood Navigation Corp v Mitsui O.S.K. Lines [1986] A.C. 1, PC; Leigh and
Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] A.C. 786 (para.5–40, below).
61
[1988] A.C. 175.
160 Negligence: Duty and Breach
62
The legislation was subsequently amended to give the Commission immunity from civil
suit. For comparable English provisions giving immunity see the Financial Services and
Markets Act 2000 Sch.1 Pt IV, para.19 (replacing legislation in 1986) and the Banking Act
1987 s.1(4). The position here is not altered by EC Directive 77/780: Three Rivers DC v
Bank of England (No.3) [2003] 2 A.C. 1. However, the impact of the Human Rights Act
1998 and the Convention is uncertain. The 2000 Act ducks the problem by providing that
it does not apply, ‘‘so as to prevent an award of damages made in respect of an act or
omission on the ground that the act or omission was unlawful as a result of section 6(1)
of the Human Rights Act 1998’’.
63
However, this factor had not inhibited the court in Anns v Merton from finding a common
law duty superimposed upon a statutory power.
64
As, indeed, Huggins V.P. and Fuad J.A. in the Hong Kong Court of Appeal had done:
[1986] L.R.C. (Comm.) 300. See also Mills v Winchester Diocesan Board [1989] 2 All
E.R. 317.
Duty of Care: General 161
Three ‘‘tests’’. Since Yuen Kun Yeu the stream of authority has 5–8
flowed unabated and at present it is possible to identify three
approaches to the question of the determination of the duty of care:
(i) the so-called ‘‘tripartite (or threefold) test’’ in Caparo Industries
Plc v Dickman,65 which asks whether the harm was foreseeable,
whether there was sufficient proximity between the parties and
whether the imposition of a duty of care would be fair, just and
reasonable; (ii) the test which asks whether the defendant has
‘‘assumed responsibility’’ to the claimant with regard to the matter
from which the harm arises; and (iii) the ‘‘incremental test’’,
whereby the law should develop novel categories of negligence
incrementally and by analogy with established categories. It would
be as well to repeat at the outset that the issue arises comparatively
rarely on the ground66 and to say that, while ‘‘test’’ is the common
shorthand, one will look in vain for anything sufficiently precise to
serve as a litmus paper in this area, and it has been said that:
65
[1990] 2 A.C. 605.
66
See para.5–4, above. One suspects that in terms of cases tried, only a small minority ever
involve a ‘‘duty of care’’ inquiry, just as probably only a minute number of contract
disputes involve such a conceptual fundamental as consideration
67
Lord Rodger in Customs and Excise Commissioners v Barclays Bank Plc [2006] UKHL
28; [2007] 1 A.C. 181 at [51]. What was said in Australia a few years ago is true here:
‘‘What the . . . shifts in authority over fairly short periods demonstrate is the unlikelihood
that any [judge] who tackles the subject, even in a final court of appeal, can claim
thereafter a personal revelation of an ultimate and permanent value against which later
responses must suffer in comparison’’: Vairy v Wyong SC [2005] HCA 62, 223 C.L.R. 422
at [67]. For an even bleaker view see Hayne J. in Brodie v Singleton SC [2001] HCA 29,
206 C.L.R. 512 at [318]
68
Above.
162 Negligence: Duty and Breach
69
At [84], [93]. Further, ‘‘the closer the facts of the case in issue to those of a case in which
a duty of care has been held to exist, the readier a court will be . . . to find that there has
been an assumption of responsibility or that the proximity and policy conditions of the
threefold test are satisfied. The converse is also true’’: at [7].
70
So it surprising that Lord Hoffmann says at [37] that Henderson v Merrett Syndicates
[1995] 2 A.C. 145 (a ‘‘task’’ case) was ‘‘a re-run of Donoghue v Stevenson in a claim for
economic loss. . . . To say that the managing agents assumed a responsibility to the
Names to take care not to accept unreasonable risks is little different from saying that a
manufacturer of ginger beer assumes a responsibility to consumers to take care to keep
snails out of his bottles.’’
71
See para.5–36, below.
72
[1995] 2 A.C. 296, para.11–33, below.
73
Customs and Excise Commissioners at [5], [73], [86].
Duty of Care: General 163
74
Lord Bingham at [15].
75
Lord Mance at [113].
76
At [39].
77
Lord Hoffmann at [35], Lord Rodger at [65]–[66] and Lord Walker at [73]. This has
occurred before. In Merrett v Babb [2001] EWCA Civ 214; [2001] Q.B. 1174 at [41] May
L.J. thought that the Caparo ‘‘strand’’ and the assumption of responsibility ‘‘strand’’ in
reality merged.
164 Negligence: Duty and Breach
is probably inevitable. Although it has been said that if the case falls
within the principle of assumption of responsibility there should be
no need to embark on any further enquiry whether it is fair, just and
reasonable to impose liability,78 it may be impossible to avoid issues
which figure in the tripartite test in order to determine whether there
is an assumption of responsibility in the relevant sense. For exam-
ple, a seller of goods clearly ‘‘assumes responsibility’’ in the ordi-
nary sense of those words to deliver them but the current law is that
he is not liable in tort (as opposed to contract) for failing to do so.
One cannot escape the ultimate question of whether it is fair, just
and reasonable (the context of those issues in this example being the
general structure of the law79).
All this said, it is the tripartite test which has figured most
frequently in the greatest variety of cases so we need to look more
closely at that. The Caparo case, ‘‘though it is no rule-book, repre-
sents the modern backdrop against which to judge any putative
negligence claim.’’80
We must examine the second and third of these in more detail but
at the outset two warnings must be given.
5–10 The first warning is that the content of these steps and the
relationship between them is imprecise rather than ‘‘scientific’’ and
78
Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145 at 181.
79
See para.5–16, below.
80
Connor v Surrey CC [2010] EWCA Civ 286 at [102] per Laws L.J.
81
[1990] 2 A.C. 605.
82
See para.11–25, below.
83
Lord Bridge in Caparo at [1990] 2 A.C. 617.
Duty of Care: General 165
one cannot reconcile all the judgments in form even if they all point
the same way in substance. It is, ‘‘reaching for the moon . . . to
expect to accommodate every circumstance which may arise within
a single short abstract formulation’’84 and one must beware of using
the ideas we do have as slogans.85 As Lord Roskill put it in
Caparo86:
‘‘It is a truism to say that any case must be decided taking into
account the circumstances of the case, but where those circum-
stances comply with established categories of liability, a defen-
dant should not be allowed to seek to escape from liability by
84
Merrett v Babb [2001] EWCA Civ 214. [2001] Q.B. 1174 at [41] per May L.J.
85
Customs and Excise Commissioners at [35].
86
[1990] 2 A.C. at 628.
87
The exercise of discovering a duty of care has been described as ‘‘intensely pragmatic’’:
Rowling v Takaro Properties Ltd [1988] A.C. 473 at 501.
88
It has been pointed out that ‘‘incrementalism’’ can apply ‘‘the other way round’’ so that it
will be ‘‘particularly difficult to establish a duty of care in a situation closely analogous to
one where the law has already denied the existence of such a duty’’: M v MPC [2007]
EWCA Civ 1361 at [41].
89
Of course general ideas like fairness will play a part in deciding what should be the content
of an established duty of care. A judge will not ask himself whether it is fair that an
employer should owe a duty of care to protect the safety of workers. But his notions of
fairness and practicability are likely to determine whether the employer’s behaviour in, e.g.
failing to supply a safety device, falls below the standard required by law. On the typical
analysis this is a matter of breach rather than duty.
166 Negligence: Duty and Breach
‘‘I think that this95 sufficiently states the truth if proximity be not
confined to mere physical proximity, but be used, as I think it was
90
Hobhouse L.J. in Perrett v Collins [1998] 2 Lloyd’s Rep. 255 at 263.
91
See para.5–66, below.
92
In two modern cases, Frost v CC South Yorkshire [1999] 2 A.C. 455 (para.5–69, below)
and McFarlane v Tayside Health Board [2000] A.C. 59 (para.24–15, below) some
members of the HL have used the principle of distributive (as opposed to corrective)
justice to deny a duty of care. But distributive justice is what the court regards as setting
a fair limit on the responsibility for loss and seems to be part and parcel of the ‘‘fair, just
and reasonable’’ element in Caparo: see Parkinson v St James etc. University Hospital
NHS Trust [2001] EWCA Civ 530; [2002] Q.B. 266 at [37]–[39]. At any rate it is, ‘‘not
a principle of English law recently adopted so as to allow free rein to ignore basic
principles long established’’: Thompstone v Tameside and Glossop etc NHS Trust [2008]
EWCA Civ 5; [2008] 1 W.L.R. 2207 at [47].
93
Lord Oliver in Caparo at [1990] 2 A.C. 633 refers to its literal meaning as ‘‘closeness’’.
Much the same point can be made about ‘‘neighbour’’.
94
Cf. in US law, ‘‘proximate cause’’ which means what we commonly call ‘‘remoteness of
damage’’. Although the English phrase also has spatial overtones, the real sense of both is
‘‘operative’’ or ‘‘legally adequate’’ (an expression often used by European lawyers).
95
i.e. what A. L. Smith L.J. said in Le Lievre v Gould [1893] 1 Q.B. 491 at 504, where he
had referred to proximity.
Duty of Care: General 167
intended, to extend to such close and direct relations that the act
complained of directly affects a person whom the person alleged
to be bound to take care would know would be directly affected
by his careless act.’’96
This seems to be the sense in which the word was often used in
the post Anns v Merton period. But while there would still undoubt-
edly be legal proximity between the driver and the pedestrian in our
example, the legal sense is now different. According to the Privy
Council in Yuen Kun Yeu, proximity means, ‘‘the whole concept of
necessary [i.e. necessary to produce a duty of care] relationship
between the plaintiff and defendant’’. Now while this plainly intro-
duces elements other than foreseeability, it is not, it is submitted, the
formulation of a test or criterion at all, for it gives no indication of
what, in any case, are the other ingredients of the necessary relation-
ship. It is rather as if a tax Act said that a special tax should be levied
on, ‘‘vehicles more than four metres long and having certain other
characteristics’’. What is clear, however, is that proximity differs
from one situation to another because a closer or more direct nexus
will be required with reference to some types of damage or some
types of conduct.97 Where the defendant has directly caused phys-
ical harm to the claimant or his property by an act, a duty may
readily be established by showing foreseeability and nothing else.98
In such a case:
96
[1932] A.C. 562 at 581.
97
See generally Kidner, ‘‘Resiling from the Anns principle: the Variable Nature of Proximity
in Negligence’’ (1987) 7 L.S. 319.
98
Mobil Oil Hong Kong Ltd v Hong Kong United Dockyards Ltd [1991] 1 Lloyd’s Rep. 309
at 368, PC; Caparo Industries v Dickman [1990] 2 A.C. 605 at 632; Customs and Excise
Commissioners v Barclays Bank Plc [2006] UKHL 28; [2007] 1 A.C. 181 at [31]. There
are many other statements to the same effect and they are in no way affected by Marc Rich
& Co A.G. v Bishop Rock Marine Co Ltd [1996] 1 A.C. 211, para.5–13, below.
99
Caparo in the CA per Bingham L.J. [1989] 1 Q.B. 653 at 686.
100
As to the European Convention on Human Rights, see para.2–13, above.
168 Negligence: Duty and Breach
101
Home Office v Dorset Yacht Co [1970] A.C. 1004. See further para.5–31, below.
102
[1989] A.C. 53.
103
Rather unusually (see para.4–3, above) civil actions had already been successfully brought
against Sutcliffe by some of his victims.
104
But if the defendant had been a canning company whose negligence had poisoned the
claimant she could have been anyone in England (or, subject to the rules governing the
jurisdiction of the courts, anyone in the world) and there would have been a duty.
105
See para.5–20, below.
106
Lord Devlin in Hedley, Byrne v Heller & Partners [1964] A.C. 465 at 529. For a somewhat
unusual example of a claim which failed for lack of proximity see Goodwill v British
Pregnancy Advisory Service [1996] 1 W.L.R. 1397.
Duty of Care: General 169
ii. Fair, just and reasonable. Even if there is the requisite degree 5–13
of proximity,110 a duty may still be denied if in the court’s view the
107
[2006] UKHL 33; [2006] 4 All E.R. 490.
108
See para.5–36,below.
109
At [38] per Lord Hoffmann.
110
Or so it is said, see para.5–17, below.
170 Negligence: Duty and Breach
119
This also seems to be the idea behind Norwich CC v Harvey [1989] 1 W.L.R. 828 where,
the building owner having contracted with the main contractor to insure the works, a sub-
contractor (who was not a party to the main contract) carelessly set fire to them. The court
held that the sub-contractor owed the owner no duty of care and made no reference to the
various cases on the liability of stevedores to cargo owners, which had approached the
matter via the law of privity of contract and had gone to some trouble to evade that. In
some cases now, of course, a non-party may be able to rely on someone else’s exclusion
clause via the Contracts (Rights of Third Parties) Act 1999. Compare British Tele-
communications v James Thomson & Sons (Engineers) Ltd [1999] 1 W.L.R. 9, HLSc.,
where the fact that the main contract exempted ‘‘nominated’’ sub-contractors reinforced
rather than negatived the duty of care owed to the owner by ‘‘domestic’’ sub-
contractors.
120
The cargo owners in such a case would acquire no rights against the classification society
under the Contracts (Rights of Third Parties) Act 1999 because (a) the contract would not
‘‘purport to confer a benefit’’ on them and (b) in practice they would not be identified in
it. See s.1.
121
For the other view see the strong dissent of Lord Lloyd. He points out that as a general
rule: (1) liability may be imposed upon A to B notwithstanding the existence of a contract
between A and C; (2) the existence, absence or feasibility of loss or liability insurance is
not overtly taken into account by the courts; and (3) many defendants such as doctors and
hospitals are undoubtedly public benefactors but this has not hitherto been regarded as a
reason for granting them immunity from liability. The decision of the CA in Capital and
Counties Plc v Hampshire CC [1997] Q.B. 1004 rejecting immunity for the fire service is
very much in line with Lord Lloyd’s reasoning in Marc Rich: see [1997] Q.B. at
1038–1044. See also Stapleton, ‘‘Tort, Insurance and Ideology’’ (1995) 58 M.L.R. 820.
122
[1998] 2 Lloyd’s Rep. 255.
123
Compare Philcox v Civil Aviation Authority, The Times, June 8, 1995, where the CA held
that an inspector was not liable to the owner of the aircraft when it was destroyed in a
crash. The function of the inspection was to protect the public against owners rather than
provide a service for the benefit of owners. Claims against marine surveyors by purchasers
172 Negligence: Duty and Breach
of the vessel relying on a certificate of seaworthiness have failed: Reeman v DoT [1997]
2 Lloyd’s Rep. 648; The Morning Watch [1990] 1 Lloyd’s Rep. 547; Att Gen v Carter
[2003] NZCA 48; [2003] 2 N.Z.L.R. 160. The losses were truly economic. The boats did
not sink, they were worth less than the buyers paid for them.
124
On this reasoning if a sailor had been drowned in Marc Rich his dependants might have
had a claim against N.K.K. What if the boat owner in Reeman v DOT (above, fn.123) had
been drowned when the defective vessel sank?
125
[1998] 2 Lloyd’s Rep. at 259.
126
This aspect of the case is not very fully dealt with. As a gratuitous passenger in a private
aircraft the international conventions and domestic legislation on the liability of air carriers
would not have been applicable to the claimant. Yet, as the defendants argued, the
application of the case to other circumstances might offer the opportunity to bypass the
legislation by taking aim at those responsible for inspection rather than the commercial
carrier. For Buxton L.J. such a case would have to be dealt with as it arose (at 276).
However, the liability of commercial carriers, while not absolute, is not generally depend-
ent on proof of fault and is therefore more onerous than that of an inspection agency.
Furthermore, the scope of financial limitation of liability by European carriers has been
reduced by Council Regulation (EC) No. 2027/97 and a similar process will occur in other
countries as the Montreal Convention of 1999 is ratified.
127
[1996] 1 A.C. at 237.
128
[1932] A.C. at 580.
129
Buxton L.J. at [1998] 2 Lloyd’s Rep. 274.
Duty of Care: General 173
the sense required because of the major role of the inspector130 but
that even if it was not, the justice of the case in the particular context
dispensed with it; another thought that ‘‘directly inflicted loss’’ was
no part of the requirements for liability in case of personal
injury.131
While Marc Rich (and some other duty of care cases)132 may be 5–14
regarded as involving attempts to pass liability around from a
subrogated loss insurer to a defendant’s liability insurer, in many
cases a decision against a duty of care really does mean that the loss
lies where it falls. Thus in Caparo Industries Plc v Dickman133 the
House of Lords held that defendants carrying out the statutory audit
of a public company owe a duty of care (by contract) only to the
company and therefore to the general body of shareholders as a
collectivity, but not to individual buyers of the company’s shares
(even if they are existing shareholders) nor to creditors of the
company. Reliance on the accounts for such purposes is certainly
foreseeable (Lord Bridge described it as highly probable)134 and it
may even be that statements of accounting standards135 or auditors’
manuals136 draw attention to the likelihood of such reliance; but that
is not enough. A number of reasons underlie this restrictive
approach. The most obvious is a fear of a multiplicity of claims and
a belief that the liability insurance market cannot in practice bear the
risk of exposure to the full range of foreseeable loss arising from an
inadequate audit of a major company, with the consequent risk, if a
duty is imposed, of ruinous137 liability out of all proportion to the
130
See also Clay v A.J. Crump & Sons Ltd [1964] 1 Q.B. 533.
131
Hobhouse L.J. at 264.
132
e.g. Leigh & Sillavan v Aliakmon Shipping Co [1986] A.C. 785 (para.5–41, below). The
insurer, having paid the claim, takes over the rights of the insured against the tortfeasor.
It is rarely clear from the report that a case is an insurer’s subrogation action, since the
claim is made in the name of the insured, but this must frequently be so.
133
[1990] 2 A.C. 605. For further discussion see para.11–25, below
134
[1990] 2 A.C. 605 at 625.
135
As did the Australian Accounting Standards at issue in Esanda Finance v Peat Marwick
Hungerfords (1997) 188 C.L.R. 241.
136
See, e.g. Columbia Coffee & Tea Pty v Churchill (1992) 29 N.S.W.L.R. 141, rejected in
Esanda, above, fn.135.
137
At the time of these cases auditors generally practised as partnerships with unlimited
personal liability of the members. It is true that the Limited Liability Partnerships Act 2000
now offers some safeguard against personal liability since it puts partners in such firms in
much the same position as shareholders in a company. However, it is not thought that this
justifies a change in the law on auditors’ liability. Even before the Act some firms had
hived off the auditing activity to corporate entities. English law of course allows the
defendant, subject to the Unfair Contract Terms Act 1977, to limit his liability by
agreement or even by notice (there is special provision for auditors in the Companies Act
2006, see para.11–25, below) and sometimes, as in the case of merchant shipping or
carriage by air, there is a statutory regime of limitation of liability. However, professional
bodies sometimes restrict the power to limit liability. Where the defendant operates as a
company or a limited liability partnership his personal ‘‘liability’’ is de facto limited to the
value of his investment in the company or firm.
174 Negligence: Duty and Breach
for which, it may be added, they have not paid.140 For McHugh J. in
the similar case of Esanda Finance v Peat Marwick Hungerford141
an important factor is that investors and creditors as a group are
commonly not ‘‘dependent’’ upon the audit. They may possess
considerable financial sophistication and they:
143
In Spartan Steel & Alloys v Martin [1973] 2 Q.B. 27 (para.5–36, below) Lord Denning
M.R. used a similar argument to deny a duty of care to C where C suffers economic loss
as a result of D’s interference with a public utility supply.
144
Book 6, art.109 of the Dutch Civil Code has an interesting provision (of quite general
application) which might allow the imposition of liability but protect the auditor against
ruin: ‘‘The judge may reduce a legal obligation to repair damage if awarding full reparation
would lead to clearly unacceptable results in the given circumstances, including the nature
of the liability, the juridical relationship between the parties and their financial incapacity.’’
However, many would find such a vague provision unacceptable.
145
(1940) 66 C.L.R. 344 at 361.
176 Negligence: Duty and Breach
152
[1991] 1 A.C. 398: para.9–33, below.
153
As is also the case with a product which is shoddily made and does not work: para.10–9,
below.
154
See para.9–37, below.
155
Both under general principles and under the Latent Damage Act 1986: para.26–9,
below.
156
[1991] 1 A.C. 398 at 480 per Lord Bridge. Lord Oliver at 491 points out that it is curious
that the legislation receives little or no discussion in the earlier cases. The absence of
similar legislation in New Zealand is one reason justifying a different approach in that
country: Invercargill CC v Hamlin [1996] A.C. 624.
178 Negligence: Duty and Breach
or the need to leave the matrimonial home) did not mean that the
common law was available to fill the gaps. It was not for the courts
to evaluate the merits of the structure created by Parliament.157
However, if this approach were taken to its logical conclusion
there would never be any expansion of tort law, indeed it would be
a good deal narrower in its scope than it now is, for there is almost
always some legal regime governing the situation and if it gives no
civil remedy in damages to the claimant it might be argued that that
reflects a proper view of public policy.158 That this is not the law is
shown dramatically by Spring v Guardian Assurance Plc159 in
which the House of Lords held that the writer of a reference might
be under a duty of care to the subject of the reference notwithstand-
ing that until then it had been assumed that the only liability arose
in the torts of libel and malicious falsehood, both of which in such
a case required proof of malice.160 Indeed, the case illustrates a point
which is perhaps rather obvious but which tends to be forgotten in
discussions dominated by the need to keep liability under control.
This is that what the court conceives to be fair, just and reasonable
may be just as much a reason for imposing a duty of care as for
denying one.161 The need for free and frank disclosure in references
points towards a narrow rule of liability requiring malice but the
interests of the subject of the reference are to be given more weight
than may formerly have been the case. Against the demands of free
speech:
157
[2007] EWCA Civ 598; [2007] 1 W.L.R. 2861. See also Jones v Dept of Employment
[1989] Q.B. 1.
158
See generally Sir Robin Cooke, ‘‘An Impossible Distinction’’ (1991) 107 L.Q.R. 46.
159
[1995] 2 A.C. 296, para.11–33, below.
160
Although libel does not generally require proof of malice, it does when the occasion is one
of qualified privilege and the giving of a reference is such an occasion.
161
See also Perrett v Collins [1998] 2 Lloyd’s Rep. 255.
162
[1995] 2 A.C. 296 at 326 per Lord Lowry.
163
The public good is now conceived to demand a strict liability in such cases: para.10–12,
below.
Duty of Care: General 179
164
[1932] A.C. at 582.
165
[1995] 2 A.C. 207, para.5–37, below.
166
[1995] 2 A.C. 207 at 259.
167
See para.5–37, below.
168
[1996] Q.B. 732. See para.5–15, above.
169
[1996] Q.B. at 749.
180 Negligence: Duty and Breach
‘‘(1) Auditors do not owe a duty to investors who rely upon audit
reports because there is no proximity and (2) A further reason for
denying a duty is that it would impose an unreasonable burden
upon them to hold them liable to investors who rely upon audit
reports in view of the uninsurability of the risk and the complex-
ity of audit decisions etc.’’
170
It is therefore difficult to agree with Longmore L.J. in Customs and Excise Commissioners
v Barclays Bank Plc [2004] EWCA Civ 1555; [2005] 1 W.L.R. 2082 at [31] that ‘‘fairness
. . . is something of a ‘label’ attached by the court if it decides that public policy requires
a duty of care to be imposed’’. Rather fairness is the reason why the duty is imposed.
171
‘‘The result of a process of reasoning rather than the process itself, but it remains a useful
term because it signifies that the process of reasoning must be undertaken. But to hope that
proximity can describe a common element underlying all those categories of case in which
a duty of care is recognised is to expect more of the term than it can provide’’: Dawson
J. in Hill v Van Erp (1997) 188 C.L.R. 159. See also La Forest J. in Canadian National Ry
Co v Norsk Pacific SS Co (1992) 91 D.L.R. (4th) 289 and Hercules Managements Ltd v
Ernst & Young (1997) 146 D.L.R. (4th) 577.
Duty of Care: General 181
the court’s view that it would not be fair and reasonable to hold
the defendant responsible’’.172
172
[1990] 2 A.C. 605 at 633. In Osman v UK (para.2–13, above) the ECHR, while rejecting
any ‘‘immunity’’ based on policy, regarded Hill v CC West Yorkshire (para.5–11, above) as
correct on the basis of proximity. This presents an obvious difficulty if the concepts are
related: see Pill L.J. in Palmer v Tees HA [2000] P.I.Q.R. P1.
173
[1996] A.C. 923 at 932. Lord Nicholls dissented as to the result (see para.5–43, below) but
not on the general approach to duty. See also Islington LBC v University College London
Hospital NHS Trust [2005] EWCA Civ 596; [2006] P.I.Q.R. P3 at [21].
174
This has now changed: see para.5–66, below.
182 Negligence: Duty and Breach
175
[1983] 1 A.C. 410 at 431.
176
[1983] 1 A.C. 410 at 427.
177
[2000] 2 A.C. 59.
178
See [2000] 2 A.C. 59 at 73, 83, 95 (‘‘social policy’’), 100 104, 108.
179
Richardson v Mellish (1824) 2 Bing. 229 at 252.
180
[2000] 2 A.C. at 82.
181
See para.1–28, above.
182
See para.5–61, below.
183
See para.22–22, below.
184
[2000] 2 A.C. at 108, quoting Prosser and Keeton, Torts, 5th edn, p.264.
Duty of Care: General 183
185
Smith v Littlewoods Organisation Ltd [1987] A.C. 241 at 271.
186
Lord Morris in Home Office v Dorset Yacht Co Ltd [1970] A.C. 1004 at 1039.
187
Counsel is rarely instructed to appear as amicus curiae in negligence cases.
188
Though even on technical legal issues one may compare the elaborate consultations
undertaken by the Law Commission before proposing changes in the law.
189
See, e.g. Hoffmann J. at first instance in Morgan Crucible v Hill Samuel Bank [1991] Ch.
295 at 305, remarking that the courts, ‘‘do not have the information on which to form
anything other than a very broad view of the economic consequences of their decisions’’.
In Islington LBC v University College London Hospital NHS Trust [2005] EWCA Civ 596;
[2006] P.I.Q.R. P3 at [37] Buxton L.J. said: ‘‘it is quite impossible for a court to know,
within the confines of a particular case and with the benefit only of a sparse amount of
evidence and its own common sense, what are the wider implications of the move that it
is being asked to make.’’
190
[1996] A.C. 211.
191
See also Perrett v Collins [1998] 2 Lloyd’s Rep. 255 at 277; Vowles v Evans [2003] EWCA
Civ 318; [2003] 1 W.L.R. 1607 at [12]. In McLoughlin v Grovers [2001] EWCA Civ 1743;
[2002] Q.B. 1312 at [30] (a case of mental breakdown arising from alleged negligence by
solicitors) Brooke L.J. said, ‘‘I have no very clear insight into what the ordinary person on
the London Underground, or in a Glasgow public house, or in any other place where he
or she may be found, would regard as fair in this case’’.
192
[1989] A.C. 53.
184 Negligence: Duty and Breach
‘‘It has been said that public policy should be invoked only in
clear cases in which the potential harm to the public is incontest-
able, that whether the anticipated harm to the public will be likely
to occur must be determined on tangible grounds instead of on
mere generalities and that the burden of proof lies on those who
assert that the court should not enforce a liability which prima
facie exists.’’
However, many cases do not satisfy this stringent test. The danger
of proceeding upon incorrect assumptions has underlain greater
reluctance to strike out claims against public authorities without trial
or further investigation of the facts,196 but it is not clear how far the
courts can go in practice in modifying the approach to the process
whereby judges assess the weight of policy factors.
5–20 Hunch or not, the line taken in Hill has since been decisively
reaffirmed by a majority of the House of Lords in Smith v Chief
Constable of Sussex.197 This was again a case of a criminal attack
but unlike in Hill the claimant had complained about threats and was
therefore known to be the specific target. The ‘‘core principle’’ of
Hill was upheld and even though Lord Phillips was uncertain how
far liability would impact upon the police’s performance of their
duties,198 Lord Brown was in no doubt199:
limb and property of which they come to learn through their own
and others’ endeavours. They would be likely to devote more
time and resources to their investigation and to take more active
steps to combat them. They would be likely to arrest and charge
more of those reportedly making the threats and would be more
likely in these cases to refuse or oppose bail, leaving it to the
courts to take the responsibility of deciding whether those
accused of making such threats should remain at liberty. The
police are inevitably faced in these cases with a conflict of interest
between the person threatened and the maker of the threat. If the
police would be liable in damages to the former for not taking
sufficiently strong action but not to the latter for acting too
strongly, the police, subconsciously or not, would be inclined to
err on the side of over-reaction. I would regard this precisely as
inducing in them a detrimentally defensive frame of mind. Sim-
ilarly with regard to their likely increased focus on these reported
threats at the expense of other police work.’’
There may be liability in such cases under the Human Rights Act
1998 where there is a real and immediate threat to life but there was
no claim on this basis in Smith and the majority declined to remodel
the common law in line with the Convention, despite the fact that he
possibility of such a claim to some extent weakens the impact of the
arguments used to deny liability at common law.
In Brooks v Metropolitan Police Commissioner201 the police were
sued by a witness to a murder who claimed that his shock reaction
to the event had been exacerbated by the police failure to offer him
the support and protection to which he was entitled (though there
was no allegation that he was subjected to specific threats). Again
the claim was struck out on the Hill principle and here it is difficult
to contest the likely deleterious effects of a duty. As Lord Steyn
said:
203
[2007] SCC 41; [2007] 3 S.C.R. 129.
204
See Chs. 19 and 7, below.
205
See para.6–41, below
206
Costello v CC Northumbria [1999] I.C.R. 752.
207
As is accepted in Hill at [1983] A.C. 59. Hence it is surprising that Hill is relied on in New
South Wales v Klein [2006] NSWCA 95, where the issue was whether there was a duty of
care to relatives in respect of a shooting by the police. In Desmond v CC Nottinghamshire
[2009] EWHC 2362 (QB) it was held arguable that there was a duty of care in relation to
processing an application for an enhanced criminal record certificate.
208
See para.5–31, below.
209
One is tempted to say ‘‘proximity’’ but now that the word has been elevated to the status
of a legal ‘‘code word’’ it is best avoided.
Duty of Care: General 187
216
[1943] A.C. 92 at 102. For the problem of nervous shock, see para.5–61, below. The
claimant heard the accident but did not see it and was in no physical danger from it. A
solicitor may be liable to disappointed beneficiaries for mismanaging the making of a will
(para.5–37, below) but if a motorist knocked down the testator while the latter was on the
way to make the will, he would owe a duty to the testator but not to the beneficiaries since
the loss to them would be unforeseeable, quite apart from the absence of any relationship
between the motorist and the beneficiaries which would be likely to attract a duty of care
in respect of such financial loss.
If A damages property in B’s custody he is in breach of a duty of care to any persons
unknown who have sufficient interest in the goods to bring a claim (see Ch.17) even if B
has represented that he is the only such person: Awad v Pillai [1982] R.T.R. 266. However,
cf. The Pioneer Container [1994] 2 A.C. 324.
217
He may join the class after the negligent act but before the damage is suffered: Aiken v
Stewart Wrightson Members Agency Ltd [1995] 1 W.L.R. 1281.
218
[1965] A.C. 778.
219
Burton v Islington HA [1993] Q.B. 204; X & Y v Pal (1991) 23 N.S.W.L.R. 26 at 30.
220
Burton v Islington HA above, fn.219. Post-1976 births are governed by legislation:
para.24–13, below.
Duty of Care: General 189
‘‘[I]t is, on final analysis, the need for care lest someone be
injured that both creates the duty and determines what amounts to
a breach of it.’’223
226
‘‘It does not . . . matter whether one speaks of a duty to take care, the existence of which
depends upon physical injury being foreseeable to the particular claimant, or of a general
duty to take care not to cause physical injury to anyone which is only broken in relation
to the claimant if some kind of physical injury to him or her was foreseeable’’: Maguire
v Harland & Wolff Plc [2005] EWCA Civ 1; [2005] P.I.Q.R. P21 at [62] per Mance L.J.
(a dissenting judgment, but on the facts rather than the law).
227
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] A.C. 191 at 211 per
Lord Hoffmann; and see Lord Bridge in Caparo v Dickman [1990] 2 A.C. 605 at 627: ‘‘It
is never sufficient to ask simply whether A owes B a duty of care. It is always necessary
to determine the scope of the duty by reference to the kind of damage from which A must
take care to save B harmless.’’ See para.6–27, below.
228
[2002] NSWCA 354, [2002] Aust Torts Reports 81–678. Tomlinson v Congleton BC
[2003] UKHL 47; [2004] 1 A.C. 46, para.9–17, below, has similar elements. The case
mainly concerned the Occupiers’ Liability Act 1984 s.1(3) of which well illustrates the
running together of the duty and breach issues.
Duty of Care: General 191
J. Other Jurisdictions
The search for ‘‘ultimate principle’’ has not been confined to 5–24
England and there are now some disparities in the various
229
In Sydney Water Corp v Turano [2009] HCA 42 the defendants were not liable for a road
accident caused by the collapse of a tree in 2001 which had been brought about by non-
obvious effect of their installation of a water main in 1981. Perhaps it is more intuitive to
say that they did not owe a duty to road users at that location 20 years later than that they
had not broken a duty. Again it makes no practical difference.
192 Negligence: Duty and Breach
230
Childs v Desormeaux [2006] SCC 18; [2006] 1 S.C.R. 643 at [12]. The Singapore CA
considered it was stating an approach substantially similar in Spandeck Engineering Pte
Ltd v Defence Science and Technology Agency [2007] SGCA 37; [2007] 4 S.L.R. 100.
231
[2003] SCC 69; [2003] 3 S.C.R. 263.
232
[2008] NZCA 446; [2009] 1 N.Z.L.R. 460 at [33]. See also Rolls-Royce New Zealand Ltd
v Carter Holt Harvey Ltd [2005] 1 NZLR 324.
233
[1992] 2 N.Z.L.R. 282.
Duty of Care: General 193
It has been observed in the Supreme Court there that the changes
of emphasis since Anns have produced no substantial difference in
result.234
The formal position in Australia is rather different. The High
Court in Sullivan v Moody235 rejected the Caparo approach on the
ground that neither proximity nor fairness had the necessary preci-
sion to serve as practical tests and that the latter was capable of
being misunderstood as an invitation to formulate policy rather than
to search for principle. The current Australian approach is sum-
marised in Caltex Refineries (Queensland) Pty Limited v Stavar236
as involving a:
A. Failure to Act
5–26 The basic rule has always been—and seems still to be—that one
must take care not to cause injury to others, but there is no general
duty to act for the benefit of others. The rule is that I must not harm
my neighbour (misfeasance) not that I am required to save him
(nonfeasance).
241
See, e.g. Linden, ‘‘Rescuers and Good Samaritans’’ (1971) 34 M.L.R. 241; Weinrib, ‘‘The
Case for a Duty to Rescue’’ (1981) 90 Yale L.J. 247; Markesinis, ‘‘Negligence, Nuisance
and Affirmative Duties of Action’’ (1989) 105 L.Q.R. 104 cf. Honoré ‘‘Are Omissions
Less Culpable?’’ in Cane and Stapleton (eds.) Essays for Atiyah. For European systems see
van Gerven, Lever and Larouche, Tort Law (Common Law of Europe Casebooks) (2000),
Ch.3.1.
242
Lord Goff in Smith v Littlewoods Organisation Ltd [1987] A.C. 241 at 271.
243
[1996] A.C. 923 at 943.
196 Negligence: Duty and Breach
5–27 i. Cases where there is not a true omission. The first point is
that an apparent omission may be treated as simply an item in a
chain of active negligent conduct. A driver must take active steps to
meet emergencies which arise and no one would seriously contend
that his failure to brake at a junction was an omission in the sense
here discussed245 and maintaining one’s speed in a deliberate
attempt to balk an overtaking driver who had ‘‘run out of road’’
would be actionable negligence.246 So also, a doctor’s prescription
of a drug without warning the patient that it was dangerous if taken
with alcohol would be as much negligence as giving him the wrong
information on dosage. Nonetheless, in some cases it is impossible
to regard the omission as part of a course of conduct in this way.
Thus in England the common understanding is (though there
appears to be no case precisely in point) that refusal by a doctor in
244
Glaister v Appleby in Westmorland Town Council [2009] EWCA Civ 1325; [2010] P.I.Q.R.
P6 at [46].
245
Rigby L.J. in Kelly v Metropolitan Ry Co [1895] 1 Q.B. 944 at 947 said of a driver’s failure
to shut off steam so that his train ran into the dead end, ‘‘the proper description of what
was done was that it was a negligent act in so managing the train as to allow it to come
into contact with the dead-end’’.
246
This seems to be accepted in Smith v Cribbens [1994] P.I.Q.R. P 218, where, however,
maintaining speed was a sensible thing to do in the circumstances.
Duty of Care: Specific Problems 197
247
In Capital & Counties Plc v Hampshire CC [1997] Q.B. 1004 at 1060, a case about a fire
brigade, Stuart-Smith L.J., giving the judgment of the court, said that, ‘‘a doctor who
happened to witness a road accident . . . is not under any legal obligation to [assist], save
in certain limited circumstances which are not here relevant, and the relationship of doctor
and patient does not arise.’’ What the ‘‘limited circumstances’’ are is not specified.
However, a majority of the NSWCA has held that a doctor may be under a duty to respond
to a call for help for a non-patient: Woods v Lowns (1996) Aust. Torts Rep. 81–376, though
local legislation on professional conduct had some influence on the decision.
248
In Capital & Counties, above, fn.247, at 1035 Stuart-Smith L.J. thought that if the doctor
volunteers his assistance his only duty was not to make the patient worse, but presumably
that may include making him worse by dissuading others from seeking other assistance. At
any rate it is plainly the law that a hospital which admits a patient must treat him, not
ignore him: R. (Burke) v GMC [2005] EWCA Civ 1003; [2006] Q.B. 273 at [32]. Where
a patient of sound mind refuses treatment it is unlawful to administer it but where he
consents to it, the source of the duty to administer it is not his wishes but the duty to care
for him which the hospital has undertaken.
249
See Lord Hoffmann [1996] A.C. at 945.
250
[1941] A.C. 74.
251
[1941] A.C. 74 at 104.
198 Negligence: Duty and Breach
some positive harm upon the claimant he may be liable for that252
for he has then left the claimant worse off than he was before.253
‘‘You made me worse’’ sounds properly in tort; ‘‘you failed to save
me’’ sounds, if at all, in contract.254 The fire brigade are not liable
to a property owner for being tardy in responding to a call, but if,
once they get there, they negligently turn off the sprinkler system
which would have saved the property or reduced the damage, they
are.255
252
A rare example is Davis v Stena Line Ltd [2005] EWHC 420 (QB); [2005] 2 Lloyd’s Rep.
13 (where, however, there was clearly a duty to attempt rescue). ‘‘Both priest and levite
ensured performance of any common law duty of care to the stricken traveller when, by
crossing to the other side of the road they avoided any risk of throwing up dust in his
wounds’’: Deane J. in Jaensch v Coffey (1984) 54 A.L.R. 417 at 440. Thus the result in
Stovin v Wise might have been different if, as a result of ‘‘improving’’ the junction the
authority had made it more dangerous but in a true rescue situation allowance will have to
be made for the exigency of the emergency. O.L.L. Ltd v Secretary of State for Transport
[1997] 3 All E.R. 897 is a difficult case. The issue was whether the coastguard could be
liable, not for tardy response to an emergency, but for misdirecting (as was alleged) a
lifeboat and helicopter attending an emergency at sea. While accepting that a defendant
might be liable for a positive act at the scene which caused direct physical injury, May J.
struck out the claim on the basis that since the coastguard would plainly, in accordance
with the Capital & Counties case (below), not be liable if it misdirected its own boat or
helicopter, nor should it be if it misdirected someone else. Nonetheless the defendant has
deprived the claimant of the assistance of others: see Lord Bingham in Smith v CC Sussex
[2008] UKHL 50; [2009] 1 A.C. 225 at [57]. Suppose a passing motorist said that he
would take an unconscious casualty to hospital and other people at the scene forbore to call
an ambulance. Would he not be liable if he stopped for refreshments, whereby the patient
died? Why should it matter that he intervenes ‘‘at the scene’’? Note, however (1) in the
OLL case proving cause and effect might have been very difficult, though this could not
have been dealt with on the striking out application (2) the claim was not a very attractive
one since it was a claim for contribution by defendants one of whose officers was
convicted of manslaughter in respect of the event.
253
Stovin v Wise [1996] A.C. at 949.
254
Thus if in the East Suffolk case there had been a contract no doubt the defendants would
have been in breach of an implied term to do the work with reasonable efficiency, but see
below as to ‘‘assumption of responsibility’’.
255
Capital & Counties Plc v Hampshire CC [1997] Q.B. 1004; cf in Scots law Burnett v
Grampian Fire and Rescue Service [2007] CSOH 3; 2007 S.L.T. 61. See also Alexandrou
v Oxford [1993] 4 All E.R. 328 (police and 999 call).
256
Mitchell v Glasgow CC [2009] UKHL 11; [2009] 1 A.C. 874 at [40] per Lord Scott. For
the crime of gross negligence manslaughter see R. v Evans [2009] EWCA Crim 650;
[2009] 1 W.L.R. 1999.
Duty of Care: Specific Problems 199
ii. Relationships. Even where there is a ‘‘true’’ omission the law 5–28
may impose a duty to act; and it not infrequently does so. It is
impossible to catalogue the situations but a number of factors which
seem typically to point towards a duty of affirmative action are
considered below. The situation where liability is imposed because
the defendant has ‘‘assumed responsibility’’ for a task is considered
in the following section but there is a good deal of overlap between
the two categories and in most cases where a duty is imposed
because there is a ‘‘special relationship’’ between the parties it might
be said that in entering that relationship the defendant had assumed
responsibility for the claimant’s safety or well-being but some such
assumption or relationship distinguishes the defendant from a mere
stranger.
5–30 (b) Other relationships with the victim. The previous cases may
be said to involve relationships of dependence but duties of affirma-
tive action are imposed across a much wider range of relationships,
in at least some of them probably because the defendant gains some
benefit from his relationship with the claimant. Thus an employer
must not only take proper steps to secure safety in the workplace265
but must look after a worker who is injured or falls ill at work even
if the employer is not responsible for the emergency266; and the
same is true of a carrier with regard to his passenger.267 Indeed, the
Supreme Court of Canada has extended this so as to hold that a
private boat owner was obliged to take steps to rescue a guest who
fell overboard.268 An occupier is under a duty to take reasonable
care to ensure that his premises are reasonably safe for the purposes
for which his visitor enters and owes a duty (although a rather more
263
Surtees v Kingston on Thames BC [1992] P.I.Q.R. P101 (foster parent) but the duty is not
a high one and the case emphasises that it must take account of the distractions of everyday
life. See also Saville L.J. in Marc Rich & Co A.G. v Bishop Rock Marine [1994] 1 W.L.R.
1071 at 1077 (no duty in stranger to save blind man from road accident, but duty in parent
to prevent child running into the road). The criminal offence of allowing the death of a
child or vulnerable adult under s.5 of the Domestic Violence, Crime and Victims Act 2004
may extend beyond persons who have ‘‘assumed responsibility’’ at common law, though
the primary purpose of the provision seems to have been to sidestep the common tactic of
‘‘cross incrimination’’ where one of two persons could have been responsible.
264
Hence the caution of the High Court of Australia about imposing liability in Hahn v
Conley (1971) 126 C.L.R. 378 unless the parent has embarked on some activity. See
further para.6–51, below.
265
See Ch.8. This does not extend to a duty to arrange accident insurance for workers abroad
in a country with no developed system of motor insurance: Reid v Rush and Tompkins
Group Plc [1989] 3 All E.R. 228. Cf. Van Oppen v Bedford School, above, fn.260.
266
Kasapis v Laimos [1959] 2 Lloyd’s Rep. 378. He is under no duty to safeguard the
employee’s property against theft: Deyong v Shenburn [1946] 1 K.B. 236.
267
A duty to try to rescue a man overboard was conceded in Davis v Stena Line Ltd [2005]
EWHC 420 (QB); [2005] 2 Lloyd’s Rep. 13. A duty to take action was imposed in Silva
Fishing Corp (Pty) Ltd v Maweza [1957 (2)] SA 256 where the defendants hired a vessel
to the claimants on a profit sharing basis.
268
Horsley v Maclaren, The Ogopogo [1971] 2 Lloyd’s Rep. 410. It would be impracticable
to impose a duty of care on a taxi driver to assess the sobriety of his passenger and to set
him down only where a drunken person would be safe: Griffiths v Brown, The Times,
October 23, 1998.
Duty of Care: Specific Problems 201
280
In some cases of course the relationship (generally only that of employer and employee)
between D and the wrongdoer may make D vicariously liable for the wrongdoer’s act: see
Ch.20, below. Here it is assumed that there is no vicarious liability, hence there must be
a duty in D and breach of it by him: Smith v Leurs (1945) 70 C.L.R. 256.
281
Carmarthenshire CC v Lewis [1955] A.C. 549. As to the duty to the child, see above.
282
[1970] A.C. 1004. Cf. Fleming v Securities Commission [1995] 2 N.Z.L.R. 514, where it
was held that a newspaper carrying advertisements contravening securities legislation
owed no duty of care to the public.
283
Ellis v Home Office [1953] 2 Q.B. 135.
284
[2008] NZSC 45, [2008] 3 N.Z.L.R. 725. Since there is no general liability for negligence
for personal injuries in NZ the claim was one for exemplary damages which are available
there (but not here) for that tort in certain circumstances. Cf. X v South Australia [2007]
SASC 125.
285
Cf. the ‘‘proximity’’ reason in Hill v CC W Yorks.
286
Barrett v MoD, para.5–30, above.
204 Negligence: Duty and Breach
287
However, the Supreme Court of Canada has rejected any general duty on a private host to
monitor guests’ drinking at a party: Childs v Desormeaux [2006] SCC 18; [2006] 1 S.C.R.
643.
288
Stewart v Pettie (1994) 121 D.L.R. (4th) 222 at 231. The claimant was a passenger in the
car who had visited the establishment with the driver but the reasoning plainly applies to
any road user. The duty was found not to have been broken.
289
Lord Goff in Paterson Zochonis & Co Ltd v Merfarken Packaging Ltd [1986] 3 All E.R.
522 at 540.
290
CAL No 14 Pty Ltd v Scott [2009] HCA 47 at [57].
291
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48.
Duty of Care: Specific Problems 205
iii. Property owners. An occupier is under a duty not only to his 5–32
visitors but to take steps to remove a hazard on his land which
threatens neighbouring property even though it has arisen from the
act of nature or of a third party—property is a source of obligation
as well as of rights.293 In principle this can extend to taking steps to
prevent a third party gaining access to the property and using it to
inflict damage on the claimant but wilful human conduct is not
normally sufficiently likely to require the defendant to contemplate
it as a reasonable probability rather than a remote possibility. So in
Smith v Littlewoods Organisation Ltd294 the defendants were not
liable when vandals entered an empty cinema scheduled for redevel-
opment and caused a fire which spread to property next door.295
292
Though at least in theory the MIB could require the claimant to sue the third party;
Uninsured Driver Agreement (1999) para.14.1. This could not of course apply where the
inebriated person injures himself. In Cal No 14 Pty Ltd, above, fn.290, the Motor Insurance
Board was a co-claimant, seemingly on the basis of the limited ‘‘no fault’’ payments it
made to accident victims.
293
See para.14–21, below.
294
[1987] A.C. 241.
295
What if the claim arises from criminal injury inflicted on the premises by some third party?
Such a case probably does not fall within the Occupiers’ Liability Act 1957 (Ch.12). It
may be going too far to say that an occupier can never be under a duty to protect visitors
against attack (consider, for example a hotel or nursery without any security). But it is
quite unrealistic to expect the occupier to do much in relation to, say, a car park. See
Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; 175 A.L.R. 164 and Proprie-
tors of Strata Plan 17226 v Drakulic [2002] NSWCA 381; 55 N.S.W.L.R. 659.
296
The old film stock on the property did not present any special fire hazard.
297
[1987] A.C. 241 at 251 per Lord Griffiths. ‘‘Unless the needle that measures the probability
of a particular result flowing from the conduct of a human agent is near the top of the scale
it may be hard to conclude that it has risen sufficiently from the bottom to create the duty
reasonably to foresee it’’: at 261 per Lord Mackay.
206 Negligence: Duty and Breach
5–33 iv. Safety services. The traditional approach has been that a
public body or service is in the same position with regard to
omissions as a private person. The successful defendants in some of
the leading cases were, after all, public authorities.302 If a public
authority gave an undertaking to assist and the claimant relied on
that so as to change his position there might be liability, but that
argument would frequently not be open because no alternative steps
were available: a person whose house is on fire is not likely to be
able to assert that when the fire service said it was on its way he
desisted from organising a chain of neighbours with buckets. How-
ever, the political, moral and economic arguments which are said to
underpin the general rule of non-liability303 hardly apply to a service
the function of which is to guard the public against danger and that
service will also be under some form of pre-existing public law duty
(albeit not enforceable by a private law claim for damages) in
respect of the performance of its functions. It may be significant that
when, in Hill v CC West Yorkshire304 the House of Lords rejected a
duty of care on the police in respect of the investigation of crime, the
reasoning was based on lack of proximity between the police and the
298
See Lord Goff’s example at 277 in the Littlewoods case of the family going on holiday
who forget to lock their door (P. Perl (Exporters) Ltd v Camden London Borough [1984]
Q.B. 342) whereby a burglar gains access to neighbouring premises.
299
In many cases the contest would effectively be between the defendant’s liability insurer
and the neighbour’s subrogated loss insurer.
300
Lord Keith in Littlewoods felt able to agree with both Lord Goff and Lord Mackay. Lords
Brandon and Griffiths agreed with Lord Mackay.
301
Mitchell v Glasgow CC [2009] UKHL 11; [2009] 1 A.C. 874 at [20], [56]. In Topp v
London Country Bus [1993] 1 W.L.R. 976 the Court of Appeal held that the defendants
were not liable for a hit and run death caused by persons who took their unsecured
minibus. See also Bohdal v Streets [1984] Tas. R. 83 (private car in drive). The oddity
about Topp’s case is that the court closely followed the view of Lord Goff in Littlewoods,
even though that is plainly not the majority view. See Howarth (1994) 14 L.S. 88. Victims
of untraced drivers may sue the MIB and it appears from the report of the case at first
instance that the MIB had required the proceedings to be brought against the bus company:
[1993] 3 All E.R. 448.
302
East Suffolk v Kent; Stovin v Wise; Capital & Counties v Hampshire CC; Mitchell v
Glasgow CC, above.
303
See para.5–26, above.
304
[1989] A.C. 53, para.5–11, above.
Duty of Care: Specific Problems 207
305
[2001] Q.B. 36.
306
The doctor’s evidence is mentioned in the statement of facts at [2001] Q.B. 42 and at the
end of the judgment (at 54) it is said that, ‘‘if wrong information had not been given about
the arrival of the ambulance, other means of transport could have been used.’’
307
On the non-liability of the fire service see para.5–27, above.
308
[2001] Q.B. at 52.
208 Negligence: Duty and Breach
cover the risk,309 though that would hardly justify a different result
where life was at risk from the fire.310
While such cases may not be easy to reconcile it does now seem
to be the case that a public service may incur liability for failing to
save an identifiable person whose protection from personal injury it
can be said to have assumed. Another straw in the wind is Reeves v
Metropolitan Police Commissioner311 where the police were held
liable for negligence in failing to prevent the suicide of a sane312
person in custody in their cells. In fact the existence of a duty of care
was never challenged in either appeal and the matter was fought in
the House of Lords on the issue of whether the deliberate act of the
deceased broke the chain of causation313 but the clear implication is
that the defendants’ concession on the issue of duty in the appeals
was rightly made.314 However, a duty to prevent others of full age
and capacity harming themselves will be rare, for, ‘‘on the whole
people are entitled to act as they please, even if this will inevitably
lead to their own death or injury.’’315 So the existence of the duty
turned on the fact that the deceased was in the police cells and the
police had reason to know that he was a suicide risk316: the police
are not required to take special precautions for every person in
custody.317 Nor will they owe a duty of care to prevent a person who
has just been arrested escaping and injuring himself in the pro-
cess.318 In Australia it was held that there was no duty to intervene
when police officers came upon a man who appeared to be preparing
309
See Lord Hoffmann in Stovin v Wise [1996] A.C. at 955. So also, in relation to the facts
of that case, drivers can generally take care against obvious road hazards. It should be
noted that respect for the home and the peaceful enjoyment of possessions are guaranteed
by, respectively, art.8 and art.1 of the First Protocol to the Convention and the European
Court of Human Rights has said that, ‘‘although the object of Article 8 is essentially that
of protecting the individual against arbitrary interference by the public authorities, it does
not merely compel the State to abstain from such interference: in addition to this primarily
negative undertaking, there may be positive obligations inherent in effective respect for
[the guaranteed right]’’: Guerra v Italy (1998) 26 E.H.R.R. 357 at 383. But while the state
must clearly establish a fire service, it would be surprising if a Convention claim could
extend to acts of operational negligence.
310
And is not the coastguard service nowadays rather like the ambulance despatch service,
despite O.L.L. Ltd v Secretary of State for Transport, para.5–27, above?
311
[2000] 1 A.C. 360.
312
The evidence as to his mental condition was not very satisfactory, but this is the basis on
which the case was fought.
313
See para.6–41, below.
314
See particularly Lord Hope at [2000] 1 A.C. 379. On this case and the principle of
autonomy see para.4–8, above.
315
Lord Hope at [2000] 1 A.C. 379. ‘‘Under the domestic law of the United Kingdom there
is no general legal duty on the state to prevent everyone within its jurisdiction from
committing suicide’’: Savage v S. Essex Partnership NHS Foundation Trust [2008] UKHL
74; [2009] 1 A.C. 681 at [25]. See also para.9–17, below.
316
Such a person is in that category of vulnerable groups, which also includes mental patients
and conscripts, which attracts a duty of protection under art.2 of the European Convention
on Human Rights: Savage, above, fn.315.
317
Orange v CC W. Yorkshire [2001] EWCA Civ 611; [2002] Q.B. 347.
318
Vellino v CC Greater Manchester [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218.
Duty of Care: Specific Problems 209
to commit suicide by gassing himself in his car but who, upon being
questioned, appeared rational and said that he had changed his mind.
Later that day he did commit suicide by that method. The officers
had statutory power to detain a person who appeared to be mentally
ill and about to commit suicide but their testimony that they
believed neither condition to be satisfied was not challenged and the
statutory power was not therefore triggered. Whatever might have
been the position had this not been so (and Australian law may be
rather more generous than English law in finding a common law
duty of care in the context of a statutory power319) the result was that
the police officers no more owed a duty of care than would any other
visitor to the car park.320 The result would surely be the same at
common law in England321 and, even assuming that art.2 of the
Convention could be extended to a case where there was no element
of control it might be difficult to establish the requisite ‘‘real and
immediate risk’’ to life.
B. Assumption of Responsibility
In Hedley, Byrne & Co Ltd v Heller & Partners Ltd322 the House 5–34
of Lords held that in English law there might be liability in tort for
merely financial loss323 caused by negligent misstatement and the
court spoke in terms of the maker of the statement having assumed
or undertaken a responsibility towards the other and that other
having relied upon it. This is considered at a later point in the
particular context of statements.324 However, while it cannot serve
as a general ‘‘test’’ for all duty of care questions, it is now clear that
the broad principle of the case goes beyond liability for statements
and extends to the situation where the defendant undertakes to
perform a task or service for the claimant. That, it will immediately
be observed, brings us very close to the realm of contract and that
was essentially the point of Henderson v Merrett Syndicates Ltd.325
The claims were brought by ‘‘Names’’ at Lloyd’s who had incurred
319
See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 C.L.R. 540. For English
law see para.5–46, below. In any event the position of public bodies exercising statutory
powers in Australia must now be considered in the light of uniform legislation illustrated
by ss.42–46 Civil Liability Act 2002 (NSW).
320
Stuart v Kirkland-Veenstra [2009] HCA 15.
321
In Australia at one time an attempt was made to explain the position of safety regulators
in terms of ‘‘general reliance’’. However, while the concept was referred to by Lord
Hoffmann in Stovin v Wise [1996] A.C. at 954 it has also been said that there is ‘‘little if
any support for it in English law’’ (Capital & Counties Plc v Hampshire CC [1997] Q.B.
at 1027). Indeed, it was never very clear exactly what it was and it seems to have
disappeared in the land of its birth: Vairy v Wyong SC [2005] HCA 62; 223 C.L.R. 422.
322
[1964] A.C. 465.
323
There was probably liability before this at least in certain cases of physical damage, e.g.
misleading instructions accompanying a medicine.
324
See Ch.11.
325
[1995] 2 A.C. 145. For the concurrence of contract and tort, see para.1–8, above.
210 Negligence: Duty and Breach
326
In fact it was held that the terms of the members’ agents’ contracts made them responsible
to the Names for the default of underwriting agents.
327
See para.26–9, below.
328
The phrase had been criticised by Lord Griffiths in Smith v Eric S. Bush [1990] 1 A.C. 831
at 862 (para.11–26, below) but the point he had been concerned to make was that the
assumption of responsibility was more often deemed from the circumstances than
expressly undertaken.
329
[1995] 2 A.C. 145 at 182.
Duty of Care: Specific Problems 211
much a loss actionable in tort as loss of the money itself.330 The loss
is, of course, purely economic and in certain cases that is a bar to
recovery,331 but that is clearly not so under Hedley Byrne. State-
ments rarely give rise to any type of loss other than economic loss
and if, in Hedley Byrne, the House of Lords had held that there was
a duty of care in respect of statements, but that it did not extend to
economic loss, that would have strangled the new duty at birth. So
the economic loss argument is no more valid in an ‘‘undertaking’’
case than in a ‘‘statement’’ case.
This approach does not go so far as to impose a liability exactly 5–35
equivalent to that in contract because of the requirement of reli-
ance332 (unnecessary where there is a contract supported by con-
sideration) but nevertheless it goes a very long way down the road
of creating a parallel liability in respect of services and one which is
more than merely academic because it may lead to different results.
For example, one of the underlying problems of Henderson was the
fact that the claims of some claimants had become statute-barred
before they knew about them and the imposition of a duty in tort
enabled them to outflank the problem via the Latent Damage Act.
Now it may well be the case that the non-applicability of the Act to
contractual negligence is not a very sensible rule anyway, but it
might be argued that in the case of recent legislation the correct
approach is direct amendment of the legislation rather than unset-
tling the boundary between contract and tort claims.333 On the other
hand, some would take the view that in this type of case we have
really moved into a different sort of obligation altogether, neither
contract nor tort.334
Since Henderson, assumption of responsibility has been the basis 5–36
of recovery in a very wide range of situations and as we have seen
it is to some extent a rival to the Caparo test as the general approach
to the duty of care question. It has been used to justify (in some
cases in tandem with the Caparo approach) the imposition of a duty
of care on an educational psychologist called in by a local authority
to advise on a child,335 on the British Boxing Board of Control in
respect of the adequacy of medical arrangements at fights taking
330
See East v Maurer [1991] 1 W.L.R. 461. See the nature of the loss in White v Jones,
para.5–37, below.
331
See the next section.
332
It is also the case that there must be negligence—but that is anyway generally a require-
ment of contracts to provide services.
333
See more generally Whittaker, ‘‘The Application of the ‘Broad Principle of Hedley Byrne’
Between Parties to a Contract’’ (1997) 17 L.S. 169.
334
See McBride and Hughes, ‘‘Hedley Byrne in the House of Lords: an Interpretation’’ (1995)
15 L.S. 376. See also McBride, ‘‘A Fifth Common Law Obligation’’ (1994) 14 L.S. 35.
McBride and Hughes argue that the liability equates most closely to a fiduciary one
(‘‘letting others down’’): see Lord Browne-Wilkinsons’s view in White v Jones, para.5–37,
below.
335
Phelps v Hillingdon LBC [2001] 2 A.C. 619.
212 Negligence: Duty and Breach
336
Watson v British Boxing Board of Control Ltd [2001] Q.B. 1134. See also Wattleworth v
Goodwood Racing Co Ltd [2004] EWHC 140; [2004] P.I.Q.R. P25 (motor sport associa-
tion advising on safety at tracks).
337
Vowles v Evans [2003] EWCA Civ 318; [2003] 1 W.L.R. 1607. ‘‘Rarely if ever does the
law absolve from any obligation of care a person whose acts or omissions are manifestly
capable of causing physical harm to others in a structured relationship into which they
have entered’’: at [25].
338
Dean v Allin & Watts [2001] EWCA Civ 758; [2001] 2 Lloyd’s Rep. 249. See also Killick
v Pricewaterhouse Coopers [2001] Lloyd’s Rep. P.N.18 (valuation of shares).
339
Parkinson v St. James etc. NHS Trust [2001] EWCA Civ 530; [2002] Q.B. 266.
340
Smith v Eric S. Bush [1990] 1 A.C. 831 at 862; Henderson v Merrett Syndicates Ltd [1995]
2 A.C. 145 at 181; Phelps v Hillingdon LBC [2001] 2 A.C. 619 at 654.
341
[2006] UKHL 28; [2007] 1 A.C. 181, para.5–8, above.
342
[2007] EWCA Civ 1041; [2007] S.T.C. 1802.
Duty of Care: Specific Problems 213
‘‘[T]he only persons who might have a valid claim (the testator
and his estate) have suffered no loss, and the only person who has
suffered a loss (the disappointed beneficiary) has no claim.’’349
343
Though despite Costello v CC Northumbria [1999] I.C.R. 752 and Mullaney v CC W.
Midlands [2001] EWCA Civ 700 it hardly seems necessary to rely on that concept in such
a case.
344
Outram v Academy Plastics [2000] I.R.L.R. 499. Cf. Lennon v MPC [2004] EWCA Civ
130; [2004] 1 W.L.R. 2694, where there was an assumption of responsibility in response
to an inquiry.
345
Briscoe v Lubrizol [2000] I.C.R. 694. The contract between the employer and the insurer
would probably have barred a claim by the worker under the Contracts (Rights of Third
Parties) Act 1999 had it been in force. In such a case the insurer is concerned to avoid
litigation by individuals who may be impecunious.
346
Capital & Counties Plc v Hampshire CC [1997] Q.B. 1004 at 1036. However, perhaps the
ambulance service does when it books an emergency call: para.5–33, above.
347
Hedley Byrne was also the basis of Lord Goff’s reasoning in Spring v Guardian Assurance
Plc [1995] 2 A.C. 256 (para.11–33, below) where the House of Lords held that the
provider of a reference might owe a duty of care to the subject of the reference but the
other judges spoke in more general negligence terms. The case is more like Hedley Byrne
in that it concerned a statement but the statement was made not to the claimant but to a
third party and in such a case undertaking to and reliance by the subject may be
tenuous.
348
[1995] 2 AC. 207.
349
[1995] 2 A.C. 207 at 259 per Lord Goff; Ross v Caunters [1980] Ch. 297 at 303 per
Megarry V.C. The result of the rather similar case of Ross v Caunters is approved, but not
its reasoning, for its reliance on the broad Donoghue v Stevenson principle failed to meet
the conceptual problems of the situation: [1995] 2 A.C. at 267.
214 Negligence: Duty and Breach
350
In Hill v Van Erp (1997) 188 C.L.R. 159 the majority of the High Court of Australia also
came to the conclusion that a solicitor owed a duty to a disappointed beneficiary.
351
At least in Ross v Caunters, above, fn.349, it was a case of ‘‘active’’ negligence in that the
will had been improperly executed.
352
The case was not one which would have attracted the Inheritance (Provision for Family
and Dependants) Act 1975.
353
‘‘What is plain is that the family as a whole are better off because of the appellants’
negligence’’: Lord Nolan [1995] 2 A.C. at 293. Hence the view of some that the answer
lies in a modification of the law of succession: see (1995) 111 L.Q.R. 357. Cf. (1996) 112
L.Q.R. 54.
354
See para.5–11, above.
355
[1995] 2 A.C. at 259.
356
There is a good deal of emphasis in the majority judgments on the role of the ‘‘family
solicitor’’ and references to ‘‘individual citizens’’ and ‘‘persons of modest means’’ but it
seems impossible to contend that the decision is inapplicable to, e.g. a beneficiary which
is a major charity.
Duty of Care: Specific Problems 215
neither the testator nor his estate will have a remedy against the
solicitor.’’357
It must also be pointed out that such a situation does not normally
involve any possibility of wide-ranging or indeterminate liability. In
such a case the defendant’s contemplation of the claimant is:
‘‘actual, nominate and direct. It is contemplation by contract, though
of course the contract is with the testator.’’358
The reasoning of Lord Browne-Wilkinson, who delivered the
other main majority judgment, is rather different.359 ‘‘Assumption of
responsibility’’, far from being invented in Hedley Byrne, was trace-
able to the decision in Nocton v Lord Ashburton360 where, despite
the general rule then prevailing that there was no duty of care in
respect of information or advice, the House of Lords had accepted
liability arising out of a fiduciary relationship. Hedley Byrne was
simply the recognition of another category of special relationship
which would give rise to a duty of care on the basis of assumption
of responsibility. It was true that a necessary element in the liability
arising from statements to the claimant was reliance by the claim-
ant361 for that was the only way in which the claimant could show
damage, but reliance was not necessary in the case of a special
relationship of the fiduciary variety: in the paradigm fiduciary rela-
tionship, that of trustee and beneficiary, a:
357
[1995] 2 A.C. at 268. Whether ‘‘all the conceptual problems . . . can be seen to fade
innocuously away’’ (at 269) must, however, be debatable.
358
Ross v Caunters [1980] Ch. 297 at 308. However, it is not wholly true to say that the
quantum of the liability is certain. Suppose A intends to make a will leaving all his estate
to B and A wins the National Lottery or discovers a Rembrandt in the attic. It is also
possible in theory that there could be claims by persons who were unidentifiable at the time
of the transaction (e.g. unborn members of a class). Lord Goff in White v Jones was
content to leave such cases to be decided when they arose: [1995] 2 A.C. at 269.
359
However, like Lord Goff his Lordship emphasises public reliance and dependence on
solicitors in relation to wills.
360
[1914] A.C. 932.
361
Cf. statements by the defendant about the claimant to other persons who act on them to the
claimant’s detriment: Spring v Guardian Assurance [1995] 2 A.C. 256, para.11–33,
below.
362
[1995] 2 A.C. at 271. Whether the analogy is a good one is debatable: the trustee is dealing
with the beneficiary’s property.
216 Negligence: Duty and Breach
369
Lord Nolan in a comparatively short speech agreed with both Lord Goff and Lord Browne-
Wilkinson. He thought that the case fell within the general Caparo principles and, like the
CA, was impressed by the fact that Ross v Caunters had stood for 15 years with no
apparent ill-effects. It could be said ([1995] 2 A.C. at 293) that if, ‘‘the defendant drives
his car on the highway, he implicitly assumes a responsibility towards other road users, and
they in turn implicitly rely on him to discharge that responsibility. By taking his car on to
the road, he holds himself out as a reasonably careful driver. In the same way . . . a
professional man or an artisan who undertakes to exercise his skill in a manner which, to
his knowledge, may cause loss to others if carelessly performed, may thereby implicitly
assume a legal responsibility towards them.’’ It may be argued that there are very
substantial differences between the cases: (1) while the driver no doubt chooses to go on
the road, if we are to say that the liability depends on assumption of responsibility then
every negligence case does; (2) the driver does not undertake to do anything for anybody;
(3) the driver acts rather than fails to act; (4) the damage is physical.
370
[1995] 2 A.C. at 291.
371
Lord Mustill disagreed with those reasons.
372
McHugh J. dissenting in Hill v Van Erp (1997) 188 C.L.R. 159 asked whether an
accountant commissioned to assess a business which the client was considering buying as
a gift for a relative owed a duty to the relative or whether an insurance broker commis-
sioned to effect a life insurance policy owed a duty to persons who were beneficiaries of
the estate of the proposed insured. See Hughes v Richards [2004] EWCA Civ 266; [2004]
P.N.L.R. 35.
373
[2000] 1 W.L.R. 2129.
218 Negligence: Duty and Breach
had been negligent towards the deceased in failing to advise him that
the employer’s scheme was better.374 The Court of Appeal held that
the defendants owed a duty not only to the deceased (with whom
they had a contract) but, by analogy with White v Jones, also a duty
in tort to his dependants, who were therefore able to sue in their own
right for the loss of certain death in service benefits which would
have been available under the employer’s scheme.375 However, such
a situation is more complex than White v Jones in one respect, for
the wishes of the person taking out the pension plan might conflict
with the best interests of his family, for example, he might wish to
enhance his pension during his own lifetime at the expense of his
widow after his death. The duty was not, therefore, one to see that
the dependants were ‘‘properly provided for’’ but one not to advise
so as to cause unnecessary loss to the dependants within the scope
of the provision the pension taker wished to make.376
C. Economic Loss377
5–39 As we have seen, much of the controversy about the role of the
duty of care in negligence has arisen in cases which have involved
the problem of ‘‘economic loss’’ but so far we have not examined
that concept closely. The expression is liable to mislead: if a car is
destroyed, that is ‘‘economic’’ in the sense that the owner’s assets
are thereby diminished, but in legal terms it is classified as damage
to property and the owner is entitled to its value as damages. Even
if the loss is unquestionably only financial in nature, no difficulty is
felt about allowing its recovery if it is a consequence of physical
injury or damage to the claimant’s property: for example, the claim-
ant in Donoghue v Stevenson could have recovered lost earnings and
medical expenses and a company whose machinery was damaged by
negligence would recover lost profits while the machinery was out
374
A seller is not of course generally required to inform the buyer of the superiority of others’
products but the regulations governing the selling of pensions required the defendants to
give the claimant a degree of impartial advice.
375
Would the Contracts (Rights of Third Parties) Act 1999 affect this case? Even if one
regards the duty to the deceased as contractual, it seems difficult to say that that term
‘‘purports to confer a benefit upon’’ the dependants. It is the policy which does that.
376
The major difficulty in this case arose from the fact that the defendants had ‘‘come clean’’
at a stage where it would have been possible to remedy the matter in part, but the claimant
had managed to delude himself that he had somehow rejoined the employer’s scheme and
did nothing: para.6–51, below.
377
There is a huge amount of literature on this topic. See inter alia, Cane, Tort Law and
Economic Interests, 2nd edn; Feldthusen, Economic Negligence, 5th edn; Atiyah, ‘‘Negli-
gence and Economic Loss’’ (1967) 83 L.Q.R. 248; Dwyer, ‘‘Negligence and Economic
Loss’’ in Cane and Stapleton (eds) Essays for Atiyah; McGrath, ‘‘The Recovery of
Economic Loss in Negligence’’ (1985) 3 O.J.L.S. 350; Stapleton, ‘‘Duty of Care and
Economic Loss: A Wider Agenda’’ (1991) 107 L.Q.R. 249.
Duty of Care: Specific Problems 219
378
It is assumed in both cases that the loss is not too ‘‘remote’’ in the sense considered in the
next chapter and that the claimant has acted reasonably to mitigate his loss—e.g. in the
second example by hiring a replacement machine if one is available. Where A damaged
B’s ship and this led to oil spillage which damaged C, a voluntary payment by B to C was
not recoverable by B in his action against A in the absence of an assignment of C’s claim
against A: Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] A.C. 643.
379
Murphy v Brentwood DC [1991] 1 A.C. 398, para.9–33, below.
380
Anns v Merton London Borough [1978] A.C. 728.
381
See Stovin v Wise [1996] A.C. 923, para.5–26, above.
382
This is taken up in more detail in Chs 9 and 10, below.
220 Negligence: Duty and Breach
383
See para.5–34, above.
384
Thus the paradigm case of breach of contract is where S contracts to deliver goods by a
certain day and fails to do so and B claims as damages the difference between the contract
price and the higher market price on the delivery date, i.e. the extra cost of obtaining a
substitute.
385
Hunter v Canary Wharf Ltd [1996] 2 W.L.R. 348 (reversed, but not on this point, [1997]
A.C. 655).
386
Anglian Water Services Ltd v Crawshaw Robbins Ltd [2001] B.L.R. 173.
387
The Orjula [1995] 2 Lloyd’s Rep. 395. See also Att Gen for Ontario v Fatehi (1984) 15
D.L.R. (4th) 1323 (spilling petrol on highway requiring it to be cleaned).
388
Blue Circle Industries Plc v MoD [1999] Ch. 289. Cf. Merlin v B.N.F.L. [1990] 2 Q.B.
557.
389
D. Pride & Partners v Institute for Animal Health [2009] EWHC 685 (QB) (but the claim
was struck out because the movement order rather than the outbreak was the direct cause
of the loss).
Duty of Care: Specific Problems 221
390
Jan de Nul (UK) Ltd v Axa Royal Belge SA [2002] EWCA Civ 209; [2002] 1 Lloyd’s Rep.
583 at [92].
391
These cases are commonly labelled ‘‘relational economic loss’’.
392
D collides with C’s tram. All other tram traffic is delayed and C incurs financial penalties
under its franchise agreement. Is this economic loss consequential on damage to the tram?
See Metrolink Victoria Pty Ltd v Inglis [2009] VSCA 227 where, however, the case was
not argued this way.
393
If D negligently loses the property or allows it to be stolen then, too, an action lies in
tort—at least if D is a bailee—but where D allowed X’s aircraft (leased to D’s company)
to be seized by the authorities for non-payment of navigation charges, a Scots court
classified that as economic loss: Nordic Oil Services v Bearman 1993 S.L.T. 1164.
394
Islington LBC v University College London Hospital NHS Trust [2005] EWCA Civ 596;
[2006] P.I.Q.R. P3. See para.22–37, below.
395
Scots law is the same: Robertson v Turnbull 1982 S.C., HL 1.
396
The Fatal Accidents Act 1976, allowing the dependants of the deceased to sue the
tortfeasor who caused the death: see Ch.23, below. There was once a common law action
per quod in favour of a husband for injury to his wife and an employer for injury to his
servant but this has been abolished: para.18–2, below.
397
[1973] 2 Q.B. 27.
222 Negligence: Duty and Breach
398
Lord Denning M.R. hesitated about classifying such cases as belonging to duty or
remoteness but it is submitted that this doubt disappears when it is recognised that D may
owe C a duty with respect to loss ‘‘A’’ but not loss ‘‘B’’: Banque Bruxelles Lambert SA v
Eagle Star Insurance Co Ltd [1997] A.C. 191.
399
One might be inclined to dismiss this as relatively trivial but damage to utility cables is a
huge problem. In 1998/99 BT raised over 10,000 claims for telephone line damage
totalling more than £15 million: British Telecommunications Plc v Geraghty & Miller
International Inc, July 29, 2004, Leeds Mercantile Court. In Transco Plc v United Utilities
Water Plc [2005] EWHC 2784 (QB) a simple mistake in turning off a valve cost the gas
company £174,000 (the trespass claim looks stronger than the negligence one).
400
This is the reason why if an insurer insures A’s property and B negligently destroys it the
insurer cannot sue the wrongdoer in its own name, though it may be subrogated to A’s
rights: Simpson & Co v Thompson (1877) 3 App. Cas. 279 (where the right of subrogation
was no use since the owner of the damaged ship and the owner of the negligent ship were
the same person, who could not sue himself).
401
It is sufficient, even though an owner out of possession and with no immediate right to it
may not be able to sue for other wrongs such as trespass and conversion: East West Corp
v DKBS AF 1912 A/S [2003] EWCA Civ 83; [2003] Q.B. 1509.
402
Colour Quest Ltd v Total Downstream UK Plc [2009] EWHC 640 (Comm); [2009] 2
Lloyds Rep 1 and cases cited therein (upheld on this point, Shell UK Ltd v Total UK Ltd
[2010] EWCA Civ 180).
403
The common law always equated possession and ownership for this purpose: hence a
bailee could sue for the full value of the goods bailed to him (even though his interest was
limited) whether or not he would be responsible to the owner for the loss. The amount
which a bailee can recover may now be restricted by statute: para.17–19, below.
404
Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180.
405
Cattle v Stockton Waterworks (1875) L.R. 10 Q.B. 453. Thus it would seem that fishermen
who lost their livelihood as a result of oil pollution could not sue at common law:
Landcatch Ltd v International Oil Pollution Compensation Fund [1999] 2 Lloyd’s Rep.
316; R.J.Tilbury & Sons (Devon) Ltd v Alegrete Shipping Co Inc. [2003] EWCA Civ 65;
[2003] 1 Lloyd’s Rep. 327; contra, Union Oil Co v Oppen 501 F. 2d 558 (1974) described
as a ‘‘special rule’’ in State of Louisiana v M/V Testbank 752 F. 2d 1019 (1985). They
probably have a statutory right of action under the Merchant Shipping Act 1995,
para.15–25, below.
Duty of Care: Specific Problems 223
Spartan Steel had been speedily restored but the cooling had caused
damage to the furnace, loss of production during the time taken to
effect repairs to it would, it seems,406 have been recoverable.407
Equally the claimants would have succeeded if the cable, at the
point at which it was severed, had been vested in them.
After a period of doubt408 this approach was reaffirmed by the
Privy Council in Candlewood Navigation Corp Ltd v Mitsui O.S.K.
Lines Ltd409 where time charterers of a damaged vessel (who did not
have possession of it) failed to recover the hire which they had to
pay even when the vessel was out of action and the revenue which
they lost through being unable to make use of the vessel. It will be
observed that there was nothing unforeseeable about the loss to the
charterers (such loss being a highly likely consequence of damage to
a cargo ship410) and that D escaped part of the liability which they
would otherwise have incurred had the charterer been in possession
of the vessel, for then the lost revenue would have been a con-
sequence of damage to ‘‘their’’ property. The person from whom the
charterer had hired the use of the vessel could not sue for this loss
since he had not suffered it, nor did he suffer loss of hire, since the
charterer had to go on paying it. Of course if the charterer had been
relieved under the charter of their obligation to pay hire while the
vessel was laid up, that would have been recoverable by the person
from whom it had been hired. The extent of the tortfeasor’s liability
in such a case therefore turns on the contractual arrangements411
406
The contrary view seems to be taken at first instance in Scotland in Coleridge v Millar
Construction Co Ltd, 1997 S.L.T. 211, relying on the emphasis in Marc Rich & Co A.G.
v Bishop Rock Marine Co Ltd [1996] A.C. 211, para.5–13, above, on ‘‘direct’’ physical
damage. Although the damage to the first melt in Spartan Steel was in a sense ‘‘indirect’’
(since it was a consequence of the damage to the electricity undertaking’s cable) there is
no overt suggestion in Marc Rich that the decision in the claimant’s favour on that item
was wrong. In any event, the physical damage in Coleridge was found to be
unforeseeable.
407
It is assumed that damage to the furnace was reasonably foreseeable by D (Cf. the
Coleridge case above). Cf. Londonwaste Ltd v Amec Civil Engineering Ltd (1997) 53
Con.L.R. 66, where there was some damage to the claimant’s turbines but the cause of the
loss of revenue was held to be the severing of the cable, which was vested in a third party.
For a complex case on the relationship between physical damage and economic loss, see
The Orjula [1995] 2 Lloyd’s Rep. 395.
408
Caused by Junior Books v Veitchi [1983] 1 A.C. 520, para.5–44, below.
409
[1986] A.C. 1.
410
A charterer with possession would be the exception rather than the rule.
411
Legal changes wholly unconnected with tort law may affect the application of the rule.
British Rail owned all its track and rolling stock so damage to a BR bridge automatically
attracted liability for loss of BR revenue but now the track owner and train operators are
completely separate entities. Persons carrying out works likely to affect the line sometimes
give the train operator a contractual indemnity: Tesco Stores v Constable [2008] EWCA
Civ 362. In Bow Valley Husky (Bermuda) Ltd v St John Shipbuilding Co Ltd (1997) 153
D.L.R. (4th) 385, C1 had been incorporated as an offshore company by C2 and C3 for
fiscal reasons. As to the ‘‘common adventure’’ theory, see below.
224 Negligence: Duty and Breach
para.5–13, above) why should a duty not be modified? Note, however, that while it may
be possible to speak of the loss being ‘‘transferred’’ on the facts of Leigh and Sillavan, the
consequential losses of a property owner and a ‘‘relational’’ victim may be very different:
Bow Valley Husky (Bermuda) Ltd v St John Shipbuilding Co Ltd (1997) 153 D.L.R. (4th)
385.
418
What started as an ordinary c&f contract was varied to a sale ex warehouse performed
when the buyers eventually paid.
419
Note, however, that it seems extremely unlikely that a buyer in international trade will not
have insured the goods. The ‘‘real’’ claimant is therefore likely to be an insurer exercising
subrogation rights (see, e.g. Mitsui & Co Ltd v Flota Mercanta Grancolombiana SA [1988]
1 W.L.R. 1145). At the moment that is generally legally irrelevant (though cf. the Marc
Rich case, para.5–13, above) but may have significance in a court’s perception of what is
argued to be a ‘‘hard case’’.
420
The Act is short but complex and details must be sought in specialist works. Very broadly,
the Act (1) removes the necessity that the claimant should have acquired property, ‘‘upon
or by reason of the transfer of the bill of lading’’—it is enough that he becomes the lawful
holder of the bill; (2) extends the transfer of the contractual rights of the seller against the
carrier to persons who take delivery under certain other shipping documents now com-
monly in use, e.g. sea waybills. The Act is not affected by the Contracts (Rights of Third
Parties) Act 1999.
421
See The Albazero [1977] A.C. 774.
226 Negligence: Duty and Breach
goods at the time when the tort was committed’’422 is not incon-
sistent with this for the tort is not complete until there is damage and
in the example the claimant is owner or possessor at that time.
However, in Homburg Houtimport BV v Agrosin Pte Ltd423 timber
shipped for two cargo owners deteriorated on voyage because of bad
stowage at the outset. It was held that their claim in tort failed. More
than insignificant damage had been done before they acquired prop-
erty in the timber and what happened after that was merely a
worsening of damage which was complete in law: it was not possi-
ble to apportion the damage by time or among the owners at
different stages.424
5–42 While there may be a good deal to be said against tort liability on
facts like Leigh and Sillavan, the rule in the case is one of general
application and is applicable to other cases where there is no special
legislation.425 The distinction it draws between economic and phys-
ical harm has been described as ‘‘Jesuitical’’426 and it has been
rejected by high authority in other common law jurisdictions.427 The
rule certainly rests in part upon the ‘‘floodgates’’ (or ‘‘where is it to
end?’’) argument, the spectre of a liability, in Cardozo J.’s famous
words, ‘‘in an indeterminate amount for an indeterminate time to an
indeterminate class.’’428 This risk is certainly present in the case of
interruption of public utility supplies, though it has been contended
that it is exaggerated because individual losses may be small and
unlikely to lead to much litigation.429 However, the physical conse-
422
Roskill L.J. in Margarine Union GmbH v Cambay Prince Steamship Co Ltd [1969] 1 Q.B.
219 at 254.
423
[2003] UKHL 12; [2004] 1 A.C. 715.
424
The HL dealt with the matter very briefly and adopted the reasoning of Rix L.J. below:
[2001] EWCA Civ 55; [2001] 1 Lloyd’s Rep. 437.
425
Some cases may be affected by the Latent Damage Act 1986 s.3 (see para.26–13, below).
This provides, in effect, that where D causes damage to X’s property and X disposes of it
to C, then C has a cause of action against D (running, for limitation purposes, from the date
on which X’s accrued), provided that X had not become aware of the damage when he was
owner. The legislative history of s.3 revolves around latent damage to buildings and the
law of limitation against successive owners. It is unlikely to have occurred to anyone that
it would be relevant to the context with which we are now dealing and it would be
inapplicable where, as in Leigh and Sillavan itself, the damage is discovered before the
acquisition by C. Nevertheless its relevance to non-building cases seems to be assumed in
the CA in Homburg Houtimport, above, fn.423, where permission to amend so as to rely
on it was refused.
426
Coleridge v Miller Construction 1997 S.L.T. 485 at 491.
427
It is still the predominant US view, though there are cases the other way, such as People
Express Airlines v Consolidated Rail 495 A. 2d 107 (1985).
428
Ultramares Corp v Touche 174 N.E. 441 at 444 (1931). In fact, a negligent misstatement
case, where there is no such hard and fast rule against recovery of economic loss.
429
New Zealand Forest Products v Att Gen [1986] 1 N.Z.L.R. 14. In Spartan Steel itself it
seems that there was no widespread interruption of supplies. However, for a case where
more than a million households and businesses were affected (and where the economic
loss claims failed) see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27.
Duty of Care: Specific Problems 227
All, it would seem, were agreed that the line must be drawn well
short of recovery on the basis of foreseeability and it seems unlikely
that those who based themselves on proximity would have found a
duty to, say, a sub-buyer in Leigh and Sillavan; and in a subsequent
case the Supreme Court of Canada rejected liability where a com-
pany suffered loss as a result of injury to a ‘‘key employee’’.436
Nevertheless it must be questionable whether the proximity
approach provides a predictable test of liability,437 and this seems to
be borne out by another decision of the Supreme Court of Canada,
Bow Valley Husky (Bermuda) Bermuda Ltd v St John Shipbuilding
Ltd,438 in which it returned to the issue.
C2 and C3 were involved in oil exploration and for fiscal reasons
incorporated C1 to own and operate a rig, contracting to pay C1 hire.
The rig was disabled as a result of the negligence of D. C1 recovered
damages but the claims of C2 and C3 were dismissed. The leading
judgment439 attempts a reconciliation of the opposing views in
Norsk Pacific but on balance it seems that it is the minority view in
that case which now prevails, i.e. there is a general exclusionary rule
subject to more or less defined exceptions440 and the facts of Bow
Valley fell into none of these. While it was possible for the court to
recognise new exceptions, it should not assiduously seek to do so,
‘‘for what is required is a clear rule predicting when recovery is
available’’. From a policy point of view, the denial of liability was
justified because (1) it was not possible to draw a rational line
between C2 and C3 and other investors in the project on the basis
that the claimants were ‘‘identifiable’’ or ‘‘users’’ of the rig or had
‘‘relied’’ on the defendants,441 (2) there was ample deterrent content
in the law in C1’s property damage claim442 and (3) the three
claimants had had ample opportunity to allocate their various risks
by contract and had in fact done so. A great diversity of views is
436
D’Amato v Badger (1996) 137 D.L.R. (4th) 129.
437
Non-common law systems provide a variety of answers. Thus German law, while it knows
no duty of care, gives much the same answer as English law because it restricts liability
by reference to the loss suffered: see Markesinis, A Comparative Introduction to the
German Law of Torts, 2nd edn. French law draws no formal distinction between physical
and economic loss but seems generally to adopt a restrictive approach to proof of causation
where there is economic loss caused par ricochet. See van Gerven, Lever and Larouche,
Tort Law (Common Law of Europe Casebooks) (2000), Ch.2.3.
438
(1997) 153 D.L.R. (4th) 385.
439
McLachlin J.
440
Or so thought Iacobucci J.
441
The case arose from a failure to warn of a fire hazard but the reliance of C2 and C3 was
no different from that of any person upon the manufacturer of a product.
442
Which amounted to CAN$5 million.
Duty of Care: Specific Problems 229
447
See (1992) 91 D.L.R. (4th) 289 at 376 (McLachlin J.).
448
Londonwaste Ltd v Amec Civil Engineering Ltd (1997) 53 Con.L.R. 66; Colour Quest Ltd
v Total Downstream UK Plc [2009] EWHC 640 (Comm); [2009] 2 Lloyds Rep 1.
449
It was rejected by the whole court in Bow Valley.
450
[1986] Q.B. 507.
451
Donoghue v Stevenson [1932] 562, para.10–2, below.
452
A agrees to sell a quantity of water to C. D bottles it in unhygienic conditions, it develops
mould and has to be destroyed. C has no claim against D, D ‘‘damaged’’ A’s water. C of
course has a claim for breach of contract against A. M. Hasegawa & Co v Pepsi Bottling
Group (Canada) Co (2002) 213 D.L.R. (4th) 663. No doubt A had a claim in tort against
D but he also had a contract. Cf. Bacardi-Martini Beverages Ltd v Thomas Hardy
Packaging Ltd [2002] EWCA Civ 549; [2002] 2 Lloyd’s Rep. 379 (B supplies CO2, which
is applied to concentrate and water supplied by A1 and A2 and the whole consignment of
the resulting drink has to be destroyed because of contamination in the CO2; for the
purpose of interpretation of a contractual provision relating to ‘‘direct physical damage to
property’’ this was not a case of damage to the concentrate and water (which were never
intended to continue to exist in their original form) but of the creation of a defective new
product.
Duty of Care: Specific Problems 231
the pumps were unsuitable for their purpose,453 a claim which lay in
contract against ITS but not in tort against the manufacturers.
Similarly in Murphy v Brentwood DC454 the House of Lords ended
a long period of controversy by reaffirming that defects in a building
which cause it to be less valuable or even potentially dangerous
constitute economic loss and do not at common law455 give rise to
any claim except via a contract with the defendant.456
A decade or so earlier the claim in Muirhead would probably
never have been presented. What prompted it was the difficult case
of Junior Books Ltd v Veitchi Co Ltd.457 The defenders were
engaged as sub-contractors to lay a floor in the pursuer’s factory.
There was no contractual relationship between the parties and the
main contractors were not involved in the proceedings. The pursuers
alleged that the floor was defective (though not dangerous), that this
was caused by the negligence of the defenders and that they had
suffered damage totalling some £207,000, being the cost of replac-
ing the floor and various other items of consequential loss. On a
preliminary issue of law, the majority of the House of Lords held
that the pursuers’ allegations disclosed a cause of action for negli-
gence. Quite why this was so is less clear: certainly the pursuers
were owners of the floor, but to say that this meant that there was
damage to their property is tantamount to saying that supply of an
article which is shoddy and breaks is actionable in negligence and
that is not the law. Some saw in the case the beginnings of a major
extension of liability for economic loss, but by subsequent inter-
pretation it has largely been relegated to a rather narrow decision on
specialised facts.458 Lord Keith in Murphy v Brentwood suggested
that the case fell within the Hedley Byrne principle and that may
well be the case provided this is understood in the broad sense of
‘‘assumption of responsibility’’ rather than in the narrower sense
governing statements of information or advice.459 The defenders, as
nominated sub-contractors,460 would have been chosen by the pur-
suers (no doubt after direct negotiations between them) and were
453
The business was not lost because the lobsters died, but because the pumps were
unusable.
454
[1991] 1 A.C. 398. See para.9–33, below.
455
See the Defective Premises Act 1972, para.9–37, below.
456
The Contracts (Rights of Third Parties) Act 1999 will not generally affect either of these
situations because (a) the contract will not generally purport to confer a benefit on the third
party claimant and (b) will not identify him.
457
[1983] 1 A.C. 520.
458
In The Orjula [1995] 2 Lloyd’s Rep. 395 Mance J. described Junior Books as a case that
appeared to have, ‘‘joined the slumber of the uniquely distinguished from which it would
be unwise to awaken it without very solid reason’’.
459
In so far as the defendants ‘‘said’’ anything expressly or by implication in Junior Books it
was much more akin to a promise than information or advice.
460
Doubt has been cast on whether they were in fact nominated sub-contractors: Lancashire
etc. Baptist Churches Inc v Howard & Seddon Partnership [1993] 3 All E.R. 467 at 479,
but this is the basis upon which the case was decided by the HL: [1983] 1 A.C. at 542.
232 Negligence: Duty and Breach
i. Statutory duties and powers and the common law. The first 5–46
question is whether there is a statutory duty, breach of which is
actionable in tort. This issue is considered in more detail later469 but
for the moment it is sufficient to note that the answer depends on the
proper construction of the statute and that there is no general rule of
liability; indeed non-liability rather than liability is the rule. If, on
the proper construction of the statute, no civil action arises, one
cannot fall back on a liability for negligence in performance of the
duty. There is no tort of ‘‘negligent performance of a statutory
duty’’. If the situation will support a common law duty of care under
ordinary principles there may be liability470 but the statutory duty
itself does not give rise to a duty of care.471 A common law duty of
care cannot, ‘‘grow parasitically out of a statutory duty not intended
to be owed to individuals’’472 (and the same is a fortiori true where
there is a statutory power rather than a duty). Thus there is a non-
actionable duty in the National Health Service Act 1977 under
which that service provides health care, but in so far as a hospital is
liable for clinical negligence its duty arises from what it has done in
accepting a patient for treatment.473 However, one cannot assume
that there is such a common law assumption of responsibility merely
because the defendant is exercising a statutory function which may
be regarded as for the protection of persons such as the
claimant.474
468
Samson v Canada (1991) 80 D.L.R. (4th) 741 at 749 per Linden J.A.
469
See Ch.7, below.
470
See e.g. Rice v Secretary of State for Trade and Industry [2007] EWCA Civ 289; [2007]
I.C.R. 1469 where the statutory framework itself gave rise to no liability but created a
relationship between the claimant and the National Dock Labour Board which was in some
respects similar to that of employee and employer.
471
X v Bedfordshire CC [1995] 2 A.C. 633 at 734, explaining Geddis v Proprietors of the
Bann Reservoir (1878) 3 App. Cas. 430 at 455–456 and Home Office v Dorset Yacht Co
Ltd [1970] A.C. 1004 at 1030. Holland v Saskatchewan [2008] SCC 42; 294 D.L.R. (4th)
193.
472
Gorringe v Calderdale MBC [2004] UKHL 15; [2004] 1 W.L.R. 1057 at [71] per Lord
Scott. Sandhar v Dept of Transport [2005] EWCA Civ 1440; [2005] P.I.Q.R. P183 at [37];
Neil Martin Ltd v Revenue and Customs Comrs [2007] EWCA Civ 1041; [2007] S.T.C.
1802.
473
Gorringe v Calderdale MBC, above (fn.472) at [38]; Sandford v Waltham Forest LBC
[2008] EWHC 1106 (QB).
474
X v Hounslow LBC [2009] EWCA Civ 286 (fn.472); [2009] P.T.S.R. 1158.
234 Negligence: Duty and Breach
475
[1996] A.C. 923. See also para.5–26, above.
476
Civil Liability (Contribution) Act 1978. See Ch.21, below.
477
This was of course a matter of indifference on the facts to S, since whatever W’s rights of
contribution against the authority, she was liable in full to S.
478
Highways Act 1980, see para.14–42, below.
479
Highways Act 1980 s.79. The distinction between a power and a duty may not always be
clear and in any event a duty may contain wide elements of discretion: R. v CC Sussex, Ex
p. International Trader’s Ferry Ltd [1999] 2 A.C. 418; Larner v Solihull MBC [2001]
P.I.Q.R. P17. In T v Surrey CC [1994] 4 All E.R. 577 a statute required a local authority
to maintain a register of child minders but then gave the authority various discretionary
powers about registration and deregistration. A child placed with a registered child minder
was injured by her when the authority had information which should have led it at least to
suspend her. A judgment in favour of the claimant was based upon—and only upon—an
express assurance to the mother that the child minder was a suitable person.
480
See para.5–26, above.
481
[1996] A.C. at 948.
482
[1996] A.C. at 951.
Duty of Care: Specific Problems 235
483
Sutherland SC v Heyman (1985) 60 A.L.R. 1 at 13 per Mason J. Cf. Lord Nicholls in
Stovin v Wise at [1996] A.C. 936.
484
The majority approach may be a compromise.
485
[1996] A.C. at 953. These conditions were not satisfied in Stovin v Wise. It would have
been extremely difficult to contend that not improving the junction was irrational in public
law terms (the first condition) for it was one of many in the area (and by no means the
worst) to which the authority’s limited resources might have been devoted. As to the
second element, the legislative scheme pointed away from liability rather than towards it,
since the improvement power dated from an era in which there was no civil liability even
for non-repair of the roadway itself.
486
[2004] UKHL 15; [2004] 1 W.L.R. 1057, disapproving Larner v Solihull MBC [2001]
P.I.Q.R. P17, a curious case which had purported to follow both the majority and the
minority in Stovin v Wise (see also Thames Trains v H.S.E. [2003] EWCA Civ 720). The
practical implications of the contrary view are apparent from both Larner and Gorringe,
viz. the need for a massive investigation of the history of the authority’s road safety
activities in order to establish ‘‘unreasonableness’’.
487
At [92] per Lord Rodger. An attack on a failure to act at common law via assumption of
responsibility will be much easier to establish if there is direct contact between the
claimant and the public body. However, perhaps it should not be altogether ruled out even
in a road traffic case.
236 Negligence: Duty and Breach
5–48 ii. Direct and vicarious liability. In this context, one needs to be
aware that a claim may be presented in one or more of three
alternative ways. First, as a claim for breach of statutory duty. If
there is such an actionable duty it is likely that will be imposed
directly upon the public body, though whether it has fulfilled it will,
of course, demand examination of the acts of its human agents.
Secondly, on the basis that the public body is itself under a duty of
care under the general law of negligence, as it would be, for
example, in relation to the maintenance of its vehicles or the selec-
tion of its staff (‘‘direct liability’’). Such a duty may exist in parallel
with a statutory duty or alone even if no actionable statutory duty
exists. Thirdly, an individual human agent of the public body may
owe a personal duty to the claimant for the breach of which the body
may be vicariously liable in the normal way. Again, this may exist
in parallel with one or both of the other duties or alone. If we take
as an example the area of failure to provide suitable educational
services, the modern cases generally take the line that the statutory
provisions do not give rise to a duty of the first type because they are
not intended to give rise to civil actions for damages but only to
public law remedies and whatever modes of redress (such as appeal)
they themselves provide. Duties of the second type have also, as we
shall see below, generally been rejected because they have involved
issues of policy in which the courts should not interfere but a more
welcoming attitude has sometimes489 been shown to duties of the
third type, given the:
488
This is clearly accepted in Gorringe but the application of it in Bird v Pearce [1979] RTR
369 is doubted. Could this apply to the design of a new highway? For an Australian view
see Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA
263.
489
However, not always, because the court may take the view that a duty of care on the
individual may discourage the proper performance of his professional duty: see para.5–20,
above.
490
Phelps v Hillingdon LBC [2001] 2 A.C. 619 at 653 per Lord Slynn.
Duty of Care: Specific Problems 237
This includes:
494
See R. (Daly) v Home Secretary [2001] UKHL 26; [2001] 2 A.C. 522. For housing
possession cases the test has been said to be, ‘‘a decision which no reasonable person
would consider justifiable’’: Doherty v Birmingham CC [2008] UKHL 57; [2009] A.C. 367
at [110].
495
Home Office v Dorset Yacht Co Ltd [1970] A.C. 1004 is probably the first case.
496
Carty v Croydon LBC, above (fn.491) at [21].
497
The legality of a war is irrelevant even under art.2 of the European Convention on Human
Rights in a claim based on failure to protect the lives of troops: R (Gentle) v Prime
Minister [2008] UKHL 20; [2008] 1 A.C. 1356.
498
[1970] A.C. 1004.
499
X v Bedfordshire CC [1995] 2 A.C. 633 at 738 per Lord Browne-Wilkinson.
500
X v Bedfordshire CC [1995] 2 A.C. 633.
Duty of Care: Specific Problems 239
501
See Anns v Merton LBC [1978] A.C. 728.
502
Barrett v Enfield LBC [2001] 2 A.C. 550 at 571 per Lord Slynn. See Bailey and Bowman
‘‘The Policy/Operational Dichotomy—A Cuckoo in the Nest’’ [1986] C.L.J. 430.
503
[1997] Imm. A.R. 302.
504
[2004] EWHC 1585 (Admin).
505
However, the case is difficult to reconcile with Rowley v Secretary of State for Work and
Pensions [2007] EWCA Civ 598; [2007] 1 W.L.R. 2861, para.5–16, above (inconsistency
with statutory scheme of remedies).
506
However, Keith J. thought that W might anyway be inconsistent with later decisions.
Furthermore, there was no claim for false imprisonment in W. Although the immigration
legislation gives the executive wide powers of detention, ‘‘it seems entirely wrong that
someone who has been wrongly detained by the executive because of a filing error or some
other incompetence in their offices should not be entitled to compensation as of right’’: I.D.
v Home Office [2005] EWCA Civ 38; [2005] I.N.L.R. 278 at [121]. An arresting police
officer must have reasonable cause to believe that the person has committed an offence.
240 Negligence: Duty and Breach
‘‘It is clear both in principle and from the decided cases that the
local authority cannot be liable in damages for doing that which
Parliament has authorised. Therefore if the decisions complained
of fall within the ambit of such statutory discretion they cannot be
actionable at common law. However, if the decision complained
of is so unreasonable that it falls outside the ambit of the discre-
tion conferred upon the local authority, there is no a priori reason
for excluding all common law liability.’’509
507
Phelps v Hillingdon LBC [2001] 2 A.C. 619 at 673 per Lord Clyde; Stovin v Wise [1996]
A.C. 923 at 951.
508
This was sometimes taken as supporting a quite different proposition, namely that if the
decision failed the administrative law test that of itself gave rise to a duty of care: Larner
v Solihull MBC [2001] P.I.Q.R. P17. That would contradict the principle that any duty
must arise from the common law of torts (see para.5–47, above).
509
[1995] 2 A.C. at 736; and see A v Essex CC [2003] EWCA Civ 1848; [2004] 1 W.L.R.
1881 at [33]. If the claimant passes this threshold and the court imposes a duty, it is
difficult to see what more the claimant would have to do to establish a breach. Provided
some harm is foreseeable, a decision flawed for irrationality (as opposed to illegality or
impropriety) could be hardly be other than ‘‘negligent’’.
510
That is not to say that there may not in most cases be a recognisable difference in practice
between making policy and implementing it. Thus the courts will not interfere with the
decision of an adoption agency as to what information should be provided to adopters
unless it is wholly unreasonable; but if there is a policy to provide information X and the
agency forgets to do so it can be liable: A v Essex CC, above, fn.509. Similarly, the court
will not tell a Minister what vessel tonnage requirement he should impose on applicants
for a fishing licence; but there is no reason why he should not be liable (even if the issue
is at his ‘‘absolute discretion’’) if an official miscalculates the tonnage of the vessel in
question: Keeping v Canada [2003] NLCA 21; 226 D.L.R. (4th) 285.
Duty of Care: Specific Problems 241
teacher in the yard?511 Should we fix that leaking gutter before the
icy weather? Does the person supervising rugby need special train-
ing? Are these conceptually different from the decision by the
education authority to cut back on school maintenance spending or
not to replace teachers (presumably decisions in category (1) or at
least (2))?512 Rather than three separate categories the reality seems
to be that there is a continuum. Perhaps one cannot take the matter
further than Lord Hutton did in Barrett v Enfield London Borough513
when he said:
511
Cf. Carmarthenshire CC v Lewis [1955] A.C. 549, para.5–31, above.
512
In Carty v Croydon LBC [2005] EWCA Civ 19; [2005] 1 W.L.R. 2312 at [25] Dyson L.J.
said that, ‘‘a claim based on an allegation that it was negligent to build a school on site A
rather than site B would almost certainly be struck out as non-justiciable.’’ Presumably he
had in mind complaints that, e.g. site B would have been more convenient or accessible but
one would have thought that if the source of the complaint were that site A was
contaminated land which posed a danger to pupils’ health the issue would be eminently
justiciable.
513
[2001] 2 A.C. 550 at 581.
514
[1988] A.C. 473.
515
[2001] 2 A.C. at 586.
242 Negligence: Duty and Breach
‘‘[M]uch to be said for the view that there should only be two
areas of potential enquiry where the issue arises whether a public
authority is liable for negligence in the performance of its statu-
tory functions. The first is whether the decision is justiciable at
all. And the second is to apply the classic three stages enunciated
in [Caparo v Dickman]: foreseeability of damage, proximity and
that the situation is one in which it is fair, just and reasonable that
the law should impose a duty of care.’’516
‘‘What might have been the proper outcome had the two things
pulled in opposite directions [would be] a question for another
day and another claim.’’520
iv. Whether duty fair, just and reasonable. Even if the imposi- 5–52
tion of a duty of care would not restrict the legitimate scope for the
exercise of discretion by the public body, the statutory context in
which the function is carried out521 may be of decisive importance
in determining whether a duty of care exists. In effect this is an
aspect of the ‘‘fair, just and reasonable’’ element in Caparo v
Dickman. In the eponymous appeal in X v Bedfordshire CC522 the
complaint was by children who alleged that they were subject to
neglect and ill-treatment and that the authority had failed to take
steps to take them into care. Lord Browne-Wilkinson was inclined to
the view that this was a case of a justiciable decision but it was held
that even so it was not just and reasonable to impose a duty of care
for a number of reasons: it would cut across the statutory system for
the protection of children at risk, which involves ‘‘inter-discipli-
nary’’ procedures for the authority, the police, doctors and others523;
the task of the authority was a delicate one and the imposition of
liability might make it adopt defensive tactics which would be
harmful to the broad body of children at risk; there was a high risk
of vexatious complaints in this area; the statutory scheme provided
519
At [111] per Laws L.J.
520
At [124] per Sedley L.J.
521
Just as the existence of a contractual framework may bar or modify a tort duty: see
para.1–9, above. Incompatibility with a statutory scheme may also be a reason for rejecting
an implied contractual term: Johnson v Unisys Ltd [2001] UKHL 13; [2003] 1 A.C. 518
(where claims both in contract and negligence were rejected).
522
[1995] 2 A.C. 633. Five appeals were heard and reported together.
523
‘‘To introduce into such a system a common law duty of care enforceable against only one
of the participant bodies would be manifestly unfair. To impose such liability on all the
participant bodies would lead to almost impossible problems of disentangling as between
the respective bodies the liability, both primary and by way of contribution, of each for
reaching a decision found to be negligent’’: [1995] 2 A.C. at 750.
244 Negligence: Duty and Breach
524
But as Sir Thomas Bingham M.R. pointed out in the CA, claimants want compensation for
their loss, not just investigation of their grievances: [1994] 4 All E.R. 602 at 619.
525
Yuen Kun Yeu v Att Gen of Hong Kong [1988] A.C. 175; Hill v CC West Yorkshire [1989]
A.C. 53.
526
[2001] 2 A.C. 550.
527
See para.5–3, above. See also W v Essex CC [2001] 2 A.C. 592.
528
‘‘[I do not] accept that because the court should be slow to hold that a child can sue its
parents for negligent decisions in its upbringing that the same should apply necessarily to
all acts of a local authority. The latter has to take decisions which parents never or rarely
have to take (e.g. as to adoption or as to an appropriate foster parent or institution)’’:
[2001] 2 A.C. at 573 per Lord Slynn.
529
[2001] 2 A.C. 619; Carty v Croydon LBC [2005] EWCA Civ 19; [2005] 1 W.L.R.
2312.
530
[2003] EWCA Civ 1151; [2004] Q.B. 558. See also B v Att Gen of New Zealand [2003]
UKPC 61; [2003] 4 All E.R. 833.
Duty of Care: Specific Problems 245
reason was that now (though not at the time of the events in D) arts
3 (protection against inhuman or degrading treatment) and 8 (respect
for family life) are given direct effect in English law by the Human
Rights Act 1998531 and, while these were not identical with a duty
of care at common law, the policy arguments wholly excluding such
a duty no longer had the same force since the court would be
involved in examining the authority’s conduct in the statutory con-
text. However, the appeals to the House of Lords from the D
litigation involved claims by the parents of children taken into
care,532 to which different considerations apply: it will always be in
the parents’ interests that the child is not taken into care, there is a
conflict of interest between the parents and the child and the striking
out of those claims was therefore upheld by the majority of the
House of Lords.533
There is a view which decries the approach of denying a duty of
care on the basis that the imposition of a duty might lead some
people to adopt a defensive approach to the performance of their
professional duties and argues that the problem can be dealt with
adequately by reference to the undoubted principle that a person
who fearlessly carries out his professional role will not be held to be
negligent. So in Barrett’s case Lord Slynn did not appear to embrace
some of the alleged policy considerations with enthusiasm even in
the X v Bedfordshire context.534 However, some take a more scep-
tical view of the effectiveness of the ‘‘breach approach’’ to block
bad claims and in D v East Berkshire Community Health NHS
Trust535 Lord Brown sounded the following warning note:
531
The child abuse claims in X v Bedfordshire both resulted in successful applications to the
European Court of Human Rights: Z v UK (2002) 34 E.H.R.R. 3; T.P. v UK (2002) 34
E.H.R.R. 2, respectively. There were held to be breaches of arts 3 and 8, though not of
art.6, the Court disclaiming any power to pass upon domestic tort law.
532
D v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2 A.C. 373.
See also AD v Bury MBC [2006] EWCA Civ 1 and Sullivan v Moody [2001] HCA 59; 183
A.L.R. 404.
533
The fact that the Human Rights Act is now in force is no ground for the CA revisiting this
issue: Lawrence v Pembrokeshire CC [2007] EWCA Civ 446; [2007] 1 W.L.R. 291 but the
case is not necessarily the same if the parent is not suspected of being the abuser: C v
Merthyr BC [2010] EWHC 62 (QB); and see, in a somewhat different context, W v Essex
CC [2001] 2 A.C. 592 and A v Essex CC [2003] EWCA Civ 1848; [2004] 1 W.L.R.
1881
534
See [2001] 2 A.C. at 568.
535
[2005] UKHL 23; [2005] 2 All E.R. 443 at [137].
246 Negligence: Duty and Breach
5–54 v. Procedure. Before leaving the present law in this area mention
must be made of a jurisdictional matter. The procedure for judicial
review of administrative action is not by ordinary suit but by
application under Pt 54 of the Civil Procedure Rules.537 A claim for
damages may be made in judicial review proceedings if there is a
private law wrong, but there are various restrictions upon the proce-
dure, in particular a requirement of permission to lodge a claim and
a short time limit. Judicial review is not an exclusive regime for
actions against public authorities: a person injured on local authority
land, for example, proceeds (and must proceed538) by claim in the
ordinary way; a person wrongfully detained may have some basis to
seek judicial review but he is also entitled to proceed simply by a
common law claim for false imprisonment.539 Nor is Pt 54 applica-
ble where some collateral public law issue arises in what is essen-
tially a private law claim. However, in Cocks v Thanet DC540 the
House of Lords held that where, as a precondition to establishing a
private right of action under a statute, the claimant was obliged to
impugn, on public law grounds, a decision of a local authority,
judicial review was the correct procedure. This does not, it has been
held, prevent the bringing of an ordinary action for negligence
where a common law duty arises in the context of the exercise of a
536
See also Lawrence v Pembrokeshire CC [2007] EWCA Civ 446; [2007] 1 W.L.R. 291; the
dissenting opinion of Charron, Bastarache and Rothstein JJ. in Hill v Hamilton-Wentworth
Regional Police Services Board [2007] SCC 41; [2007] 3 S.C.R. 129 at [152], denying a
duty of care by police to suspects; and the judgment of Hodgson J.A. in Stewart v Ronalds
[2009] NSWCA 277 (report on conduct of Minister leading to his dismissal).
537
Formerly RSC Ord.53.
538
CPR 54.3(2).
539
I.D. v Home Office [2005] EWCA Civ 38; [2005] I.N.L.R. 278.
540
[1983] 2 A.C. 286.
Duty of Care: Specific Problems 247
statutory power, even though that may require public law impropri-
ety to be established against the defendant.541
547
Francovich v Italy (C–6/90) [1995] I.C.R. 722. See para.7–12, below. See Three Rivers
District Council v Governor of the Bank of England [2001] UKHL 16; [2003] 2 AC 1,
where a banking directive was held not to confer such rights.
548
Para.4.152.
549
Para.4.146.
550
See para.5–83, below.
551
For criticism see Cornford [2009] P.L.70.
Duty of Care: Specific Problems 249
552
Para.6.5.
553
See para.14–42, below.
554
In Stovin v Wise [1996] A.C. 923 the defendants decided to do the improvement work and
then forgot about it. Was that ‘‘serious fault’’?
555
See para.5–85, below.
556
See Appendix A of the Consultation Paper.
557
See para.6.6.
250 Negligence: Duty and Breach
558
See para.5–19, above.
559
Appendix C.
560
[2009] UKHL 4; [2009] 1 A.C. 853.
561
Childcare powers in so far as they affect suspected parents are another example. The
Consultation Paper seems inconsistent on this point, since in para.4.28 cases of erro-
neously restricting cattle movement to prevent the spread of disease or putting the claimant
on a child abuse register are given as instances of the potential injustice that the current law
can cause.
562
[2009] UKHL 4; [2009] 1 A.C. 853 at [12].
563
See Monetary Remedies in Public Law (2004).
Duty of Care: Specific Problems 251
No doubt that is true of the Human Rights Act 1998 but the
introduction of that was a deliberate act of policy; with regard to the
common law of negligence the proposition would be very difficult
to justify in the context of the last decade.
i. Third parties. The paradigm case is that where the lawyer is 5–59
instructed to draw a will for X which will benefit C and fails to carry
out that task properly.567 We have seen how in White v Jones568
liability was imposed in such a case on the basis of assumption of
responsibility, but something more needs to be said by way of
explanation of the scope of this duty. It applies as much to a
financial institution offering will-making services as to a solicitor.569
Although the duty sounds in tort the underlying basis of it is the
acceptance of the client’s instructions and the scope of those instruc-
tions are obviously determinative of the duty to the beneficiary.
While as matter of principle there should be a duty in respect of gifts
inter vivos, it has been held that there is no liability if the donor is
564
Para.4.56.
565
Any rule of law (as opposed to professional conduct) forbidding a barrister entering into
a contract was abolished by the Courts and Legal Services Act 1990 s.61.
566
However, even where there is a contract there may be a parallel duty in tort: Midland Bank
Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch. 384, approved in Henderson v Merrett
Syndicates Ltd [1995] 2 A.C. 145.
567
Where the will is in order and the deceased appoints A as his executor, leaving property
to C, and the defendants culpably fail to carry out A’s instructions to administer the estate
promptly C may suffer loss because the property is not transferred to him promptly.
However, in such a case A can sue for that loss (holding the damages in trust for C) since
until the estate is administered the property is vested in A: Chappell v Somers & Blake
[2003] EWHC 1644; [2004] Ch. 19.
568
[1995] 2 A.C. 207, para.5–37, above.
569
Esterhuizen v Allied Dunbar Assurance Plc [1998] 2 F.L.R. 668.
252 Negligence: Duty and Breach
ii. Litigation: the demise of the former immunity. For many 5–60
years the law took the stance that a lawyer conducting litigation did
not owe a duty of care even to his own client in the conduct of the
case in court and matters closely connected therewith.585 Various
reasons were put forward for this immunity: that an advocate has a
duty to the court as well as to his client and in order to fulfil the duty
to the court he had to be relieved of even the possibility that actions
for negligence would be brought against him by a disgruntled client;
the difficulty or undesirability of retrying, in the action against the
advocate, the issue which arose in the original litigation out of
which the action arose; the general immunity granted to those
579
Cancer Research Campaign v Ernest Brown [1998] P.N.L.R. 583; and see Woodward v
Wolferstans, The Times, April 8, 1997.
580
[1988] 1 W.L.R. 881.
581
The option was not exercisable until the death of the testator’s widow, which had not
occurred at the time of the proceedings.
582
Dean v Allin & Watts [2001] EWCA Civ 758; [2001] 2 Lloyd’s Rep. 249; and see Al
Kandari v J.R. Brown & Co [1988] Q.B. 665. A lawyer and an attesting witness participate
in drawing up a mortgage of X’s property when it is obvious to both of them that there is
a serious risk that X is defrauding his co-owner. The witness is aware that his attestation
is untrue. Both are liable to the co-owner for the cost of vacating the mortgage: Graham
v Hall [2006] NSWCA 208.
583
A New Zealand court has held that a lawyer inaccurately certifying that he has explained
a divorce settlement to his client owes a duty of care to the other party in respect of loss
suffered when the settlement is subsequently set aside: Connell v Odlum [1993] 2 N.Z.L.R.
257. In normal circumstances the other party must rely on his own lawyer but here he has
no choice but to accept the certificate.
584
Business Corporations International v Registrar of Companies [1988] Ch. 229; Connolly-
Martin v D [1999] Lloyd’s Rep. P.N. 790. But see the power to make a wasted costs order,
para.5–60, below. As to liability for abuse of process, see Ch.19.
585
The leading decisions of the HL were Rondel v Worsley [1969] 1 A.C. 191 and Saif Ali v
Sydney Mitchell & Co [1980] A.C. 198.
254 Negligence: Duty and Breach
586
In modern times the immunity extended to solicitors acting as advocates, but the cab-rank
rule has never applied to them.
587
[2002] 1 A.C. 615.
588
See Lord Hoffmann at 698. The witness’s duty is to tell the truth; the judge is a public
officer of justice.
589
Twenty years before, Lord Diplock in Saif Ali v Sydney Mitchell & Co, above, fn.585, had
expressed some regret that the House had not received a more radical submission that the
immunity ought no longer to be upheld.
590
Most notably Canada. However, the High Court of Australia has rejected Hall v Simons
and affirmed the immunity: D’Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; 223
C.L.R. 1. Among those judges in the majority who delivered a joint judgment, the key
issue is finality and procedural differences between England and Australia are emphasised.
New Zealand rejected immunity in Chamberlains v Lai [2006] NZSC 70; [2007] 2
N.Z.L.R. 1.
591
These were probably exacerbated by the Civil Procedure Rules: [2002] 1 A.C. at 745 per
Lord Hobhouse.
592
One was a building dispute, the others were matrimonial ancillary relief proceedings and
all concerned advice on settlement.
593
Lords Steyn, Browne-Wilkinson, Hoffmann and Millett; Lords Hope, Hutton and Hob-
house dissenting.
594
The issue of the immunity of solicitors conducting a criminal defence has been considered
by the Inner House in Wright v Paton Farrell [2006] CSIH 7. However, the court was
somewhat divided in its views on the whole issue of immunity. The Lord President thought
that solicitors in Scotland had ‘‘acquired’’ an immunity via Rondel v Worsley and that this
should remain after Hall. Lord Johnston thought that Hall did not determine any part of the
immunity issue for Scotland but that both solicitors and counsel should enjoy immunity in
respect of criminal proceedings. Lord Osborne thought that solicitors did not enjoy
immunity under Scots law but dismissed the claim on the ground that there was no relevant
averment of loss caused by the defendant. In Chamberlains v Lai, above, fn.590, it is
accepted that there may have to be differences in the scope of counsel’s liability between
civil and criminal proceedings.
Duty of Care: Specific Problems 255
595
See Moy v Pettmann Smith [2005] UKHL 7; [2005] 1 W.L.R. 581.
596
Ridehalgh v Horsefield [1994] Ch. 205 at 236. This statement is made in the context of the
power to make a wasted costs order against an advocate because of any improper,
unreasonable or negligent act or omission by him, but it is equally relevant to tort liability.
On wasted costs orders see the Supreme Court Act 1981 s.51, as substituted by the Courts
and Legal Services Act 1990 s.4. The existence of wasted costs orders really destroyed the
foundations of the ‘‘divided loyalties’’ argument in support of the immunity.
597
CPR 24.2.
598
Indeed, Lord Hoffmann thought that lawyers were in an advantageous position in this
respect since the court would have an understanding of the background without expert
assistance: [2002] 1 A.C. 691. See also, in the same case, on the impact of changes in the
funding of litigation.
599
The relevance of this to a tort action where there had been prior proceedings between the
claimant and some third person was made clear in Hunter v CC West Midlands [1982] A.C.
529. Of course where there has been a final decision on an issue between the claimant and
the third person that cannot be reopened between them because of the separate principle
of res judicata.
600
Strictly of course the issue in the negligence case is not the same as in the criminal case,
but the soundness of the conviction is nevertheless at the heart of the negligence case:
Smith v Linskills [1996] 1 W.L.R. 763 at 769.
601
Somasundaram v M. Julius Melchior & Co [1989] 1 All E.R. 129; Hall [2002] 1 A.C. at
706.
602
As it had been in Smith v Linskills, above, fn.600. In such a case the claimant will say that
his purpose is to recover damages but the attack on the previous decision is still inherent
in his case.
256 Negligence: Duty and Breach
603
Is this principle, too, vulnerable to attack under art.6 of the European Convention on
Human Rights? See Lord Hope at [2002] 1 A.C. 723.
604
[2002] 1 A.C. at 684 per Lord Browne-Wilkinson.
605
Cf. Lord Hobhouse at [2002] 1 A.C. 751.
606
[2002] 1 A.C. at 706 per Lord Hoffmann, who gives as a possible exception a case where
the claimant in the first proceedings for libel brought against him by X, had failed on a plea
of justification.
Duty of Care: Specific Problems 257
607
Somasundaram v M. Julius Melchior & Co, above, fn.601; Matrix Securities Ltd v
Theodore Goddard (1997) 147 N.L.J. 1847; McFaddens v Platford [2009] EWHC 126
(TCC) at [56].
608
Davy-Chieseman v Davy-Chieseman [1984] Fam. 48; Locke v Camberwell HA [1991] 2
Med.L.R. 249; Bond v Royal Sun Alliance [2001] P.N.L.R. 30. Where the solicitor is liable
it is likely that counsel will bear the greater share of the damages for the purposes of
contribution: Pritchard Joyce & Hinds v Batcup [2008] EWHC 20 (QB); [2008] P.N.L.R.
18.
609
In relation to evidence in court this extends even to perjured evidence. However, the
immunity has not been extended so as to prevent professional disciplinary proceedings:
Meadow v GMC [2006] EWCA Civ 1390; [2007] Q.B. 462. See also Phillips v Symes
[2004] EWHC 2330 (Ch); [2005] 4 All E.R. 519 (costs).
610
Evans v London Hospital Medical College [1981] 1 W.L.R. 184. However, dishonest
fabrication of evidence out of court is another matter: see para.12–40, below.
611
Palmer v Durnford Ford [1992] Q.B. 483.
612
Stanton v Callaghan [2000] Q.B. 75 (joint expert report). The issue of the status of Stanton
was thought suitable for a direct appeal to the Supreme Court in Jones v Kaney [2010]
EWHC 61 (QB). In N v Agrawal [1999] P.N.L.R. 939 a prosecution witness was held not
to be liable to the victim for failing to turn up but if the claimant’s expert in a civil case
failed to turn up, that would be a breach of contract.
613
Karling v Purdue [2005] P.N.L.R. 13. OH (where there is an exhaustive view of the
authorities).
614
There may be liability for malicious prosecution or misfeasance in a public office (see
Ch.19, and para.7–20, below respectively) but these require ‘‘malice’’.
615
Elguzouli-Daf v MPC [1995] Q.B. 335. So in Cran v NSW [2004] NSWCA 92 the claimant
had no action where, as he alleged, his confinement was unnecessarily prolonged because
the authorities were unnecessarily slow in getting material analysed for drugs.
616
Arthur J.S. Hall & Co v Simons, above, at [2002] 1 A.C. 679, 697. The alleged negligence
in the two appeals reported as Elguzouli-Daf could hardly have fallen within the
immunity.
258 Negligence: Duty and Breach
F. Psychiatric Injury618
5–61 The first point is one of terminology. For many years it has been
customary to refer to this form of damage as ‘‘nervous shock’’. That
has the advantage of serving as a reminder that this head of liability
has in most cases required something in the nature of a traumatic
response to an event.619 That is not necessarily so in some cases
where the claimant is directly affected by the defendant’s conduct620
but it is still the law that the spouse of a brain-damaged accident
victim who foreseeably succumbs to psychiatric illness from the
strain of caring for the victim has no cause of action against the
tortfeasor.621 However, the expression seems to be falling into dis-
use622 and ‘‘psychiatric injury’’ or ‘‘mental injury’’623 is becoming a
more frequent terminology.
Psychiatric injury is a form of ‘‘personal injury’’624 but it is more
problematical for the law than most physical injury for two reasons.
First, despite advances in scientific knowledge of the working of the
mind there is still a belief, right or wrong, that it presents a greater
risk of inaccurate diagnosis625 or incorrect attribution of cause and
617
[1993] 1 All E.R. 692. However, that part of the reasoning which considers s.2(5) of the
Crown Proceedings Act 1947 is doubted in Quinland v Governor of Swaleside Prison
[2002] EWCA Civ 174; [2003] Q.B. 306.
618
Mullany and Handford, Tort Liability for Psychiatric Damage, 2nd edn. For the Law
Commission’s proposals, see the end of this section.
619
Cf. Tame v New South Wales [2002] HCA 35; 211 C.L.R. 37 (the Annetts v Australian
Stations appeal).
620
See para.5–71, below.
621
Alcock v CC South Yorkshire [1992] 1 A.C. 310 at 396, 401, 416; Jaensch v Coffey (1984)
155 C.L.R. 549. See the criticism in Campbelltown CC v Mackay (1989) 15 N.S.W.LR.
501.
622
See Alcock’s case, above, fn.621, and the criticism by Bingham L.J. in Attia v British Gas
Plc [1988] Q.B. 304 at 317.
623
Evans L.J.’s preference in Vernon v Bosley (No.1) [1997] 1 All E.R. 577 at 597, though he
admitted that ‘‘nervous shock’’ remained the lawyer’s favourite.
624
For historical reasons it is not ‘‘bodily injury’’ under the Warsaw Convention, governing
liability of air carriers: Morris v K.L.M. Royal Dutch Airlines [2002] UKHL 7; [2002] 2
A.C. 628, para.1–38, above.
625
In Vernon v Bosley (No.2) [1999] Q.B. 18 C at the trial recovered some £643,000 damages
for the traumatic consequences of witnessing the aftermath of the death of his children. In
matrimonial proceedings decided three weeks before judgment, the court had proceeded
upon much more optimistic evidence of the prognosis of P’s condition than had been
before the Queen’s Bench judge. However, in Frost v CC South Yorkshire [1997] 3 W.L.R.
1194 at 1217, Henry L.J. put the risk of fraudulent shock claims as no greater than in,
‘‘cases involving back injuries where there is often a wide gap between observable
symptoms and complaints.’’
Duty of Care: Specific Problems 259
effect,626 and the incidence or the basis or even the very existence of
some conditions is controversial.627 A further difficulty is that the
line between ‘‘mental’’ and ‘‘physical’’ is still not fully scientifically
understood: nowadays, for example, there is support for the view
that certain forms of depression are the product of physical changes
in the brain628 and if these can be produced by a sudden shock the
only basis for treating such a case differently from physical lesion
by impact must rest on legal policy. The current practice is to regard
some injuries which are undoubtedly physical (such as a stroke or a
miscarriage) but which are produced by shock as falling within the
special rules in this section but in other contexts they may be
equated with more direct physical harm. Secondly, while the phys-
ical effects of an accident are limited by the laws of inertia, physical
injury to one person, or even the threat of it, may produce mental
trauma in others, witnesses, relatives, friends and so on.629 ‘‘The
contours of tort law are profoundly affected by distinctions between
different types of damage’’630 and mental injury is as ‘‘special’’ as
economic loss.
626
See, e.g. Page v Smith (No.2) [1996] 1 W.L.R. 855.
627
See No.137 Law Com., Cm. (1995), Part III. This has been particularly so of the condition
variously known as ME, CFS or PVFS, which was the basis of the claim in Page v Smith
[1996] A.C. 155.
628
See Weaver v Delta Airlines Inc (1999) 56 F Supp 2d 1190, discussed in Morris v K.L.M.,
above, fn.624.
629
In this respect the problem has affinities with relational economic loss: para.5–40,
above.
630
Frost v CC South Yorkshire [1999] 2 A.C. 455 at 492 per Lord Steyn.
631
Victorian Ry Commissioners v Coultas (1888) 13 App. Cas. 222.
632
Wilkinson v Downton [1897] 2 Q.B. 57, (but see current criticism of this view of the case:
para.4–36, above).
633
Dulieu v White [1901] 2 K.B. 669.
634
There is a limited statutory right of action for bereavement: para.23–12, below.
635
The position is different in the case of the intentional torts actionable per se because
damages are then said to be at large: see para.22–8, below. E.g. in a case of libel the award
of damages will reflect (though obviously not in any precise mathematical way) the
distress suffered by the claimant at the publication and in a case of false arrest the damages
may be aggravated by the distress suffered by the claimant because of the high-handed
treatment of him. Some statutory wrongs such as race or sex discrimination and harass-
ment also allow damages for distress.
260 Negligence: Duty and Breach
636
A claimant who has suffered a physical injury may in principle recover damages for the
distress caused to him by the injury even though it does not amount to a recognisable
psychiatric illness. In practice in the majority of cases this will be ‘‘lost’’ in the conven-
tional figures for loss of amenity (para.22–22, below) but, e.g. damages for facial scarring
will take account of the psychological effect on the victim. Even a breach of contract
wholly unconnected with personal injury may give rise to damages for non-pecuniary loss
if the contract concerns the claimant’s ‘‘peace of mind’’: Farley v Skinner [2001] UKHL
49; [2002] A.C. 732.
637
Among many statements of this requirement, see Hinz v Berry [1970] 2 Q.B. 40 at 42;
Alcock v CC South Yorkshire [1992] 1 A.C. 310 at 401, 416; Jaensch v Coffey (1984) 155
C.L.R. 549 at 559, 587; Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406
(which considers the effect of intentional wrongdoing).
638
Another possibility is that shock causes a personality change which renders the claimant
more susceptible to some physical harm. Such a case will raise problems of causation. For
an extreme example, see Commonwealth v MacLean (1997) 41 N.S.W.L.R. 389 (shock
causing increased consumption of alcohol and tobacco; throat cancer developing after
many years).
639
Calveley v CC Merseyside [1989] A.C. 1228.
640
Reilly v Merseyside RHA [1995] 6 Med. L.R. 246.
641
Hicks v CC South Yorkshire [1992] 2 All E.R. 65. Where a person’s life expectancy is
shortened by an injury, distress at that is a compensable item of damage. No doubt in Hicks
there was a momentary interval between the onset of physical injury by crushing and death
but it was too short sensibly to attract this principle.
642
Alcock v CC South Yorkshire [1992] 1 A.C. 310 at 407 per Lord Oliver.
Duty of Care: Specific Problems 261
643
[1901] 2 K.B. 669.
644
McFarlane v E.E. Caledonia Ltd [1994] 2 All E.R. 1 at 10.
645
[1994] 2 All E.R. 1 at 11, though on the facts the CA took the view that C was not in fact
in fear for his own safety at the time. See also Hegarty v E.E. Caledonia Ltd [1997] 2
Lloyd’s Rep. 259; Monk v P.C. Harrington Ltd [2008] EWHC 1879 (QB); [2009] P.I.Q.R.
P3.
646
[1996] A.C. 155; Giblett v Murray, The Times, May 25, 1999.
647
Lord Rodger’s reference in British Steel Plc v Simmons [2004] UKHL 20; [2004] I.C.R.
585 at [56] to physical and psychiatric injury should be read as a reference to the facts of
that case.
648
The findings of the trial judge that (1) this controversial condition existed and (2) that the
claimant suffered from it were not challenged on appeal. In a further appeal on causation
(Page v Smith (No.2) [1996] 1 W.L.R. 855) the CA held that the judge had been entitled
to come to the conclusion that the accident had made a material contribution to the
recurrence of the condition: para.6–7, below. Note that the damages were reduced to about
60 per cent of the loss to reflect the fact that the claimant was vulnerable to the recurrence
of the condition from other causes.
649
Lord Ackner and Lord Lloyd in the majority thought this conclusion was probably wrong.
‘‘When cars collide at 30 miles an hour, the possibility that those involved will suffer
nervous shock, resulting from some form of psychiatric illness, is not lightly to be brushed
aside’’: Lord Lloyd at 197.
650
As Lord Lloyd pointed out at 190, a standard English statutory formula in the Limitation
Acts and elsewhere is, ‘‘ ‘personal injury’ includes any disease and any impairment of a
person’s physical or mental condition’’.
262 Negligence: Duty and Breach
651
See para.6–32, below. The previous authorities regarded injury by shock as of a different
‘‘kind’’ from physical harm. ‘‘The test of liability for shock is foreseeability of injury by
shock’’: King v Phillips [1953] 1 Q.B. 429 at 441; The Wagon Mound (No.1) [1961] A.C.
388 at 426; Alcock v CC South Yorkshire [1992] 1 A.C. 310 and 400. However, according
to Lord Lloyd at 196 the courts in these cases did not have in mind the position of a
primary victim threatened by physical injury. In Frost v CC South Yorkshire [1999] 2 A.C.
455 at 475 Lord Goff, dissenting, disagreed with this approach, taking the view that the
thin skull rule only applied once there was some physical damage.
652
Glen v Korean Airlines Co Ltd [2003] EWHC 643 (QB); [2003] Q.B. 1386 would provide
an example but the point was not in issue in the proceedings. Fagan v Goodman,
November 30, 2001 (QB) indicates a restrictive approach.
653
Donachie v CC Greater Manchester [2004] EWCA Civ 405; The Times, May 6, 2004. See
also A v Essex CC [2003] EWCA Civ 1848; [2004] 1 W.L.R. 1881. An adoption agency
failed to carry out a decision to make information available to adopters which would have
revealed the child’s very disturbed state. The adopters suffered psychiatric disorder
because of his behaviour. Was this damage foreseeable? No, but, ‘‘it was foreseeable that
[W] might assault them and damage their property. In those circumstances, the principle
in Page v Smith . . . indicates that there is liability for whatever harm ensues’’ (at
[71]).
654
British Steel Plc v Simmons [2004] UKHL 20; [2004] I.C.R. 585.
655
[1967] 1 W.L.R. 912.
Duty of Care: Specific Problems 263
656
[1999] 2 A.C. 455. See also Young v Charles Church (Southern) Ltd (1997) 39 B.M.L.R.
146.
657
The father of the trial judge in Frost.
658
Cf. Hunter v British Coal [1998] Q.B. 140, decided before Frost, where the claimant had
been in some danger (though he was not aware of it) when he was near a defective hydrant
but when the hydrant exploded and killed a workmate he was out of sight and some
distance away.
659
Cf. the example given by Toulson J. in Coleman v British Gas Services Ltd, April 12, 2002
(QB) at [62] of the passenger in a car who is asleep and unaware of an emergency which
causes a neck injury to another passenger and who, on learning of this afterwards, wrongly
convinces himself that he, too, has such an injury: no liability.
660
[2007] UKHL 39; [2008] A.C. 281. See also The Creutzfeldt-Jakob Disease litigation;
Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep. Med. 161 (decided in
1997); Fletcher v Commissioners of Public Works [2003] 1 I.R. 465; Coleman v British
Gas Services Ltd, April 12, 2002 (QB).
264 Negligence: Duty and Breach
‘‘[A] claimant with plaques would have a claim for damages for
the risk that he would develop asbestosis or mesothelioma, when
a claimant without plaques, but with exactly the same risk of
developing those diseases, would have no claim’’.665
661
Lord Mance at [104]; ‘‘an immediate response to a past event’’: Lord Rodger at [95].
662
Lord Hope at [55].
663
Lord Hoffmann at [33].
664
See para.22–19, below.
665
[2007] UKHL 39; [2008] A.C. 281 at [91] per Lord Rodger.
Duty of Care: Specific Problems 265
666
In Scotland s.1 of the Damages (Asbestos-Related Conditions) (Scotalnd) Act 2009 (asp)
provides:
‘‘(1) Asbestos-related pleural plaques are a personal injury which is not negligible.
(2) Accordingly, they constitute actionable harm for the purposes of an action of
damages for personal injuries.
(3) Any rule of law the effect of which is that asbestos-related pleural plaques do not
constitute actionable harm ceases to apply to the extent it has that effect.
(4) But nothing in this section otherwise affects any enactment or rule of law which
determines whether and in what circumstances a person may be liable in damages in
respect of personal injuries.’’
This has retroactive effect (other than in respect of claims settled or determined) and would
clearly allow recovery for mere anxiety about plaques but damages will presumably be
modest. In England, the Ministry of Justice on February 25, 2010, announced that it was
to make payments of £5,000 to persons who had begun but not resolved claims for pleural
plaques before Rothwell but that it was not minded to reverse that decision. A private
member’s Bill similar to the Scottish Act was lost with the 2010 election.
667
Cf. Pratt v Scottish Ministers [2009] CSOH 31; [2009] S.L.T. 429 (failure to provide
counselling about risk arising from an incident at work).
668
Frost v CC South Yorkshire [1999] 2 A.C. 455 at 500.
669
See Lord Hope at [2007] UKHL 39; [2008] A.C. 281 [52], Lord Mance at [104]. In
contrast, Lord Hoffmann at [32] thought it was not likely to give rise to difficulties if
confined to the situations which the court had in mind in the case; and in Corr v IBC
Vehicles Ltd [2008] UKHL 13; [2008] A.C. 884 Lord Walker remarked at [40] that, ‘‘it
provides a much simpler test for judges trying personal injury cases, even if it sometimes
results in compensation for damage in the form of psychiatric sequelae which might not,
on their own, have been reasonably foreseeable.’’
670
It is clear that there need be no actual injury to B, it is enough that C reasonably believes
that B is in peril; but under the Criminal Injuries Compensation Scheme, closely modelled
on the common law of tort, there must be an actual injury to B: para.9(b).
671
Of course C may be in danger as well, see above.
672
[1992] 1 A.C. 310.
673
It was assumed for the purposes of deciding the issue of law that damage and causation
could be established.
266 Negligence: Duty and Breach
679
[1943] A.C. 92 at 117. See also Lord Bridge in McLoughlin v O’Brian [1983] 1 A.C. 410
at 442 (even though he was espousing a basis of liability wider than Alcock).
680
Lord Ackner’s example at [1992] 1 A.C. 403. See also Lord Keith at 397 and Lord Oliver
at 416.
681
[1994] 2 All E.R. 1.
682
Vanek v Great Atlantic etc. Co of Canada (1999) 180 D.L.R. (4th) 748; Mustapha v
Culligan of Canada Ltd [2008] SCC 27; [2008] 2 S.C.R. 114 (bizarre reaction to fly in
bottle of water).
683
The NZCA reserved its position on this requirement in van Soest v Residual Health
Management Unit [2000] 1 N.Z.L.R. 179. The requirement was rejected by the majority
of the High Court of Australia in Annetts v Australian Stations Pty Ltd [2002] HCA 35;
211 C.L.R. 37, a claim which would clearly fail under English law.
684
[1983] 1 A.C. 410. See also Kelly v Hennessy [1996] 1 I.L.R.M. 321, SC.
268 Negligence: Duty and Breach
685
[1983] 1 A.C. 410 at 417.
686
However, Lord Oliver described the aftermath extension as not wholly free from difficulty.
See also Benson v Lee [1972] V.R. 879; Fenn v City of Peterborough (1976) 73 D.L.R. (3d)
177. In R. v C.I.C.B., Ex p. Johnson, The Independent, July 22, 1994, shock at finding the
murdered body of the applicant’s partner was held to qualify under the ‘‘old’’ Criminal
Injuries Compensation Scheme.
687
See also Palmer v Tees HA [2000] P.I.Q.R. P1; Spence v Percy [1992] 2 Qd. R. 299.
688
Cf. Galli-Atkinson v Seghal [2003] EWCA Civ 697; [2003] Lloyd’s Rep. Med 285 (visit
to mortuary not merely for formal identification but for claimant to convince herself of the
death; body in very badly disfigured condition). Froggatt v Chesterfield and North
Derbyshire NHS Trust, December 13, 2002, QB, where the husband recovered damages for
shock suffered on seeing his wife unclothed for the first time after an unnecessary
mastectomy, is a surprising decision since the operation must have been performed some
considerable time before this.
689
The contrary decision in Hevican v Ruane [1991] 3 All E.R. 65 must be regarded as
wrongly decided. Ravenscroft v Rederiaktebolaget Transatlantic [1991] 3 All E.R. 73 was
reversed [1992] 2 All E.R. 470.
690
The pictures shown conformed with the code of ethics followed by broadcasters in such
situations. Had they not so conformed the claimants conceded that this would have broken
the chain of causation between the breach of duty and the damage.
Duty of Care: Specific Problems 269
iv. Participants other than mere bystanders. Where the claim- 5–69
ant is shocked by fear for his own safety the ‘‘relationship’’ require-
ment is ex hypothesi irrelevant since he is the direct victim and the
requirements of proximity and direct perception are automatically
satisfied. In Alcock Lord Oliver had placed in the same category
(and therefore exempt from the control devices applicable to the
case of mere witnesses) persons who suffered mental injury while
engaged as rescuers at the incident and employees who, as a result
of the employer’s negligence, had become unwilling participants in
the injury of a workmate694: like persons fearful for their own safety
they did not need to establish any relationship of love and affection
with the person injured. This must now be read in the light of
another Hillsborough case, Frost v CC South Yorkshire.695 This time
the claimants were police officers who were not in physical danger
from the crush in the pens but who tended the victims of the tragedy
in various ways and who claimed to have suffered mental injury as
a result. Reversing the Court of Appeal, the House of Lords held by
691
‘‘It would be inaccurate and hurtful to suggest that grief is made any the less real or
deprivation more tolerable by a mere gradual realisation, but to extend liability to cover
injury in such cases would be to extend the law in a direction for which there is no pressing
policy and in which there is no logical stopping point’’: [1992] 1 A.C. at 416 per Lord
Oliver. Palmer v Tees HA, above, fn.687.
692
[1992] 1 A.C. at 401. per Lord Ackner. Ward v Leeds Teaching Hospital NHS Trust [2004]
EWHC 2106 (QB). Cf. Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792;
[2003] Lloyd’s Rep. Med. 49 and see Annetts v Australian Stations Pty Ltd [2002] HCA
35; 211 C.L.R. 37, where the requirement of ‘‘sudden shock’’ was rejected.
693
See Vernon v Bosley (No.1) [1994] 1 All E.R. 577. It seems that if the conclusion is that
the illness is a product of both PTSD and PGD there is no discount for the latter element
(though only Evans L.J. in the majority deals clearly with the point); and see Galli-
Atkinson v Seghal [2003] EWCA Civ 697; [2003] Lloyd’s Rep. Med 285. However, there
may now be a drift towards ‘‘apportionment’’ in this area: see Rahman v Arearose Ltd
[2001] Q.B. 351 and Hatton v Sutherland [2002] EWCA Civ 76. See also para.21–1,
below.
694
Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep. 271.
695
[1999] 2 A.C. 455.
270 Negligence: Duty and Breach
Nor could the claims succeed on the alternative basis (which had
also been espoused by the Court of Appeal) that the officers were
owed a duty of care by their employer699 who was responsible for
the disaster. Certainly the employer’s duty of care may extend to
cases of psychiatric injury to a worker,700 but that does not dispense
with the Alcock ‘‘control devices’’ where the claim is based on the
worker’s reaction to witnessing the injury or endangerment of a
third party on a particular occasion.701 Had the employment basis of
the claims in Frost been accepted, the result would have been that
the claims of the police officers would have succeeded, whereas
those of ambulance crew performing the same function would have
failed because their employers would not have been responsible for
the disaster. If the employer had reason to believe that a particular
worker in an emergency service was susceptible to trauma from
witnessing danger to others and took no steps to reduce this risk, that
696
See para.25–14, below.
697
As did Mr Chadwick, para.5–63, above; cf. Gregg v Ashbrae Ltd [2006] NICA 17; [2006]
N.I. 300. Claims by officers who worked within the pens seem to have been settled on the
basis that they were at personal risk of physical injury: [1999] 2 A.C. at 466.
698
[1999] 2 A.C. 466 at 510 per Lord Hoffmann.
699
Strictly the police are not employees, but they are owed the same duty as those who
are.
700
See para.5–71, below (long-term stress at work).
701
Thus in Keen v Tayside Contracts [2003] Scot CS 55; 2003 S.L.T. 500 the claim failed
where the pursuer, a road worker, was required to remain at the scene while four burned
bodies were removed from a crash. Cf. Harrhy v Thames Trains Ltd [2003] EWHC 2286
(QB).
Duty of Care: Specific Problems 271
might be a different case and the fact that the employer was respon-
sible for the disaster in question would be irrelevant.702
There may still be liability in the other situation envisaged by
Lord Oliver in Alcock. In Dooley v Cammell Laird & Co Ltd703 the
claimant, a crane operator, suffered shock when, by the negligence
of his employers, the rope snapped and precipitated the load into the
hold where his colleagues were working.704 Lord Oliver regarded
this as a case where the negligent act of the defendant had put the
claimant in the position of thinking that he had been the involuntary
instrument of death or injury to another,705 and in Frost Lord
Hoffmann said that there might be reason for regarding such cases
as outside the Alcock control mechanisms for secondary
victims.706
There can be no doubt in view of Frost that rescuers are not to be
treated as a special category and must satisfy the Alcock control
mechanisms. However, there is a certain ambiguity running through
the case law in this area. In Frost Lord Steyn and Lord Griffiths
(though he dissented on the rescue issue) clearly assume that the
category of primary victim is defined by Page v Smith, that is to say
the claimant must be in danger or reasonably believe himself to be
so.707 Yet this is narrower than the formulation by Lord Oliver in
702
That, however, is more likely if the exposure is frequent (Hartman v South Essex Mental
Health etc. NHS Trust [2005] EWCA Civ 6; [2005] I.R.L.R. 293) or prolonged (cf. Harrhy
v Thames Trains Ltd [2003] EWHC 2120 (QB)). There is some tension between Frost and
the general duty of the employer to safeguard the health and safety of workers. The latter
duty has in practice been explored in cases of long-term stress but as a matter of principle
it is hard to see why it should not apply to a sudden stressful situation foreseeably causing
psychiatric trauma. The focus of the two claims would of course be different. In Frost the
argument was ‘‘You were responsible for the injury to the direct victim and I am a rescuer;
so you owe me a duty, too’’. Here the argument would be ‘‘You required me to go
participate in this stressful situation (who was responsible for the situation does not matter)
and you should have foreseen that I could not cope with it.’’ In Butchart v Home Office
[2006] EWCA Civ 239; [2006] 1 W.L.R. 1155 the court declined to strike out a claim by
a prisoner who was alleged to be psychologically vulnerable and who was placed in a cell
with a known suicide risk. However, the claims were struck out in French v CC Sussex
[2006] EWCA Civ 312. Officers became subject to criminal charges (dismissed) and
disciplinary proceedings (largely not pursued) after a shooting incident which, they
alleged, had been brought about by management failures. ‘‘The appellants’ case involves
postulating a duty of care on the part of employers towards their employees not to cause
or permit an untoward event to occur that could foreseeably lead to proceedings in which
the employees’ conduct would be in issue. It would not be appropriate for a lower court
to make such an extension to the law of negligence and we see no prospect that the House
of Lords would be minded to do so’’: at [34].
703
[1951] 1 Lloyd’s Rep. 271.
704
In fact none of them was injured.
705
[1992] 1 A.C. at 408. Contrast Gregg v Ashbrae Ltd [2006] NICA 17; [2006] N.I. 300 (not
guilt but reaction to ill-informed beliefs of others). See also W v Essex CC [2000] 2 W.L.R.
601 at 607.
706
[1999] 2 A.C. at 508; Anderson v Christian Salvesen Plc [2006] CSOH 101; 2006 SLT
815. Cf. Robertson v Forth Road Bridge 1996 S.L.T. ; Hunter v British Coal [1999] Q.B.
140; Monk v P.C. Harrington Ltd [2008] EWHC 1879 (QB); [2009] P.I.Q.R. P3.
707
[1999] 2 A.C. at 496 and 464
272 Negligence: Duty and Breach
vi. Other situations. At one time the vast majority of reported 5–71
cases on psychiatric injury arose from accidents caused by the
defendant’s negligence and injuring or threatening the claimant or,
more usually, a third party but other situations are possible.718
Liability has, for example, been imposed for mental trauma caused
by long drawn out exposure to stress,719 usually at work, and this is
a growing area of litigation. Plainly here there is no requirement that
the injury must be a response to a sudden event.720 In these cases
there are no special control mechanisms, the issue is simply whether
the employer has fulfilled the general duty (which is a matter of
contract as well as tort) which he owes not to injure the health of his
workers.721 The duty to workers is owed to them as individuals and
must take account of their individual weaknesses where these ought
to be known to the employer722 so one cannot apply the test of
‘‘persons of normal fortitude’’ which is used in respect of secondary
victims of accidents, with whom the defendant will have had no
prior connection; but the duty is still one of reasonable care and an
employer is usually entitled to assume that the employee can with-
stand the normal pressures of the job unless he knows of some
714
See para.6–43, below.
715
Where A and B cause indivisible harm to C, each is liable in full to him. Cf. the approach
of s.30(3) of the Civil Liability Act 2002 (NSW): ‘‘Any damages to be awarded to the
plaintiff for pure mental harm are to be reduced in the same proportion as any reduction
in the damages that may be recovered from the defendant by or through the victim on the
basis of the contributory negligence of the victim.’’
716
Under the Civil Liability (Contribution) Act 1978, para.21–4, below. Cazalet J. referred to
the German decision I.S. Hu. w. Ha., 11 May 1971, Bundesgerichtshof (Sixth Civil
Division), in which the court held that even though the defendant could not be liable to the
shock claimant, the latter’s damages against the other could be reduced in proportion to the
defendant’s fault.
717
Of course, in a motor case all liabilities would end up with motor insurers collectively
whichever line one adopts.
718
Hall v Gwent Healthcare NHS Trust [2005] EWCA Civ 919 is a truly extraordinary claim,
which defies classification. D, by way of a malicious joke, tells lies to X. By a roundabout
route, this causes X to kill his daughter Y and his wife C suffers psychiatric trauma by
coming upon the aftermath. Had C had any prospect of proving that D had the requisite
knowledge of X’s state of mind that might have raised a triable issue but on the facts she
did not.
719
Hatton v Sutherland [2002] EWCA Civ 76; [2002] I.C.R. 613; Walker v Northumberland
CC [1995] I.C.R. 702; Cross v Highlands and Islands Enterprise [2001] I.R.L.R. 336.
720
Cf. Chief Adjudication Officer v Faulds [2001] 1 W.L.R. 1035 (personal injury by accident
under industrial injuries scheme).
721
Hatton v Sutherland above, fn.719 at [22].
722
See para.5–84, below.
274 Negligence: Duty and Breach
723
Hatton v Sutherland at [29]. And what must be foreseeable is psychiatric injury, not just
anger or resentment: Fraser v State Hospitals Board for Scotland 2001 S.L.T. 1051.
Despite some criticism of Hale L.J.’s judgment in Hatton by Lord Walker in Barber v
Somerset CC [2004] UKHL 13; [2004] 1 W.L.R. 1089 (an appeal from one of the four
decisions in Hatton) it remains the central authority in this area: Hartman v South Essex
Mental Health etc. NHS Trust [2005] EWCA Civ 6; [2005] I.R.L.R. 293.
724
In the light of the terms of the contract, which is an essential part of the picture, though
the relationship of the contract and the tort duty has not been explored much in the cases:
Barber at [35] per Lord Rodger; Koehler v Cerebos (Aust) Ltd [2005] HCA 15; 222 C.L.R.
44; New South Wales v Fahy [2007] HCA 20.
725
Hatton v Sutherland at [43].
726
See Coxall v Goodyear Great Britain Ltd [2002] EWCA Civ 1010; [2003] 1 W.L.R. 536
and para.8–16, below.
727
See Bradford-Smart v West Sussex CC [2002] EWCA Civ 7 (bullying).
728
[1999] 1 W.L.R. 1421.
729
In Swinney v CC Northumbria [1997] Q.B. 464 the claimants claimed that they were
suffering from psychiatric illnesses because they had been threatened with violence and
arson after some confidential information furnished by the first claimant to the police had
been stolen from a police vehicle broken into by criminals. The claim was allowed to
proceed and as Brooke L.J. pointed out in Leach at 1435 the court did not pay any
particular attention to the fact that the claims were for damages for psychiatric illness.
730
[2001] 2 A.C. 592.
Duty of Care: Specific Problems 275
737
[2009] EWCA Civ 37; [2009] 3 W.L.R. 118.
738
See para.1–12, above.
739
Al-Kandari v J.R. Brown & Co [1988] Q.B. 665 (not the sole type of damage).
740
Organ Retention Group Litigation, Re, [2004] EWHC 644 (QB); [2005] Q.B. 506.
741
Allin v City & Hackney HA (1996) 7 Med. L.R. 91 (but the duty issue was conceded). Cf.
Halech v South Australia [2006] SASC 29 (mis-identification of bodies; but even if there
was a duty and breach the chain of causation was broken).
742
i.e. one can say there is an ‘‘assumption of responsibility’’. See also Swinney v CC
Northumbria, above, fn.729.
743
For a discussion of foreseeability and its relationship with medical evidence, see
McLoughlin v Grovers [2001] EWCA Civ 1743; [2002] Q.B. 1312 at [40].
744
McLoughlin v Grovers, above, fn.743. Can it be argued that the loss of liberty is analogous
to the foreseeable personal injury in Page v Smith so as to attract the thin skull rule? See
Hale L.J. at [57].
745
Barnes v Commonwealth (1937) 37 S.R.N.S.W. 511; Johnson v State 334 N.E. 2d 590
(N.Y. 1975). Compare Molien v Kaiser Foundation Hospital 616 P. 2d 813 (Cal. 1980)
(false diagnosis of disease which led to collapse of marriage and mental trauma).
746
Guay v Sun Publishing Co [1953] 4 D.L.R. 577. The court was divided and the reasoning
is somewhat diverse. However, requiring an official sender of a private communication to
take steps to get it right is one thing; to impose liability on the press would seem to go a
step too far.
Duty of Care: Specific Problems 277
vii. The future. It is clear that psychiatric injury presents the law 5–74
with the most profound problems and it has only kept it under
control by drawing a series of arbitrary lines. The problems are in
fact so profound that voices have been heard to suggest that it was
an error to have recognised this type of loss at all.750 In 1998 the
Law Commission produced a series of proposals for law reform.751
The full report will repay careful study but the following is an
outline of the proposals.
747
We are concerned now with the position of the news bearer. If A negligently kills B and
C suffers shock when this news is brought to him by D, A escapes liability because C did
not directly perceive the event or its immediate aftermath.
748
Mount Isa Mines Ltd v Pusey (1970) 125 C.L.R. 383 at 407 per Windeyer J.
749
Cf. Furniss v Fitchett [1958] N.Z.L.R. 396. See Mullany and Handford, Tortious Liability
for Psychiatric Damage, 2nd edn, pp.183. In A v Tameside and Glossop HA (1996) 35
B.M.L.R. 77 the defendants conceded that they owed patients a duty of care in respect of
the manner in which they informed them that they had been treated by one of the
defendants’ servants who was HIV positive, though on the facts the Court of Appeal held
that there had been no negligence; but in Tame v New South Wales, Annetts v Australian
Stations Pty Ltd [2002] HCA 35; 211 C.L.R. 37 Gummow and Kirby JJ. thought that only
a malign intention would do.
750
See Stapleton, ‘‘In Restraint of Tort’’ in Birks (ed.) Frontiers of Liability (1994).
751
Law Com. No.249. See also Scot Law Com. No.196 (2004).
278 Negligence: Duty and Breach
Matters like the relationship between the plaintiff and the person
imperilled and whether there was a sudden shock are then part of the
‘‘circumstances of the case’’. However, a person who is not a close
relative of the person injured or imperilled must have, ‘‘witnessed,
at the scene, [that person] being killed, injured or imperilled’’756 and
that does not include the immediate aftermath, thereby excluding
liability to rescuers who come on the scene after the event has
happened.757
3. BREACH OF DUTY
755
Tame v New South Wales, Annetts v Australian Stations [2002] HCA 35; 211 C.L.R. 37.
For New Zealand (where the matter is relevant since recovery for mental injury under the
Accidents Compensation Scheme is limited) see van Soest v Residual Health Management
Unit [2001] 1 N.Z.L.R. 179.
756
Section 30 of the NSW Act.
757
Sheehan v State Rail Authority [2009] NSWCA 261. But the legislation is less uniform on
mental injury than on other matters. Thus the Tasmanian Act includes the aftermath and
the Queensland Act does not deal with mental injury at all.
758
(1856) 11 Ex. 781 at 784.
280 Negligence: Duty and Breach
759
See para.3–6, above, where the point is made that despite the traditional language, he is
intended to be gender neutral.
760
Glasgow Corp v Muir [1943] A.C. 448 at 457 per Lord Macmillan.
761
[1967] 1 A.C. 645 at 663, para.14–21, below.
762
The case does not mean that the court has to engage in a detailed assessment of financial
resources: Leakey v National Trust [1980] Q.B. 485.
Breach of Duty 281
would be unsuitable for a case in which the danger arose from the
defendant’s activity,763 even where the activity is a public service
operating under straitened circumstances.764 Generally speaking, if
the defendant embarks on an activity he must ensure that he has the
skill and resources to carry it on without unnecessary risk to others.
Unlike a number of European systems, the law does not recognise
the concepts of ‘‘gross’’ or ‘‘slight’’ negligence: the defendant has
come up to a single required standard or he has not.765 No reason-
able person handles a stick of dynamite and a walking stick in the
same way, but that is not an admission that there are different
degrees of negligence in the law of torts but simply a reflection of
the fact that precautions must be in proportion to the risk. However,
the character of the defendant’s fault may be relevant if it is sought
to reduce the claimant’s damages on account of contributory negli-
gence on his part,766 for then it may be necessary to compare the
conduct of the two parties.
It might be expected that the particular circumstances of the
relationship between the claimant and the defendant might lead the
courts to modify the content of the defendant’s duty as, for example,
where the claimant submitted himself to treatment by someone
whom he knew to be of limited competence. However, in Nettleship
v Weston767 the Court of Appeal came to the rather remarkable
conclusion that a learner driver was required, even vis-à-vis his
instructor, to come up to the standard of an ordinary, competent
driver. The Court of Appeal was heavily influenced by the presence
of compulsory insurance,768 as was the High Court of Australia in
coming to the same conclusion769 (though it had earlier held the
contrary).770 A similar problem is raised by a passenger who know-
ingly takes a lift with a drunken driver: English courts have tended
763
See, e.g. the cases on professional negligence, para.5–79, below.
764
P.Q. v Australian Red Cross Society [1992] V.R. 19 (where charity required to test blood
for HIV); cf. Knight v Home Office [1990] 3 All E.R. 237, para.5–86, below.
765
See Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 at 175 per Lord
Wright: ‘‘Generally speaking in civil cases ‘gross’ negligence has no more effect than
negligence without an opprobrious epithet’’. Palmer v Tees HA [2000] P.I.Q.R. P1.
766
See para.6–53, below.
767
[1971] 2 Q.B. 691. Cf. Phillips v William Whiteley Ltd [1938] 1 All E.R. 566 (jeweller
piercing ears is not bound to take the same precautions as a surgeon, but such as may
reasonably be expected of a jeweller; but in the AIDS era, high standards should be
required even of a jeweller).
768
See Lord Denning M.R. at 700. Salmon L.J., however, would have come to the opposite
conclusion but for a prior conversation about insurance between the parties.
769
Imbree v McNeilly [2008] HCA 40.
770
Cook v Cook (1986) 68 A.L.R. 353. A volunteer referee from the crowd at an amateur
rugby match cannot be expected to have the skill of one who professes to be a referee nor
even necessarily to be fully conversant with the laws of the game: Vowles v Evans [2003]
EWCA Civ 318; [2003] 1 W.L.R. 1607 at [28]. Neither Nettleship nor Imbree necessarily
applies outside the motor context.
282 Negligence: Duty and Breach
to adopt the objective standard and reduce the damages for contribu-
tory negligence.771 On the other hand, it has been said that if a
person chooses to submit himself to treatment by an alternative
medical practitioner that is something which must be taken into
account in determining the standard of care, though the impact of
this is somewhat diminished by the fact that the alternative practitio-
ner should take steps to keep himself informed of knowledge in
conventional medicine which relates to the safety of the treatments
he prescribes.772
It does not follow from the objective standard that every error of
judgement or mistake amounts to negligence. There must be a
falling below the standard of care called for by the circumstances
and these may allow for an excusable ‘‘margin of error’’, particularly
where the defendant has to deal with an emergency773 or take quick
decisions774 or deal with a problem which has not arisen before775 or
exercise judgment on a matter on which opinions may differ.776 For
example, ‘‘serious and dangerous foul play’’ on the football field
amounts to negligence but it does not follow that the same is true of
every infringement of the technical rules of the game, nor can the
claimant, who has entered voluntarily into the game, expect other
players to behave as if they were taking a walk in the countryside.777
Similarly, what will be demanded by way of care in a domestic
situation is not to be equated with the standards of business.778 In the
case of valuation of a building a group of competent valuers are
likely to come up with a range of figures779 and no valuation within
that range will amount to professional negligence. The phrase ‘‘error
of judgement’’ is ambiguous, it may signify a failure to come up to
the professional standard required780 or excusably taking the wrong
course in complex circumstances.781
771
See para.25–13, below.
772
Shakoor v Situ [2001] 1 W.L.R. 410.
773
Greene v Sookdeo [2009] UKPC 31.
774
Smoldon v Whitworth [1997] P.I.Q.R. P133.
775
A v Tameside and Glossop HA (1996) 35 B.M.L.R. 77 (how to inform patients that they
had been treated by HIV positive members of staff).
776
On matters of opinion and judgment see Luxmore-May v Messenger May Baverstock
[1990] 1 W.L.R. 1009 (valuation and attribution of works of art).
777
Condon v Basi [1985] 1 W.L.R. 866. In accepting (1) that the claimant’s voluntary
participation is a factor in determining the content of the duty of care and (2) that a higher
degree of care may be required in the First Division than in a local league (see Watson v
Gray, The Times, November 26, 1998) this case appears to depart from Nettleship v
Weston, though that decision is not mentioned. For the relationship between the standard
of care and the defence of volenti non fit injuria, see para.25–13, below.
778
Surtees v Kingston on Thames BC [1991] 2 F.L.R. 559.
779
See, e.g. Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] A.C. 191,
where the range was between £630,000 and £770,000. Where there is an overvaluation, the
damages are based on the difference between the valuation given and the ‘‘true’’ value. The
latter will be taken to be the mean of the competent valuations: as above.
780
Whitehouse v Jordan [1981] 1 W.L.R. 246.
781
As in Caldwell v Maguire [2001] EWCA Civ 1054; [2002] P.I.Q.R. P6 (jockey).
Breach of Duty 283
C. ‘‘Abnormal’’ Defendants
5–78 Although the objective standard eliminates the personal abilities
of the defendant, the law has never taken this to the ultimate
conclusion788: for example, no one would ever have suggested that
a tiny baby could be liable for negligence. There is not a great deal
of case law, but it is now clear that a child is to be judged by the
standard of what would be reasonable to expect of a child of that
age789 and some allowance is also probably to be made for physical
disability, for example in judging whether a blind person took
reasonable care as a pedestrian where a driver was injured trying to
avoid him. Disabled people must be allowed to live in the world and
if they take what precautionary steps are open to them790 and do not
engage in activities which are unavoidably perilous given their
condition, the resulting risk is one we must all put up with.
‘‘The law must apply a standard which is not relaxed to cater for
their factual ignorance of all activities outside brewing: having
become owners of ships, they must behave as reasonable
shipowners.’’796
792
Phillips v John, Unreported, CA, July 11, 1996.
793
Wells v Cooper [1958] 2 Q.B. 265. Even this, however, is an objective standard, which
may be higher than the defendant’s ‘‘best.’’ Cf. Moon v Garrett [2006] EWCA Civ 1121
(not mere DIY work).
794
He is not to be expected to travel outside the scope of his instructions and hold a watching
brief for the client’s general welfare: Pickersgill v Riley [2004] UKPC 14; [2004] P.N.L.R.
31 (solicitor).
795
The Lady Gwendolen [1965] P. 294 (‘‘actual fault’’ under the Merchant Shipping Act 1893
s.503); Griffiths v Arch Engineering Co Ltd [1968] 3 All E.R. 217; Cardy & Son v Taylor
[1994] N.P.C. 30.
796
[1965] P. 294 at 350 per Winn L.J.
797
Buckland and McNair, Roman Law and Common Law, 2nd edn, pp.259–260.
798
[1987] Q.B. 730. The case was reversed by the House of Lords but not on this point:
[1988] A.C. 1074.
286 Negligence: Duty and Breach
799
[1987] Q.B. 730 at 750 per Mustill L.J. Unlike the situation in Nettleship v Weston there
is no voluntary relationship here.
800
The case was not presented on the basis that the hospital authority had failed in its duty
(see para.20–6, below). This might cover some cases in which the individual doctor was
not liable. It has been held that a barrister, ‘‘must conduct himself in his professional work
with the competence (care and skill) of a barrister of ordinary skill who is competent to
handle that type of and weight of work and a breach of that duty occurs when the error is
one which no reasonably competent member of the profession possessing those skills
should have made’’: McFaddens v Platford [2009] EWHC 126 (TCC) at [49]; cf. Williams
v Leatherdale & Francis [2008] EWHC 2574 (QB) at [67] (taking account of
seniority).
801
‘‘If this test appears unduly harsh . . . the inexperienced doctor called on to exercise a
specialist skill will, as part of that skill, seek the advice and help of his superiors when he
does or may need it. If he does seek such help, he will often have satisfied the test, even
though he may himself have made a mistake’’: [1987] Q.B. 730 at 774 per Glidewell L.J.
Despite the headnote it is not entirely clear that Glidewell L.J. was not imposing an even
more severe standard than Mustill L.J.
802
Luxmore-May v Messenger May Baverstock [1990] 1 W.L.R. 1009. No doubt the effect of
compulsory continuing education, the setting of official practice standards and the ‘‘licens-
ing’’ of specialist forms of practice in law will mean that the general practitioner (if he can
survive at all) will need an ever more acute sense of when he is getting ‘‘out of his
depth’’.
803
There will of course in many cases be a contract. The Supply of Goods and Services Act
1982 s.13 implies a term of reasonable care and skill, but ‘‘reasonable’’, in contract as in
tort, varies with the circumstances.
804
Jackson and Powell, Professional Liability, 6th edn; Charlesworth and Percy, Negligence,
11th edn.
805
Greaves & Co v Baynham Meikle [1975] 1 W.L.R. 1095.
Breach of Duty 287
806
Thake v Maurice [1986] Q.B. 644 (vasectomy; statement of irreversibility did not amount
to warranty of permanent sterility; but note that on the facts the trial judge came to the
opposite conclusion (at 658) and Kerr L.J. thought he was entitled to do so).
807
Cf. X v Woollcombe Young [2001] Lloyd’s Rep. P.N. 274 (promptness over making of
will).
808
On a judge’s duty to give reasons for his decision see Flannery v Halifax Estate Agencies
Ltd [2000] 1 W.L.R. 377.
809
Bank of Montreal v Dominion Guarantee, etc. Co Ltd [1930] A.C. 659 at 666 per Lord
Tomlin; The Herald of Free Enterprise, Re, The Independent, December 18, 1987 (not a
tort case).
810
Lloyd’s Bank Ltd v Savory [1933] A.C. 201; Markland v Manchester Corp [1934] 1 K.B.
566; Barkway v South Wales Transport Co Ltd [1950] A.C. 185; Paris v Stepney BC [1951]
A.C. 367; General Cleaning Contractors v Christmas [1953] A.C. 180; Morris v West
Hartlepool Steam Navigation Co Ltd [1956] A.C. 552; Cavanagh v Ulster Weaving Co Ltd
[1960] A.C. 145; MacDonald v Scottish Stamping & Engineering Co 1972 S.L.T. (Notes)
73.
811
In Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] A.C. 296 the Privy
Council held that following the customary ‘‘Hong Kong’’ style of conveyancing comple-
tion amounted to negligence, though the risk could have been avoided by changes in
practice which would not wholly undermine the institution; and in Organ Retention Group
Litigation, Re, [2004] EWHC 644; [2005] Q.B. 506 the evidence was that it was the
universal practice, when seeking consent for a post mortem on a child, not to tell parents
of the possibility of organ removal and retention but the practice was nevertheless held to
be negligent towards the parents.
812
See, e.g. Sidaway v Bethlehem Royal Hospital and Maudsley Hospital [1985] A.C. 871,
para.25–4, below, dealing with the giving of information to patients.
813
Vancouver General Hospital v McDaniel (1934) 152 L.T. 56 at 57 per Lord Alness
(methods of preventing infection in hospital); Whiteford v Hunter [1950] W.N. 533; Wright
v Cheshire CC [1952] 2 All E.R. 789; Rich v L.C.C. [1953] 1 W.L.R. 895; Simmons v
Pennington & Sons [1955] 1 W.L.R. 183.
288 Negligence: Duty and Breach
822
Baxter v Harland & Wolff [1990] I.R.L.R. 516.
823
It is not necessary that the defendant has made a conscious choice between the two
schools: Adams v Rhymney Valley DC [2000] Lloyd’s Rep. P.N. 777.
824
Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 at 587 (the
direction to the jury in this case has become known as the ‘‘Bolam test’’); Sidaway v
Bethlem Royal Hospital [1985] A.C. 871; Shaw v Redbridge LBC [2005] EWHC 150
(QB).
825
However, ‘‘evidence which really amounts to no more than an expression of opinion by a
particular practitioner of what he thinks that he would have done had he been placed,
hypothetically and without the benefit of hindsight, in the position of the defendants, is of
little assistance to the court’’: Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [1979]
Ch 384 at 402; J. D. Williams & Co Ltd v Michael Hyde & Associates Ltd [2000] Lloyd’s
Rep. P.N. 823.
826
Even in a medical context, Bolam is concerned with liability to the patient and it does not
follow that a course of action which would not be a breach of duty to the patient cannot
therefore be a breach of duty to a staff member to whom the patient presents a risk: Buck
v Nottinghamshire Health Care NHS Trust [2006] EWCA Civ 1576; 93 B.M.L.R. 28.
827
Gold v Haringey Health Authority [1988] Q.B. 481; Luxmoore-May v Messenger May
Baverstock [1990] 1 W.L.R. 1009; Adams v Rhymney Valley DC [2000] Lloyd’s Rep. P.N.
777; Levicom International Holdings BV v Linklaters [2009] EWHC (Comm) 812.
828
Above, fn.827. On the scope of the duty to warn of risks of treatment, see further
para.25–4, below.
829
The Bolam test applies to the question whether the conduct is negligent it does not apply
to proof of causation. If some or even a majority of experts believe that omission of a
treatment did not cause the damage that does not preclude the court from concluding that
it did: Cavanagh v Weston HA [1992] 3 Med.L.R. 49.
830
See above.
290 Negligence: Duty and Breach
opinion in the very rare case where it can be shown that the opinion
in question is not logically supportable at all.831
5–82 Many matters other than general practice may be adverted to for
guidance on the standard which the court should adopt as the
measure of reasonable care. For example, the Highway Code does
not of itself give rise to any liability but it is specifically provided
that a failure to observe it may be relied upon to establish (or
negative) any liability which is in question in a civil action.832 As to
criminal law, it may be said that (putting aside cases where statute
gives rise to a direct civil liability, which are dealt with in Ch.7)
failure to comply with it is normally good evidence of negligence
but it is not possible to lay down any hard and fast rule. There are
circumstances for example, in which it would not be negligent to
exceed the statutory speed limit. Equally, it is not difficult to imag-
ine a case in which statutory requirements are met but the court
would find that there is common law negligence. With regard to the
latter type of case, however, a distinction must be drawn between
activities like driving, or operating a factory, where there must be
room for varying standards to meet varying circumstances, and
matters such as the legally permissible level of toxic materials in
products. For example, if statutory regulations lay down the amount
of an ingredient which may be incorporated in petrol, it has been
held that the court cannot hold it negligent to incorporate this
amount even in the face of evidence that this amount is harmful: to
do so would be tantamount to declaring that if the speed limit on a
stretch of road were 30mph it was nonetheless always (and not
merely in unusual conditions like ice or fog) negligent to exceed
20mph.833
831
Bolitho v City and Hackney HA [1998] A.C. 232, particularly at 243B and C. Note the
slightly different formulation of the burden of persuasion at 243A.
832
Road Traffic Act 1988 s.38(7); Powell v Phillips [1972] 3 All E.R. 864; Fire Safety and
Safety of Places of Sport Act 1987 s.6. There are also codes of practice under the Health
and Safety at Work (etc.) Act 1974, see Ch.8.
833
See Albery and Budden v BP Oil [1980] J.P.L. 586. Cf. Consumer Protection Act 1987,
para.10–25, below.
834
Qualcast (Wolverhampton) Ltd v Haynes [1959] A.C. 743; Foskett v Mistry [1984] R.T.R.
1. So a decision in one case that a warning sign about submerged rocks was required does
not dictate that such a sign is necessarily required at another place: Vairy v Wyong Shire
Council [2005] HCA 62; 223 C.L.R. 422.
Breach of Duty 291
‘‘I think that reasonable men do in fact take into account the
degree of risk and do not act upon a bare possibility as they would
if the risk were more substantial.’’843
843
[1951] A.C. 850 at 865; cf. The Wagon Mound (No.2) [1967] 1 A.C. 617 at 642 per Lord
Reid.
844
[2008] EWCA Civ 907; [2009] 1 W.L.R. 19.
845
[1961] 1 W.L.R. 1434. For different views on indoor cricket, see Wood v Multi-Sport
(2002) 186 A.L.R. 145.
846
Best v Wellcome Foundation [1994] 5 Med. L.R. 81 (Ir.S.C.). For liability under the
Consumer Protection Act 1987 see para.10–18, below.
847
[1951] A.C. 367; Pentney v Anglian Water Authority [1983] I.C.R. 464.
848
Of course standards change and 50 years later even the risk to a two-eyed man might
require the provision of goggles.
Breach of Duty 293
‘‘As has often been pointed out, if all the trains in this country
were restricted to a speed of five miles an hour, there would be
fewer accidents, but our national life would be intolerably slowed
down. The purpose to be served, if sufficiently important, justifies
the assumption of abnormal risk.’’851
849
Paris v Stepney Borough Council, above, fn.847; Haley v London Electricity Board [1965]
A.C. 778; Baxter v Woolcombers (1963) 107 S.J. 553 (claimant’s low intelligence relevant
to standard of care due to him but not to question of contributory negligence); Johnstone
v Bloomsbury HA [1992] Q.B. 333; Morrell v Owen, The Times, December 14, 1993
(coach of disabled athletes); Walker v Northumberland CC [1995] I.C.R. 702; Hatton v
Sutherland [2002] EWCA Civ 76; [2002] I.C.R. 613 (susceptibility to stress).
850
Bourhill v Young [1943] A.C. 92 at 109–110 per Lord Wright.
851
Daborn Bath Tramways [1946] 2 All E.R. 333 at 336 (left-hand drive ambulance during
emergency period of war not negligent in turning right without giving a signal); Brisco v
Secretary of State for Scotland 1997 S.C. 14 (small risk of injury justified in training of
prison officers). Cf. Quinn v Scott [1965] 1 W.L.R. 1004 (National Trust negligent in not
felling dangerous tree near highway. Safety of public must take precedence over preserva-
tion of the amenities). The fact that the defendants in Bolton v Stone were playing cricket
must have had some influence upon the decision. It by no means follows that the same risk
could be taken for a less worthy end.
852
[1954] 1 W.L.R. 835; King v Sussex Ambulance NHS Trust [2002] EWCA Civ 953. In the
latter case at [47] Buxton L.J. said: ‘‘Why should . . . men of courage, who are the persons
who run the risk on behalf of the public, suffer if the risk eventuates? If, as this court held
in Kent v Griffiths, the public interest obliges the service to respond to public need, why
should it not be equally in the public interest to compensate those who are foreseeably
injured in the course of meeting that public need? If the furniture mover [faced with a risky
task] . . . decided to go on with the job, for whatever reason, he would do so at his peril
if workers were injured . . . . It is difficult to see why . . . if employees required to run
risks to advance private interests can recover if doing their employer’s bidding leads to
injury, so employees required to run risks to advance public interests should [not] by the
same token be able to recover.’’
294 Negligence: Duty and Breach
is very different from the human end to save life or limb.’’853 A fire
authority has been held liable for damage caused by a fire engine
which went through a red light on the way to a fire854 for there is no
special exemption from the law of negligence for them, the police or
other emergency services.855 However, the question of whether the
defendant behaved like a reasonable man admits of a flexible
response which may take account of the emergency in which the
defendant acts.856
All this is not to say that some risk can be taken only in an
emergency: tea and coffee are only palatable when they are made
with hot water, people generally want them to be served hot and a
person who caters for that is not negligent merely because there is
some risk of scalding.857 If the law goes too far in setting the
standard of care required the legitimate activities of people in
general will be curtailed.
853
Watt (fn.852) at 838 per Denning L.J. That is not to say, of course, that an increased
element of risk in a change of practice automatically makes a commercial enterprise
negligent: Nilson v Redditch BC, Unreported, CA, October 31, 1994 (change from
‘‘wheely bin’’ to ‘‘black bag’’ rubbish collection system increased risk of cutting
injuries).
854
Ward v L.C.C. [1938] 2 All E.R. 341; Wardell-Yerburgh v Surrey CC [1973] R.T.R. 462;
Purdue v Devon Fire and Rescue Service [2002] EWCA Civ 1538.
855
Even though they may be exempt from criminal liability for, e.g. exceeding the speed limit.
Gaynor v Allen [1959] 2 Q.B. 403; Griffin v Mersey Regional Ambulance [1998] P.I.Q.R.
P34.
856
Marshall v Osmond [1983] Q.B. 1034; Scutts v MPC [2001] EWCA Civ 715; cf. Rigby v
CC Northamptonshire [1985] 1 W.L.R. 1242, where, on the facts, the defendants were
negligent even allowing for the emergency. See the extraordinary case of Craggy v CC
Cleveland [2009] EWCA Civ 1128 (collision between fire engine and police car at
controlled junction).
857
Bogle v McDonald’s Restaurants Ltd [2002] EWHC 490 (QB).
858
New South Wales v Fahy [2007] HCA 20 at [6] per Gleeson C.J. See Alexis v Newham LBC
[2009] EWHC 1323; [2009] I.C.R. 1517 (no reason to anticipate poisoning of teacher by
allowing child access to room).
859
[2003] UKHL 47; [2004] 1 A.C. 46.
860
See para.9–17, below.
Breach of Duty 295
should have taken effective steps to keep people away from the
water is clearly of general application. As Lord Hoffmann put it:
861
At [46]. Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39; [2006] 1 W.L.R.
953 at [17]
862
See Haley v London Electricity Board [1965] A.C. 778; Stokes v Guest, Keen and
Nettleford (Bolts and Nuts) Ltd [1968] 1 W.L.R. 1776.
863
[1953] A.C. 643. Cf. Bolton v Stone [1951] A.C. 850 at 867 per Lord Reid: ‘‘I think that
it would be right to take into account not only how remote is the chance that a person might
be struck but also how serious the consequences are likely to be if a person is struck but
I do not think that it would be right to take into account the difficulty of remedial
measures.’’ The risk involved in taking a precaution may actually outweigh the advantages
of taking it: Morris v West Hartlepool Steam Navigation Co Ltd [1956] A.C. 552; Bolam
v Friern Hospital Management Committee [1957] 1 W.L.R. 582.
296 Negligence: Duty and Breach
injured and then sought to say that the occupiers should have closed
down the factory. The House of Lords held that the risk of injury
created by the slippery floor was not so great as to justify, much less
require, so onerous a precaution.864 The greater the risk, the less
receptive a court is likely to be to a defence based simply upon the
cost, in terms of money, of the required precautions865 and there may
be situations in which an activity must be abandoned altogether if
adequate safeguards cannot be provided. However, it must always
be borne in mind that there may be costs other than financial ones,
such as the restriction on the freedom of others which has been
referred to above, and therefore a measure may be unjustifiable on
that ground even if it would not cost very much.866 The courts in
England have certainly not shown overt attachment to the theory
that negligence is merely an economic cost/benefit equation,867 but
at the end of the day the cost of a precaution and the ability of a
socially useful activity to bear that cost have to be brought into
account.868 In Knight v Home Office869 a mentally disturbed prisoner
who was known to have suicidal tendencies hanged himself despite
being observed every 15 minutes by staff in the prison hospital
wing. In coming to the conclusion that the defendants were not in
breach of their duty of care, Pill J. said that (a) it was not correct to
demand of a prison hospital the same facilities and the same level of
staffing as could be expected in a specialised psychiatric hospital (to
which the deceased would have been transferred a few days later)
864
In Gough v Upshire Primary School [2002] E.L.R. 169 the fact that a child might slide
down a banister was perfectly foreseeable but that did not require alteration of the
staircase. Countervailing disadvantages are not confined to financial ones: Searby v
Yorkshire Traction Ltd [2003] EWCA Civ 1856.
865
See, e.g. Morris v Luton Corp [1946] 1 All E.R. 1 at 4 per Lord Greene M.R. (the report
of this case at [1946] K.B. 116 is incomplete); Christmas v General Cleaning Contractors
[1952] 1 K.B. 141 at 149 per Denning L.J. (affirmed [1953] A.C. 180).
866
Tomlinson v Congleton BC [2003] UKHL 47; [2004] 1 A.C. 46. ‘‘Negligence is not an
economic cost/benefit equation. Immeasurable ‘soft’ values such as community concepts
of justice, health, life and freedom of conduct have to be taken into account’’: Western
Suburbs Hospital v Currie (1987) 9 N.S.W.L.R. 511 at 523 per McHugh J.A.
867
For this approach see, e.g. Posner, Economic Analysis of Law, 2nd edn, Ch.6. See also
Learned Hand J.’s algebraic formula in US v Carroll Towing Co 159 F. 2d 169, 173 (1947).
Speaking in a case where a barge had broken adrift, he said: ‘‘the owner’s duty . . . is a
function of three variables: (1) The probability that she will break away (2) the gravity of
the resulting injury if she does (3) the burden of adequate precautions. Possibly it serves
to bring that notion into relief to state it in algebraic terms: if the probability be called D
the injury L, and the burden B liability depends on whether B is less than L multiplied by
P.’’ As Posner J. admitted in McCarty v Pheasant Run Inc 826 F 2d 1554 at 1557 (1987)
the court rarely has the information required to quantify all the variables and the Hand
formula therefore has greater analytical than operational utility.
868
The leading case on breach of duty at common law in Australia is Wyong Shire Council
v Shirt [1980] HCA 12; 146 C.L.R. 40. There has been disagreement in the High Court as
to whether it tends to produce an assumption that because something could be done
without great expense, it follows that it should be done: see New South Wales v Fahy
[2007] HCA 20. The position may be affected by legislation in all states comparable to
s.5B of the Civil Liability Act 2002 (NSW).
869
[1990] 3 All E.R. 237. See also Cekan v Haines (1990) 21 N.S.W.L.R. 296.
Breach of Duty 297
and (b) while lack of funds was no more a defence per se for a public
body than for a private trader, yet he had to bear in mind that,
‘‘resources available for the public service are limited and that the
allocation of resources is a matter for Parliament’’.870 It has been
said that:
4. PROOF OF NEGLIGENCE
A. Criminal Convictions
First, in many cases (especially road accident cases) there may 5–88
have been criminal proceedings which have led to the conviction of
the defendant. The Civil Evidence Act 1968 reversed the common
law rule that a conviction might not be used as evidence in civil
proceedings872 and provides in s.11 that if a person is proved to have
been convicted of an offence then he shall be taken to have com-
mitted that offence unless the contrary is proved.873 So if the
defendant has been convicted of careless driving in respect of the
incident which led to the claimant’s injury that is likely to be
870
[1990] 3 All E.R. 237 at 243. Where a danger arises on the defendant’s property and he
is obliged to take steps to abate it, account is taken of his personal circumstances, including
his resources (para.5–76, above). While one could not argue that the provision of a public
service can be equated with this situation they share the characteristic that in both cases the
defendant has no choice but to act and the size of the demand on him is beyond his
control.
871
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
at [265].
872
Hollington v F. Hewthorn & Co Ltd [1943] K.B. 587.
873
See Wauchope v Mordecai [1970] 1 W.L.R. 317.
298 Negligence: Duty and Breach
874
An acquittal is of no evidential relevance to civil liability. The criminal standard of proof
is higher.
875
This does not infringe the rule against collateral attacks on issues decided in criminal
proceedings (Hunter v CC West Midlands [1982] A.C. 529): McCauley v Hope [1999]
P.I.Q.R. P 185; J v Oyston, The Times, December 11, 1998. Care must be taken to
distinguish s.11 from s.13, which makes proof of a conviction conclusive evidence of guilt
for the purposes of defamation: para.12–29, below.
876
Thus a conviction for speeding is evidence of civil negligence but speeding is not
necessarily negligence.
877
Stupple v Royal Insurance Co Ltd [1971] 1 Q.B. 50.
878
CPR Pt 24.
879
See Fryer v Pearson, The Times, April 4, 2000.
880
Roe v Minister of Health [1954] 2 Q.B. 66 at 87. See also Hobhouse L.J. in Ratcliffe v
Plymouth and Torbay HA [1998] P.I.Q.R. P170. The judgment of Brooke L.J. in this case
contains a helpful survey and analysis of modern medical negligence cases in this
context.
Proof of Negligence 299
The cases on res ipsa loquitur are no more than illustrations of the
way in which the courts infer negligence from circumstantial evi-
dence so that the Supreme Court of Canada was clearly correct to
say it should no longer be treated as a ‘‘separate component’’ of the
law of negligence.885 Nonetheless, the student should have some
idea of how cases are decided where there is no direct evidence.
The essential element is that the mere fact of the happening of the
accident should tell its own story so as to establish a prima facie case
against the defendant. This is commonly divided into two parts on
881
It was held that in suitable circumstances res ipsa loquitur could be applied to air crashes
in George v Eagle Air Services [2009] UKPC 21. Normally no such issue can arise because
commercial carriage of passengers is governed by an international convention regime
outside general tort law.
882
Cf. Ludlow v Swindon Health Authority [1989] 1 Med.L.R. 104.
883
In the case of a head-on collision in the middle of the road there may be no pointer one
way or the other as to whose fault it was and the correct inference will often be that both
drivers were to blame: Bray v Palmer [1961] 1 W.L.R. 1455; Baker v Market Harborough
Co-operative Society [1953] 1 W.L.R. 1472.
884
Hobhouse L.J. in Ratcliffe v Plymouth and Torbay HA, above, fn.880, at P189.
885
Fontaine v British Columbia [1998] 1 S.C.R. 424.
300 Negligence: Duty and Breach
the basis of Erle C.J.’s famous statement in Scott v London and St.
Katherine Dock Co886:
So the elements are (a) control and (b) an accident of a type which
does not normally occur without the defendant’s fault. In reality,
however, the two parts are closely interconnected: ‘‘control’’ is
required because the absence of control by the defendant makes it
less likely that the accident arose from his fault. That is why, in
Easson v L.N.E.Ry.887 where the claimant, aged four, fell through the
door of a corridor train about seven miles from its destination, res
ipsa loquitur did not apply. On the journey from Edinburgh to
London there was so much opportunity for the doors to be interfered
with by passengers that their action could as well have been the
cause of the door coming open as the fault of the railway company.
On a modern train with electrically locked doors the incident might
point to a fault in the system. Again, if a barrel falls from an upstairs
opening on to a passer-by that is unlikely to happen if those in
charge take proper care888; but if an armchair falls from an uni-
dentified window in a tall hotel, that points to some act of malice or
madness on the part of a guest, not to the fault of the hotel.889 On the
other hand, it is not difficult to imagine cases which might raise an
inference of negligence even though the defendant was not in
control at the time of the accident. If A borrows a car from B and A
runs into C, that suggests negligence on A’s part; but if it is shown
that the cause was the sudden failure of the brakes that would
exonerate A, but not necessarily B, for it is rare for the brakes on a
well-maintained car to fail without warning. If of course B produces
evidence that the car was properly maintained, C’s claim fails
altogether: even if the defendant cannot explain how the defect came
to occur he succeeds if he shows that there was no breach of duty in
886
(1865) 3 H. & C. 596 (six bags of flour fell on claimant while he was walking past the
defendant’s warehouse, claim should have been left to the jury).
887
[1944] 2 K.B. 421. Cf. Gee v Metropolitan Ry (1873) L.R. 8 Q.B. 161 (door opened soon
after train left station).
888
Byrne v Boadle (1863) 2 H. & C. 722. It could of course be the fault of a malicious person
who had gained entry and was lying in wait for the claimant, but that is sufficiently
unlikely to be discounted unless the defendant produces evidence.
889
Larson v St. Francis Hotel 188 P. 2d 513 (1948).
Proof of Negligence 301
890
Woods v Duncan [1946] A.C. 401.
891
Ellor v Selfridge & Co Ltd (1930) 46 T.L.R. 236. For a fairly generous decision see
Widdowson v Newgate Meat Corp [1998] P.I.Q.R. P138 (claimant walking on dual
carriageway at midnight wearing dark clothing).
892
Richley v Faull [1965] 1 W.L.R. 1454.
893
Fontaine v British Columbia [1998] S.C.R. 424.
894
Sochaki v Sas [1947] 1 All E.R. 344.
895
Stafford v Conti Commodity Services [1981] 1 All E.R. 691; Merrill Lynch Futures Inc v
York House Trading (1984) 81 L.S. Gaz. 2544.
896
The mere fact that the claimant has tried and failed to prove some specific act of
negligence on the part of the defendant does not prevent him inviting the court to draw an
inference of negligence in the alternative: Anchor Products Ltd v Hedges (1966) 115
C.L.R. 493.
897
[1950] 1 All E.R. 392.
302 Negligence: Duty and Breach
the tyres. It was shown that the defect might have been discovered
beforehand if the defendants had required drivers to report incidents
which could give rise to ‘‘impact fractures’’ and the House of Lords
held that the negligence of the defendants in failing to institute such
a system was established.
898
Indeed, the jury in the second trial in Scott v London and St. Katherine Docks, above,
fn.886, found for the defendant. Even where the claimant has supported his case by direct
evidence the defendant may, at the close of the claimant’s case, submit that there is no case
to answer. The traditional approach has been to consider such a submission if the defendant
elects to call no evidence since it is inconvenient to ask the trier of fact for an opinion when
the evidence is incomplete: Alexander v Rayson [1936] [1936] 1 K.B. 169. There is,
however, a discretion and this is probably rather broader under the CPR: Blinkhorn v Hall,
April 13, 2000, CA.
899
See Lord Pearson in Henderson v Henry E. Jenkins & Sons [1970] A.C. 282 at 310: ‘‘the
issue will be decided in the claimant’s favour unless the defendants by their evidence
provide some answer which is adequate to displace the prima facie inference.’’
900
Ng v Lee [1988] R.T.R. 296 (PC).
Proof of Negligence 303
901
Lloyde v West Midlands Gas Board [1970] 1 W.L.R. 749 at 755, approved in Ng v Lee
above, fn.900. However, one should not exaggerate the burden on the claimant. If he slips
on yoghurt on a supermarket floor he wins unless the store shows there was a system of
frequent inspections and that it was operated: Ward v Tesco Stores Ltd [1976] 1 W.L.R.
810; Hall v Holker Estate Co Ltd [2008] EWCA Civ 1422
902
[2000] P.I.Q.R. P84.
903
[1970] A.C. 282.
304 Negligence: Duty and Breach
5. CONSEQUENT DAMAGE
5–91 The third ingredient of the tort of negligence is that the claimant’s
damage must have been caused by the defendant’s breach of duty
and must not be too remote a consequence of it. Discussion of this
ingredient thus involves consideration of causation and (if it be
different) remoteness of damage, topics relevant in all torts and not
only in the tort of negligence. It is in cases of negligence, however,
that these problems most commonly arise, and they can only be
dealt with against the background of the tort of negligence as a
whole. The next chapter will deal with these issues and with the
often closely associated matter of the contributory fault of the
claimant.
CHAPTER 6
THE claimant must show a causal link on the usual civil standard of 6–1
a balance of probabilities between the loss he has suffered and the
defendant’s wrong; he must also show that the loss in respect of
which he claims is within the range of that for which it is just to
make the defendant responsible (though this element, too, is to some
extent expressed in the language of ‘‘causation’’); and if the claimant
has contributed to the occurrence of that loss his damages may be
reduced (or even extinguished). These issues arise in connection
305
306 Negligence: Causation, Remoteness (Scope of Liability) etc
with other torts, too, but most of the case law involves claims for
negligence, so they are dealt with here, though it will be necessary
to consider them again at various later points.
6–2 Even if the claimant proves every other element in tortious liability
he will lose the action or, in the case of torts actionable per se, fail
to recover more than nominal damages, if what the defendant did is
not treated as a legally effective cause of his loss. This issue is
logically distinct from and anterior to the question of measure of
damages, which is concerned with the amount of the pecuniary
compensation which the defendant must pay in respect of those
items of the claimant’s loss for which he is legally responsible.1
Thus in one of the leading cases, the issue was whether the defen-
dants were liable for fire damage to a wharf which arose from a
rather unusual chain of events after the defendants spilled oil into a
harbour.2 If they had been liable (in fact they were not) the prima
facie measure of damages would have been the cost of repairing the
wharf plus consequential losses like loss of business, but a number
of other, subsidiary issues might have been raised, for example the
effect on the defendant’s liability of payments made by the claim-
ants’ fire insurers, or the position if the cost of repairs had exceeded
the value of the wharf. Matters like this will be dealt with at a later
stage,3 though it may as well be admitted now that the line between
‘‘causation/remoteness’’ and ‘‘measure’’ is not always easy to draw,4
for measure of damages is not merely a matter of mathematical
calculation.
1
See The Argentino (1881) 13 P.D. 101 at 196.
2
The Wagon Mound [1961] A.C. 388, para.6–17, below.
3
See Ch.22, below.
4
Furthermore, ‘‘measure of damages’’ is sometimes used by judges when causation/remote-
ness is meant. See, e.g. The Wagon Mound (No.2) [1967] 1 A.C. 617 at 638 per Lord
Reid.
Causation and Remoteness (Scope of Liability): Introduction 307
question which arises (at least in theory) in every case, that is to say,
whether the defendant’s act (or omission) should be excluded from
the events which contributed to the occurrence of the claimant’s
loss. If it is so excluded, that is the end of the case, for if there is no
connection between the defendant’s act and the loss there is no
reason for a private law system of liability to operate with regard to
him. It is conceivable that in another society or another time or in a
different context it might be regarded as a good reason for saying
that A must pay for damage suffered by B, that A was rich and B
was poor, or that A was head of B’s clan; or we might, as to some
extent we do, via social security, decide that society as a whole
should pay for B’s loss. However, to our way of thinking the
necessary bedrock5 of tort liability as a general rule is at least a
causal connection between A’s act and B’s loss,6 and if what A did
made no contribution to the situation in which B now finds himself
the connection is absent, whatever other legal sanctions (the crimi-
nal law, professional discipline) may be directed at A’s behaviour.
At this stage we are not concerned with whether the defendant’s act
was the cause (or even an important cause) but whether it was a
cause, whether it is relevant to B’s loss. This stage is primarily7 a
matter of historical mechanics (though it necessarily involves hypo-
thetical questions about what would have happened in different
circumstances—‘‘but for the defendant’s act would the damage have
occurred?’’). If we conclude that it was a cause, we move on to
consider whether it was a sufficiently legally effective cause among
the complex of other causes (and there may be many) to justify
imposing tort liability on the defendant. Suppose D leaves a loaded
shotgun in an unlocked cupboard, X steals it and uses it to murder
C (D knowing nothing of X’s murderous intentions). D’s breach of
duty in failing to lock up the gun was a cause of C’s death in the
sense used at this first stage because had the gun not been available
X would not have used it to kill C (though he might of course have
done so at another time with another weapon), but a court is quite
likely to say that if X is an adult of sound mind, then X, not D, is
responsible for C’s death and it may do so by speaking in terms of
X’s act being ‘‘the cause’’ or of X’s act having ‘‘broken the chain of
5
Any other view would be irrational: Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and
5) [2002] UKHL 19; [2002] 2 A.C. 883 at [127] per Lord Hoffmann.
6
Sindell v Abbot Laboratories 607 P. 2d 924 (1980), where a Californian court imposed a
‘‘market share proportion’’ liability upon manufacturers of a generic drug when the
claimant could not show which manufacturer produced the batch in question may be
regarded either as extreme modification of private law principles to cope with damage
done by one of a group, or as an ad hoc, judicially created and industry based compensa-
tion system.
7
Though not entirely, see below.
308 Negligence: Causation, Remoteness (Scope of Liability) etc
12
See, e.g. Staughton L.J. in Wright v Lodge [1993] 4 All E.R. 299 at 309 (which is plainly
a case about whether the gross negligence of the second defendant broke the chain of
causation): ‘‘Causation is not the same as remoteness of damage. Foreseeability may be a
useful guide, but it is by no means the true criterion.’’ See also the same judge in the
context of contract in Total Transport Corp v Arcadia Petroleum Ltd, The Times, Decem-
ber 16, 1997: ‘‘the word ‘remoteness’ is often used to refer both to causation and to the
question whether loss was foreseeable or within the reasonable contemplation of the
parties. It was so used by Rix J. in the present case at [1996] 2 Lloyd’s Rep. 423, following
McGregor on Damages (1988), para.131. Without entering upon the rights and wrongs of
the matter, I propose to use remoteness to describe only the issue whether loss is outside
the scope of recovery because it was not within the reasonable contemplation of the
parties.’’
13
Para.6–2, above.
14
All legal systems grapple with this sort of problem. ‘‘Remoteness’’ might be a more apt
word to use in order to reject liability in the German case in [1952] N.J.W. 1010 (C
suffered leg injury by D’s fault in a traffic accident in 1936; claim based on C’s having
been killed in an artillery bombardment eight years later because he could not get to the
bunker fast enough; however, the German court did not answer the question directly).
15
Ch.6, proposed Final Draft, 2005. See also the Principles of European Tort Law (2005),
which uses the same expression, though under the section heading of ‘‘Causation’’.
310 Negligence: Causation, Remoteness (Scope of Liability) etc
also accords very well with those cases where it has been held that
the nature of the duty undertaken by the defendant limits the range
of the consequences for which he is liable.16 However, it may not
quite accord with our natural way of thinking about some aspects of
this area. Although it is perfectly clear that we accept that more than
one act or event or condition may be the cause of a loss, there is
something (perhaps the fact that the causation inquiry is, after all,
concerned with attributing responsibility) that makes us link causa-
tion and responsibility and makes us look for the cause. To adapt a
well-known example, if I set fire to a piece of paper and we ask what
was the cause of the paper being burned, everyone would say, ‘‘He
set fire to it’’. Not even a combustion engineer would also refer to
the presence of oxygen in the air as a cause, though that is just as
necessary a condition of the paper being burned as my striking the
match. To go back again to X and the shotgun (though that is not
such a clear-cut case) our notions of individual responsibility would
lead us to say that X caused the claimant’s death, not D or (which
amounts to the same thing) that what X did overwhelms D’s fault
and renders it part of the history. To say that D’s conduct was a
cause in fact of the death but that wilful interventions by a third
party to exploit a danger produced by D’s conduct are not within the
scope of D’s potential liability produces the same result but perhaps
looks ‘‘over-scientific’’ compared with using the language of
‘‘responsibility-causation’’.17
The variations in classification and terminology in this area were
described by Lord Nicholls as follows:
‘‘The law has to set a limit to the causally connected losses for
which a defendant is to be held responsible. In the ordinary
language of lawyers, losses outside the limit may bear one of
several labels. They may be described as too remote because the
wrongful conduct was not a substantial or proximate cause, or
because the loss was the product of an intervening cause. The
16
See para.6–27, below.
17
The Restatement 3d deals with harm directly caused by an intervening act in s.34:
‘‘When . . . an independent act is also a factual cause of physical harm, an actor’s liability
is limited to those harms that result from the risks that made the actor’s conduct tortious.’’
Illustration 4 involves an unguarded excavation caused by D and X deliberately pushing
C into the excavation and the conclusion is that it is for the factfinder (in practice there,
the jury) to determine whether the appropriate characterisation of the harm to C ‘‘is falling
into an unguarded excavation site or being deliberately pushed into an unguarded excava-
tion site and, if the latter, whether it is among the risks that made [D] negligent.’’ One
cannot say that this is necessarily inconsistent with English law (remember that in our
shotgun example D knew nothing of X’s intentions) but it is likely that we would lean
more firmly towards ‘‘no liability’’. Section 442B of Restatement 2d provided that an
intervening criminal act insulated D from liability as a matter of law.
Causation and Remoteness (Scope of Liability): Introduction 311
2. CAUSATION IN FACT
18
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 A.C.
883 at [70].
19
Hart and Honoré, Causation in the Law, 2nd edn, Part I; Honoré, ‘‘Necessary and
Sufficient Conditions in Tort Law’’ in Owen (ed.) Philosophical Foundations of Tort Law
(1995).
20
i.e. ‘‘a cause without which [the event would] not [have happened]’’. A legally effective
cause is known as a causa causans.
21
‘‘Subject to the question of remoteness, causation is a question of fact. If the damage
would not have happened but for the particular fault, then that fault is a cause of the
damage; if it would have happened just the same, fault or no fault, the fault is not the cause
of the damage. It is to be decided by the ordinary plain common sense of the business’’:
Cork v Kirby Maclean Ltd [1952] 2 All E.R. 402 at 406.
22
Rahman v Arearose Ltd [2001] Q.B. 351 at 367.
23
[1969] 1 Q.B. 428. See also Deloitte Haskins & Sells v National Mutual Life Nominees Ltd
[1993] A.C. 774 and Chittock v Woodbridge School [2002] EWCA Civ 915; [2003]
P.I.Q.R. P6.
312 Negligence: Causation, Remoteness (Scope of Liability) etc
duty24 was held not to be a cause of the death because, even if the
deceased had been examined and treated with proper care, the
probability was that it would have been impossible to save his life
by the time he arrived at the hospital. The claimant’s claim therefore
failed.25 However, despite the seemingly mechanical nature of the
but-for approach, care must be taken to make the correct inquiry in
the light of the nature of the tort in question. Thus the tort of
conversion26 protects a person’s rights in his goods and any person
who wrongfully takes them is treated as under a continuing duty to
restore them or their value. If, therefore, D converts C’s goods it is
irrelevant that if he had not done so it is inevitable that they would
have been converted instead by X.27
A. Multiple Causation
6–7 Although the but-for test is a useful rule of thumb,28 its applica-
tion leads to results which appear to defy common sense where there
is more than one cause which alone would be sufficient to produce
the result, as where A and B at the same moment inflict fatal injuries
24
Even in a case of strict liability, care must be taken to determine the scope of the issue of
causation. Thus under the Consumer Protection Act 1987 (see para.10–12, below) the
defendant is strictly liable for damage caused by a defect in a product made by him, but
this is not quite the same as being liable for damage caused by the defective product. To
take the example of counsel in A v National Blood Authority [2001] 3 All E.R. 289 at 360,
if a product is defective because it does not carry an adequate warning and the claimant
is injured because, on the facts, he could not and would not have been able to heed a
warning, the damage is not caused by the defect.
25
See also McWilliams v Sir William Arrol & Co Ltd [1962] 1 W.L.R. 295, (death by falling;
breach of employer’s duty to provide safety harness; evidence showed that deceased would
not have used it).
26
Ch.17.
27
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 A.C.
883. So also if C’s consent to a trespass to his person is obtained by a misrepresentation
by D which is sufficient to vitiate C’s consent, it is irrelevant that C would have consented
had he known the truth: Chatterton v Gerson [1981] Q.B. 432. Trespass to the person is
actionable per se, but it seems that the hypothetical issue is irrelevant even to a claim for
actual damage suffered.
28
‘‘Although it often yields the right answer, [it] does not always do so’’: Lord Steyn in Smith
New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] A.C. 254
at 285. ‘‘In very many cases this test operates satisfactorily, but it is not always a reliable
guide’’: Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5), above, fn.27, at [83], per
Lord Nicholls. However, the restrictions imposed on tort liability in Australia at the
beginning of the century have affected the position there. Thus under the Civil Liability
Act 2002 (NSW) s.5D(1) the negligence must be a necessary condition of the harm,
subject to s.5D(2) under which, ‘‘in determining in an exceptional case, in accordance with
established principles, whether negligence that cannot be established as a necessary
condition of the occurrence of harm should be accepted as establishing factual causation,
the court is to consider (amongst other relevant things) whether or not and why responsi-
bility for the harm should be imposed on the negligent party.’’ Whatever the qualification
covers, it does not cover a case where action by the defendant might have prevented harm
inflicted by a third party: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48.
Causation in Fact 313
defendant is liable to the claimant only for that portion of the harm
that he caused and this is discussed in Ch.21. However, as a matter
of principle no one denies that an indivisible loss may have two
sufficient causes.
‘‘While the law does not expect tortfeasors to pay for damage that
they have not caused, it regards them as having caused damage to
which they have materially contributed.’’36
expert evidence that exposure to aromatic amines for which D was responsible was
twice as likely to cause bladder cancer as C’s smoking and that this amounted to proof
on a balance of probabilities that the amines had caused it. There should have been no
liability if the figures had been reversed. In Amaca Pty Ltd v Ellis [2010] HCA 5 the
claim failed when the epidemiological evidence was that, despite the possibility of
synergistic effect, the relative risk of developing the cancer from asbestos fibres was
much lower than the relative risk from his smoking. ‘‘Knowing that inhaling asbestos
can cause cancer does not entail that in this case it probably did’’: at [68]. See also
para.6–9, below.
36
Dickins v O2 Plc [2008] EWCA Civ 1144; [2009] I.R.L.R. 58 at [53] per Sedley L.J.
Applied, ‘‘literally, or as if the two words [‘but for’] embody the entire principle, the words
can mislead. They may convey the impression that the claimant’s claim for damages for
personal injuries must fail unless he can prove that the defendant’s negligence was the
only, or the single, or even, chronologically the last cause of his injuries. The authorities
demonstrate that such an impression would be incorrect’’: Clough v First Choice Holidays
[2006] EWCA Civ 15; [2006] P.I.Q.R. P22 at [44].
37
Cf. Bailey v MoD [2008] EWCA Civ 883; [2009] 1 W.L.R. 1052, where the judge was
entitled on the evidence to conclude that the weakness leading to brain damage was the
result of lack of care and other factors.
38
Bailey at [46]. Compare Anderson v Minneapolis etc Ry 179 N.W. 45 (Minn 1920) (railway
fire combining with natural fire; liable).
Causation in Fact 315
39
Smith v Cawdle Fen Commissioners [1938] 4 All E.R. 64 at 71; Dillon v Twin State Gas
and Electric Co 163 A. 111 (N.H. 1932)..
40
A well-known conundrum is the following: D injures C in a road accident while C is on
the way to the airport, crippling him for life. The aircraft on which C was booked crashes,
killing all on board. We cannot, without a degree of fiction, escape by saying that C might
not have taken the flight, but there is a reluctance to accept that D escapes liability for
losses after the notional death.
41
[1970] A.C. 467.
42
The claimant was 25 per cent contributorily negligent.
43
Note that in a purely factual sense the accident was a cause of the injury in the robbery
since the claimant changed his job as a result of the accident, but it could not possibly be
contended that the defendant was liable in law for the shooting: Carslogie SS Co Ltd v
Royal Norwegian Government [1952] A.C. 292, and para.6–35, below.
44
The speeches do not disclose whether the claimant made any claim under the Criminal
Injuries Compensation Scheme.
45
Performance Cars Ltd v Abraham [1962] 1 Q.B. 33; Baker v Willoughby [1970] A.C. 467
at 495. An argument that the robbers would in theory be liable for the whole of the
claimant’s loss because they had reduced the value of his right of action against the
defendant was rejected: at 496. Cf. Griffiths v Commonwealth (1983) 50 A.C.T.R. 7.
However, an award of this nature was made in the fatal accident case of Singh v Aitken
[1998] P.I.Q.R. Q37, though Baker v Willoughby is not mentioned in the judgment. In any
event, to have held that the claimant had a complete remedy against the robbers would
have brought him little comfort, though it would increase a criminal injuries compensation
claim on such facts.
316 Negligence: Causation, Remoteness (Scope of Liability) etc
In other words, the claimant’s loss after the removal of the leg
was regarded as having two concurrent causes, though it is clear that
if the robbers had shot him dead the defendant’s liability would not
have extended beyond that point.47
6–8 The decision in Baker v Willoughby received a hard knock in
Jobling v Associated Dairies Ltd.48 The defendants’ breach of duty
caused the claimant to suffer injury to his back and this left him with
a continuing disability. Three years later, and before trial, the claim-
ant was diagnosed as suffering from a condition (myelopathy),
unrelated to the accident and arising after the accident,49 which of
itself rendered him totally unfit for work. The defendants naturally
contended that the onset of the myelopathy terminated the period in
respect of which they were liable for the effects of the back injury;
in reply, the claimant argued that the case should be governed by
Baker v Willoughby. A unanimous House of Lords found for the
defendants. The myelopathy was one of the ‘‘vicissitudes of life’’ for
the chance of which the courts regularly made discounts in the
assessment of damages for future loss of earnings50 and it followed
46
[1970] A.C. at 492.
47
The robbers would (in theory) have been liable to his dependants under the Fatal Accidents
Act, but the damages would take account of any reduction in earning capacity attributable
to the accident. If the claimant had died of natural causes before the trial the liability of
neither the defendant nor the robbers would have extended beyond that point.
48
[1982] A.C. 794.
49
It had been conceded that if the myelopathy had been existing but dormant at the time of
the accident it would have to be taken into account in assessing damages.
50
See Ch.22, below. If the case had come on quickly or been settled without anyone knowing
about the impending illness then recovery for the injury would of course have been much
more substantial and the matter could not have been reopened. See also Dudarec v
Andrews [2006] EWCA Civ 256; [2006] 1 W.L.R. 3002; Whitehead v Searle [2008]
EWCA Civ 285; [2009] 1 W.L.R. 549 where alleged negligence caused the delay of
settlement of an action for support of a child. Had the matter been dealt with promptly
liability would have been on the basis of lifetime care but in fact the claimant unexpectedly
died, cutting short her responsibility. The CA held that the ‘‘actual truth’’ that the death had
curtailed the loss must prevail over the ‘‘hypothetical truth’’ that would have been assumed
at the time of prompt settlement.
Causation in Fact 317
51
[1982] A.C. at 820 per Lord Bridge.
52
Is it also inconsistent with the proposition that simultaneous sufficient causes may have
concurrent effect? But there is no sign in Jobling that anyone intended anything so
revolutionary.
53
[1982] A.C. at 802, 809, 815, 821. However, in Rahman v Arearose Ltd [2001] Q.B. 351
at 367 Laws L.J. saw ‘‘no inconsistency whatever between the two cases’’, though the
matter was not pursued.
54
[1982] A.C. at 810. See also Penner v Mitchell [1978] 4 W.W.R. 328.
55
[1982] A.C. at 815.
56
[1982] A.C. at 819. Lord Edmund Davies would seem to have agreed with Lord Bridge,
for he said that he could ‘‘formulate no convincing juristic or logical principles supportive
of the decision’’ in Baker. Lord Wilberforce in Jobling paid a good deal of attention to the
fact that compensation is not merely a matter of tort damages and that the claimant’s
position with regard to other sources of money may determine whether he is under-or over-
compensated. With respect, however, this is the general problem of offsets and deductions
of collateral benefits (Ch.22 below) and raises no more issues in multiple causation cases
than in those where the issue of causation is clear.
318 Negligence: Causation, Remoteness (Scope of Liability) etc
57
It is hard to see the justification for dissecting the ‘‘accident’’ side of life’s vicissitudes but
not the ‘‘illness’’ side. In Heil v Rankin [2001] P.I.Q.R. Q16 (not to be confused with the
case of the same name [2001] Q.B. 272 on damages for non-pecuniary loss, para.22–22,
below) the CA held that the claimant’s damages against the defendant were to be reduced
to take account of the fact that some other incident might have occurred which would have
triggered an aggravation of the claimant’s low grade PTSD condition and rendered him
incapable of continuing in the police service. Baker v Willoughby was explained as a case
where it was necessary to ignore the occurrence of the second tort to prevent the claimant
being caught between the two propositions that (a) the first tortfeasor could argue that the
damage inflicted by him was now to be attributed to another cause and (b) the second
tortfeasor could argue that he took the devalued claimant as he found him. That was
necessary to avoid under-compensation, whereas in Heil to ignore the risk of future
disabling tortious conduct would lead to over-compensation. These matters are clearly to
be decided on the basis of pragmatism rather than logic but from an intuitive point of view
it looks odd to ignore what we know has happened and take into account what might have
happened.
58
[2008] UKHL 13; [2008] A.C. 884, para.6–41, below.
59
[2009] UKHL 33.
60
See further para.25–20, below.
Causation in Fact 319
61
It has been said that, ‘‘where only two possibilities are under consideration, both of which
seem unlikely, if one seems much less likely than the other the less likely can be
discounted thus making the first likely to happen on the balance on probabilities’’: Kiani
v Land Rover Ltd [2006] EWCA Civ 880 at [30].
62
Cook v Lewis 1951] S.C.R. 830. But the Canadian court held the opposite on the basis that
where two defendants have committed acts of negligence in circumstances that deprive the
claimant of the ability to prove which of them caused his damage, the burden is cast upon
each of the defendants to exculpate himself, and if both fail to discharge this burden, then
both are liable.
63
The problem is by no means confined to he workplace: many schools and public buildings
contained large quantities of asbestos: see Willmore v Knowsley MBC [2009] EWCA Civ
1211.
64
Diseases often have multiple causes. See Coggon and Taylor, ‘‘Causation and Attribution
of Diseases in Personal Injury Cases: A Scientific Perspective’’ [2009] J.P.I. Law 12.
65
Some factors may be unknown or even unknowable: [2009] J.P.I. Law 12 at 14.
66
Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159; [2010] 2 W.L.R. 951 at [23],
applying Cookson v Novartis Grimsby Ltd [2007] EWCA Civ 1261.
67
[2002] UKHL 22; [2003] 1 A.C. 32.
68
There were three appeals, which differed in many matters of detail.
69
There was no doubt about this since the disease is very rare and those occupationally
exposed have a 1,000 times greater incidence than the general population.
320 Negligence: Causation, Remoteness (Scope of Liability) etc
with current opinion,70 but we have to consider the case on the basis
on which it was decided) was that whereas asbestosis is influenced
by the total amount of dust inhaled, a mesothelioma may be pro-
duced by the inhalation of a single fibre, though the risk of contract-
ing it is increased by constant exposure. It was, therefore,
scientifically impossible to identify the source of the fibre or fibres
which had produced the tumour. Nevertheless, the House of Lords
held that the claimant was entitled to succeed. As Lord Nicholls put
it:
‘‘[I]f one asks which of the parties, the workman or the employ-
ers, should suffer from this inherent evidential difficulty, the
answer as a matter of policy or justice should be that it is the
creator of the risk who, ex hypothesi, must be taken to have
70
See para.6–11, below.
71
At [36].
72
[1973] 1 W.L.R. 1.
Causation in Fact 321
73
[1973] 1 W.L.R. at 6.
74
Its description in Wilsher v Essex Area Health Authority [1988] A.C. at 1090 per Lord
Bridge. See also Freidin v St Laurent [2007] VSCA 16 (if the defendant’s negligence did
increase the risk of the consequence the trier of fact may be entitled to conclude that it
probably did cause it).
75
Compare Wootton v J.Docter Ltd [2008] EWCA Civ 1361 (no increase in risk).
76
[2002] UKHL 22; [2003] 1 A.C. 32 at [65] per Lord Hoffmann.
77
At [2] and [34].
322 Negligence: Causation, Remoteness (Scope of Liability) etc
78
Cf. the more general formulation of Lord Rodger at [170]:
‘‘First, the principle is designed to resolve the difficulty that arises where it is inherently
impossible for the claimant to prove exactly how his injury was caused. It applies,
therefore, where the claimant has proved all that he possibly can, but the causal link
could only ever be established by scientific investigation and the current state of the
relevant science leaves it uncertain exactly how the injury was caused and, so, who
caused it . . . . Secondly, part of the underlying rationale of the principle is that the
defendant’s wrongdoing has materially increased the risk that the claimant will suffer
injury. It is therefore essential not just that the defendant’s conduct created a material
risk of injury to a class of persons but that it actually created a material risk of injury
to the claimant himself. Thirdly, it follows that the defendant’s conduct must have been
capable of causing the claimant’s injury. Fourthly, the claimant must prove that his
injury was caused by the eventuation of the kind of risk created by the defendant’s
wrongdoing . . . . By contrast, the principle does not apply where the claimant has
merely proved that his injury could have been caused by a number of different events,
only one of which is the eventuation of the risk created by the defendant’s wrongful act
or omission . . . . Fifthly, this will usually mean that the claimant must prove that his
injury was caused, if not by exactly the same agency as was involved in the defendant’s
wrongdoing, at least by an agency that operated in substantially the same way. A
possible example would be where a workman suffered injury from exposure to dusts
coming from two sources, the dusts being particles of different substances each of
which, however, could have caused his injury in the same way . . . . Sixthly, the principle
applies where the other possible source of the claimant’s injury is a similar wrongful act
or omission of another person, but it can also apply where, as in McGhee, the other
possible source of the injury is a similar, but lawful, act or omission of the same
defendant.’’
79
One defendant in one of the actions was sued as an occupier. Presumably it should apply
to the ‘‘two hunters’’ case, above, though cf. Lord Walker in Barker v Corus, below, fn.80,
at [114].
80
[2006] UKHL 20; [2006] 2 A.C. 572.
Causation in Fact 323
81
At [17]. Lord Rodger at [97] accepted that his reservation of opinion in Fairchild at [170]
on the case where one exposure was non-tortious was too cautious.
82
Lord Walker at [117].
83
Clough v First Choice Holidays and Flights Ltd [2006] EWCA Civ 15; [2006] P.I.Q.R.
P22 (unexceptional accident arising from single incident). Nor of course does it assist the
claimant in establishing a breach of duty: Brett v University of Reading [2007] EWCA Civ
88.
84
[1988] A.C. 1074.
85
A further point on breach of duty is discussed in the Court of Appeal but not dealt with
by the House of Lords: para.5–79, above.
86
Indeed, he had placed the onus squarely onto the defendants to show that it was probably
not a cause.
87
[2006] UKHL 20; [2006] 2 A.C. 572 at [64] and [114].
324 Negligence: Causation, Remoteness (Scope of Liability) etc
say which had caused the fatal cell mutation? I cannot see why
this should make a difference.’’88
Even where there is only a single agent at work it does not follow
that the Fairchild principle will apply. In Hull v Sanderson89 the
claimant worked for the defendant as a turkey packer and contracted
campylobacter enteritis from contact with turkeys. The negligence
established against the defendant was failure to warn the claimant of
the risk of touching her mouth without thorough washing after
handling carcases. However, on the evidence it was possible that the
claimant, even if warned, might have inadvertently touched her
mouth while working or might have picked up the infection on her
hands from a surface which could not practicably have been ren-
dered sterile. It would have been open to the judge to make findings
of fact that if the claimant had been warned of the risk she would
have taken enough care to avoid touching her mouth or that con-
tamination from another surface was unlikely but he had not done
so. In the circumstances it was not the sort of case, at which
Fairchild was aimed, where it was ‘‘scientifically impossible’’ to
establish the likely cause and the judge should not have fallen back
on the principle as a way avoiding making such findings.90
Furthermore, the Fairchild principle does not impose liability
merely for contribution to creation of a risk, there must be an injury
which eventuates from that risk: if D exposes C to a toxic agent C’s
cause of action is generally not complete until the agent affects C’s
physical health,91 though he may be able to sue if he foreseeably
suffers a psychiatric disorder from fear of the risk.92
6–11 The Fairchild appeals were conducted on the basis that if the
defendants before the court were liable at all, each was liable for all
the damage suffered by the claimant in accordance with the normal
rule about contributing causes of indivisible injuries (joint and
several liability).93 Each defendant is, of course, entitled to seek
contribution from any other persons liable (whether they have been
sued by the claimant or not)94 but under the normal rule the claimant
88
At [71]. See also Lord Rodger’s reference to ‘‘an agency that operated in substantially the
same way’’.
89
[2008] EWCA Civ 1211.
90
Compare Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159; [2010] 2 W.L.R. 951.
91
An insurer under the standard forms of employers’ liability policy must pay if a successful
suit is eventually brought if it was on risk at the time fibres were inhaled: Durham v BAI
(Run Off) Ltd [2008] EWHC 2692 (QB) (which is a mine of information on insurance and
the history of employers’ liability).
92
Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39; [2008] A.C. 281, para.5–64,
above.
93
See para.21–1, below.
94
See para.21–3, below.
Causation in Fact 325
95
The results produced by the two approaches would be different if the self-exposure had not
been blameworthy.
326 Negligence: Causation, Remoteness (Scope of Liability) etc
several liability applies again.96 However, the Act has no effect at all
on any other type of damage to which the Fairchild principle is held
to apply.97 It seems that the proposition that mesothelioma may be
contracted from ingestion of a single fibre is now discredited in
medical circles,98 which may be regarded as lending some support
to the application of the ordinary rule of joint and several liability
(though it may be noted that there has been some shift towards
apportioned liability in the context of other asbestos related condi-
tions where it has always accepted that the causative effect was
cumulative).99
6–12 ii. What would have happened? As we have seen, the ‘‘but-for’’
approach involves a hypothetical inquiry into what the situation
would have been if the defendant had not committed a tort. This is
not really a matter of historical fact like ‘‘when did the accident
occur?’’ or ‘‘how fast was the defendant going?’’; but the basic
approach is to treat it in the same way for purposes of proof. The
burden of proving that the harm would not have occurred if the tort
had not been committed rests, as a general rule, upon the claim-
ant.100 If he succeeds in showing this on a balance of probabilities
then the hypothetical non-occurrence of the harm is treated as being
conclusively established even though there may be a substantial
chance that it would have happened just the same; and the claimant
recovers all the damages flowing from the wrong, not a proportion
of them discounted by that chance.101 We must contrast with this the
issue of what may happen in the future, or what would have
96
Hence on facts like Barker, where there is self-exposure, we revert to making a reduction
for contributory negligence. The Act applies to mesothelioma claims in general, even
though Fairchild was a case where it was impossible for the claimant to show the sort of
doubling of the risk that now seems to be regarded as sufficient proof of traditional
causation (para.6–9, above): Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159; [2010]
2 W.L.R. 951. However, it remains the law that to make the defendant liable there must be
a material increase in the risk by reason of his actions, something more than de minimis:
Cox v Rolls Royce Industrial Power (India) Ltd [2007] EWCA Civ 1189. Nevertheless,
provided the exposure is not of very short duration, it may be that a level not very much
more than that found in the air and the general environment will do: see Willmore v
Knowsley MBC [2009] EWCA Civ 1211. The Compensation Act 2006 (Contribution for
Mesothelioma Claims) Regulations SI 2006/3259 allow an insurer who is held liable in full
to make a claim against the Financial Services Compensation Scheme.
97
Burton J. in Durham v BAI (Run Off) Ltd [2008] EWHC 2692 (QB) at [54] remarked that
we could be said to have a special ‘‘mesothelioma jurisprudence’’.
98
[2008] EWHC 2692 (QB) at [31].
99
See para.21–1, below.
100
‘‘There is no inherent uncertainty about what caused something to happen in the past or
about whether something which happened in the past will cause something to happen in
the future. Everything is determined by causality. What we lack is knowledge and the law
deals with lack of knowledge by the concept of the burden of proof.’’: Gregg v Scott [2005]
UKHL 2; [2005] 2 A.C. 176 at [79] per Lord Hoffmann.
101
For an example see Athey v Leonati (1996) 140 D.L.R. (4th) 235 (road accident: claimant
having history of back trouble; subsequently developed herniated disc; trial judge’s finding
interpreted as meaning that the accident made a 25 per cent causal contribution to the
Causation in Fact 327
happened in the future had it not been for the defendant’s wrong,
both of which have obvious relevance to the quantification of the
claimant’s damages. Here the balance of probabilities is irrelevant
and:
herniation; claimant recovered in full; had the finding meant that there was a 25 per cent
chance that the accident made a causal contribution to the herniation, claimant would have
failed).
102
Mallet v McMonagle [1970] A.C. 166 at 176 per Lord Diplock.
103
Malec v J.C. Hutton Pty Ltd (1990) 92 A.L.R. 545 at 549.
104
See para.22–26, below.
105
For an example of very difficult facts see Langford v Hebran [2001] P.I.Q.R. Q13 (career
prospects of kick-boxer).
106
Though since the Administration of Justice Act 1982 such a case would probably be more
suitable for the award of provisional damages: para.22–23, below. Periodical payments
awards can help with the ‘‘what will happen’’ problem but not the ‘‘what would have
happened’’ one: para.22–26, below.
107
See para.25–3, below.
328 Negligence: Causation, Remoteness (Scope of Liability) etc
then the doctor is liable for adverse effects relating to the failure to
warn even though the treatment has been carried out with all due
care and skill. In Chester v Afshar108 the defendant, in breach of
duty, failed to warn the claimant of a 1 or 2 per cent unavoidable risk
of cauda equina syndrome in surgery on her spinal column and this
eventuated. The trial judge found that if the claimant had been
properly warned the operation would not have taken place when it
did but he was unable to find whether if the claimant had been duly
warned she would, after further medical advice, have given or
refused consent to surgery at some later date. If she had so con-
sented the risk would have been the same because it was a random
one, not related to any known feature of the method of performing
the surgery. A majority of the House of Lords held that she was
entitled to recover damages in respect of the worsening of her
position by the adverse outcome. One might have thought that this
result was a simple, straightforward application of the standard
combination of ‘‘but-for’’ causation and proof on a balance of
probabilities.109 There was a finding of fact that if she had been
informed she would not have had the surgery on that day, the
adverse outcome was exactly within the risk about which the defen-
dant had failed to warn her and even if it could have been positively
shown that she would have had it on another day a random risk of
1 or 2 per cent would have come nowhere near establishing that the
adverse outcome would have been suffered on the later occasion: if
I win on particular number at the casino on Monday that does not
make it likely that I would win on the same number on the following
Tuesday.110 Nevertheless, even the majority of the court who found
in the claimant’s favour felt compelled to say that they were modify-
ing the standard principles of causation, albeit in a ‘‘narrow and
modest’’111 way, in order to vindicate the claimant’s autonomy, her
freedom to make an informed choice over the treatment she was to
receive.112 Although there is no doubt that in a ‘‘historical’’ sense
the failure to warn was a cause of the injury, the reason for the
failure on the traditional test seems to have been that the court
regarded the defendant’s breach of duty as exposing the claimant to
108
[2004] UKHL 41; [2005] 1 A.C. 345. See also Chappel v Hart (1998) 195 CLR 232 and
Elbourne v Gibbs [2006] NSWCA 127.
109
As the CA had held: [2002] EWCA Civ 724; [2003] Q.B. 356 at [40].
110
Cf. Lord Hoffmann’s use of the roulette analogy to the opposite effect at [31].
111
Lord Steyn at [24].
112
This right goes unvindicated where the evidence shows that she would have gone ahead
there and then even if she had been informed. Is it enough to say that the matter was not
important to her? Cf. Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52;
[2004] 1 A.C. 309 (para.24–15, below) where, in a different context, the award of a fixed,
conventional sum was regarded as the proper way to deal with the violation of the right to
autonomy.
Causation in Fact 329
the risk of the injury and that was in no way increased on the later
occasion when she underwent the treatment.113
113
In other words, the case is like Carslogie SS Co Ltd v Royal Norwegian Government
[1952] A.C. 292, para.6–35, below.
114
[1987] A.C. 750. On this case and its ramifications, see Stapleton, ‘‘The Gist of Negli-
gence, Part II’’ (1988) 104 L.Q.R. 389.
115
To say that the claimant had such a chance is a considerable over-simplification. It seems
to have represented a conclusion that of a sample of 100 people with a similar injury 25
would have recovered with prompt treatment, but the precise degree of blood vessel
damage suffered by C before he entered the hospital was not known, nor will the figure be
known for any of the sample. Some of the 100 would inevitably have suffered the
disability whatever was done and the claimant might have been one of those. The point is
made by Lord Mackay in Hotson. In principle one must look at the chances of this
individual claimant rather than the statistical group (Wardlaw v Farrar [2003] EWCA Civ
1719; [2004] P.I.Q.R. P19) but how far one can dissociate the two in practice must be
debatable.
116
It will be observed that there is some difficulty in drawing the line between the two
categories of case. If C is killed by D and it is shown that C had a weak heart, C’s
dependants will recover damages but they will be less than if C had been fit. Yet the
question is a hypothetical one of the same general nature as that in Hotson: what would
have happened to the victim but for D’s wrong? The only difference appears to be that in
Hotson the claimant is unable to show any loss at all, whereas in our example his difficulty
will lie in being able to show how long the loss would have lasted.
117
[2005] UKHL 2; [2005] 2 A.C. 176.
330 Negligence: Causation, Remoteness (Scope of Liability) etc
House of Lords rejected his claim that the delay in treatment had
caused the damage of which he complained. The case was different
from Hotson in that the immediate spread of the cancer would
probably not have occurred had there been prompt diagnosis118 but
the basis of the claim was that the claimant had been deprived of the
chance of a cure. It also differed from Hotson in the fact that in that
case the outcome was predetermined by the (unknown) amount of
blood vessel damage which had been caused by the fall (so that,
strictly speaking, the question of loss of a chance was never before
the court) whereas now the developments which reduced his life
expectancy were subsequent to the negligence. Nevertheless, for
Lord Hoffmann and Baroness Hale the claim was an attempt to
reformulate the basis of the law in terms of lost chances rather than
causal outcomes and should be rejected.
‘‘[I]s, in essence, a claim for the loss and damage caused by the
enlargement of the tumour due to the delay in diagnosis. It is for
118
At [70].
119
At [85] per Lord Hoffmann.
120
And not, therefore, to the Fairchild situation: at [51].
121
He would also, therefore, exclude the Hotson situation: at [38]. Quaere how realistic this
is. To say that there was ‘‘no uncertainty’’ in that case is only true in so far as we assume
that the ‘‘but-for/balance of probabilities’’ approach gives us the correct answer but we
know that there is a one in four chance that it is incorrect. Cf. Porat and Stein, Tort Liability
under Uncertainty (2001) who would award the Hotson claimant 25 per cent of his loss on
the basis that the defendants’ negligence in not examining him has deprived him of the
chance of showing that they were responsible for his physical condition.
122
Lord Phillips said at [172] that, ‘‘there is a danger, if special tests of causation are
developed piecemeal to deal with perceived injustices in particular factual situations, that
the coherence of our common law will be destroyed.’’
123
Lord Nicholls thought this approach was only ‘‘superficially attractive’’: at [58].
Causation in Fact 331
124
At [118].
125
Although the case had been treated below in terms of loss of the chance of a ‘‘cure’’ the
medical definition of this was survival for 10 years. The trial took place five years after the
negligence and the claimant was still alive at the time of the appeal decision, a little over
10 years after the negligence.
126
At [188].
127
After making some progress in Australia the doctrine appears to have been blocked for the
time being in Gett v Tabett [2009] NSWCA 76. French law recognises the perte d’une
chance as damage (see Khoury, (2008) L.Q.R. 103) though it must be borne in mind that,
in common with some other European systems, it requires that proof of conventional
causation be ‘‘certain’’. While the Supreme Court of Canada rejected loss of a chance in
Laferrière v Lawson [1991] 1 S.C.R. 541, the decision in Resurfice Corp v Hanke [2007]
SCC 7; [2007] 1 S.C.R. 333 contains passages which can be read as supporting liability
in a limited class of cases based on increase in risk but it does not seem to have made any
difference in the typical ‘‘loss of a chance of a better medical outcome’’ situation: Bohun
v Segal [2007] BCCA 23; 289 D.L.R. (4th) 614.
128
See Dobbs, Torts (2000) §178.
129
The claimant in Gregg v Scott accepted that any change to a ‘‘chance-based’’ system would
have to ‘‘cut both ways’’: [2005] UKHL 2; [2005] 2 A.C. 176 at [225].
332 Negligence: Causation, Remoteness (Scope of Liability) etc
more likely than not that the protection would have been
obtained,136 until it becomes a ‘‘near certainty’’137 when the chance
that it would not have been obtained can be ignored. As it has been
succinctly put in the context of loss of opportunity to pursue a
case:
6–16 The principles contained in the previous section may have led to the
conclusion that the defendant’s wrong was a cause of the claimant’s
loss in the sense that it was (or is to be treated as if it was) a
necessary condition to produce that loss or made a material con-
tribution to it. We have it on the authority of two members of the
House of Lords that although the failure of the farrier in the old
rhyme to shoe the horse properly contributed to the loss of the
Kingdom the farrier would not have been liable in damages for the
defeat.143 No defendant is responsible ad infinitum for all the conse-
quences of his wrongful conduct, however remote in time and
however indirect the process of causation, for otherwise human
activity would be unreasonably hampered. The law must draw a line
somewhere, some consequences must be abstracted as relevant, not
on grounds of pure logic, but simply for practical reasons.144 Nor is
the law of tort (or even the private law of obligations) unique in this
way: a social security or ‘‘no fault’’ compensation scheme has, for
the same practical reason, to find a formula which will limit the
reach of compensation.145
The dominant (though by no means conclusive or all-embracing)
question in the determination of the scope of the defendant’s liabil-
ity is whether the harm in respect of which he is sued was a
foreseeable consequence of his negligent act.
146
First propounded by Pollock C.B. in Rigby v Hewitt (1859) 5 Ex. 240 at 243; Greenland
v Chaplin (1850) 5 Ex. 243 at 248.
147
Weld-Blundell v Stephens [1920] A.C. 956 at p.984 per Lord Sumner.
148
[1921] 3 K.B. 560.
149
A fire exception clause in the charter did not help them because it did not cover
negligence.
150
[1921] 3 K.B. at 577.
151
See para.5–21, above.
152
[1961] A.C. 388.
153
That is, they were in full possession of it with their own crew.
336 Negligence: Causation, Remoteness (Scope of Liability) etc
Ltd’s servants a large quantity of fuel oil was spilt on to the water,
and after a few hours this had spread to M.D. Ltd’s wharf about 600
feet away where another ship, the Corrimal, was under repair.
Welding operations were being carried out on the Corrimal, but
when M.D Ltd’s manager became aware of the presence of the oil
he stopped the welding operations and inquired of the C. Oil Co
whether they might safely be continued. The result of this inquiry,
coupled with his own belief as to the non-inflammability of fuel oil
in the open, led him to give instructions for the welding operations
to continue, though with all precautions to prevent inflammable
material from falling into the oil. Two days later the oil caught fire
and extensive damage was done to M.D. Ltd’s wharf.
6–18 Two findings of fact are important: (1) It was unforeseeable that
fuel oil spread on water and would catch fire154 (2) some foreseeable
damage was caused to M.D. Ltd’s wharf from the spillage of the oil
in that the oil had got on to the slipways and interfered with their
use. The case was dealt with, therefore, on the footing that there was
a breach of duty and direct damage, but that the damage caused was
unforeseeable. The Privy Council, reversing the decision below in
favour of the claimants, held that Re Polemis should no longer be
regarded as good law.
‘‘It is the foresight of the reasonable man which alone can deter-
mine responsibility. The Polemis rule by substituting ‘direct’ for
‘reasonably foreseeable’ consequence leads to a conclusion
equally illogical and unjust.’’155
It might have been thought from this that the effect of The Wagon
Mound was restricted to actions for negligence, or at least to cases
in which foreseeability of damage is relevant to liability. In The
Wagon Mound (No.2),157 however, the Privy Council held that
foreseeability is the test for remoteness of damage in cases of
nuisance also, and, though they pointed out that liability in many
cases of nuisance depends on fault and thus on foreseeability, they
stated that the same test must apply even where this is not so.158 If
the ‘‘foresight of the reasonable man’’ is to be used as a test of
remoteness in torts of strict liability some adjustment will have to be
made. If a person may be liable notwithstanding that he neither
could nor should have foreseen any harmful consequences of his act
whatever, it is meaningless to say that the extent of his liability is
limited to what he ought reasonably to have foreseen. In Galashiels
Gas Co Ltd v O’Donnell,159 for example, the defendants had a lift at
their gas works and the lift, so far as anyone could discover, was in
perfect condition both before and after the accident. Nevertheless,
on a single isolated occasion something went wrong for reasons no
one could ascertain and as a result the claimant’s husband was
killed. The defendants were held liable for breach of an absolute
statutory duty, but how can it realistically be said that they could
have foreseen the death of the deceased? What can be said—and this
seems now to be the meaning of ‘‘reasonably foreseeable’’ in such
cases—is that a reasonable man, told of the way in which the lift
went wrong, would not be surprised to learn that the deceased had
been killed.160
However, the test of reasonable foreseeability is not a universal 6–19
one: it is a rational policy to impose a more extensive liability upon
156
[1961] A.C. at 423.
157
[1967] 1 A.C. 617.
158
Although not couched in terms of remoteness of damage, it has since been held that the test
of liability under the rule in Rylands v Fletcher is whether some damage was to be
anticipated from the thing: see para.15–19, below.
159
[1949] A.C. 275.
160
See Dias, [1967] C.L.J. 62. at 68, 77–82. Cf. Millard v Serck Tubes Ltd [1969] 1 W.L.R.
211 where the Court of Appeal held that once a part of machinery was found to be
‘‘dangerous’’ within s.14(1) of the Factories Act 1961, which meant that it was a foresee-
able cause of injury, and was unfenced in breach of the section, it mattered not that the
claimant’s injury occurred in an unforeseeable way, so long as the injury would not have
occurred if the duty to fence had been fulfilled. The judgments, which refer to no decisions
on remoteness of damage, provide admirable, if unintentional, examples of the operation
of the rule in Polemis, Re at its most straightforward.
338 Negligence: Causation, Remoteness (Scope of Liability) etc
B. Application of Foreseeability
6–20 The test of foreseeability involves the assessment of facts against
a legal standard and, because all the facts of the particular case have
to be brought into account it is generally undesirable to engage in
extensive citation of authority.163 Nevertheless, the student will want
to be given some idea of how in practice judges approach these
matters. The test was from the beginning heavily qualified by the
fact that neither the precise extent of the damage nor the precise
manner of its infliction need be foreseeable. As Lord Denning M.R.
put it:
161
Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997]
A.C. 254 at 279.
162
Smith New Court, above, fn.161; Doyle v Olby (Ironmongers) Ltd [1969] 2 Q.B. 158. See
para.11–14, below. As to conversion, see para.17–28, below. The statutory wrong of direct
racial discrimination has been held not to require foreseeability: Essa v Laing Ltd [2004]
EWCA Civ 2; [2004] I.C.R. 746.
163
Jolley v Sutton LBC [2000] 1 W.L.R. 1082.
164
Stewart v West African Terminals Ltd [1964] 2 Lloyd’s Rep. 371 at 375; Bradford v
Robinson Rentals Ltd [1967] 1 W.L.R. 337 at 344–345 per Rees J.
165
[1963] A.C. 837. Cf. Doughty v Turner Manufacturing Co Ltd [1964] 1 Q.B. 518.
Remoteness of Damage (Scope of Liability) 339
166
[2000] 1 W.L.R. 1082.
167
[2000] 1 W.L.R. at 1093 per Lord Hoffmann; and see Jebson v MoD [2000] 1 W.L.R. 2055
(drunken person).
168
[2000] 1 W.L.R. at 1092.
169
Cf. Darby v National Trust [2001] EWCA Civ 189; [2001] P.I.Q.R. P27 (drowning
accident; risk of drowning obvious to claimant; could not rely on failure to warn of less
obvious risk of Weil’s disease).
170
[1969] 1 W.L.R. 1556; cf. Bradford v Robinson Rentals Ltd [1967] 1 W.L.R. 337; Malcolm
v Broadhurst [1970] 3 All E.R. 508.
340 Negligence: Causation, Remoteness (Scope of Liability) etc
control the rat population,171 Payne J. held that the claimant could
not succeed. Weil’s disease is extremely rare and is caused by
contact with rat’s urine, and in the learned judge’s opinion it was
therefore both unforeseeable and ‘‘entirely different in kind’’ from
such foreseeable consequences as the effect of a rat bite or food
poisoning from contaminated food: the claimant could not simply
say that the rat-induced disease was foreseeable and rat-induced
disease occurred.172
Tremain v Pike requires a rather high degree of precision in
classifying kinds of damage, but there do not seem to be very many
personal injury173 cases since The Wagon Mound where the claim
has failed on the basis of remoteness.174 The House of Lords, in
emphasising the difference between the rules of remoteness in
contract and tort has given to the word ‘‘foreseeable’’ a meaning
which is very far removed from ‘‘probable’’ or ‘‘likely’’. The rule in
tort imposes a much wider liability than that in contract:
‘‘[T]he defendant [in tort] will be liable for any type of damage
which is reasonably foreseeable as liable to happen, even in the
most unusual case, unless the risk is so small that a reasonable
man would in the whole circumstances feel justified in neglecting
it’’.175
171
The defendant’s negligence in this respect was not actually made out.
172
His Lordship’s suggested method of avoiding the question about what is meant by
difference in kind by asking instead the direct question whether on the facts leptospirosis
was reasonably foreseeable, succeeds only by assuming one particular answer to the
question: [1969] 1 WLR 1556 at 1561. Cf. the opinion of Edmund Davies L.J. in Draper
v Hodder [1972] 2 Q.B. 556 that the foreseeable risk of the infant claimant being injured
by being bowled over by the dogs would justify the imposition of liability where the dogs
attacked him.
173
A ‘‘broad brush’’ approach is also discernible with regard to property damage: see The
Carnival [1994] 2 Lloyd’s Rep. 14.
174
Though see Pratley v Surrey CC [2003] EWCA Civ 1067; [2004] ICR 159 (employer
aware of risk of injury to health from over-work but not of the sudden collapse which
occurred as a result of disappointment at non-implementation of palliative measures; not
enough to categorise the risk as ‘‘risk of psychiatric illness’’).
175
C. Czarnikow Ltd v Koufos [1969] 1 A.C. 350 at 385 per Lord Reid (emphasis added). See
also at 411, 422.
176
Arscott v The Coal Authority [2004] EWCA Civ 892; [2005] Env L.R. 6 at [58] (a nuisance
case).
177
See para.6–31, below.
Remoteness of Damage (Scope of Liability) 341
amount of the damage178; and that the defendant takes the victim as
he finds him, including weaknesses which exacerbate the damage in
an unforeseeable way—the so-called egg-shell skull rule.179 The last
principle in particular means that a defendant who can show an
unforeseeable kind of damage may get little comfort from the
principles of remoteness, as where a motorist who was responsible
for a minor collision was held liable to the other driver for long-term
unemployability caused by a psychiatric condition which was dor-
mant but which was revived by the accident.180 As Lord Lloyd put
it:
178
See para.6–30, below.
179
See para.6–32, below.
180
Page v Smith [1996] A.C. 155. See para.5–63, above.
181
[1996] A.C. 155 at 190.
182
See Lord Reid’s explanation of this [1967] 1 A.C. 617 at 640–641, and Dias, [1967] C.L.J.
at pp.63–65.
342 Negligence: Causation, Remoteness (Scope of Liability) etc
6–24 i. Simplicity. The Privy Council laid much stress upon the diffi-
culties of the directness test, but it is difficult to see how the
foreseeability test is any easier. Not only does the change from the
one to the other raise the question of the meaning of ‘‘kind’’ of
damage but it:
6–25 ii. Fairness. According to the Privy Council the test of directness
works unfairly:
183
[1961] A.C. at 422.
184
Walker, ‘‘Remoteness of Damage and Re Polemis’’ 1961 S.L.T. 37.
185
Prosser, ‘‘Palsgraf Revisited’’ (1953) 52 Michigan L.Rev 1 at 32.
Remoteness of Damage (Scope of Liability) 343
194
Platform Home Loans Ltd v Oyston Shipways Ltd [2000] 2 A.C. 190 at 209 per Lord
Hobhouse.
195
[1997] A.C. 191 (reported in [1996] 3 All E.R. 365 sub nom. South Australia Asset
Managment Corp v York Montague Ltd and commonly known as the ‘‘SAAMCO princi-
ple’’); Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No.2) [1997] 1 W.L.R.
1627; Bank of Tokyo-Mitsubishi UFJ Ltd v Baskan Gida etc AS [2009] EWHC 1276 (Ch).
Cf. Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 163 A.L.R. 611.
196
The position is different if the defendant is guilty of fraud, for then he is liable for all losses
flowing from the fraudulently induced transaction: Smith New Court Securities Ltd v
Scrimgeour Vickers (Asset Management) Ltd [1997] A.C. 254 at 283. Indeed, he is liable
even for unforeseeable consequences.
197
Cf. Caparo v Dickman [1990] 2 A.C. 605, para.5–9, above, where the purpose of the rule
infringed went to whether a duty was owed to the claimant. Lord Hoffmann in Banque
Bruxelles at [1997] A.C. 213 explains The Empire Jamaica [1955] P. 259 on a somewhat
similar basis (negligence by mate whom owners knew to be uncertificated but whom they
reasonably believed to be competent: damage not done with their ‘‘actual fault and
privity’’).
198
In one of the cases reported as Bristol and West BS v Fancy & Jackson [1997] 4 All E.R.
582 the defendants incorrectly represented to the mortgagees that they had an official
search certificate, without which the mortgagees would not have proceeded. The mortga-
gor defaulted. The breach was not causative of the mortgagees’ loss.
346 Negligence: Causation, Remoteness (Scope of Liability) etc
which the claimant would have taken on himself even if the transac-
tion had been sound.199
6–28 This case concerned an obligation to provide information on the
basis of which the claimant could take a decision. The position is
different where the defendant undertakes to advise generally upon
the wisdom of entering into a transaction, for he will then be liable
for all the foreseeable consequences of it.200 The line between the
two categories may be hard to draw. In Aneco Reinsurance Under-
writing Ltd v Johnson & Higgs Ltd201 the defendant brokers, acting
on behalf of the claimant reinsurers, negligently failed to disclose
certain facts on a proposal for further reinsurance of a US$10
million portion of a risk to be carried by the claimants. This meant
that the re-reinsurers, who would have refused cover had they
known the full facts, lawfully repudiated the claim. However, the
claimants lost US$35 million on the risk as a whole. The majority of
the House of Lords held that the brokers were liable for the full
amount. Had the brokers carried out their duty properly they would
have become aware that cover was not obtainable in the market on
commercially sensible terms and the claimants would therefore have
declined the main risk and suffered no loss, and in the view of the
majority the duty of the brokers was not merely to seek to obtain
valid cover and report on having done so, but to advise on the
market’s estimation of the risk.202 For Lord Millett, dissenting, it
was not enough that the brokers might have volunteered their
estimation of the state of the market, the question was whether such
an estimation was within the scope of the duty they had undertaken
and he thought that they had not done so.
It is not wholly obvious why responsibility for risks like market
forces should be imposed on the defendant even where his function
is to advise the claimant as to the wisdom of a transaction, at least
where those risks are as apparent to the claimant as to the defendant.
In Banque Bruxelles Lord Hoffmann gave an example203 of a doctor
giving negligent advice to a mountaineer about the fitness of his
knee. If the mountaineer were to be injured on an expedition
because his knee gave way, the doctor might be liable; but if the
mountaineer were injured by a foreseeable risk of mountaineering
unconnected with his knee (for example, being hit by a rock fall) the
doctor would not be liable for that. That conclusion is plainly
correct, though it is debatable whether it is correct to say that this is
because the injury ‘‘would have occurred even if the advice had
199
Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No.2), above, fn.195, at 1631
per Lord Nicholls.
200
Banque Bruxelles Lambert at [1997] A.C. 214.
201
[2001] UKHL 51; [2002] 1 Lloyd’s Rep. 157.
202
Cf. Intervention Board for Agricultural Produce v Leidig [2000] Lloyd’s Rep. P.N. 144.
203
[1997] A.C. at 213.
Remoteness of Damage (Scope of Liability) 347
been correct’’,204 since the mountaineer would not have gone on the
expedition if he had known the truth. It seems better to say that the
rock fall is a mere coincidence (like the victim of a road accident
being injured in another road accident while in the ambulance on the
way to hospital) or (which amounts to the same thing) that it is not
within the risk created by the doctor’s negligence. However, sup-
pose the doctor is consulted by a patient with a history of heart
trouble and the doctor negligently advises him that the best way to
improve his fitness is to take up again the climbing activities of his
youth. It is not difficult to say that the doctor could be liable if the
patient suffers a heart attack, but is he now to be responsible for
death in the rock fall? That is just as much a coincidence as in the
other case. Perhaps the answer lies in what the doctor’s duty is, that
is to say to advise the mountaineer about his health, not his physical
safety.
204
[1997] A.C. at 213.
205
Quinn v Leatham [1901] A.C. 495 at 537 per Lord Lindley.
206
(1773) 2 W.Bl. 892.
207
See also para.3–2, above.
208
See para.11–14, below.
209
A trespasser to land is not liable for unintended, indirect and unforeseen damage: Mayfair
Ltd v Pears [1987] 1 N.Z.L.R. 459 (fire in wrongfully parked car). The draft Restatement
of Torts, 3d, s.33 provides that, ‘‘an actor who intentionally causes physical harm is subject
to liability for that harm even if it was unlikely to occur’’ but that he is not liable for harm
the risk of which was not increased by his conduct. Illustration 3 has the claimant running
away from the defendant muggers and being struck by lightning: not liable.
348 Negligence: Causation, Remoteness (Scope of Liability) etc
(III) THE ‘‘EGG-SHELL SKULL’’ PRINCIPLE. The Wagon Mound did 6–32
not displace the principle that the defendant must take his victim221
as he finds him.222 It has for long been the law that if a person is:
218
The suggestion seems to be made by Lord Wright in the Liesbosch case, above, fn.214, at
461 and by Lord Parker C.J. in Smith v Leech Brain & Co Ltd [1962] 2 Q.B. 405 at
415.
219
As in Smith v Leech Brain.
220
Though this may be the implication of Page v Smith [1996] A.C. 155, below and
para.5–63, above: Margereson v J.W. Roberts Ltd [1996] P.I.Q.R. P154 (on appeal [1996]
P.I.Q.R. P358).
221
But not his family: McLaren v Bradstreet (1969) 113 S.J. 471, cf. Nader v Urban
Transport Authority [1985] 2 N.S.W.L.R. 501 and Kavanagh v Akhtar (1998) 45
N.S.W.L.R. 588.
222
Smith v Leech Brain & Co Ltd [1962] 2 Q.B. 405; Warren v Scruttons [1962] 1 Lloyd’s
Rep. 497; Lines v Harland and Wolff [1966] 1 Lloyd’s Rep. 400; Boon v Thomas Hubback
[1967] 1 Lloyd’s Rep. 281; Wieland v Cyril Lord Carpets Ltd [1969] 3 All E.R. 100.
223
The missing words are ‘‘or no injury at all’’. Kennedy J. went too far here, for there must
be a breach of duty owed to the claimant and if no damage at all could have been foreseen
to a person of normal sensitivity and the claimant’s abnormal sensitivity was unknown to
the defendant, then he is not liable: Bourhill v Young [1943] A.C. 92 at 109; Cook v
Swinfen [1967] 1 W.L.R. 457.
224
Dulieu v White [1901] 2 K.B. 669 at 679 per Kennedy J. On the burden of proof of whether
the greater injury was caused by the susceptibility see Shorey v P.T. Ltd [2003] HCA 87;
197 A.L.R. 410.
225
Does it apply to property damage? In The Sivand [1998] 2 Lloyd’s Rep. 97 the unusual
ground conditions at the claimants’ harbour meant that unexpected delay and expense was
incurred in effecting repairs to damage to moorings caused by the defendants’ vessel. The
defendants were liable for this and, although he regarded the problem as foreseeable, Pill
L.J. said at 100 that the, ‘‘liability of the defendants is founded on one aspect of the
principle that a tortfeasor takes his victim as he finds him’’; but note that in the context of
nuisance we tend to say that a landowner cannot increase the liabilities of a neighbour by
putting his property to unusually sensitive use: see para.14–9, below.
226
Page v Smith [1996] A.C. 155, para.5–63, above; contra Lord Goff dissenting in Frost v
CC South Yorkshire [1999] A.C. 455 at 476.
350 Negligence: Causation, Remoteness (Scope of Liability) etc
which his personality may have predisposed him but which would
not have occurred but for his injury,227 but the conduct in question
in the case was the commission of a crime and in such a case the
claim would now be barred by public policy.228 The claimant’s
weakness cuts both ways, however: his damages are likely to be less
than those of a ‘‘normal’’ person suffering the same overall injury in
order to reflect the greater risk to which he was exposed by the
normal vicissitudes of life.229
Since the egg-shell skull principle seems to be based either on the
great difficulty that would arise if the court had to determine in
detail what were the foreseeable physical consequences of an injury
or on the view that all sorts of individually unlikely consequences
are foreseeable in a general way,230 the same (or a similar231)
principle operates when the claimant’s injury is exacerbated by a
combination of his abnormality and some external force which
foreseeably and naturally intervenes after the accident, for example
medical treatment to which he is allergic.232
236
See Geest Plc v Lansiquot [2002] UKPC 48; [2002] 1 W.L.R. 3111.
237
See in particular Oliver J. in Radford v De Froberville [1977] 1 W.L.R. 1262 at 1268; the
caustic remarks of the Court of Appeal in Compania Financiera ‘‘Soleada’’ SA v Hamoor
Tanker Corp Inc [1981] 1 W.L.R. 274; and The Sivand [1998] 2 Lloyd’s Rep. 97.
238
[2003] UKHL 64; [2004] 1 A.C. 1067.
239
Bee v Jenson [2007] EWCA Civ 923; [2007] 4 All E.R. 791.
240
Before the advent of the credit hire system, private motorists whose cars were damaged
comparatively rarely obtained hire cars and charged the costs to defendants. Although the
sums involved in individual cases were small, motor insurers naturally became concerned
when the new system produced many more claims for this item and bitterly fought the
issue on a number of legal fronts. See, e.g. Giles v Thompson [1994] 1 A.C. 142; Dimond
v Lovell [2002] 1 A.C. 384.
352 Negligence: Causation, Remoteness (Scope of Liability) etc
241
Judging by LAWTEL, this seems to be a fairly frequent source of dispute at county court
level.
242
Lagden at [96].
243
The claimant must show that the damage is not too remote; the defendant must show that
the claimant failed to take reasonable steps in mitigation: Geest Plc v Lansiquot [2002]
UKPC 48; [2002] 1 W.L.R. 3111.
Remoteness of Damage (Scope of Liability) 353
For Lord Walker the case was not one of mitigation at all. If the
claimant had used his car for business and stood to lose £1,000 by
not having its use, then the expenditure of £460 in spot hiring (or
indeed the £659 spent on credit hire) could sensibly be regarded as
expenditure to mitigate that consequential loss, but the claimant kept
a car solely for convenience and while he was certainly entitled to
hire a reasonable substitute this could not be regarded as mitigating
some greater loss. If he had not hired a car at all he would have been
entitled to general damages for loss of its use and as a practical
matter the law simply uses the cost of hire as a measure246 for the
otherwise unquantifiable inconvenience he suffers.247 It is difficult
to see how the measure of the inconvenience to the wealthy claimant
can be only £460 whereas that to the poor claimant is £695.
244
See para.22–45, below. However, rather than any iron rule about the claimant having no
choice, it may be that the fundamental issue in such a case is whether he gets any real
benefit.
245
[2003] UKHL 64; [2004] 1 A.C. 1067 at [34].
246
It may use a smaller measure. At the time of Lagden it seems that the more-or-less routine
going rate in the county court where no car was hired was £10 a day: at [101].
247
See Lagden at [101]. See also Lord Hobhouse in Dimond v Lovell [2002] 1 A.C. 384 at
406. Compare Lord Scott, also in the minority, who was prepared to accept that the hire
cost can be regarded as the measure of general damages but thought it more accurately
classified as an item of special damage suffered as a result of the defendant’s negligence:
Lagden at [81].
248
‘‘Unfortunately in this area of the law the same issues can be formulated in a number of
different ways . . . It would, so I may confidently assert, surprise a newcomer to this area
that there is considerable overlap even between [the questions of foreseeability and
causation]’’: Corr v I.B.C. Vehicles [2006] EWCA Civ 331; [2007] Q.B. 46 at [85] per
Wilson L.J. (for the appeal to the HL see para.6–41, below).
249
If a human act is involved novus actus is often substituted.
354 Negligence: Causation, Remoteness (Scope of Liability) etc
250
See para.6–7, above. For contribution between tortfeasors, see, Ch.21, below.
251
See para.6–43, below.
252
[1952] A.C. 292.
Remoteness of Damage (Scope of Liability) 355
It was true that with the benefit of hindsight it was possible to say
that if the collision had not taken place the storm damage also would
not have taken place because the vessel would not have been there
at that time, but no reasonable man would have said that such
damage was within the likely or foreseeable risk created by the
defendant’s negligence.254
The effect of market falls in cases of negligent valuation has
already been considered.255
253
[1952] 1 All E.R. 20 per Viscount Jowitt. Not all of his Lordship’s speech is reported in
the Law Reports. It seems that if the supervening event had been detention caused by an
outbreak of war, the defendants would have been liable: Monarch SS Co v Karlshamns
Oljifabriker [1949] A.C. 196.
254
Distinguish the situation where the vessel is rendered less able to ride out the storm
because of the damage inflicted on it by the defendant. See also Chester v Afshar,
para.6–12, above.
255
See para.6–27, above.
256
Weld-Blundell v Stephens [1920] A.C. 956; Harnett v Bond [1925] A.C. 669; SS Singleton
Abbey v SS Paludina [1927] A.C. 16.
257
[1943] P. 32.
258
It is irrelevant to this question that the negligence of the Manchester Regiment leading to
the collision may also have been a cause of the death.
259
[1943] P. 32 at 37 per Lord Wright.
356 Negligence: Causation, Remoteness (Scope of Liability) etc
In The Oropesa, the action of the master was not itself tortious: he
was not guilty of a breach of duty to the deceased in ordering him
into the boat, but that fact is not itself decisive one way or another.
A wholly unpredictable but non-tortious intervention may break the
chain of causation in one case while in another even deliberate
tortious conduct may not do so, though as a general proposition it is
probably correct to say that the further along the scale from innocent
mistake to wilful wrongdoing the third party’s conduct moves the
more likely it is to terminate the defendant’s liability.262 The matter
is what in former times would have been regarded as a jury ques-
tion263 (though according to modern practice on appeal from trial by
judge alone it is a question which the appellate court considers itself
in as good a position to answer as the trial judge) and there have
been calls for ‘‘common sense rather than logic’’264 and a ‘‘robust
and sensible approach’’.265 The student is only likely to get a ‘‘feel’’
for the current application of the law by reading cases, but some
multiple collision cases, on each side of the line, may be used for
illustration. In Rouse v Squires266 D1, driving negligently, jack-
knifed his lorry across a motorway; a following car collided with the
lorry, and some minutes later D2’s lorry, also being driven negli-
gently, collided with the other vehicles, killing C, who was assisting
at the scene. The Court of Appeal, reversing the trial judge, held that
D1’s negligence was an operative cause of C’s death,267 for if:
260
‘‘So Lord Wright found it necessary to go outside the dictionary, or at least to explore its
furthest corners, in order to identify the kind of circumstances in which the defendant
might cease to be liable for what could otherwise be regarded as the consequences of his
act’’: The Sivand [1998] 2 Lloyd’s Rep. 97 at 102 per Evans L.J.
261
[1943] P. 32 at 39 per Lord Wright.
262
Knightley v Johns [1982] 1 W.L.R. 349 at 365.
263
Wright v Lodge [1993] 4 All E.R. 299 at 307.
264
Knightley v Johns, above, fn.262, at 367.
265
Lamb v Camden LBC [1981] Q.B. 625 at 647 and see Sir Robin Cook, ‘‘Remoteness of
Damages and Judicial Discretion’’ [1978] C.L.J. 288.
266
[1973] Q.B. 889; Lloyds Bank Ltd v Budd [1982] R.T.R. 80. For an example in a wholly
different context see Clarke v CC Northamptonshire, The Times, June 14, 1999.
267
For which D1 was held 25 per cent to blame under the Law Reform (Married Women and
Tortfeasors) Act 1935.
Remoteness of Damage (Scope of Liability) 357
268
[1973] Q.B. at 898 per Cairns L.J.
269
[1993] 4 All E.R. 299..
270
D2 was of course liable to C2 and C3 (and to C1). The issue was whether D2 could claim
contribution from D1. D1’s share in the liability to C1 was only 10 per cent. It will be
observed that both of these cases could equally well be analysed in terms of duty of care
to the particular claimant, indeed Wright v Lodge has some affinities with Palsgraf v Long
Island Railroad (para.5–18, above).
271
[1982] 1 W.L.R. 349.
272
However, D2 and D3 were liable to C. In many cases, provided all defendants are claim-
worthy, these issues will essentially be related to contribution among defendants and will
be of no direct concern to the claimant.
273
Taking risks to save others from danger does not normally break the chain of causation:
see para.25–16, below.
274
See in particular [1982] 1 W.L.R. 349 at 365–366.
358 Negligence: Causation, Remoteness (Scope of Liability) etc
Much of the case law in this area analyses the problem in terms
of the existence of a duty of care to prevent wilful injury by a third
party and the problem has already been considered in that con-
text.278 It has been suggested that:
but where the defendant has caused some initial injury to the
claimant before the intervention of the third party the cases have
continued to look at the question as one of remoteness. Not surpris-
ingly, however, there is the same reluctance to find the defendant
liable for the wilful wrongdoing of others. It has been said that the
conduct of the third party must be something very likely to happen
if it is not to break the chain of causation280 but if anything, this
formulation, whether it is to be regarded as a separate test to be
applied after that of reasonable foreseeability,281 or as representing
275
Webb v Barclays Bank Plc [2001] EWCA Civ 1141; [2002] P.I.Q.R. P8, following Mahony
v Kruschich (Demolitions) Pty (1985) 59 A.L.R. 722. In Prendergast v Sam & Dee Ltd,
The Times, March 14, 1989, D1, a doctor, wrote an unclear prescription; D2, a pharmacist
misread it, though he should have been put on inquiry. D2’s act did not break the chain of
causation and the relative responsibility was assessed as 75 per cent to D2. Cf. Horton v
Evans [2006] EWHC 2808 (QB); [2007] P.N.L.R. 17 (pharmacist liable for failing to
question prescription, doctor prescribing repeat prescription not at fault).
276
Cf. the difficult case of Rahman v Arearose Ltd [2001] Q.B. 351, where it was conceded
that the medical treatment was the sole cause of the loss of the eye.
277
Weld-Blundell v Stephens [1920] A.C. 956 at 986 per Lord Sumner.
278
See para.5–31, above.
279
Perl v Camden London Borough [1984] Q.B. 342 per Oliver L.J.
280
Home Office v Dorset Yacht Co Ltd [1970] A.C. 1004 per Lord Reid. Note, however, that
the majority of the House of Lords regarded this case as about duty, not causation.
281
Lamb v Camden London Borough [1981] Q.B. 625 at 647 per Watkins L.J.
Remoteness of Damage (Scope of Liability) 359
288
[1948] 2 K.B. 48, criticised by Lord Denning M.R. in Lamb’s case, above, fn.284, at 638
but approved by Lord Goff in Smith v Littlewoods, above, fn.282, at 272. The defendant
was not a bailee.
289
Even in these cases the loss must be within the ambit of the duty. Would the defendant
have been liable for malicious damage? For the seizure of the house by squatters? In
Royscot Trust Ltd v Rogerson [1991] 2 Q.B. 297, D, a dealer, misrepresented to a finance
company that a customer taking a car on hire purchase had paid the minimum deposit
required by the finance company (the representation was not alleged to be fraudulent). The
customer wrongfully sold the vehicle and this was held, for the purposes of the statutory
cause of action under the Misrepresentation Act 1967 s.2(1) to be a reasonably foreseeable
act which did not break the chain of causation. The purpose of requiring a minimum
deposit was to reduce the risk of placing cars with customers who might default and
wrongful disposition was just one variety of default.
290
[1935] 1 K.B. 147.
291
[1935] 1 K.B. 147 at 153 per Greer L.J. Would the defendant have been liable if an adult
had caused the horses to bolt? Cf. Topp v London Country Bus [1993] 1 W.L.R. 976, where
the matter was considered in terms of duty.
292
[1969] 3 All E.R. 1621 (H.L.Sc.). The San Onofre [1922] P. 243. Cf. Wieland v Cyril Lord
Carpets Ltd [1969] 3 All E.R. 1006.
Remoteness of Damage (Scope of Liability) 361
293
[1969] 3 All E.R. 1621 at 1623 per Lord Reid.
294
For a strong example, where there was not even contributory negligence, see NSW v
Nominal Defendant [2009] NSWCA 255. A rescuer will not be regarded as acting
unreasonably because he takes a risk, para.25–17, below.
295
Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404. Aikens L.J. at [45] thought
that the, ‘‘line between a set of facts which results in a finding of contributory negligence
and a set of facts which results in a finding that the ‘‘unreasonable conduct’’ of the claimant
constitutes a novus actus interveniens is not, in my view, capable of precise definition.’’ In
Smith v Youth Justice Board [2010] EWCA Civ 99 D was at fault in taking a complacent
attitude to the dangers of a method of restraint of persons in custody. This led to the death
of X, and C, who had participated in using the method on X, claimed to have suffered
psychiatric trauma as a result. The claim failed, because, even assuming that a review
would have led to the abandonment of the method, its use on that occasion was in breach
of the rules and excessive and prevented any causative link between the fault of D and the
injury of C.
296
Corr v IBC Vehicles Ltd [2008] UKHL 13; [2008] A.C. 884 at [15].
297
[1985] Q.B. 1012.
298
This was at a time when the courts allowed damages for the cost of upbringing of an
unwanted child in such cases, but see now para.24–15, below. However, the child was born
with abnormalities so some of the claim might still succeed.
362 Negligence: Causation, Remoteness (Scope of Liability) etc
6–41 We have seen that the wilful conduct of a third party is more
likely to break the chain of causation than negligence on his part but
that the defendant may be liable in respect of wilful acts the
guarding against which is the very foundation of his duty. There is
a close analogy in the case of wilful conduct by the claimant. In
Reeves v Metropolitan Police Commissioner300 the claimant com-
mitted suicide while in police custody. The case was fought on the
basis that he was sane at the time. A majority of the House of Lords
held that since the defendants owed the claimant a duty of care to
prevent him inflicting harm on himself301 it would be futile at the
next step to go on to hold that his voluntary decision to die broke the
chain of causation.302 There was, however, a reduction of damages
under the Law Reform (Contributory Negligence) Act 1945.303
Another possibility is that the defendant injures the claimant and
the latter, because of depression brought about by the accident,
commits suicide.304 Can the defendant be liable for his death? An
affirmative answer was given by the House of Lords in Corr v IBC
Vehicles Ltd305 even though the deceased was not insane in the legal
sense. Whether or not suicide could be regarded as ‘‘reasonably
foreseeable’’ at the time of the initial injury the defendant had to
take his victim as he found him, his psychological weaknesses as
well as physical ones.306 There was, however, a difference of opin-
ion as to whether the facts warranted a reduction in damages under
the Law Reform (Contributory Negligence) Act 1945. The deceased
299
[1985] Q.B. 1012 at 1024. See also The Calliope [1970] P. 172, maritime collision caused
by negligence of claimant and defendant; claimant vessel sustaining further damage in
turning because of Chief Officer’s negligence turning; manoeuvre difficult but not unrea-
sonable and did not break chain of causation; defendant liable for further damage, subject
to further apportionment for contributory negligence: para.6–53, below.
300
[2000] 1 A.C. 360.
301
The duty was conceded: see para.5–33, above.
302
Nor was volenti applicable (para.25–8, below); nor was the claim against public policy
(para.25–20, below).
303
See para.6–45, below.
304
Cf. the extraordinary case of AMP General Insurance Ltd v Roads and Traffic Authority
of NSW [2001] NSWCA 186, where the trigger of the depression leading to suicide was
the deceased’s cross-examination during his pursuit of his claim and this was held to break
the chain of causation.
305
[2008] UKHL 13; [2008] A.C. 884. A similar answer had been given in Pigney v Pointer’s
Transport Services [1957] 1 W.L.R. 1121, even though suicide was then a crime.
306
There is some difference of opinion as to which it was because some members of the court
did not wish to rely on the controversial decision in Page v Smith (para.5–63, above).
However, it is not clear this concern was well founded. Page was not physically injured in
the accident, Corr was and very severely.
Remoteness of Damage (Scope of Liability) 363
was not legally irresponsible and would have been liable if he had
killed a passer-by when he jumped from the high building and Lord
Scott would have made a reduction of 20 per cent to reflect a degree
of responsibility for his own death. Lords Mance and Neuberger did
not rule out a reduction in principle but were not prepared to make
one because the issue had not been pressed and explored in detail
below; and Lords Bingham and Walker would not have made a
reduction in any event on the facts.307
4. CONTRIBUTORY NEGLIGENCE308
If the claimant’s injuries have been caused partly by the negligence 6–42
of the defendant and partly by his own negligence,309 then, at
common law, the claimant could recover nothing. This rule of
‘‘contributory negligence’’ first appeared at the beginning of the
19th century, though the general idea is traceable much earlier. The
courts modified the defence of contributory negligence by the
so-called rule of last opportunity. This enabled the claimant to
recover notwithstanding his own negligence, if upon the occasion of
the accident the defendant could have avoided the accident while the
claimant could not. The authorities were confused, and confusion
was made worse confounded by the extension of the rule, in British
Columbia Electric Ry v Loach,310 to cases of ‘‘constructive last
opportunity’’. This meant that if the defendant would have had the
last opportunity but for his own negligence, he was in the same
position as if he had actually had it, and the claimant again recov-
ered in full. Apportionment of the loss between claimant and defen-
dant became possible in cases of maritime collision under the
Maritime Conventions Act 1911. The Law Reform (Contributory
Negligence) Act 1945311 applied the principle on which the Mar-
itime Conventions act 1911312 was based to contributory negligence
on land and today, therefore, the claimant’s damages may be
307
There is probably less distance between the members of the court than might be thought.
The deceased was undoubtedly suffering from serious depression but Lord Bingham seems
to have been prepared to contemplate that a truly voluntary suicide based on the deceased’s
assessment that his life was not worth living might break the chain of causation altogether:
at [15].
308
Williams, Joint Torts and Contributory Negligence. The expression should not be used to
describe the situation where the combined negligence of D1 and D2 inflicts injury on C
(see Ch.21).
309
The burden of proving the claimant’s negligence lies with the defendant: Heranger
(Owners) v SS Diamond [1939] A.C. 94 at 104 per Lord Wright; Fitzgerald v Lane [1989]
A.C. 328.
310
[1916] 1 A.C. 719.
311
The common law rule of ‘‘all or nothing’’ was more tenacious in the USA, but there was
a fundamental shift after the 1960s and now nearly all states have some form of apportion-
ment. In American terminology a regime which allows reduction of damages is generally
called ‘‘comparative negligence’’. See Dobbs, Torts (2000) §201.
312
The Act of 1911 was unaffected by the Act of 1945.
364 Negligence: Causation, Remoteness (Scope of Liability) etc
reduced wherever both parties have been negligent and both have
contributed to the damage.313 It is still open to the court to conclude
that the fault of only one party was the sole effective cause of the
loss314 but all the refinements of ‘‘last opportunity’’ have gone. The
relevant provisions of the Maritime Conventions Act 1911 have
been re-enacted in s.187 of the Merchant Shipping Act 1995. A
reduction for contributory negligence will generally315 mean a loss
for the claimant which he will have to bear, whereas in most cases
the defendant will be insured against liability. Nervertheless, where
liability is based on fault it would be difficult to ignore the contribu-
tory fault of the claimant. We also generally316 apply contributory
negligence in cases of strict liability, where the defendant’s respon-
sibility may be regarded as based on ‘‘risk’’; the argument is that
claimants, like defendants, need some incentive to avoid
accidents.317
‘‘Where any person suffers damage as the result partly of his own
fault and partly of the fault of any other person or persons, a claim
in respect of that damage shall not be defeated by reason of the
fault of the person suffering the damage, but the damages recov-
erable in respect thereof shall be reduced to such extent as the
court thinks just and equitable having regard to the claimant’s
share in the responsibility for the damage.’’318
Act does not apply to claims for breach of contract where the
defendant’s liability arises from some contractual provision which
does not depend on negligence on his part326 (for example, the
implied terms to be found in ss.12 to 15 of the Sale of Goods Act
1979) or from a contractual obligation which is expressed in terms
of taking care but which does not correspond to a common law duty
to take care which would exist in the given case independently of
contract.327 Where, however, the defendant’s liability, though
framed in contract, is the same as his liability in the tort of negli-
gence independently of the existence of any contract, the Act is
applicable.328 This would be the case, for example, in a claim for
personal injuries by a patient against a doctor giving private treat-
ment, by passenger against carrier or by visitor against occupier,329
and in a claim against a solicitor or valuer.330 What if the defendant
is liable in tort to the claimant but the claimant has committed a
breach of contract which cannot be framed as a liability in tort (for
example, breach of a strict repairing covenant in a lease)? The 1945
Act is inapplicable because the claimant’s conduct is not ‘‘contribu-
tory negligence’’, but it has been held that the court has power to
apportion, based on causation.331 The difference in principles appli-
cable to contributory fault in contract and tort has, like limitation of
actions, been a significant source of litigation over the boundary
between those two heads of liability, particularly where economic
loss is in issue,332 and the position worked out by the courts does go
some way towards preventing a purely tactical approach to cases.
However, it is difficult to see why a regime of apportionment should
be inapplicable to a duty to take care which arises in contract only,
and the Law Commission recommended legislation on similar lines
326
Barclays Bank v Fairclough Building Ltd [1995] Q.B. 214.
327
Forsikringsaktieselskapet Vesta v Butcher [1988] 3 W.L.R. 565 (affirmed [1989] A.C.
852); Raflatac Ltd v Eade [1999] 1 Lloyd’s Rep. 506. It seems that in contract the matter
is to be dealt with as one of causation, so that the claimant recovers his whole loss unless
his fault is the substantial cause of the accident, in which case he recovers nothing. In
Lambert v Lewis [1982] A.C. 268 a party’s negligence was held to be the effective cause
of his loss rather than the breach of warranty of the dealer who had supplied him, thus
preventing recovery of a contractual indemnity. See also para.26–11, below, ‘‘negligence’’
in the Limitation Act 1980 s.14A.
328
Forsikringsaktieselskapet Vesta v Butcher, above, fn.327; Youell v Bland Welch & Co Ltd
(No.2) [1990] 2 Lloyd’s Rep. 431.
329
Sayers v Harlow UDC [1958] 1 W.L.R. 623. Hence the claimant guilty of a small degree
of contributory negligence cannot avoid a reduction by pleading his claim only in contract.
Cf. Astley v Austrust Ltd (1999) 161 A.L.R. 155. In Pilmer v Duke Group Ltd [2001] HCA
31; 180 A.L.R. 249 the court declined to apply the contributory negligence legislation to
breach of fiduciary duty.
330
UCB Bank Plc v Hepherd Winstanley & Pugh [1999] Lloyd’s Rep. P.N. 963.
331
Tennant Radiant Heat Ltd v Warrington Development Corp [1988] 11 E.G. 71. In Bank of
Nova Scotia v Hellenic Mutual War Risks Association [1990] 1 Q.B. 818 it was said that
the, ‘‘scope and extent of this . . . case will have to be a matter of substantial argument’’
in a future case.
332
See, e.g. Barclays Bank v Fairclough Building Ltd (No.2) [1995] I.R.L.R. 605.
Contributory Negligence 367
‘‘[B’s] employer can say ‘it was your job to check the truth of
what [B] said. You cannot sue me for being deceived [by
B] when, if you had done your job, you would not have
been’ ’’.342
C. Causation of Damage
6–46 In the majority of cases the claimant’s negligence will have
contributed to the accident which led to his injury (as where a driver
or pedestrian fails to keep a proper look-out or an employee omits
to turn off a machine before cleaning it) but this is not necessary for
a finding of contributory negligence: what is essential is that the
claimant’s conduct contributes to his damage. Thus there may be a
reduction where a motorcyclist fails to wear a crash helmet,343
where a passenger in a car does not wear his seat belt,344 or where
a man rides in a dangerous position on the outside of a dust cart,345
or rides with a driver whom he knows to have taken substantial
quantities of alcohol.346 It is, however, essential that the claimant’s
341
[2003] EWHC 1319 (Ch); [2003] PNLR 34.
342
At [733].
343
O’Connel v Jackson [1972] 1 Q.B. 270; Capps v Miller [1989] 2 All E.R. 333. See also
Smith v Finch [2009] EWHC 53 (QB) (pedal cyclist not wearing helmet).
344
Froom v Butcher [1976] Q.B. 286, para.6–48, below.
345
Davies v Swan Motor Co [1949] 2 K.B. 291. The fact that the contributory negligence need
not contribute to the accident means that it may be very difficult to distinguish it from the
duty to mitigate damage. Before the Act, the courts seem to have regarded contributory
negligence as something that related to the occurrence of the initial injury and mitigation
as relating to the time after that occurrence. Failure to mitigate would debar the claimant
from any recovery for additional loss suffered by reason of that failure but would have no
effect on his other loss. The Act probably does not apply to failure to mitigate, but for a
powerful argument that it should see Williams, Ch.11. For an account of the confusion
which prevails in this area see Ackland v Commonwealth [2007] NSWCA 250.
346
Owens v Brimmel [1977] Q.B. 859. See also Gregory v Kelly [1978] R.T.R. 426 (knowl-
edge of defective brakes).
Contributory Negligence 369
factual sense to cause the injury that the case is one for apportion-
ment, for the intention of the Act was to alter only the legal
consequences of contributory negligence and not the general rules
for determining whether a case of contributory negligence exists.353
What was the legal cause of the event involves an enquiry of the
same nature as existed before the Act.354 Thus it is still perfectly
possible for a court to come to the conclusion that as a matter of
legal cause the fault of the claimant is so overwhelming that he must
bear the whole loss.355 This is typified in a series of cases where
employers were guilty of breaches of strict statutory duty but the
breaches were brought about solely by the failure of the claimants,
experienced workmen, to carry out clear safety procedures in which
they had been properly instructed.356
D. Duty of Care
6–47 The existence of a duty of care is, of course, essential to a cause
of action for negligence, but for contributory negligence it is quite
unnecessary that the claimant should owe a duty of the defendant.357
All that is required is that the claimant should have failed to take
reasonable care for his own safety.358 One sometimes comes across
references to the claimant owing himself a duty to take care of his
own safety,359 but strictly speaking this, like the ‘‘duty’’ to mitigate,
is a contradiction in terms. The fact that the defendant is under a
duty of care to guide and supervise the claimant does not necessarily
exclude contributory negligence if the claimant fails to warn the
defendant that he is ‘‘getting out of his depth’’.360
353
Davies v Swan Motor Co [1949] 2 K.B. 291 at 310 per Bucknill L.J., at 322 per Denning
L.J.
354
Stapley v Gypsum Mines Ltd [1953] A.C. 663 at 677, 681, 684, 687 (two miners abandoned
attempt to bring down unsafe part of roof; one of them killed in subsequent fall; widow
suing employers as vicariously responsible for fault of other miner). This case provoked
much judicial disagreement during its passage. The decision that the fault of both men
contributed to the accident was followed on somewhat similar facts in I.C.I. Ltd v Shatwell
[1965] A.C. 565 but the House of Lords in that case was able to come to a different
conclusion by the application of the defence of volenti non fit injuria: para.25–9, below.
355
See para.6–53, below.
356
Rushton v Turner Bros [1960] 1 W.L.R. 96; Ginty v Belmont Building Supplies Ltd [1959]
1 All E.R. 414; Horne v Lec Refrigeration Ltd [1965] 2 All E.R. 898; cf. Ross v Associated
Portland Cement Manufacturers Ltd [1964] 1 W.L.R. 768. For civil liability for breach of
statutory duty in factories, etc. see Chs 7 and 8, below.
357
Nevertheless, it will often be the case, as where there is a collision between two vehicles,
that the claimant does owe a duty of care to the defendant. A duty is essential if the
defendant wishes to counterclaim against the claimant in respect of his own damage. In the
unusual case of La Plante v La Plante (1995) 125 D.L.R. (4th) 569, C was jointly and
severally liable with A to B but was not guilty of contributory negligence in relation to his
claim against A.
358
Nance v British Columbia Electric Ry [1951] A.C. 601 at 611 per Viscount Simon; Davies
v Swan Motor Co [1949] 2 K.B. 291 for a full discussion.
359
e.g. Langley v Dray [1998] P.I.Q.R. P314 at 320.
360
Anderson v Lyotier [2008] EWHC 2790 (QB).
Contributory Negligence 371
E. Standard of Care
If what is alleged is negligence by the claimant, the standard of 6–48
care expected of him for his own safety is in general the same as that
in negligence itself361 and is in the same sense objective and imper-
sonal,362 though, as there, some concession is made towards chil-
dren363 and probably towards other persons suffering from some
infirmity of disability364 rendering them unable to come up to the
normal standard.365 Putting aside such exceptional cases, a:
361
Billings & Sons Ltd v Riden [1958] A.C. 240. ‘‘Fault’’ in the Act of 1945 does not include
some fault falling short of negligence: Jones v Price [1963] C.L.Y. 2316.
362
See para.5–75, above.
363
See below.
364
Not self-induced intoxication: Owens v Brimmell [1977] Q.B. 859.
365
Daly v Liverpool Corp [1939] 2 All E.R. 142; M’Kibbon v Glasgow Corp 1920 S.C. 590;
cf. Baxter v Woolcombers (1963) 107 S.J. 553. The proposition is, indeed, implicit in
Haley v London Electricity Board [1965] A.C. 778 since a sighted person would have had
no difficulty in avoiding the danger. On the other hand, an infirm person may act in such
an unpredictable way that there is no breach of duty by the defendant: Bourhill v Young
[1943] A.C. 92 at 109; Barnes v Flucker 1985 S.L.T. 142.
366
Jones v Livox Quarries Ltd [1952] 2 Q.B. 608 at 615 per Denning L.J. See also Grant v
Sun Shipping Co [1948] A.C. 549 per Lord du Parcq. Cf. Hawkins v Ian Ross (Castings)
Ltd [1970] 1 All E.R. 180. Equally, however, the defendant should bear in mind the
possibility that his activity may distract persons from looking after their own safety. A
bizarre example is Edwards v Tracy Starr’s Shows (Edmonton) Ltd (1984) 13 D.L.R. (4th)
129 (patron of ‘‘burlesque show’’ falling over unseen obstruction).
367
Phillips J. in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] 2 All
E.R. 769 at 820, held that the fact that the claimant was insured against loss was not to be
taken into account in determining whether he had behaved with reasonable prudence. The
contrary view of Steyn J. and the Court of Appeal in Banque Keyser Ullman SA v Skandia
(UK) Insurance Co Ltd [1990] 1 Q.B. 665 at 721, 815, was based on a concession.
Contributory negligence was not in issue in the appeals reported as Banque Bruxelles
[1997] A.C. 191.
368
A worker is not normally put on inquiry as to whether his employer has fulfilled his duties
under statutes and regulations governing industrial safety: Westwood v Post Office [1974]
A.C. 1. So also a person is prima facie entitled to take the advice of his professional adviser
at its face value: Banque Bruxelles, above, fn.367, at [1995] 2 All E.R. 824; Henderson v
Merrett Syndicates (No.2) [1996] 1 P.N.L.R. 32. The judgment of Phillips J. in Banque
Bruxelles contains an extended discussion of the process of determining contributory
negligence in relation to commercial risks.
372 Negligence: Causation, Remoteness (Scope of Liability) etc
G. Children
While it is not possible to specify an age below which, as a matter 6–50
of law, a child cannot be guilty of contributory negligence,380 the
age of the child is a circumstance which must be considered in
deciding whether it has been guilty of contributory negligence.381 In
Yachuk v Oliver Blais Co Ltd, Y,382 a boy aged nine years, bought
376
Glanville Williams, pp.360–364.
377
The rule is equally applicable in favour of the defendant where there is contributory
negligence on the part of the claimant which has forced the dilemma upon him instead of
upon the claimant: Swadling v Cooper [1931] A.C. 1 at 9; McLean v Bell (1932) 147 L.T.
262 at 263.
378
(1816) 1 Stark. 493; The Bywell Castle (1879) 4 P.D. 219; United States of America v Laird
Line Ltd [1924] A.C. 286; Admiralty Commissioners v SS Volute [1922] 1 A.C. 129 at 136;
Sayers v Harlow UDC [1958] 1 W.L.R. 623.
379
Adams v L. & Y. Ry (1869) L.R. 4 C.P. 739. Cf. Sayers v Harlow UDC [1958] 1 W.L.R.
623.
380
Cf. Gough v Thorne [1966] 1 W.L.R. 1387 at 1390 per Lord Denning M.R. and Ducharme
v Davies [1984] 1 W.W.R. 699. ‘‘The descending line measuring reasonable expectation of
care rapidly approaches zero as the age diminishes, but the line is apparently asymptotic’’:
Beasley v Marshall (1977) 17 S.A.S.R. 456 at 459 per Bright J.; in South Australia a
reduction has been made against a child as young as 6: Bye v Bates (1989) 51 S.A.S.R.
67.
381
A comparison of Jones v Lawrence [1969] 3 All E.R. 267 with McKinnel v White 1971
S.L.T. (Notes) 61 suggests that standards were at that time more severe north of the
border.
382
[1949] A.C. 386; French v Sunshine Holiday Camp (Hayling Island) Ltd (1963) 107 S.J.
595.
374 Negligence: Causation, Remoteness (Scope of Liability) etc
H. Identification
6–51 If the injury is due partly to the negligence of the child’s parent
or guardian in failing to look after it and partly to the negligence of
the defendant the child may still recover his whole loss against the
defendant, for he is not ‘‘identified’’ with the negligence of his
parent or guardian385 and the case follows the normal rule that a
claimant may sue and execute judgment against either of two con-
current tortfeasors for the whole sum.386 In practice, however, the
impact of this rule was substantially changed by the introduction of
contribution between concurrent tortfeasors,387 for the defendant
may now join the negligent parent or guardian as a third party and
hold him responsible for a proportion of the damages.388 If the
parent or guardian is insured389 this may be a matter of indifference,
but if he is not, the result, for obvious practical reasons, is likely to
be a settlement which makes a deduction for his share in the blame
for the accident. In a fatal accident case the dependants of the
deceased are identified with his contributory negligence.390 In Gor-
ham v British Telecommunications Plc391 the defendant insurers
383
Gough v Thorne, above, fn.380, at 1390. Jones v Lawrence, above, refers to the need for
culpable want of care by the child for his own safety.
384
[1966] 1 W.L.R. 1387 at 1391 per Salmon L.J. Cf. Beasley v Marshall (1977) S.A.S.R. 456
at 458.
385
The contrary view was exploded in Oliver v Birmingham, etc. Omnibus Co Ltd [1933] 1
K.B. 35, following The Bernina (1888) 13 App.Cas. 1. Cf. the position of master and
servant, below. A minor exception to the non-identification rule is found in the Congenital
Disabilities (Civil Liability) Act 1976: para.24–14, below.
386
See Ch.21, below.
387
See Ch.21, below.
388
Jones v Wilkins [2001] P.I.Q.R. Q12; McCallion v Dodd [1966] N.Z.L.R. 710. For the
parental duty of care, see para.5–29, above.
389
As where the claimant is a passenger in his parent’s car.
390
See para.23–17, below.
391
[2000] 1 W.L.R. 2129.
Contributory Negligence 375
were held to owe a duty of care to the family of the deceased with
regard to pension provision which he made with them392 and to have
been in breach of that duty. The majority of the Court of Appeal held
that the failure of the deceased to take corrective action after he
discovered the truth broke the chain of causation. What would have
been the result if the conduct of the deceased had been only contrib-
utory negligence? The fatal accidents legislation does not apply
because the defendants have not caused the death of the deceased
and the 1945 Act only allows a reduction for the contributory fault
of the claimants, that is to say the members of the family. Sir Murray
Stuart-Smith thought that the court would be entitled to make a
reduction at common law.
As between the claimant and the defendant each is identified with
any third person for whom he is vicariously responsible. The rule
that the negligence of a servant in the course of his employment is
imputed to his employer applies whether the latter is the claimant or
the defendant, but the contributory negligence of an independent
contractor for whom the claimant is not responsible does not affect
the claimant’s action. If X has charge of the person or property of C,
C is not for that reason identified with X, hence if an accident
happens owing to the negligence of X and a third person, D, C may
sue D and recover in full, even though X could not.393
I. Work Accidents
It has been suggested that in actions by workers against their 6–52
employers for injuries sustained at work the courts are justified in
taking a more lenient view of careless conduct on the part of the
claimant than would otherwise be justified, and that it is not for
every risky thing which a worker in a factory may do that he is to
be held to have been negligent. Regard must be had to the dulling of
the sense of danger through familiarity, repetition, noise, confusion,
fatigue and preoccupation with work.394 Where, however, the opera-
tion leading up to the accident is divorced from the bustle, noise and
repetition that occurs in such places as factories these considerations
cannot apply and, indeed, it may be that they are only relevant where
the worker’s cause of action is founded upon his employer’s breach
392
On this aspect of the case, see para.5–38, above.
393
The Bernina, above, fn.385; France v Parkinson [1954] 1 W.L.R. 581.
394
Flower v Ebbw Vale Steel, Iron and Coal Co Ltd [1934] 2 K.B. 132 at 139–140 per
Lawrence J., cited with approval by Lord Wright, [1936] A.C. 206 at 214; Caswell v
Powell Duffryn Collieries Ltd [1940] A.C. 152 at 166 per Lord Atkin, at 176–179 per Lord
Wright; Grant v Sun Shipping Co [1948] A.C. 549 at 567 per Lord du Parcq; Hawkins v
Ian Ross (Castings) Ltd [1970] 1 All E.R. 180.
376 Negligence: Causation, Remoteness (Scope of Liability) etc
J. Apportionment of Loss
6–53 In a case of contributory negligence the damages recoverable by
the claimant are to be reduced: ‘‘to such extent as the court thinks
395
Staveley v Iron & Chemical Co v Jones [1956] A.C. 627 at 642 per Lord Reid, at 647–648
per Lord Tucker; Hicks v British Transport Commission [1958] 1 W.L.R. 493; Quintas v
National Smelting Co [1961] 1 W.L.R. 401 at 411 per Willmer L.J. Cf. at 408–409 per
Sellers L.J. Disobedience is not necessarily contributory negligence: Westwood v Post
Office [1974] A.C. 1.
396
State Ry Authority v Wiegold (1991) 25 N.S.W.R. 500. For the court’s attitude to a plea of
volenti non fit injuria in this context, see para.25–11, below.
397
Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 (Factories Act);
Sparks v Edward Ash Ltd [1943] K.B. 223 (Pedestrian Crossing Places Regulations). For
the action for breach of statutory duty, see Ch.7, below.
398
Staveley Iron & Chemical Co v Jones [1956] A.C. 627 at 648 per Lord Tucker;
Hutchinson v L & NE Ry [1942] 1 K.B. 481. Cf. Mullard v Ben Line Steamers Ltd [1970]
1 W.L.R. 1414.
399
See, e.g. John Summers & Sons Ltd v Frost [1955] A.C. 740. Nevertheless, cases in which
workers are held partly and even substantially to blame for their own injuries are common.
See, e.g. Cork v Kirby Maclean Ltd [1952] 2 All E.R. 402; Jones v Richards [1955] 1
W.L.R. 444; Hodkinson v H. Wallwork & Co Ltd [1955] 1 W.L.R. 1195 (claimant 90 per
cent to blame); Uddin v Associated Portland Cement Manufacturers Ltd [1965] 2 Q.B.
582; Thornton v Swan Hunter (Shipbuilders) Ltd [1971] 1 W.L.R. 1759; King v Smith
[1995] I.C.R. 339; Jebson v MoD [2000] 1 W.L.R. 2055 (far removed from the typical
employment case).
400
For examples of statutory duties imposed directly on workers see Management of Health
and Safety at Work Regulations 1999 reg.14, Personal Protective Equipment at Work
Regulations 1992 reg.10, Manual Handling Regulations 1992 reg.5.
401
National Coal Board v England [1954] A.C. 403. See para.25–20, below.
402
See para.7–16, below.
Contributory Negligence 377
403
Law Reform (Contributory Negligence) Act 1945 s.1(1). The equivalent provision in the
Merchant Shipping Act 1995 s.187(1) lays down that, ‘‘the liability to make good the
damage or loss shall be in proportion to the degree in which each vessel was in fault’’. For
apportionment between defendants under the Civil Liability (Contribution) Act 1978, see
Ch.21, below.
404
In The Calliope [1970] P. 172 Brandon J. held that where the first accident is caused partly
by the negligence of the defendant and partly by the negligence of the claimant and then
the claimant suffers further, consequential, damage which is caused partly by the first
accident and partly by his own further negligence, there must be a sub-apportionment of
responsibility for that consequential damage.
405
Of the many authorities, see The Macgregor [1943] A.C. 197 at 200–201 per Lord Wright;
Brown v Thompson [1968] 1 W.L.R. 1003 at 1009–1011 per Winn L.J.; The Jan Laurenz
[1973] 1 Lloyd’s Rep. 329; Hannam v Mann [1984] R.T.R. 252 (only when ‘‘clearly
wrong’’). Nevertheless appellate courts, and especially the House of Lords, have from time
to time varied apportionments of damages quite freely: Stapley v Gypsum Mines Ltd
[1953] A.C. 663; National Coal Board v England [1954] A.C. 403; Quintas v National
Smelting Co [1961] 1 W.L.R. 401; Barrett v MoD [1995] 1 W.L.R. 1217; Brannan v
Airtours Plc, The Times, February 1, 1999.
406
Davies v Swan Motor Co [1949] 2 K.B. 29 at 326 per Denning L.J.; Stapley v Gypsum
Mines Ltd [1953] A.C. 663 at 682 per Lord Reid; The British Aviator [1965] 1 Lloyd’s
Rep. 271; The Miraflores and The Abadesa [1967] 1 A.C. 826, especially per Lord Pearce
at 845; Brown v Thompson, fn.405, above at 1008 per Winn L.J.; Pride Valley Foods Ltd
v Hall & Partners [2001] EWCA Civ 1001; (2001) 76 Con. L.R. 1 at [51].
407
Pride Valley Foods, above, fn.406, at [53].
378 Negligence: Causation, Remoteness (Scope of Liability) etc
408
Mullard v Ben Line Steamers Ltd [1970] 1 W.L.R. 1414 at 1418 per Sachs L.J.; McGuin-
ness v Key Markets Ltd (1973) 13 K.I.R. 249; Reeves v MPC [2000] 1 A.C. 360 at
371.
409
Payne ‘‘Reduction of Damages for Contributory Negligence’’ (1955) 18 M.L.R. 344.
410
(1955) 18 M.L.R. 344 at 347. Cf. the view of ‘‘morally culpable’’ in Pennington v Norris
(1956) 96 C.L.R. 10.
411
[1960] 1 W.L.R. 217 [1961] 1 W.L.R. 401. See also the example given by Lord Pearce in
The Miraflores and The Abadesa [1967] 1 A.C. 826 at 845.
412
[1961] 1 W.L.R. 401 at 408 per Sellers L.J.
Contributory Negligence 379
413
Froom v Butcher [1976] Q.B. 286 at 296. These are not rigid rules (Salmon v Newland, The
Times, May 16, 1983) but they should generally be followed: Capps v Miller [1989] 2 All
E.R. 333.
414
Note that the reduction is to be made only in respect of the category of injury causally
related to the lack of a belt. If head injuries would have been avoided by wearing a belt
there should be a reduction of 25 per cent in respect of them, but no reduction in respect
of a broken leg which would have occurred anyway. There is a powerful public interest in
avoiding expensive inquiries into fine degrees of contributory negligence and it is therefore
legitimate to take the line that, ‘‘absent something exceptional, there should be no
reduction in a case where the injury would not have been reduced ‘to a considerable
extent’ by the seat belt’’: Stanton v Collinson [2010] EWCA Civ 81 at [26]. See also
Owens v Brimmell [1977] Q.B. 859 and Smith v Finch [2009] EWHC 53 (QB).
415
Patience v Andrews [1983] R.T.R. 447.
416
Jones v Wilkins [2001] P.I.Q.R. Q12.
417
Gawler v Raettig [2007] EWHC 373 (QB) (permission to appeal refused because in view
of the agreement between the parties the issue was academic: [2007] EWCA Civ 1560);
Stanton v Collinson [2010] EWCA Civ 81; Gleeson v Court [2007] EWHC 2397 (QB);
[2008] R.T.R. 10 (travelling in boot, knowledge driver drunk, 30 per cent).
418
Anderson v Newham F.E. College [2002] EWCA Civ 505; [2003] I.C.R. 212, disapproving
Jayes v I.M.I. (Kynoch) [1985] I.C.R. 155.
419
Cooper v Carillion Plc [2003] EWCA Civ 1811. The lowest allocation of responsibility
traced is 5 per cent to the claimant in Laszczyk v NCB [1954] 1 W.L.R. 1426. A figure of
5 per cent was agreed in Stringman v McArdle [1994] 1 W.L.R. 1653. Most cases seem to
be within the range 25 per cent/75 per cent either way.
420
See para.6–27, above.
421
[2000] 2 A.C. 190.
380 Negligence: Causation, Remoteness (Scope of Liability) etc
No doubt the extent of the claimant’s lack of care for his own
safety must be a major factor in all cases, but since the court is
directed by the statute to do what is ‘‘just and equitable’’ the matter
is thus one for the discretion of the court,425 and, though the
discretion must be exercised judicially, it is both unnecessary and
undesirable that the exercise of the discretion be fettered by rigid
rules requiring the court to take some aspects of the given case into
account and to reject others.
K. Multiple Defendants
6–55 Where the acts of two or more defendants combine to injure the
claimant each is liable to the claimant for the whole amount of the
loss, though as between the defendants the court has a statutory
power to apportion liability.426 Both matters are usually settled in
the same proceedings, but there are two stages. First the court must
determine liability and decide what deduction if any is to be made
for the claimant’s contributory negligence. This is done by compar-
ing the claimant’s conduct on the one hand with the totality of the
tortious conduct on the other: the question at this stage is not ‘‘what
is the relative share of responsibility of each and every party?’’ but
‘‘how far is the claimant the author of his own loss?’’ The respective
422
See also Mortgage Corp Plc v Halifax (SW) Ltd (No.2) [1999] Lloyd’s Rep. P.N. 159.
423
Cf. Lord Cooke, dissenting at [2000] 2 A.C. 199: ‘‘the ‘damage’ referred to four times in
section 1(1) of the Act of 1945 is the damage for which, but for the Act, the claimant’s
action would be defeated by reason of his own fault: it does not extend to damage for
which his claim would be defeated by reason of a limit upon the other person’s duty of
care’’.
424
Reeves v MPC [2000] 1 A.C. at 372 per Lord Hoffmann.
425
Where there is a jury it is a question for the jury: s.1(6) of the Act of 1945. Nowadays this
would only be likely in the case of certain intentional torts.
426
See Ch.21, below.
Contributory Negligence 381
427
The position is different under the Merchant Shipping Act 1995, formerly Maritime
Convention Act 1911: see The Miraflores and The Abadesa [1967] 1 A.C. 826, as
explained in Fitzgerald v Lane [1989] A.C. 328.
428
Fitzgerald v Lane, above, fn.427.
CHAPTER 7
THIS chapter is not concerned with statutes which have as their 7–1
principal objective the imposition of tort liability,2 nor with the
circumstances in which the courts may pay regard to a statutory
requirement or standard in deciding whether the defendant’s con-
duct amounts to negligence.3 What it is concerned with is when a
court will conclude that a statute which is primarily regulatory or
criminal in its purpose should be treated as giving rise to a civil
action for damages at the suit of a person who is injured as a result
of non-compliance with it. Fundamentally, the question is one of
interpretation of the particular statute, but enough case law has
accumulated around the subject to require treatment in a book on
torts.
1
Stanton et al, Statutory Torts; Buckley, ‘‘Liability in Tort for Breach of Statutory Duty’’
(1984) 100 L.Q.R. 204; Stanton, ‘‘New Forms of the Tort of Breach of Statutory Duty’’
(2004) 120 L.Q.R. 324; Williams, ‘‘The Effect of Penal Legislation in the Law of Tort’’
(1960) 23 M.L.R. 233.
2
e.g. the Occupiers’ Liability Act 1957 (Ch.9) and the Consumer Protection Act 1987 Pt I
(Ch.10).
3
See para.5–82, above.
383
384 Breach of Statutory Duty etc.
4
Much of the statute law in this area has undergone radical amendment (see para.8–4,
below) but the proposition in the text remains true. See Ziemniak v ETBM Deep Sea Ltd
[2003] EWCA Civ 636.
5
R. v Saskatchewan Wheat Pool (1983) 143 D.L.R. (3d) 9. However, US federal law does
recognise the concept of breach of statutory duty as a distinct tort. The implication of tort
causes of action from the Constitution and civil rights legislation has been particularly
important since Bivens v Six Unknown Agents, 403 U.S. 388 (1971).
6
[1949] A.C. 155 at 168–169.
Breach of Statutory Duty: Existence of Liability 385
Thus, where the statute imposes strict liability it is possible for the
defendant to be acquitted of negligence but still held liable for
breach of the statute; contrariwise, the defendant may have fulfilled
his statutory duty but is still nevertheless liable for negligence
because the statute is not inconsistent with a common law duty
broader in extent. Furthermore, it does not seem satisfactory or even
sensible to describe as a failure to take care the breach of such duties
as the unqualified obligation that dangerous parts of machinery shall
be ‘‘securely fenced’’.7
In the industrial safety cases it would have been impossible to 7–2
deny a general common law duty of care to workers, but in the
modern law many claims for breach of statutory duty have been
advanced on the basis of legislation concerned with child protection,
education and other matters of social welfare. They have generally
failed because the nature of the legislation did not support the
inference of a Parliamentary intention to confer a civil right of
action.8 It may also be the case that the statutory framework is
inconsistent with a common law duty of care, in which case there is
no liability at all, but if this is not so, there is no reason why the
common law of negligence should not operate.9 It is wrong to
assume that because a statute in the area in question does not give
rise to civil liability it therefore excludes a common law duty: the
two questions are entirely separate.10 Any common law duty must
be sought in the principles of the law of negligence, not in the non-
actionable statute.11
The question, then, is when a private right of action in tort12 will 7–3
be inferred from the existence of the statutory duty. When Parlia-
ment has clearly stated its intention one way or the other no diffi-
culty arises,13 but all too often this is not the case. Until the 19th
century the view seems to have been taken that whenever a statutory
7
Factories Act 1961 s.14(1). See John Summers Ltd v Frost [1955] A.C. 740. This particular
statutory duty has been modified, but the various industrial safety regulations still contain
absolute obligations: para.8–5, below.
8
See para.7–4, below.
9
X (Minors) v Bedfordshire CC [1995] 2 A.C. 633 at 765; Barrett v Enfield London Borough
Council [2001] 2 A.C. 550; Phelps v Hillingdon LBC [2001] 2 A.C. 619. An obvious
example is road accidents: road traffic legislation hardly ever gives rise to an action for
breach of statutory duty but road accidents are a major source of negligence cases.
10
Gorringe v Calderdale MBC [2004] UKHL 15; [2004] 1 W.L.R. 1057 at [3].
11
[2004] UKHL 15; [2004] 1 W.L.R. 1057 at [32]; Neil Martin Ltd v Revenue and Customs
Comrs [2007] EWCA Civ 1041; [2007] S.T.C. 1802.
12
The action is properly an action in tort, even though the duty arises from statute: American
Express Co v British Airways Board [1983] 1 W.L.R. 701 (action ‘‘in tort’’ within the Post
Office Act 1969 s.29(1)); Philip Morris Ltd v Ainley [1975] V.R. 345.
13
See, e.g. Health and Safety at Work etc Act 1974 s.47; Guard Dogs Act 1975 s.5; Safety
of Sports Grounds Act 1975 s.13; Building Act 1984 s.38; Telecommunications Act 1984
s.18(6)(a); Fire Safety and Places of Sport Act 1987 s.12; Copyright Designs and Patents
Act 1988 s.103; Financial Services and Markets Act 2000 s.71; Railways Act 2005 s.44.
The European Convention on Human Rights, via the Human Rights Act 1998, of course
gives rise to the possibility of an award of damages. However, there is no right to damages
386 Breach of Statutory Duty etc.
duty is created, any person who can show that he has sustained harm
from its non-performance can bring an action against the person on
whom the duty is imposed.14 During the first half of that century,
however, a different view began to be taken, and in Atkinson v
Newcastle Waterworks Co15 the Court of Appeal’s doubts about the
old rule were so strong as to amount to disapproval of it. With the
vast increase in legislative activity, the old rule was perceived to
carry the risk of liability wider than the legislature could have
contemplated, particularly in relation to public authorities. Since
that time, therefore, the claimant has generally been required to
point to some indication in the statute that it was intended to give
rise to a civil action. If there is no such indication, the claimant is
thrown back on such common law right of action as he may have.
Although, as we have seen, a common law duty of care may coexist
with a statutory duty (whether or not the latter gives rise to a civil
action) there is no common law tort of ‘‘careless performance of a
statutory duty’’. Either there is a duty of care under the common law,
or the statute gives rise to liability in its own right, or both; but if
there is no common law duty and the statute only operates in the
public law sphere then the fact that the duty under the statute is
carried out carelessly does not avail the claimant seeking
damages.16
On the question whether the statute gives rise to a civil right of
action:
and one would not describe such a claim as one for breach of statutory duty, nor even for
tort.
14
‘‘Where-ever a statute enacts anything, or prohibits anything, for the advantage of any
person, that person shall have remedy to recover the advantage given him, or to have
satisfaction for the injury done him contrary to the law by the same statute for it would be
a fine thing to make a law by which one has a right, but no remedy in equity’’: Anon (1704)
6 Mod. 26 per Holt C.J. Com.Dig.tit. ‘‘Action upon Statute,’’ F; Ashby v White (1703) 2
Ld.Raym. 938; Couch v Steel (1854) 3 E. & B. 402.
15
(1877) 2 Ex.D. 441.
16
X (Minors) v Bedfordshire CC [1995] 2 A.C. 633. Dicta which might, on a superficial
reading, indicate the contrary (most particularly Lord Blackburn in Geddis v Proprietors
of the Bann Reservoir (1878) 3 A.C. 430 at 435) are concerned with a different question:
whether, when D, acting under statutory authority, does something which, without that
authority, would be a tort against C, D’s ‘‘negligence’’ loses him the protection of the
authority.
17
Cutler v Wandsworth Stadium Ltd [1949] A.C. 398 at 407 per Lord Simonds, at 412 per
Lord Normand; Ministry of Housing v Sharp [1970] 2 Q.B. 223 at 272 per Salmon L.J.
Breach of Statutory Duty: Existence of Liability 387
18
R. v Deputy Governor of Parkhurst Prison, Ex p. Hague [1992] 1 A.C. 58 per Lord
Jauncey. Lord Bridge at 160 does not seem to be disagreeing with the proposition, he
merely seems to be taking a rather wider view of the regulation-making power under the
Act in question. See also Olotu v Home Office [1997] 1 W.L.R. 328 at 339; The
Maraghetha Maria [2002] EWCA Civ 509; [2002] 2 Lloyd’s Rep. 293.
19
Phillips v Britannia Hygienic Laundry Co [1923] 1 K.B. 832 at 841. The oddness of such
a conclusion is illustrated by Cullen v CC Royal Ulster Constabulary [2003] UKHL 39;
[2003] 1 W.L.R. 1763, where the majority held that there was no action for breach of a
duty which went to, ‘‘a quasi-constitutional right of fundamental importance in a free
society’’: at [67].
20
It seems the class must be definable by reference to their type or status or in some
analogous way. ‘‘Victims of this offence’’ is not enough: Issa v Hackney LBC [1997] 1
W.L.R. 956.
21
X (Minors) v Bedfordshire CC [1995] 2 A.C. 633 at 731; O’Rourke v Camden LBC [1998]
A.C. 188 at 194; Thames Trains v H.S.E. [2003] EWCA Civ 720.
22
Thus in Mid Kent Holdings Plc v General Utilities Plc [1997] 1 W.L.R. 14, a literal
interpretation of the Fair Trading Act 1973 s.93A, would have led to the extraordinary
result of allowing any of the whole population to bring proceedings to enforce an
undertaking to the Minister.
388 Breach of Statutory Duty etc.
29
Auckland Electric Power Board v Electricity Corp of New Zealand Ltd [1993] 3 N.Z.L.R.
53 (on appeal on another point, sub nom. Mercury v Electricity Corp [1994] 1 W.L.R.
521).
30
X v Bedfordshire CC [1995] 2 A.C. 633.
31
Phelps v Hillingdon LBC [2001] 2 A.C. 619.
32
O’Rourke v Camden LBC [1998] A.C. 188. See now the Housing Act 1996. Such duties
may not involve individual civil rights so as to attract art.6(1) of the European Convention
on Human Rights: Ali v Birmingham CC [2010] UKSC 8; [2010] 2 W.L.R. 471.
33
[1998] A.C. at 193.
34
See para.5–52, above.
35
Z v UK (2002) 34 E.H.R.R. 3. See para.5–53, above.
36
See para.5–53, above.
390 Breach of Statutory Duty etc.
D. Criminal Penalties
7–7 Statutes which are silent on civil liability frequently impose
criminal penalties. In principle the starting point is said to be the
37
This element is important: in practice the most likely case in which a statute will not
provide a sanction is where it imposes a general duty owed to the public.
38
X (Minors) v Bedfordshire CC [1995] 2 A.C. 633 at 731; Doe d Murray v Bridges (1831) 1
B. & Ad. 847 at 859; cf. Poulton’s Trustee v Ministry of Justice [2010] EWCA Civ 392.
39
Doe d Murray v Bridges, above, fn.38.
40
Wyatt v Hillingdon LBC (1978) 76 L.G.R. 727; Scally v Southern Health and Social
Services Board [1992] 1 A.B. 294; X (Minors) v Bedfordshire CC, above, fn.38.
41
Phelps v Hillingdon LBC [2001] 2 A.C. 619 at 672.
42
Calveley v CC Merseyside [1989] A.C. 1228. The possibility of judicial review of a
complaints procedure was regarded as pointing away from a civil action because it reduced
the possibility of damage being suffered by the person being investigated. So also in
Cullen v CC Royal Ulster Constabulary [2003] UKHL 39; [2003] 1 W.L.R. 1763 the
majority relied on the availability of judicial review to deny a claim for damages for being
refused access to a lawyer; the minority adverted to the ‘‘formidable practical problems’’
in applying for judicial review when access to a lawyer is refused.
Breach of Statutory Duty: Existence of Liability 391
43
Thus the Factories Act 1961 and its predecessors contained no mention of civil liability.
Now the Health and Safety at Work etc. Act 1974 provides that the successor regulations
give rise to civil liability unless the contrary is stated: para.8–4, below.
44
[1968] 1 W.L.R. 722.
45
[1898] 2 Q.B. 402.
46
Cf. Richardson v Pitt-Stanley [1995] Q.B. 123, where there was no such power to divert
the penalty and where its potential quantum militated against the victim’s chances of
recovery of damages in an action for negligence.
47
Perhaps £8,000 today.
48
Though then restricted by the doctrine of ‘‘common employment’’: para.8–2, below.
392 Breach of Statutory Duty etc.
but such words do not create civil liability, they merely preserve
whatever liability (for example, for negligence or trespass) may
exist apart from the statute.49 It has also been said, though the point
is far from decisive, that it is easier to spell out a civil right of action
if Parliament has expressly stated that something is unlawful and
then provided a penalty, rather than merely saying, ‘‘it is an offence
to do such-and-such’’,50 but this seems a very tenuous basis upon
which to decide this issue.51
49
McCall v Abelesz [1976] Q.B. 585.
50
Rickless v United Artists Corp [1988] Q.B. 40 at 51 (civil action found nonetheless);
Richardson v Pitt-Stanley [1995] Q.B. 123 (action rejected).
51
See the dissent of Sir John Megaw in Richardson v Pitt-Stanley.
52
[1991] 2 A.C. 370; and see Cullen v CC Royal Ulster Constabulary [2003] UKHL 39;
[2003] 1 W.L.R. 1763 (no damage at all, not even substantial distress; it is not clear what
the position would have been if there had been damage of a type generally recognised by
the common law).
53
Nowadays there might of course be claims under the law of misuse of private information
or under the data protection legislation: see Ch.12, below.
54
Richardson v Pitt-Stanley [1995] Q.B. 123.
55
That there may be liability for breach of statutory duty causing economic loss is expressly
accepted by Lord Bridge in Pickering v Liverpool Daily Post and Echo Newspapers Plc,
above, fn.52, at 420. The main thrust of a claim based on breach of EC law (see below)
is likely to be economic loss.
Breach of Statutory Duty: Existence of Liability 393
56
[1935] 1 K.B. 75. Richardson v Pitt-Stanley, above, fn.54, involved a rather similar
situation, failure to comply with the Employers’ Liability (Compulsory Insurance) Act
1969. However, the majority of the CA rejected a civil claim against the directors (the
company was in insolvent liquidation) for breach of statutory duty. The reason was that to
allow an action for breach of statutory duty against it would add nothing to the (worthless)
claims against it for breach of the Factories Act 1961 and negligence, and without an
action lying against the company there could be none against the directors.
57
See now the Road Traffic Act 1988 s.143(1)(b).
58
But the claim is still one for damages for personal injuries for limitation purposes: Norman
v Ali [2000] R.T.R. 107. A permits B to drive A’s car while uninsured. There is an accident
caused by the combined fault of B, and C driving another vehicle (the proportions of fault
being 25 per cent and 75 per cent) in which A is injured. A sues C and recovers in full.
C’s counterclaim against A under Monk v Warbey will fail because the Act requires
insurance only against personal injury and property damage and C’s counterclaim is
economic loss: Bretton v Hancock [2005] EWCA Civ 404; [2005] R.T.R. 22 (s.143(1)(a)
rather than (b) was in issue but the point is the same).
59
It has been held that the court must look at the realities of the matter, and it is not necessary
to show that the driver can never pay: Martin v Dean [1971] 2 Q.B. 208; but in Norman
v Ali the court left open how far it was necessary to establish impecuniosity. The uninsured
driver situation is now rather more complicated than it was when Monk v Warbey was
decided. Under s.151 of the Road Traffic Act 1988 where there is a policy of insurance in
respect of a vehicle, the insurer must satisfy (subject to a financial limit in the case of
property damage) a judgment against any person who drives it while uninsured, subject to
a right of recourse against him or any person who causes or permits the driving. In other
words, the ‘‘permitter’’ remains answerable, but to the insurer rather than to the victim
under Monk v Warbey. Where there is no insurance at all, the claimant may proceed against
the MIB but it will require the claimant to obtain and assign to it a judgment against the
driver and any person who permitted the driving (see Norman v Ali, fn.58).
60
[1976] Q.B. 585.
61
Replaced by the Housing Act 1988 Pt I Ch.IV, which does give rise to civil liability. See
also the more general statutory crime and tort of harassment under the Protection from
Harassment Act 1997, para.4–38, above.
62
[1923] 2 K.B. 832.
394 Breach of Statutory Duty etc.
63
Phillips v Britannia Hygienic Laundry Co, above, fn.62; Badham v Lambs Ltd [1946] K.B.
45; Clark v Brims [1947] K.B. 497; Coote v Stone [1971] 1 W.L.R. 279; Exel Logistics Ltd
v Curran [2004] EWCA Civ 1249. A rare exception is L.P.T.B. v Upson [1949] A.C. 155
(breach of the Pedestrian Crossing Regulations). See also Roe v Sheffield CC [2003]
EWCA Civ 1; [2004] Q.B. 653, though that related to the condition of the highway rather
than the manner of using it. Conversely, the fact that the common law afforded no remedy
to a highway user for injury caused by straying animals (but see now the Animals Act
1971, para.16–2, below) did not lead the courts to grant a civil remedy for the statutory
offence of allowing animals to stray on to the highway: Heath’s Garage Ltd v Hodges
[1916] 2 K.B. 370.
64
Richardson v Pitt-Stanley, above, fn.54, certainly does not support the policy of Monk v
Warbey, but the decision is based more on the wording of the statute than on policy.
65
[1997] 1 W.L.R. 956.
66
See now Pt III of the Environmental Protection Act 1990, para.14–1, below.
67
As is devastatingly demonstrated in the judgment of Brooke L.J.
Breach of Statutory Duty: Existence of Liability 395
68
[1982] A.C. 173.
69
(1874) L.R. 9 C.P. 400 at 407.
70
See para.14–3, below. However, the connection is obvious. Public nuisance, like breach of
statutory duty, is an example of civil liability arising out of what is primarily a crime,
though in this case a common law crime.
71
Boyce v Paddington BC [1903] 1 Ch. 109.
72
Mid Kent Holdings Plc v General Utilities Plc [1997] 1 W.L.R. 14 (whether the claim is
for damages, an injunction or a declaration). Another of the law’s mysteries is the case of
Emperor of Austria v Day and Kossuth (1861) 3 De G. & J. 217. The claimant obtained
an injunction to restrain the printing of false Hungarian bank notes here on the ground of
an ‘‘injury to property’’. The HL has said that a cause of action in private law which
attracted only an injunction against future harm but no damages for loss already suffered,
would be ‘‘wholly novel’’ (Garden Cottage Foods v Milk Marketing Board [1984] A.C.
130) but it is not obvious what the cause of action in the Emperor of Austria case was.
Browne-Wilkinson V.C. followed the case in Kingdom of Spain v Christie Manson &
Woods Ltd [1986] 1 W.L.R. 1120, but Hoffmann J. in Associated Newspapers v Insert
Media Ltd [1988] 1 W.L.R. 509 declined to accept that it could extend to restrain ‘‘unfair
competition’’ which was not actionable as one of the economic torts. See also Mbasogo v
Logo Ltd [2006] EWCA Civ 1370; [2007] Q.B. 846.
396 Breach of Statutory Duty etc.
7–11 The law on inferring civil actions from statutory duties is not very
satisfactory and Lord Denning M.R. commented with perhaps a
little pardonable exaggeration that the legislature:
‘‘[H]as left the courts with a guess-work puzzle. The dividing line
between the pro-cases and the contra-cases is so blurred and so
ill-defined that you might as well toss a coin to decide it.’’73
73
Ex p. Islands Records [1978] Ch. 132 at 134–135. See also Schiemann J. in R. v Knowsley
MBC, Ex p. Maguire (1992) 90 L.G.R. 224.
74
Cutler v Wandsworth Stadium Ltd [1949] A.C. 398 at 411; Solomons v R. Gertzenstein Ltd
[1954] 2 Q.B. 243 at 267 per Romer L.J.
75
For a case decided by reference to principle and policy rather than the supposed intention
of Parliament, see Hargreaves v Bretherton [1959] 1 Q.B. 45 (no action in tort for
perjury).
76
The Law Commission suggested a general presumption in favour of actionability: Law
Com. No.21 (1969).
77
Professor Glanville Williams, writing in 1960, concluded that, as a very broad and
oversimplified conclusion, legislation concerning industrial safety gave rise to civil liabil-
ity but other legislation did not. The actionability of current and future safety legislation
is now covered by a specific statutory provision: see para.8–4, below. It is also the case that
many statutory duties are less than absolute: para.8–5, below.
Breach of Statutory Duty: Existence of Liability 397
H. European Legislation
The general reluctance to find an actionable breach of statutory 7–12
duty in cases brought against public authorities reflects the general
principle that an ultra vires act does not of itself give rise to a claim
for damages—there must be some tort,79 breach of contract or other
actionable wrong. However, one has to take account of the inter-
action of English private law remedies with European law, a matter
of which only a bare outline can be attempted here. The House of
Lords in Garden Cottage Foods Ltd v Milk Marketing Board80 held
that directly applicable provisions of the Treaty of Rome might give
rise to a civil action for damages in an English court.81 The Court of
Appeal in Bourgoin SA v Ministry of Agriculture, Fisheries and
Food82 later held that this was not the case where the legislation in
question imposed obligations only on the State and not on private
persons but since then another element has entered the picture, for
the European Court of Justice in Francovich v Italy83 held that a
Member State may be liable to make good damage suffered by
individuals as a result of the State’s failure to implement a Directive
and the Court spoke in rather broader terms of a principle of
Community Law:
78
For the powers of the criminal court, see para.4–2, above.
79
As to misfeasance in a public office, see para.7–20, below.
80
[1984] A.C. 130.
81
Article 86 (now art.82) abuse of a dominant market position.
82
[1986] Q.B. 716.
83
(C–6/90) [1995] I.C.R. 722.
398 Breach of Statutory Duty etc.
84
See the summary in R. v Secretary of State, Ex p. Factortame Ltd (No.5) [2000] 1 A.C. 524
at 538.
85
[2001] UKHL 16; [2003] 2 A.C. 1.
86
Directive on the co-ordination of laws, regulations and administrative provisions relating
to the taking up and pursuit of the business of credit institutions (EEC) 77/80.
87
[2001] 1 W.L.R. 942.
88
The inadequacy of the implementation may not be apparent to the claimant until his claim
has been adjudicated but the limitation period runs from the date of the injury: see Spencer
v Secretary of State for Work and Pensions [2008] EWCA Civ 750; [2009] Q.B. 358.
89
[1954] 1 Q.B. 383.
90
[1995] Ch. 297.
Elements of the Tort 399
authority, the accounts of which were audited by him, but there was
no duty to an individual officer of the authority.
91
(1874) L.R. 9 Exch. 125. Larrimore v American National Insurance Co 89 P.2d 340
(1939).
92
This decision may easily be misunderstood unless it is realised that the claimants made no
claim whatever apart from the statute. If, quite apart from this statutory duty, the defendant
had been negligent so that the sheep would have been washed overboard, pens or no pens,
then the claimants could have recovered either for breach of contract or for the tort of
negligence. As it was, they relied on the statutory obligation and on nothing else. Yet even
in a case of negligence, the defendant’s liability may be limited by an approach similar to
that in Gorris v Scott: Banque Bruxelles Lambert v Eagle Star Insurance, para.6–27
above.
93
Donaghey v Boulton & Paul Ltd [1968] A.C. 1 at 26 per Lord Reid. Note the similarity to
the development at common law subsequent to The Wagon Mound, para.6–20, above.
94
Factories Act 1961 s.14; Close v Steel Co of Wales Ltd [1962] A.C. 367; Sparrow v Fairey
Aviation Co Ltd [1964] A.C. 1019.
95
Nicholls v F. Austin (Leyton) Ltd [1946] A.C. 493 at 505 per Lord Simonds. See also
Fytche v Wincanton Logistics Ltd [2004] UKHL 31; [2004] I.C.R. 975 (steel toe-capped
boot; purpose of provision under regulations to protect from impact injury not wet and
cold).
96
Cf. Young v Charles Church (Southern) Ltd (1997) 39 B.M.L.R. 146 (regulation designed
to prevent electrocution covered nervous shock at seeing workmate electrocuted).
400 Breach of Statutory Duty etc.
and it was argued that the case was so nearly within the regulations
that the court ought to take them into account. The argument was
rejected and the defendants were held not liable either for breach of
statutory duty, for there was none, or for negligence at common
law.
The second point which it is necessary to make is that the measure
of the defendant’s obligation in every case must be found in the
statute itself and that no single standard of conduct exists.100 In
some cases the statute imposes an unqualified obligation, i.e. an
absolute duty, that a certain state of affairs shall exist, and in such
cases the nonexistence of that state of affairs constitutes the
breach.101 Historically, the best-known example was the provision
of s.14 of the Factories Act 1961 requiring that, ‘‘every dangerous
part of any machinery . . . shall be securely fenced.’’102 This has
been replaced by more complex regulations which create a less than
absolute obligation103 but there continue to be many examples in
97
An example is Longhurst v Guildford, etc. Water Board [1963] A.C. 265.
98
See para.8–5, below.
99
[1956] 1 Q.B. 545.
100
In Germany para.823(2) of the BGB has some similarities to breach of statutory duty but
the liability arises from the Code, with a uniform standard of fault.
101
Galashiels Gas Co v Millar [1949] A.C. 275.
102
See, e.g. John Summers & Sons Ltd v Frost [1955] A.C. 740. In MacMillan v Wimpey
Offshore Engineers & Contractors 1991 S.L.T. 514 a statutory duty was held to make the
employer liable for something the cause of which was the wilful act of a worker outside
the course of employment.
103
See para.8–6, below.
Elements of the Tort 401
104
See para.8–6, below.
105
See para.8–6, below.
106
Bonnington Castings Ltd v Wardlaw [1956] A.C. 613; McWilliams v Sir William Arrol &
Co [1962] 1 W.L.R. 295. These cases concern ‘‘factual causation’’; factors which go to
‘‘legal causation’’ such as acts of a third party, may be relevant (Horton v Taplin Contracts
Ltd [2002] EWCA Civ 1604; [2003] I.C.R. 179) but everything finally depends on the
words of the statute.
107
[1959] 1 All E.R. 414.
108
[1959] 1 All E.R. 414 at 424.
402 Breach of Statutory Duty etc.
could claim damages for injury caused to him solely by his own
wrongdoing’’.109
109
Boyle v Kodak Ltd [1969] 1 W.L.R. 661 at 665–666 per Lord Reid. ‘‘To say you are liable
to me for my own wrongdoing is neither good morals nor good law’’: at 673 per Lord
Diplock.
110
Donaghey v Boulton & Paul Ltd [1968] A.C. 1 at 24 per Lord Reid.
111
Boyle v Kodak Ltd [1969] 1 W.L.R. 661 at 672–673 per Lord Diplock.
112
Byers v Head Wrightson & Co Ltd [1961] 1 W.L.R. 961; Ross v Associated Portland
Cement Manufacturers Ltd [1964] 1 W.L.R. 768.
113
Jenner v Allen West & Co Ltd [1959] 1 W.L.R. 554; Ross v Associated Portland Cement
Manufacturers Ltd, above, fn.112; Boyle v Kodak Ltd [1969] 1 W.L.R. 661; McCreesh v
Courtaulds Plc [1997] P.I.Q.R. P421.
114
McMath v Rimmer Bros (Liverpool) Ltd [1962] 1 W.L.R. 1; Leach v Standard Telephones
& Cables Ltd [1966] 1 W.L.R. 1392; Donaghey v Boulton & Paul Ltd [1968] A.C. 1;
Keaney v British Railways Board [1968] 1 W.L.R. 879. It appears that the fault for which
the employer is responsible need not be such as to suffice as an independent ground of
action.
115
Barcock v Brighton Corp [1949] 1 K.B. 339; Laszczyk v National Coal Board [1954] 1
W.L.R. 1426.
116
See para.25–15, below.
Elements of the Tort 403
statutory duty only via the vicarious liability for the other worker’s
acts.117 That was not a case where the employer was in breach of a
duty directly imposed on him, and the case is consistent with a
position whereby in that event the defence is still inapplicable.118 It
is certainly true that the courts are much less willing than they once
were to accept, even at common law, that a worker has voluntarily
run a known risk without access to a claim for damages and that
there are often other routes (for example causation) to denying
liability. However, a blanket rule of exclusion based on the public
policy of recognising the will of Parliament is in the nature of a
fiction.
F. Contributory Negligence
Before the Law Reform (Contributory Negligence) Act 1945 the 7–18
contributory negligence of the claimant was a complete defence to
an action for breach of statutory duty119 and now, therefore, it is a
reason for reducing the damages which he may recover. This matter
has already been considered.120
G. Delegation
It is clear that in the ordinary way it is no defence for a person 7–19
subjected to a statutory duty to claim that he has delegated the duty
or its performance to another person.121 In some cases, however, it
seems to have been thought that delegation may be a defence where
performance of the tasks necessary to secure compliance with the
statutory obligation has been delegated to the claimant himself.122
Nevertheless, although some specific requirements for the defence
117
Imperial Chemical Industries Ltd v Shatwell [1965] A.C. 656.
118
However, the dicta on the point are not perhaps entirely consistent: compare Lord Reid at
674 referring to, ‘‘an employer who is himself at fault in persistently refusing to comply
with a statutory rule’’; Lord Pearce at 687, seeming to accept a general rule of non-
applicability of the defence; Lord Donovan at 693, referring to unequal bargaining
strength.
119
Caswell v Powell Duffryn Associated Colleries [1940] A.C. 152.
120
See para.6–52, above. A possible technical explanation of the result in Ginty v Belmont
Building Supplies Ltd, above, fn.107 (if one be needed), is that in that case the odd
situation prevailed that the accident was caused wholly by the fault of the claimant and
wholly by the (identical) fault of the defendant while the Act of 1945 governs the case
where, ‘‘any person suffers damage as the result partly of his own fault and partly of the
fault of any other person’’. So the Act did not apply and at common law a person whose
own fault was a cause of his injury can recover nothing: [1959] 1 All E.R. 414 at 424 per
Pearson J.
121
Gray v Pullen (1864) 5 B. & S. 970; Whitby v Burt, Boulton & Hayward Ltd [1947] K.B.
918. See para.20–27, below.
122
See, e.g. Vincent v Southern Ry [1927] A.C. 430; Smith v Baveystock & Co [1945] 1 All
E.R. 531.
404 Breach of Statutory Duty etc.
156
Three Rivers at [2003] 2 A.C. 193.
157
The subject matter of some of the older cases. However, this situation is now entirely
governed by the Representation of the People Act 1985.
158
Three Rivers at [2003] 2 A.C. 231 per Lord Hobhouse.
159
See Three Rivers at [2003] 2 A.C. 230.
160
Jones v Swansea CC [1989] 3 All E.R. 162 at 186 per Nourse L.J. The decision was
reversed by the HL, [1990] 1 W.L.R. 1453, but on the facts. Lord Lowry (at 1458), with
whom the other members of the House concurred, said that he was, ‘‘inclined to agree with
the [CA] on the question of the nature of the power exercised’’. So also Lord Steyn in
Three Rivers at [2003] 2 A.C. 191.
161
Jones v Swansea CC [1990] 1 W.L.R. 1453 at 1458 per Lord Lowry.
162
No individual councillor was sued in Jones. Cf. Barnard v Restormel BC [1998] 3 P.L.R.27
(allegation merely that other committee members deceived).
Misfeasance in a Public Office 409
163
As an action on the case it should not cover ‘‘mere’’ loss of reputation without proof of
financial loss though such damages have been awarded in Canada: Uni-Jet Industrial Pipe
Ltd v Canada (Attorney General) (2001)198 D.L.R. (4th) 577. In Odhavji Estate v
Woodhouse [2003] S.C.C. 69; [2003] 3 S.C.R. 263 at [32] it is said that the loss must be
such as is ‘‘compensable in tort law’’ and Uni-Jet is referred to without disapproval. On the
other hand, if some material loss is established damages should be available for worry and
distress.
164
Akenzua v Secretary of State for the Home Dept [2002] EWCA Civ 1470; [2003] 1 W.L.R.
741.
165
Karagozlu v MPC [2006] EWCA Civ 1691; [2007] 1 W.L.R. 1881.
166
Watkins v Home Office [2006] UKHL 17; [2006] 2 A.C. 395 at [25] per Lord Bingham.
167
Above, fn.166. Hussain v CC West Mercia [2008] EWCA Civ 1205.
168
Administrative Redress: Public Bodies and the Citizen, LCP No.187.
169
Para.5–55, above.
CHAPTER 8
EMPLOYERS’ LIABILITY
1. INTRODUCTION
SINCE 1948, when the National Insurance (Industrial Injuries) Act 8–1
19461 came into force, there has been in operation a national
insurance system under which benefits are payable to the victims of
industrial accidents and to sufferers from certain prescribed indus-
trial diseases. Both employer and worker make national insurance
contributions and, generally speaking, any person employed under a
contract of service or apprenticeship is entitled to the benefits
provided by the Act. Since 1948 the scheme of benefits provided for
industrial injuries has to some extent been assimilated with the
general social security system, but disablement benefit remains
special to this area. This is paid when as a result of an accident, the
claimant suffers disablement amounting to at least a 14 per cent loss
of physical or mental faculty. Benefit is payable in respect of
personal injury by accident, ‘‘arising out of and in the course of
insurable employment’’. An accident arising in the course of the
employment is deemed in the absence of evidence to the contrary, to
have arisen out of that employment.2 If the employee was, at the
time of the accident, disobeying any statutory or other regulations
applicable to his employment, or disobeying his employer’s order,
the accident is nevertheless deemed to arise out of and in the course
of the employment, provided (1) the accident would be deemed so
1
The principal Act is now the Social Security (Contributions and Benefits) Act 1992.
2
Social Security (Contributions and Benefits) Act 1992 s.94(3).
411
412 Employers’ Liability
to have arisen if there had been no disobedience, and (2) the act was
done for the purpose of, and in connection with, the employer’s
trade or business.3 The employee is insured against injuries sus-
tained while travelling to and from work in transport provided by his
employer4 or while acting in an emergency (actual or supposed) on
his employer’s premises, for instance, averting damage by fire. The
legislation is administered on behalf of the Dept of Work and
Pensions and not by the ordinary courts. Claims under the Act are
not a matter for the employer, they are made against the State, and
their validity depends in no way upon proof of the fault or breach of
duty of the employer.
The Act of 1946 replaced the Workmen’s Compensation Acts, the
first of which was enacted in 1897, and these Acts too, though in a
different way, provided compensation to an injured worker without
requiring him to prove the fault or breach of duty of his employer.
It has thus been possible since 1897 for an injured worker to receive
some compensation independently of the ordinary law governing the
civil liability of his employer. Under the law now in force the
worker is entitled to retain his benefits under the scheme and also to
bring an action for damages against his employer.5 There has thus
always been a strong incentive for a worker whose case offers
reasonable prospects of success to bring an action against his
employer, and those prospects were considerably enhanced by the
abolition of the rule that contributory negligence is a complete
defence6 and of the doctrine of common employment.7 Actions by
workers against their employers are, in fact, amongst the most
numerous to be dealt with by the courts.8 In earlier times cases
nearly always concerned physical injury by accident; nowadays a
much greater proportion of claims against employers arise from
illness and disease. Many cases now concern mental illness caused
by stress9 and this presents formidable problems of risk assessment
for employers and of adjudication for the courts.
3
Social Security (Contributions and Benefits) Act 1992 s.98.
4
Social Security (Contributions and Benefits) Act 1992 s.99.
5
However, since 1990 there has existed a ‘‘clawback’’ system whereby certain benefits
payable in the first five years are deductible from damages with a concomitant obligation
on the defendant to reimburse the Secretary of State (para.22–24, below). There is no such
deduction in fatal accident cases in respect of benefits payable on death.
6
Law Reform (Contributory Negligence) Act 1945, para.6–43, above.
7
See below.
8
Under the Employers’ Liability (Compulsory Insurance) Act 1969 all employers other than
the nationalised industries, local authorities and the police are compelled to maintain
insurance against their liability to their workmen. Such insurance was, of course,
extremely common before the Act. Directors are not personally liable in damages for
failure to comply: Richardson v Pitt-Stanley [1995] Q.B. 123.
9
See para.5–71, above.
Introduction 413
The recorded history of employers’ liability does not start until 8–2
1837, and then it began by denying the worker a remedy. Priestley
v Fowler,10 decided in that year, is generally regarded as the fons et
origo of the doctrine of common employment, which held that the
employer was not liable to his employee for injury caused by the
negligence of another employee, but the case really went further
than that. It came close to denying that an employer might be liable
to his workmen on any grounds,11 and there can be no doubt that the
judges of the first half of the 19th century viewed with alarm the
possibility of widespread liability for industrial accidents.12 Never-
theless, by 1858, if not earlier, common employment was recognised
to be an exception to the ordinary principle that an employer is liable
for the tort of his servant done in the course of the servant’s
employment.13 It was said to rest upon the theory that the contract
of service contained an implied term to the effect that the servant
agreed to run the risks naturally incident to the employment, includ-
ing the risk of negligence on the part of his fellow employees, but
it did not follow that he agreed to take the risk of negligence on the
part of the employer himself. If the employer had been negligent the
worker’s claim was still defeated if he had been guilty of contribu-
tory negligence, or even if he merely knew of the danger,14 but
something of a general principle had emerged. If the worker was
injured by the employer’s own negligence he could recover, but if he
was injured by the negligence of a fellow employee he could
not.15
During the second half of the 19th century judicial opinion veered
in favour of the worker, and efforts began to be made to limit the
scope of common employment. The doctrine was not finally abol-
ished, however, until 194816 and, though much restricted in scope
before that date,17 the harshness of the law was chiefly modified by
the evasion of common employment through the development of the
rule that an employer was liable for an injury to his worker caused
10
(1837) 3 M. & W. 1; Farwell v Boston and Worcester Railroad Corp (1842) 4 Metcalf 49
149 R.R. 262.
11
‘‘The mere relation of the master and the servant can never imply an obligation on the part
of the master to take more care of the servant than he may reasonably be expected to do
of himself’’: per Lord Abinger C.B., at 6.
12
Striking instances are the judgments of Pollock C.B. in Vose v Lancs & Yorks Ry (1858)
27 L.J. Ex. 249 and of Bramwell B. in Dynen v Leach (1857) 26 L.J.(N.S.) Ex. 221.
13
Ch.20, below.
14
In Smith v Baker & Sons [1891] A.C. 325 the House of Lords finally held that mere
knowledge did not defeat the workman’s claim: para.25–11, below.
15
The negligent employee was, of course, liable, but he was seldom worth suing.
16
Law Reform (Personal Injuries) Act 1948 s.1(1). Contracting out of the Act is forbidden:
s.1(3). The abolition of the doctrine extends only to personal injuries and Lord Denning
M.R. suggested that it survives for the purposes of defamation: para.12–22, below.
17
See, e.g. Radcliffe v Ribble Motor Services [1939] A.C. 215; Graham v Glasgow Corp
[1947] A.C. 368; Lancaster v L.P.T.B. [1948] 2 All E.R. 796, HL.
414 Employers’ Liability
the employer’s personal duty, for which he was liable, and the mere
negligence of a fellow employee, for which he was not:
‘‘There is a sphere in which the employer must exercise his
discretion and there are other spheres in which foremen and
workmen must exercise theirs. It is not easy to define these
spheres, but where the system or mode of operation is compli-
cated or highly dangerous or prolonged or involves a number of
men performing different functions, it is naturally a matter for the
employer to take the responsibility of deciding what system shall
be adopted. On the other hand, where the operation is simple and
the decision how it shall be done has to be taken frequently, it is
natural and reasonable that it should be left to the foreman or
workmen on the spot.’’24
With the abolition of the doctrine of common employment in
1948,25 the employer became liable as much for the negligence of a
fellow servant of the claimant acting in the course of his employ-
ment as for breach of his personal duty, and it thus became unneces-
sary always to distinguish between the two kinds of wrongdoing.
Nevertheless the concept of the employer’s personal duty was not
destroyed, and the employer is today liable either vicariously or for
breach of his personal duty.26 Additionally, there are numerous and
detailed statutory duties which are imposed directly upon employers
and these have the effect of increasing his overall liability for injury
suffered by his workers. Vicarious liability is the subject of a
separate chapter and here we shall consider the employer’s personal
duty to his employees, but in view of the mass of statutory duties in
existence, to consider the common law alone would give a false
picture of the present law of employer’s liability. We shall also,
therefore, consider first some of the more significant of these duties
and their effect upon employer’s liability as a whole. Very many
claims are presented on the basis of both common law negligence
and breach of statutory duty and it is perfectly possible for the
claimant to succeed on one and fail on the other or succeed on
both.
2. STATUTE LAW27
The Health and Safety at Work, etc., Act 1974 was passed as a result 8–4
of the report of a Royal Commission which recommended a thor-
ough review of the then existing patchwork of industrial safety
24
Winter v Cardiff RDC [1950] 1 All E.R. 819 at 822–823 per Lord Oaksey.
25
Law Reform (Personal Injuries) Act 1948 s.1(1).
26
See Staveley Iron & Chemical Co v Jones [1956] A.C. 627.
27
Encyclopaedia of Health and Safety at Work, Law and Practice.
416 Employers’ Liability
28
Cmnd. 5034.
29
1974 Act s.47(1).
30
1974 Act s.47(2). Is the liability created by s.47(2) confined to personal injury? Not
answered in Polestar Jowetts Ltd v Komori UK Ltd [2005] EWHC 1674 (QB) where
s.47(2) did not, anyway, apply.
31
Directives 89/391, 89/654, 89/655, 89/656, 90/269, 90/270, 91/383.
32
For a sketch of the previous law, see the 13th edn of this work, p.197 et seq.
33
SI 1999/3242 (replacing SI 1992/2051).
34
Directive 89/391.
35
As a result of SI 2003/2457. Cf. the regulations governing working time: Sayers v
Cambridgeshire CC [2006] EWHC 2029; [2007] I.R.L.R. 29.
36
SI 1992/3004.
Statute Law 417
37
However, the coverage is not universal: e.g. SI 1992/3004 does not apply to ships, building
sites or mines and quarries.
38
Regulation 12(1) and (2), which deal with unevenness and slipperiness, appear to be
unqualified. It has been said that the regulations preserve the old distinction under the
Factories Act between the state of the workplace and obstructions: Craner v Dorset CC
[2008] EWCA Civ 1323; [2009] I.C.R. 563.
39
See Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689; [2003] I.C.R. 574 (Control
of Substances Hazardous to Health Regulations 1988—now SI 1999/437; exposure of
employee to substance to be prevented so far as reasonably practicable or, where not
reasonably practicable, to be adequately controlled).
40
Nimmo v Alexander Cowan & Sons Ltd [1968] A.C. 107; Larner v British Steel Plc [1993]
I.C.R. 55; Egan v Central Manchester etc NHS Trust [2008] EWCA Civ 1424; [2009]
I.C.R. 585.
41
Dorman Long (Steel) Ltd v Bell [1964] 1 W.L.R. 333 at 335 per Lord Reid; Jenkins v Allied
Ironfounders Ltd [1970] 1 W.L.R. 304 at 312 per Lord Guest.
418 Employers’ Liability
42
Baker v Quantum Clothing Group [2009] EWCA Civ 499 at [88]–[89] per Smith L.J.
Premises or a process may be objectively unsafe even though the employer has no reason
to be aware of the risk but if he is in that position it will not be reasonably practicable for
him to take any measures to counter it: Abraham v G. Ireson & Son (Properties) Ltd [2009]
EWHC 1958 (QB).
43
Jayne v National Coal Board [1963] 2 All E.R. 220.
Statute Law 419
44
Boynton v Willment Bros [1971] 1 W.L.R. 1625; Sanders v F.H. Lloyd & Co Ltd [1982]
I.C.R. 360.
45
In Bruce v Ben Odeco 1996 S.L.T. 1315 ‘‘so maintained as to ensure’’ was held to create
an absolute obligation to keep in repair.
46
SI 1998/2306 (replacing SI 1992/2932). The Regulation applies to, ‘‘any dangerous part of
machinery or to any rotating stock bar’’. Although the Regulation now applies to other
premises as well as factories it seems that ‘‘dangerous part of machinery’’ should be given
the same meaning as under the Factories Act. There it was held that there was no duty to
fence parts of machinery being constructed in the factory rather than forming part of the
equipment used in its processes (Parvin v Morton Machine Co [1952] A.C. 515), nor to
fence vehicles moving around the premises (Mirza v Ford Motor Co [1981] I.C.R. 757).
In deciding whether a part of machinery was dangerous, the basic question was whether
it was foreseeably likely to cause injury and in assessing this not only the careful but the
careless and inattentive worker had to be borne in mind. However, it was held that if a part
of machinery was a foreseeable cause of injury, and was unfenced, then it was irrelevant
that the claimant’s accident occurred in an unforeseeable way: Millard v Serck Tubes Ltd
[1969] 1 W.L.R. 211.
47
Nicholls v Austin (Leyton) Ltd [1946] A.C. 493; Carroll v Andrew Barclay & Sons [1948]
A.C. 477.
420 Employers’ Liability
48
Regulation 11(1)(a). In the alternative under reg.11(1)(b) they may be to stop the move-
ment of the dangerous part before the worker’s entry into a danger zone.
49
Whereas ‘‘shall ensure’’ seems to create an absolute obligation, to ‘‘take measures to
ensure’’ has some affinities with the requirement to ‘‘take such steps . . . as may be
necessary’’ in the Mines and Quarries Act s.48(1), which in Brown v NCB [1962] A.C. 574
was held to be satisfied where all relevant information had been obtained and acted on with
due care and skill.
50
The rather Delphic reg.12(4) provides that ‘‘ ‘adequate’ means adequate having regard
only to the nature of the hazard and the nature and degree of exposure to the risk’’.
‘‘Adequate’’ is not defined in reg. 9 (training): Allison v London Underground Ltd [2008]
EWCA Civ 71.
51
Emissions of certain toxic substances and noise are governed by other regulations, see
reg.12(5).
52
Regulation 4(1). In determining suitability the employer has to bear in mind that workers
may be inattentive: Robb v Salamis (M & I) Ltd [2006] UKHL 56; [2007] I.C.R. 175.
53
Regulation 5(1).
54
[1949] A.C. 275.
55
Stark v Post Office [2000] I.C.R. 1013 (bicycle; dealing with the 1992 Regulations, which
are identical in this respect); Ball v Street [2005] EWCA Civ 76.
56
Smith v Northamptonshire CC [2009] UKHL 27; [2009] I.C.R. 734 at [64].
57
Cf. the wording of para.3(1) of the underlying Directive.
58
There is clearly a substantial difference of view between Baroness Hale at [41] and Lord
Mance at [69] on the ‘‘starting point’’ for the role of strict liability.
Statute Law 421
59
Cf. PRP Architects v Reid [2006] EWCA Civ 1119; [2007] P.I.Q.R. P4 (lift in shared office
building) on which Lords Carswell and Mance in Smith v Northamptonshire reserved their
opinion.
60
Above.
61
At [63] per Lord Mance.
62
At [65]. Cf. Lord Hope, who thought that control was enough; but Lord Mance thought it
unrealistic to say there was control of the ramp. See also Spencer-Franks v Kellogg Brown
and Root [2008] UKHL 46; [2008] I.C.R. 863; PRP Architects v Reid [2006] EWCA Civ
1119; [2007] ICR 78; Couzens v T. McGee & Co Ltd [2009] EWCA Civ 95.
63
In Spencer-Franks v Kellogg Brown and Root, above, fn.62, Lord Hoffmann at [26]
doubted whether the Regulations would make an employer liable for defects in equipment
submitted by a third party for repair but thought that, since the Regulations extended the
scope of the liability to persons having ‘‘control’’ of the equipment, the third party might
be liable. It seems extraordinary that a person taking his car to a garage for repair could
incur liability without fault for a vehicle about which he has no expertise to a mechanic
with whom he has no relationship whatever.
64
Searby v Yorkshire Traction Ltd [2003] EWCA Civ 1856.
65
Skinner v Scottish Ambulance Service [2004] S.L.T. 834, IH.
422 Employers’ Liability
66
The regulations themselves say nothing about criminal penalties, those are to be found in
the 1974 Act, s.33. See the remarks of Ormrod L.J. in Mirza v Ford Motor Co Ltd [1981]
I.C.R. 757 at 761, on the tension between the penal purposes and the compensatory effect
of the Factories Act 1961.
67
The various regulations, ‘‘are there primarily to promote a culture of good practice with a
view to preventing injury’’: Smith v Northamptonshire CC [2009] UKHL 27; [2009] I.C.R.
734 at [4] per Lord Hope.
68
[2004] UKHL 31; [2004] I.C.R. 975.
69
SI 1992/2966. These Regulations were held to require the provision of body armour in
Henser-Leather v Securicor Cash Services Ltd [2002] EWCA Civ 816.
70
[2004] UKHL 31; [2004] I.C.R. 975 at [7] per Lord Hoffmann.
Statute Law 423
‘‘The issue in this case . . . is who should bear the risk that the
boots supplied for a particular reason turn out to have an inci-
dental defect which causes the employee injury while he is at
work. I have no difficulty with the conclusion that the employer
rather than the employee should bear that risk. There are good
policy reasons for imposing strict liability on employers for many
of the injuries which their employees suffer at work. The overall
object of the legislation is to protect the health and safety of
workers: if this fails and they suffer injury, strict liability means
that they are compensated for that injury without the need for
slow and costly litigation such as this. I appreciate that we have
not yet reached the point where there is strict liability for every
injury suffered by a worker in the course of his employment, but
I see no need to bring in limitations which are not in the statutory
language.’’
71
At [70].
424 Employers’ Liability
3. COMMON LAW
8–9 Since, as we have seen, the employer is now liable to his employee
for an injury caused by a fellow employee, it might be thought that
there is no longer value in retaining the concept of the employer’s
personal duty.76 The enormous majority of workers are in the service
of corporate employers who are in reality not capable of negligence,
or anything else, so why not treat every case as one of vicarious
liability? One answer to this may be that habits of thought acquired
under the rule of common employment have survived its abolition,
but in fact the concept of the personal duty continues to serve a
72
The Manual Handling Regulations 1992 (SI 1992/2793) may provide an example because
the Regulations themselves are (necessarily, given their subject matter) rather less precise
than the others. On the application of these Regulations see Koonjul v Thameslink
Healthcare Services NHS Trust [2000] P.I.Q.R. P123; King v R.C.O. Support Services Ltd
[2001] I.C.R. 608; O’Neill v D.S.G. Retail Ltd [2002] EWCA Civ 1139; [2003] I.C.R. 222.
At common law an employer certainly owes his workers a duty to give adequate informa-
tion about the operation of equipment. This is also required by the Provision and Use of
Work Equipment Regulations 1998 reg.9 (SI 1998/2306). The associated Code of Practice,
para.88, spells this out by referring to factors (workers’ command of English, learning or
reading disabilities, experience) which would obviously be taken into account at common
law.
73
In fact the Management of Health and Safety at Work Regulations only implement part of
Directive 89/391, because the view has been taken that some of it had already been
anticipated by the general provisions of the Health and Safety at Work, etc., Act 1974.
74
Before the Management of Health and Safety at Work Regulations became civilly action-
able, unsuccessful attempts were made to argue that they could be directly relied on in
Cross v Highlands and Islands Enterprises [2001] I.R.L.R. 336, OH and Millward v
Oxfordshire CC [2004] EWHC 455 (QB). Note, however, that in the latter case liability
was imposed at common law in respect of failure to undertake and implement an adequate
risk assessment.
75
Francovich v Italy [1995] I.C.R. 722, para.7–12, above. As to employees of ‘‘emanations
of the state’’ see also Foster v British Gas Plc [1991] 2 A.C. 306.
76
See Sullivan v Gallagher & Craig 1960 S.L.T. 70 at 76 per Lord Justice-Clerk
Thomson.
Common Law 425
92
i.e. long-term conditions, not merely in respect of ‘‘nervous shock’’ caused by being
threatened by an accident.
93
Hatton v Sutherland [2002] EWCA Civ 76; [2002] I.C.R. 613. See para.5–71, above.
94
The special relationship of employer and worker may impose positive duties of assistance
or protection: thus an employer may be obliged to provide medical assistance in cases of
illness or injury in no way attributable to him (Kasapis v Laimos [1959] 2 Lloyd’s Rep.
378) or to warn his workers to be medically examined if he learns that past working
conditions, which were then regarded as proper, have caused a danger of disease (Wright
v Dunlop Rubber Co (1971) 11 K.I.R. 311). As to the employer’s duty in respect of giving
a reference, see Spring v Guardian Assurance [1995] 2 A.C. 296, para.11–33, below.
95
Mullaney v CC West Midlands [2001] EWCA Civ 700; Waters v MPC [2000] 1 W.L.R.
1607.
96
See para.8–16, below.
97
Winter v Cardiff RDC [1950] 1 All E.R. 819 at 823 per Lord MacDermott; Davie v New
Merton Board Mills [1959] A.C. 604.
98
See Butler v Fife Coal Co [1912] A.C. 149. So regarded, a case of this kind would not give
rise to the question whether negligence is to be judged subjectively or objectively. If a
worker who has never previously operated a crane is put in charge of one and an accident
results, despite the exercise by him of all the care of which he is, subjectively, capable,
there might be difficulties in saying that the employer is vicariously liable for his
negligence. In a question whether the employer is personally in breach of his duty no such
difficulty exists.
428 Employers’ Liability
8–12 ii. Adequate plant and equipment. The employer must take
reasonable care to provide his workers with the necessary plant and
equipment,101 and is therefore liable if an accident is caused through
the absence of some item of equipment which was obviously neces-
sary or which a reasonable employer would recognise to be
needed.102 He must also take reasonable care to maintain the plant
and equipment in proper condition, and the more complex and
dangerous that machinery the more frequent must be the inspec-
tion.103 What is required in each case, however, is reasonable care
according to the circumstances, and in some cases it may be legit-
imate to rely upon the worker himself to rectify simple defects in the
plant he is using.104 The duty extends to the installation of necessary
safety devices on dangerous machinery105 and the provision of
protective equipment when required,106 but the employer does not
warrant the safety of plant and equipment. At common law, there-
fore, he is not liable if an accident is caused by some latent defect
99
O’Reilly v National Rail and Tramway Appliances Ltd [1966] 1 All E.R. 499. Cf. Harrison
v Michelin Tyre Co Ltd [1985] I.C.R. 696, doubted in Aldred v Nacano [1987] I.R.L.R.
292.
100
Hudson v Ridge Manufacturing Co [1957] 2 Q.B. 348; Veness v Dyson Bell & Co [1965]
C.L.Y. 2691. Cf. Smith v Crossley Bros (1951) 95 S.J. 655; Coddington v International
Harvester Co of Great Britain Ltd (1969) 6 K.I.R. 146. The principle may extend to
victimisation or bullying where there is sufficient injury: Waters v MPC [2000] 1 W.L.R.
1607. For an extreme example where one worker shot another see Gittani Stone Pty Ltd
v Pavkovic [2007] NSWCA 355.
101
While a defendant who engages a contractor is generally entitled to look to the contractor
to safeguard the latter’s employees, he may owe the employees a duty if he in some way
assumes some responsibility, for example by providing some unsuitable piece of equip-
ment: McGarvey v Eve N.C.I. Ltd [2002] EWCA Civ 374.
102
Williams v Birmingham Battery and Metal Co [1892] 2 Q.B. 338; Lovell v Blundells &
Crompton & Co [1944] 1 K.B. 502; Ross v Associated Portland Cement Manufacturers Ltd
[1964] 1 W.L.R. 768. It is not always necessary, however, for the employer to adopt the
latest improvements: Toronto Power Co v Paskwan [1915] A.C. 734 per Sir Arthur
Channell. See also O’Connor v B.T.C. [1958] 1 W.L.R. 346.
103
e.g. Murphy v Phillips (1876) 35 L.T. 477; Baxter v St Helena Hospital Management
Committee, The Times, February 14, 1972. Even inspection may not always be sufficient:
Barkway v S Wales Transport Co [1950] A.C. 185; Pearce v Round Oak Steel Works Ltd
[1969] 1 W.L.R. 595.
104
Bristol Aeroplane Co v Franklin [1948] W.N. 341; Richardson v Stephenson Clarke Ltd
[1969] 1 W.L.R. 1695.
105
Jones v Richards [1955] 1 W.L.R. 444; Lovelidge v Anselm Odling & Sons Ltd [1967] 2
Q.B. 351. See also Naismith v London Film Productions [1939] 1 All E.R. 794.
106
Qualcast Ltd v Haynes [1959] A.C. 743 per Lord Denning; but see Brown v Rolls-Royce
[1960] 1 W.L.R. 210. See also McGhee v NCB [1973] 1 W.L.R. 1 (washing facilities).
Common Law 429
8–13 iii. Safe place of work. Though not expressly mentioned by Lord
Wright in Wilsons and Clyde Coal Co v English,114 it is clear that the
employer’s duty of care extends to the place of work115 and in some
cases may even also apply to the means of access to the place of
work.116 No particular difficulty exists where the place of work is in
the occupation or control of the employer, but it must be recalled
that the duty is one of reasonable care only and thus the employer is
not obliged to take unreasonable precautions even against foresee-
able risks.117 At one time, however, it was thought that because an
employer had no control over premises in the occupation of a third
party he could owe no duty in respect of those premises, but it is
now clear that this is wrong.118 The duty of care remains, but what
is required for its performance may well be different where the place
of work is not under the employer’s control119:
‘‘The master’s own premises are under his control: if they are
dangerously in need of repair he can and must rectify the fault at
once if he is to escape the censure of negligence. But if a master
sends his plumber to mend a leak in a private house, no one could
hold him negligent for not visiting the house himself to see if the
113
Regulation 3(5).
114
[1938] A.C. 57.
115
e.g. Cole v De Trafford (No.2) [1918] 2 K.B. 535 per Scrutton L.J.; Davidson v Handley
Page [1945] 1 All E.R. 235 at 236 per Lord Greene M.R. At the lowest, the employer’s
duty to his employee in respect of premises occupied by the employer must be the common
duty of care under the Occupiers’ Liability Act 1957, but probably it is stricter than that
duty: para.8–16, below. Most workplaces are now likely to be covered by the Workplace
(Health, Safety and Welfare) Regulations 1992: para.8–5, above. See in particular reg.5.
116
Ashdown v Samuel Williams & Sons [1957] 1 Q.B. 409 at 430–432 per Parker L.J.; Smith
v National Coal Board [1967] 1 W.L.R. 871. The employer can be subject to no duty of
maintenance so far as the means of access consists of a public highway, but if the employee
has to cross private property, whether the employer’s own or that of a third party, the duty
should exist.
117
Latimer v A.E.C. [1953] A.C. 643; Thomas v Bristol Aeroplane Co [1954] 1 W.L.R. 694.
Nor is he liable for a defect which would not have been revealed by inspection: Bevan v
Milford Haven Dry Dock Co [1962] 2 Lloyd’s Rep. 281; O’Reilly v National Rail and
Tramway Appliances Ltd [1966] 1 All E.R. 499.
118
Wilson v Tyneside Window Cleaning Co [1958] 2 Q.B. 110; Smith v Austin Lifts [1959] 1
W.L.R. 100; Clay v A.J. Crump & Sons Ltd [1964] 1 Q.B. 533.
119
It is likely of course that the occupier of the premises will owe a duty to the worker and
even if the claimant does not sue him, if the employer of the worker is held liable he may
seek a contribution from the occupier: see Andrews v Initial Cleaning Services Ltd [2000]
I.C.R. 166, where it was conceded that both the employer and the owner of the premises
were occupiers of the room.
Common Law 431
iv. Safe system of working. This, the most frequently invoked 8–14
branch of the employer’s duty,123 is also the most difficult to define,
but it includes:
120
Wilson v Tyneside Window Cleaning Co [1958] 2 Q.B. 110 at 121–122 per Pearce L.J.;
Kilbride v Scottish & Newcastle Breweries 1986 S.L.T. 642.
121
Cf. General Cleaning Contractors Ltd v Christmas [1953] A.C. 180, where the HL was not
prepared to go so far.
122
King v Smith [1995] I.C.R. 339..
123
It is obvious that the classic quadripartite approach is based on accidents and cannot be
applied to illness caused by work stress; but this one may have some analogical
application.
124
Speed v Thomas Swift & Co [1943] K.B. 557 at 563–564 per Lord Greene M.R. For the
relevance of general practice in industry, see para.5–79, above.
432 Employers’ Liability
B. Scope of Duty
The employer’s duty of care concerns not only the actual work of 8–15
his employees, but also all such acts as are normally and reasonably
incidental to a day’s work,135 and the mere fact that an employee
disobeys an order does not necessarily deprive him of the protection
of his employer’s duty, though he may, of course, be guilty of
contributory negligence.136 The special duty we are now considering
arises only when the relationship of employer and servant exists137
and so an independent contractor employed to do work in a factory,
or a visitor, cannot rely upon it. Such a person will, however,
generally be owed some other duty of care.138 It is important to
notice that although the employer’s duty springs from the relation-
ship of employment, the duty is owed individually to each worker,
so that circumstances concerning the particular worker which are
known or which ought to be known to the employer will affect the
precautions which the employer must take in order to fulfil his duty.
Thus in Paris v Stepney Borough Council139 the claimant had only
one eye and it was therefore held that he should have been provided
with goggles even though the risk involved in his work was not so
great as to require the provision of goggles to a normal two-eyed
man doing a similar job. Conversely:
134
McDermid v Nash Dredging and Reclamation Co Ltd [1987] A.C. 906.
135
Davidson v Handley Page Ltd [1945] 1 All E.R. 235.
136
Rands v McNeil [1955] 1 Q.B. 253 (but no breach of duty on the facts).
137
The importance of safety may lead the court to emphasise the substance rather than the
form of the relationship: Lane v Shire Roofing (Oxford) Ltd [1995] I.R.L.R. 493; see
Mullaney v CC West Midlands [2001] EWCA Civ 700 (police—‘‘quasi-employment’’).
138
e.g. under the Occupiers’ Liability Act 1957.
139
[1951] A.C. 367. Cf. Hatton v Sutherland [2002] EWCA Civ 76; [2002] I.C.R. 613 (stress;
employer’s legitimate expectations about capacity).
140
Qualcast (Wolverhampton) Ltd v Haynes [1959] A.C. 743 at 754 per Lord Radcliffe. But
the employer cannot necessarily accept at face value the servant’s assertion of previous
experience: Tasci v Pekalp of London Ltd [2000] I.C.R. 633. Cf. Makepeace v Evans Bros
(Reading), The Times, June 13, 2000.
434 Employers’ Liability
141
Hatton v Sutherland [2002] EWCA Civ 76; [2002] ICR 613. See para.5–71, above.
142
See, e.g. Latimer v A.E.C. [1953] A.C. 643 and Coates v Jaguar Cars Ltd [2004] EWCA
Civ 337. For the standard of care in negligence generally see Ch.5, above.
143
[1961] 1 W.L.R. 1314.
144
See, e.g. Rozario v Post Office [1997] P.I.Q.R. P15 (simple lifting task).
145
[1961] 1 W.L.R. 1314 at 1320 per Devlin L.J.
Common Law 435
D. Independent Contractors
It might be supposed that an employer who entrusts some task to 8–17
a third party (not a servant), whose competence he has taken reason-
able care to ascertain, has thereby discharged his own duty of
reasonable care. To state the law in this way, however, would be to
146
Coxall v Goodyear Great Britain Ltd [2002] EWCA Civ 1010; [2003] 1 W.L.R. 536 at
[26].
147
Lane Group Plc v Farmiloe [2004] P.I.Q.R. 22. As the defendant’s safety officer put it,
‘‘You cannot opt out of Health and Safety’’. Cf. Canterbury CC v Howletts [1997] I.C.R.
925 (duty under the Health and Safety at Work etc. Act 1974 s.2, to ensure safety to
employees was duty to do what could be done in the context of the job and did not prohibit
work—entering tiger’s cage—which could not be done without danger; but on the civil
liability in such a situation, see the Animals Act 1971 s.6(5), para.16–8, below).
148
Hatton v Sutherland [2002] EWCA Civ 76; [2002] I.C.R. 613.
149
See para.25–11, below.
150
[1992] Q.B. 333.
151
In fact, Stuart-Smith L.J. also accepted that what he called an ‘‘express term of volenti non
fit injuria’’ would exclude the employer’s duty.
152
See para.25–6, below.
436 Employers’ Liability
153
[1938] A.C. 57, para.8–9, above.
154
[1938] A.C. 57 at 83–84 per Lord Wright. See also per Lord Thankerton at 64–65, per Lord
Macmillan at 75, per Lord Maugham at 87–88; per Lord Woolf in Spring v Guardian
Assurance Plc [1995] 2 A.C. 296 at 354.
155
See para.20–1, below.
156
[1987] A.C. 906..
Common Law 437
when that duty was not fulfilled.157 Given the close connection
between the defendants and S the decision is not surprising,158 for if
the law were otherwise the claimant’s rights would be at risk from
the chances of corporate organisation.159 One Court of Appeal
decision in which liability was not imposed upon the employer for
injury suffered by an employee working in Saudi Arabia distin-
guished Nash on the basis that it was confined to cases where there
was some sort of ‘‘joint venture’’160 but this seems an unsatisfactory
distinction and the principle of Nash has been applied at first
instance161 and by the Court of Appeal162 to cases where the
employer was a ‘‘labour only’’ contractor and in one of which163 the
injury took place abroad.164 However, it has been said that the,
‘‘suggestion that the homebased employers have any responsibility
for the daily events of a site in [another country] has an air of
unreality’’165 and it may be that the question of how far the employer
has control of the distant site is a critical factor in such cases.166
Where no actual fault is attributable to the employer, that may
justify awarding him a complete indemnity in contribution proceed-
ings against the person at fault.167 This does not, of course, mean
157
It was not regarded as important whether the case was one of failing to devise a safe
system of work or failing to operate a safe system.
158
The tug was skippered turn and turn about by an employee of S and an employee of the
defendants. Had the accident occurred on the next shift there could have been no disputing
the defendants’ liability.
159
No proceedings were brought against S because of the difficulties of effecting service
against a Dutch company in respect of a claim arising in Sweden and because of a practice
of the legal aid authorities not to support claims against a foreign defendant in respect of
a foreign tort. Had S been sued, they might have been entitled to limit their liability under
the merchant shipping legislation. In Johnson v Coventry Churchill International Ltd,
below, fn.161, the persons on whose premises the claimant was working were not liable
under German law unless there was a wilful act by them but under English law one would
expect that in such a situation there would have been a duty of care. Where the claimant
has a contract with one member of a group it may be that on the facts other members of
the group have assumed responsibility for his safety: Newton-Sealey v Armor Group
Services Ltd [2008] EWHC 233 (QB).
160
Cook v Square D. Ltd [1992] I.C.R. 262. The accident arose from the defective state of the
premises but the condition of the premises is clearly something within the scope of the
employer’s duty under Wilsons & Clyde Coal v English.
161
Johnson v Coventry Churchill International Ltd [1992] 3 All E.R. 15.
162
Morris v Breaveglen Ltd [1993] I.R.L.R. 350. This despite the fact that the court was
prepared to accept that the claimant was sufficiently under the control of the site occupiers
for them to be vicariously liable for damage he did to others.
163
Johnson v Coventry Churchill International Ltd, above, fn.161.
164
Cf. A v MoD [2004] EWCA Civ 641; [2005] Q.B. 183 (no liability on Army where it
arranged medical facilities in German hospital for wife of a soldier; note that in this case
there was no reason to believe that either the liability of the hospital or its quantum under
German law would have been any less than liability under English law).
165
Cook v Square D. Ltd, above, fn.160, at 271. However, it was accepted that in some cases
it might be incumbent on the employer of someone working abroad to inspect the site and
satisfy himself that the occupiers were conscious of safety obligations.
166
See DIB Group Pty Ltd v Cole [2009] NSWCA 210, in which the use of the concept of
non-delegable duty is criticised.
167
Nelhams v Sandells Maintenance Ltd, The Times, June 15, 1995.
438 Employers’ Liability
168
See para.8–12, above.
169
[1959] A.C. 604, para.8–12, above.
170
In Knowles v Liverpool CC [1993] 1 W.L.R. 1428 Davie is given a broad interpretation so
as to include material with which the employee is working. However, this is done for the
purpose of justifying an equally wide meaning of ‘‘equipment’’ in the 1969 Act. It is
accepted in Coltman v Bibby Tankers Ltd [1988] A.C. 276 that the Act does not extend to
the factory premises themselves.
CHAPTER 9
1. INTRODUCTION
THE greater part of this chapter concerns the liability of an occupier 9–1
of premises for damage done to visitors on the premises2 and the
main source of the law is the Occupiers’ Liability Act 1957. Where
things done on the premises affect other premises, that is the prov-
ince of the law of nuisance, which is dealt with in Ch.14. ‘‘Liability
for premises’’, though it would be a neat antithesis to the ‘‘liability
for products’’ in the next chapter would not, however, be an exact
description, for the rules now to be discussed are not limited to
immovable property like open land, houses, railway stations and
bridges, but have been extended to movable structures like ships,
gangways and scaffolding. Technically, a claim by a passenger in a
1
North, Occupiers’ Liability (1971) is the leading treatment.
2
i.e. persons who have entered the premises. It is conceivable that an occupier may ‘‘assume
responsibility’’ at common law in respect of the safety of the approach to the premises,
which may be the explanation of Dodkins v West Ham Utd [2000] C.L.Y. 4226, Cty Ct.
(season ticket holder fell on broken manhole cover outside gate to ground).
439
440 Liability for Land and Structures
3
If the defect was caused by the manufacturer or a previous owner the case would fall under
the principles considered in Ch.10. The present chapter deals with cases where the
defendant has control of the structure when the damage occurs.
4
Before the Act of 1957 is was clear that at common law the special rules of occupiers’
liability had no relevance to the way the vehicle was driven: Haseldine v Daw [1941] 2
K.B. 343 at 353, 373.
5
See para.9–3, below.
6
The common law could still be relevant in asbestos cases over 40 years after the Act:
Fairchild v Glenhaven Funeral Services Ltd [2001] EWCA Civ 1881.
7
Where the use of the premises was merely ancillary to the main purpose of the contract the
occupier warranted that he, and perhaps his independent contractor, had taken reasonable
care to see that the premises were safe.
8
Indermaur v Dames (1866) L.R. 1 C.P. 274; affirmed (1867) L.R. 2 C.P. 311.
9
The later cases held that if the occupier knew the factual situation the test of his
appreciation that it constituted a danger was objective. This blurred the distinction between
invitees and licensees.
Introduction 441
‘‘If a landowner is driving his car down his private drive and
meets someone lawfully walking upon it, then he is under a duty
to take reasonable care so as not to injure the walker and his duty
is the same, no matter whether it is his gardener coming up with
his plants, a tradesman delivering his goods, a friend coming to
tea, or a flag seller seeking a charitable gift.’’11
10
Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358.
11
Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264 at 269.
12
Above, fn.8.
13
Cmnd. 9305, 1954. The principal criticisms and recommendations of the Committee are
summarised in the 12th edition of this work, pp.204–206.
14
In the United States, a trend towards the same ‘‘unitary’’ approach to occupiers’ liability
began with Rowland v Christian 443 P. 2d 561 (1968). By 1998 about half the states had
adopted a single standard for invitees and licensees and some of these had also assimilated
trespassers: Dobbs, Torts (2000) §237. In Australia the law was restated in terms of general
negligence law in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 C.L.R. 479.
15
1957 Act s.1(2).
442 Liability for Land and Structures
case,16 but if, as is usual, the contract is silent on the matter, the Act
provides that there shall be implied into the contract a term that the
occupier owes the entrant the common duty of care.17 There may, of
course, be obligations under a contract which are wholly outside the
scope of the law of occupiers’ liability: if, for example, a lease
requires the landlord to maintain a lift, failure to do so, so that it
becomes inoperative, would be a breach of contract but it would not
be a breach of the common duty of care,18 except in the unlikely
event that there was no other reasonably safe access to accommoda-
tion in the building.
We saw how the courts utilised the concept of the ‘‘activity duty’’
to blur the distinction between invitees and licensees at common law
and it may be asked whether this concept has survived the Act. On
the one hand, it is enacted that the rules provided by the Occupiers’
Liability Act:
On the other hand, it is also enacted that those rules, ‘‘shall regulate
the nature of the duty imposed by law in consequence of a person’s
occupation or control of premises’’,20 and the ‘‘activity duty’’ does
not seem to be aptly described in this way. It arises, generally
speaking, by the application of the ordinary principles of negligence
and applies equally to occupiers and non-occupiers.21 It seems that
the first provision is not to be read literally as covering all conduct
of an occupier on his own premises so that, for example, the Act was
regarded as irrelevant when the defendant failed to warn his children
against playing with lighted candles,22 and in Ogwo v Taylor23 a
claim arising out of the defendant’s negligence in setting fire to his
16
In the majority of personal injury cases an express provision can now only be effective if
it favours the entrant: a term reducing the occupier’s duty below the common duty of care
will usually be void under the Unfair Contract Terms Act 1977 s.2, para.9–19, below.
17
1957 Act s.5(1). Maguire v Sefton MBC [2006] EWCA Civ 316; [2006] 1 W.L.R. 2550.
A contractual entrant may frame his claim in the alternative as a non-contractual visitor:
Sole v W.J. Hallt [1973] Q.B. 574. The defendant in the famous case of The Moorcock
(1889) 14 P.D. 64 was not occupier of the area where the vessel grounded but the implied
term as to its safety was essentially the same as that under the Act: George v Coastal
Marine 2004 Ltd [2009] EWHC 816 (Admlty); [2009] 2 Lloyds Rep 356.
18
Berryman v Hounslow LBC, The Times, December 18, 1996.
19
1957 Act s.1(1).
20
1957 Act s.1(2).
21
Riden v Billings & Sons [1957] 1 Q.B. 46 at 56 per Denning L.J., affirmed [1958] A.C.
240; Ogwo v Taylor [1988] A.C. 431 at 434 per Dillon L.J., affirmed at 441.
22
Jauffar v Akhbar, The Times, February 10, 1984.
23
[1988] A.C. 431. The case was in fact pleaded in the alternative under both heads: see the
decision of the Court of Appeal at 434.
Modern Law: The Occupiers’ Liability Act 1957 443
24
See also Fowles v Bedfordshire CC, The Times, May 22, 1995; Revill v Newberry [1996]
Q.B. 567 (Occupiers’ Liability Act 1984).
25
If there is (e.g. employer and employee), the claimant may rely upon both the Act and any
duty incidental to that relationship; but where A is carrying out operations at B’s property
and the conduct of those causes injury to C, any liability of B for failing to protect C is
governed by the general law rather than the Act: Fairchild v Glenhaven Funeral Services
Ltd [2001] EWCA Civ 1881; [2002] 1 W.L.R. 1052.
26
Tomlinson v Congleton BC [2003] UKHL 47; [2004] 1 A.C. 46 (on the Occupiers’
Liability Act 1984, where the same words appear) does not really advance the matter. The
essential point there was that any danger presented by the premises was obvious and the
defendants were not doing anything at all. The issue arose in a curious form in New
Zealand Insurance Co v Prudential Insurance Co [1976] 1 N.Z.L.R. 84 where an indem-
nity policy set different limits for occupiers’ liability and general public liability. Though
the court discussed the various academic views on the scope of the Act, it declined to give
any firm opinion.
27
However, in Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575; [2004]
P.I.Q.R. P18 it was said that the fact that the case turned on an extra-hazardous activity
rather than the state of the premises meant that the common law rule (now in some doubt)
making a principal liable for the negligence of an independent contractor in such cases
(para.20–25, below) applied.
28
See, e.g. Irvine v MPC [2004] EWHC 1536 (QB); [2005] P.I.Q.R. P11.
29
1957 Act s.1(3)(a). Bunker v Charles Brand & Son Ltd [1969] 2 Q.B. 480; Hollingworth
v Southern Ferries [1977] 2 Lloyd’s Rep. 70. Cf. Wheeler v Copas [1981] 3 All E.R.
405.
30
1957 Act s.1(3)(b). See further para.9–24, below.
444 Liability for Land and Structures
landlord to the visitors of his tenants though these have now been
replaced by further legislation.31
B. Occupier
9–4 The duty under the Act is imposed upon the ‘‘occupier,’’ but that
is a word which may vary considerably in its meaning according to
the context in which it is used. Its meaning in the context of landlord
and tenant legislation, for example, is not necessarily the same as in
the context of the Occupiers’ Liability Act.32 Here the essential
question is ‘‘Who has control of the premises?’’. The word occupier
is simply a convenient one to denote a person who has a sufficient
degree of control over premises to put him under a duty of care
towards those who come lawfully upon the premises.33 An owner in
possession is, no doubt, an ‘‘occupier’’34; an owner who has let the
premises to another and parted with possession is not35; but an
absentee owner may ‘‘occupy’’ through his servant and remain
subject to the duty36 and he may also be subject to it though he has
contracted to allow a third party to have the use of the premises.37
On the other hand, it is not necessary that an ‘‘occupier’’ should
have any estate in land38 or even exclusive occupation.39 There may
thus be more than one ‘‘occupier’’ of the same structure or part of
the structure.40 The foundation of occupier’s liability is occupational
control, i.e. control associated with and arising from presence in and
use of or activity in the premises.41 Whether this exists is a question
31
See para.9–40, below.
32
Graysim Holdings Ltd v P.&O. Property Holdings Ltd [1996] A.C. 329.
33
Wheat v Lacon & Co Ltd [1966] A.C. 552 at 577 per Lord Denning.
34
In Harvey v Plymouth CC, November 13, 2009 (QBD) the defendants admitted that they
were occupiers even though they were not conscious they owned the land.
35
A landlord may, nevertheless, be liable if the conditions of the Defective Premises Act
1972 s.4, are fulfilled. See para.9–40, below.
36
Wheat v Lacon & Co Ltd, above, fn.33. A company can only occupy through its servants:
at 571 per Viscount Dilhorne; Stone v Taffe [1974] 1 W.L.R. 1575.
37
Wheat v Lacon & Co Ltd, above, fn.33; Fisher v C.H.T. Ltd (No.2) [1966] 2 Q.B. 475. See
also, e.g. Hawkins v Coulsdon & Purley UDC [1954] 1 Q.B. 319; Greene v Chelsea
Borough Council [1954] 2 Q.B. 127, where requisitioning authorities were held to occupy
requisitioned houses which were being lived in by persons they had placed in them. Cf.
Kearney v Eric Waller Ltd [1967] 1 Q.B. 29.
38
Humphreys v Dreamland (Margate) Ltd (1930) 144 L.T. 529.
39
Hartwell v Grayson Rollo and Clover Docks Ltd [1947] K.B. 901; Donovan v Cammell
Laird & Co [1949] 2 All E.R. 82. The concept is therefore a good deal wider than the
‘‘possession’’ which qualifies for the right to sue for a nuisance affecting the land: Hunter
v Canary Wharf Ltd [1997] A.C. 655. A local authority which has made a compulsory
purchase order and served a notice of entry becomes an occupier when the former owner
vacates the premises, and it is unnecessary that there should be any actual or symbolic
taking of possession: Harris v Birkenhead Corp [1976] 1 W.L.R. 279.
40
Wheat v Lacon & Co Ltd, fn.33; Fisher v C.H.T. Ltd (No.2), above, fn.37; AMF Inter-
national Ltd v Magnet Bowling Ltd [1968] 1 W.L.R. 1028; Andrews v Initial Cleaning
Services Ltd [2000] I.C.R. 166.
41
Wheat v Lacon & Co Ltd, above, fn.33, at 589 per Lord Pearson.
Modern Law: The Occupiers’ Liability Act 1957 445
C. Visitors
The common duty of care is owed by the occupier to his ‘‘visi- 9–5
tors’’ and they are those persons who would at common law have
been treated as invitees or licensees.44 For all practical purposes,
therefore, the distinction between invitees and licensees was abol-
ished.45 A visitor is generally a person to whom the occupier has
given express or implied permission to enter and the principal
category opposed to visitor is that of trespasser, whose rights are
governed not by the Act of 1957 but by the Occupiers’ Liability Act
1984.46 However, the Act of 1957 extends the concept of visitor to
include persons who enter the premises for any purpose in the
exercise of a right conferred by law, for they are to be treated as
permitted by the occupier to be there for that purpose, whether they
in fact have his permission or not.47 The occupier therefore owes the
common duty of care to firemen attending a fire, to policemen
executing a search warrant and to members of the public entering
recreation grounds under rights guaranteed by law.48 On the other
hand, it has been held that despite the wide wording of the Act, a
person using a public49 or private50 right of way is not a visitor for
the purposes of the Act. The user of a private right of way is now
owed a duty under the Occupiers’ Liability Act 1984,51 but that
42
Page v Read (1984) N.L.J. 723.
43
Wheat v Lacon, fn.33 at 581, 585–586, 587.
44
1957 Act s.1(2).
45
‘‘It is true that this is not done in so many words, but no significance is to be attached to
this omission. A legal distinction is abolished by depriving it of legal consequences’’:
Payne (1958) 21 M.L.R. 359 at 360. Lord Browne-Wilkinson in McGeown v Northern
Ireland Housing Executive [1995] 1 A.C. 233 attempted to revive it in relation to public
rights of way, but see Campbell v Northern Ireland Housing Executive [1996] 1 B.N.I.L.
99.
46
See para.9–25, below.
47
1957 Act s.2(6).
48
The balance of authority at common law was against the existence of a special category
of persons entering as of right. The firemen and policemen in our examples were probably
to be treated as invitees, the users of the recreation ground as licensees: see further the 6th
edition of this work, pp.692–696 and Cmnd. 9305 (1954), paras 37–38.
49
Greenhalgh v British Railways Board [1969] 2 Q.B. 286.
50
Holden v White [1982] 2 Q.B. 679.
51
See para.9–25, below.
446 Liability for Land and Structures
‘‘When you invite a person into your house to use the staircase
you do not invite him to slide down the bannisters.’’73
The above principles have been applied with some degree of 9–7
allowance for the proclivities of young children. The common duty
of care, like the common law before it, requires that the occupier
must be prepared for children to be less careful than adults79 but the
special characteristics of children may be relevant also to the ques-
tion of whether they enjoy the status of visitor. In Glasgow Corp v
Taylor80 it was alleged that a child aged seven had died from eating
poisonous berries which he had picked from a shrub in some public
gardens under the control of the corporation. The berries looked like
cherries or large blackcurrants and were of a very tempting appear-
ance to children. They thus constituted an ‘‘allurement’’ to the child.
The corporation was aware of their poisonous nature, but never-
theless the shrub was not properly fenced from the public nor was
any warning given of its deadly character. It was held that these facts
disclosed a good cause of action. Certainly the child had no right to
take the berries nor even to approach the bush, and an adult doing
the same thing might well have become a trespasser, but since the
object was an ‘‘allurement’’ the very fact of its being left there
constituted a breach of the occupier’s duty. That, however, was a
case where entry into the general area was permitted81: it does not
follow that the same would have applied if the park had been
private,82 nor if the danger had been obvious. Very young children,
however, may be incapable of appreciating even the most obvious
danger. In determining whether the occupier has fulfilled his duty to
them there must be taken into account his reasonable expectations of
the habits of prudent parents in relation to their children. This is
dealt with below.83 It must, however, be said that since the Occu-
piers’ Liability Act 1984 there is likely to be very little practical
difference between the duties owed to a very young child who is a
trespasser and one who is a lawful visitor.
‘‘[A] duty to take such care as in all the circumstances of the case
is reasonable84 to see that the visitor will be reasonably safe in
79
1957 Act s.2(3)(a). See para.9–11, below.
80
[1922] 1 A.C. 44.
81
See also Jolley v Sutton LBC [2000] 1 W.L.R. 1083.
82
Edwards v Ry Executive [1952] A.C. 737.
83
See para.9–11, below.
84
i.e. not necessarily as safe as it could possibly be made: see, e.g. Phillis v Daly (1988) 15
N.S.W.L.R. 65; Unger v City of Ottawa (1989) 58 D.L.R. (4th) 98; Romeo v Conservation
Commission of the Northern Territory (1998) 152 A.L.R. 263.
450 Liability for Land and Structures
The question whether the occupier has fulfilled his duty to the
visitor is thus dependent upon the facts of the case,86 and, though the
purpose of the visit may be a relevant circumstance, it can no longer
be conclusive as it so often was before when it governed the status
of the entrant. All the circumstances must be taken into account.87
If, for example, the owner of an inn permits the resident manager to
accept paying guests, both are ‘‘occupiers’’ in relation to such
guests, but while the owner may be liable for injury caused to them
by a structural defect such as the collapse of a staircase, the manager
alone would be liable for injury caused by a defect in his own
furnishings, such as a dangerous hole in the carpet of the living
room.88
9–9 The Act itself gives some guidance on the application of the
common duty of care but we have been forcefully reminded that this
must be set in the context of the ‘‘threshold’’ question of the scope
of the 1957 Act. Whatever the precise relationship between the Act
and general negligence law with regard to activities on the prem-
ises89 the heart of the Act is liability for ‘‘dangers due to the state of
the premises’’.90 In Tomlinson v Congleton BC91 the claimant was
injured when he dived from a standing position into the shallow
water of a lake occupied by the defendants in a country park in
Cheshire. Because swimming was forbidden by notices it was held
by the majority of the House of Lords (indeed, the point had been
conceded) that he was a trespasser,92 but the same words appear in
the Occupiers’ Liability Act 1984 dealing with trespassers, it is clear
that the same decision in favour of the defendants would have been
reached even if he had been a lawful visitor93 and the case is as
relevant to the Act of 1957 as it is to the later Act. The risk, such as
85
1957 Act s.2(2). Ferguson v Welsh [1987] 1 W.L.R. 1553. Where premises are hired for
a purpose about which the hirer knows more than the occupier, the latter may be entitled
to leave it to the hirer’s judgment whether the premises are suitable: Wheeler v St Mary’s
Hall, The Times, October 10, 1989.
86
For a case in which the House of Lords gave full consideration to the application of the
duty to the facts before them, see Wheat v Lacon & Co Ltd [1966] A.C. 552. The similarity
of the duty to the common law duty of care is demonstrated in Simms v Leigh Rugby
Football Club Ltd [1969] 2 All E.R. 923.
87
Including the era when the building was constructed: Hogg v Historic Buildings and
Monuments Commission [1988] 3 C.L. 285 (Cty Ct.).
88
Wheat v Lacon & Co Ltd, above, fn.86, at 585–586 per Lord Morris, at 587 per Lord
Pearce.
89
para.9–3, above.
90
1957 Act s.1(1).
91
[2003] UKHL 47; [2004] 1 A.C. 46..
92
See para.9–26, below.
93
See at [1] (Lord Nicholls agreeing with Lord Hoffmann), [50], [67], [92] (Lord Scott, who
thought the claimant was not a trespasser).
Modern Law: The Occupiers’ Liability Act 1957 451
94
Even a commercial operator of a climbing wall is not obliged to point out to users that
matting does not provide security in the event of a fall or to train him before allowing
access: Poppleton v Portsmouth Youth Activities Committee [2008] EWCA Civ 646;
[2009] P.I.Q.R. P1. Cf. Radclyffe v MoD [2009] EWCA Civ 635 (non-occupier defendant
had assumed responsibility). As to children, who may lack powers of discernment, see
para.9–11, below.
95
At [1], [28] and [69]. Lord Scott does not address the state of the premises issue directly
but he agreed with Lord Hoffman, save as to whether the claimant was a trespasser. Contra,
Lord Hutton at [53].
96
Nor can it be said that failure to remove the natural condition which may be a temptation
to some is a ‘‘thing omitted to be done thereon’’. ‘‘The trouble with the island of the Sirens
was not the state of the premises. It was that the Sirens held mariners spellbound until they
died of hunger. The beach, give or take a fringe of human bones, was an ordinary
Mediterranean beach. If Odysseus had gone ashore and accidentally drowned himself
having a swim, Penelope would have had no action against the Sirens for luring him there
with their songs. Likewise in this case, the water was perfectly safe for all normal
activities’’: Lord Hoffmann at [28].
97
Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39; [2006] 1 W.L.R. 953
(another trespasser case; climbing up underside of fire escape); Siddorn v Patel [2007]
EWHC 1248 (QB). The issue seems to have been rather passed over in Maloney v Torfaen
CBC [2005] EWCA Civ 1762.
98
The last phrase is important. The murky condition of natural waters presents an obvious
hazard. A municipal swimming pool with water so murky one could not see the bottom
might be a different matter.
99
One might say that this case provided the classic example of the overlap of the duty and
breach issues: para.5–23, above.
452 Liability for Land and Structures
9–11 As to paragraph (a), we have seen above that one cannot say there
is a danger due to the state of the premises simply because a visitor
may choose to take obviously hazardous risks, but children may lack
the awareness of danger which can be expected of an adult: an
ordinary, well-maintained staircase may present a hazard to a tod-
dler. Even where children are involved it is not right to take no
account of someone’s choice to ignore a danger simply because he
is a child102 but even where there is no capacity for discernment at
all it would be unrealistic to expect that all land must be made safe
enough for unaccompanied toddlers. A person who owns a moun-
tain in the vicinity of a town is not obliged to fence it off in case
small children come there.103 What Lord M’Laren said a hundred
years ago about the Scots common law remains true under the
Occupiers’ Liability Act.
That is not ‘‘harsh’’, it simply reflects the fact that the law of
occupiers’ liability is not an insurance scheme to compensate people
for any misfortune which may occur on another’s land.
The reason for saying that there is no relevant danger due to the
state of the premises in such cases no doubt reflects the fact that
society expects parents to take care of their children. That is the
basis of the decision in Phipps v Rochester Corp.105 The claimant,
a boy aged five, was out blackberrying with his sister, aged seven,
and they walked across a large open space which formed part of a
housing estate being developed by the defendants. The defendants
had dug a long deep trench in the middle of the open space, a danger
which was quite obvious to an adult. The claimant fell in and broke
his leg. On the facts it was held that a prudent parent would not have
allowed two small children to go alone on the open space in question
or, at least, he would have satisfied himself that the place held no
dangers for the children. The defendants were entitled to assume
that parents would behave in this way and therefore, although the
claimant was a licensee, the defendants were not in breach of their
duty to him. Devlin J.’s judgment squarely placed the primary
responsibility for the safety of small children upon their parents:
‘‘It is their duty106 to see that such children are not allowed to
wander about by themselves, or at least to satisfy themselves that
the places to which they do allow their children to go unac-
companied are safe for them to go to. It would not be socially
desirable if parents were, as a matter of course, able to shift the
burden of looking after their children from their own shoulders to
those who happen to have accessible bits of land.’’107
The occupier will have discharged his duty if the place is reasonably
safe for a child who is accompanied by the sort of guardian whom
the occupier is in all the circumstances entitled to expect him to have
with him. If the child is in fact accompanied by a guardian, then the
question will be whether the occupier ought to have foreseen that the
source of the child’s injury would be a danger to the child, bearing
in mind the guardian’s responsibility for the child’s safety. There
seems no reason, at least in theory, why the child’s injury should not
in an appropriate case be attributed both to the occupier’s breach of
104
Stevenson v Glasgow Corp 1908 SC 1034 at 1039.
105
[1955] 1 Q.B. 450.
106
This is not necessarily in all cases an actionable duty: see para.5–29, above.
107
[1955] 1 Q.B. at 472.
454 Liability for Land and Structures
Nonetheless, the result might no doubt have been different if, for
example, the stairs leading to the cellar where the boiler was had
given way,115 for that would not have been a special risk ordinarily
108
Civil Liability (Contribution) Act 1978, para.21–5, below
109
Marsden v Bourne Leisure Ltd [2009] EWCA Civ 671 at 17.
110
[1953] 2 Q.B. 231; Christmas v General Cleaning Contractors [1952] 1 K.B. 141,
affirmed [1953] A.C. 180; Cmd. 9305 (1954), para.77(iii); Roles v Nathan [1963] 1 W.L.R.
1117 at 1123 per Lord Denning M.R.
111
[1953] 2 Q.B. 231 at 235 per Lord Goddard C.J.
112
Above, fn.110.
113
[1963] 1 W.L.R. 1117 at 1123–1125 per Lord Denning M.R. Pearson L.J. dissented on the
interpretation of the evidence but not on the law. Harman L.J., while not differing from
Lord Denning, preferred to base his judgment in favour of the defendant upon the fact that
the sweeps had been actually warned of the danger. See also Phillips v Perry [1997]
C.L.Y.
114
[1963] 1 W.L.R. 1117 at 1123; Clare v Whittaker & Son (London) Ltd [1976] I.C.R. 1;
Kealey v Heard [1983] 1 W.L.R. 573. For an unsuccessful attempt by the servant of an
insolvent contractor to turn health and safety regulations against the occupier see Kmiecic
v Isaacs [2010] EWHC 381 (QB).
115
[1963] 1 W.L.R. 1117; Bird v King Line [1970] 2 Lloyd’s Rep. 349; Rae v Mars (UK)
[1990] 3 E.G. 80; Eden v West & Co [2002] EWCA Civ 991; [2003] P.I.Q.R. Q2.
Modern Law: The Occupiers’ Liability Act 1957 455
E. Specific Aspects
Two specific aspects of the common duty of care are also dealt 9–13
with. Regard is to be had to all the circumstances in the case, so that
(for example):
i. Warning.
116
Ogwo v Taylor [1988] A.C. 431; Salmon v Seafarers Restaurant Ltd [1983] 1 W.L.R. 1264.
As to the position of ‘‘rescuers’’ generally, see para.25–14, below, but where there is no
negligence by the defendant in starting the fire, then he will only be liable for failing to call
attention to unusual risks in the premises: Bermingham v Sher Bros (1980) 124 S.J. 117 (no
duty on occupier of warehouse to provide means of egress which would remain safe
throughout fire). Strictly, perhaps, only the second type of case falls within the Act, the
other involving the common law, but if the claimant pleads both the Act and the common
law nothing turns on the point.
117
Intruder Detection etc Ltd v Fulton [2008] EWCA Civ 1009.
118
The warning may be given by the occupier’s agent: Roles v Nathan, above, fn.110.
119
See the different opinions expressed in the Court of Appeal about the warning given in
Roles v Nathan, above.
456 Liability for Land and Structures
120
[1951] A.C. 737.
121
Roles v Nathan, above, fn.110, at 1124 per Lord Denning M.R.
122
Bunker v Charles Brandt & Son Ltd [1969] 2 Q.B. 480 at 489 per O’Connor J. For
contributory negligence in relation to the occupier’s liability, see para.9–18, below.
123
A broad, purposive interpretation is required which will embrace demolition: Ferguson v
Welsh [1987] 1 W.L.R. 1553.
124
For possible meanings of this cryptic phrase see North, Occupiers’ Liability (1971),
p.144.
125
How can it ever be unreasonable to employ a (as opposed to the) contractor?
126
On the content of this duty see para.9–16, below.
127
1957 Act s.2(4)(b). O’Connor v Swan & Edgar (1963) 107 S.J. 215; Gibson v Skibs A/S.
Marina, etc. [1966] 2 All E.R. 476. The burden of proving that the danger was due to the
fault of an independent contractor rests with the occupier: Christmas v Blue Star Line
[1961] 1 Lloyd’s Rep. 94; A.M.F. International Ltd v Magnet Bowling Ltd [1968] 1 W.L.R.
1028 at 1042–1043.
128
[1953] 2 All E.R. 1181.
129
A.M.F. International Ltd v Magnet Bowling Ltd [1968] 1 W.L.R. 1028. See para.20–21,
below.
Modern Law: The Occupiers’ Liability Act 1957 457
‘‘The craft of the charwoman may have its mysteries, but there is
no esoteric quality in the nature of the work which the cleaning of
a snow-covered step demands.’’133
130
[1941] 2 K.B. 343.
131
[1941] 2 K.B. 343 at 356. See also per Goddard L.J. at 374.
132
[1954] K.B. 174.
133
[1954] K.B. 174 at 813 per du Parcq L.J.
458 Liability for Land and Structures
that the work has been properly done. In fact, where the work is
especially complex, as with the construction of a large building or a
ship, he may even have to cause the independent contractor’s work
to be supervised by a properly instructed architect or other pro-
fessional person.134 As the dictum of Scott L.J. indicates, there are
many cases in which the technical nature of the work to be done will
require the occupier to employ an independent contractor and he
will be negligent if he attempts to do it himself. This does not mean,
however, that a householder must not himself undertake some ordi-
nary domestic repair such as the fixing of a new door handle.
Provided that he does the work with the care and skill of a reason-
ably competent carpenter he has fulfilled his duty.135
One justification for a general rule of non-liability for independ-
ent contractors is that the contractor (who is of course personally
liable) is more likely to be claim-worthy than an individual servant
of the occupier. That prompts the question, ‘‘Is the occupier there-
fore obliged to investigate the liability insurance position of the
contractor?’’. Some statements in Gwilliam v West Hertfordshire
NHS Trust136 might be taken as supporting that but in Payling v T.
Naylor (Trading as Mainstreet)137 the court rejected any such gen-
eral, free-standing duty. The claimant suffered injury by the fault of
a doorman when he was ejected from a club. The doorman was the
servant of W, who carried no liability insurance and could not satisfy
a judgment. The occupier of the club was held not liable because W
had been licensed by the local authority to carry out such activities
and that knowledge was sufficient to give the occupier reasonable
cause to be satisfied as to his competence. Not only would the
contrary rule be difficult to reconcile with the wording of the statute,
which refers to ‘‘competence’’ rather than ‘‘suitability’’, it would
also, it is submitted, be rather impracticable—consider, for example,
134
A.M.F. International Ltd v Magnet Bowling Ltd [1968] 1 W.L.R. 1028 at 1044, 1045–1047
per Mocatta J.; Kealey v Heard [1983] 1 All E.R. 973. Mocatta J. also held that the
negligence of the architect or other supervisor would not itself involve the occupier in
liability for otherwise, in technical cases, the common duty of care would become
equivalent to the obligation of an insurer. Negligence in supervision would not fall under
s.2(4)(b), but it must be remembered that the purpose of s.2(4) is to insist that in
determining whether the common duty of care has been discharged, regard is to be had to
all the circumstances. Paragraphs (a) and (b) are introduced by the words ‘‘so that (for
example)’’ and there is no reason for saying that an occupier is necessarily liable for the
negligence of his independent contractor except when s.2(4)(b) applies. Thus an omission
by a contractor called in to advise on safety may not literally fall within the paragraph, but
that does not make the occupier liable when he has taken due care in selecting the
contractor: Wattleworth v Goodwood Racing Co Ltd [2004] EWHC 140; [2004] P.I.Q.R.
P25.
135
Wells v Cooper [1958] 2 Q.B. 265.
136
[2002] EWCA Civ 1041; [2002] Q.B. 443.
137
[2004] EWCA Civ 560; [2004] P.I.Q.R. P36.
Modern Law: The Occupiers’ Liability Act 1957 459
138
It is also submitted that the fact that the employer of the contractor is required to carry
liability insurance should not lead to the contrary conclusion. To take an example outside
the area of occupiers’ liability, the owner of a vehicle is required to have liability insurance
in respect of its use and that would have to cover, inter alia, accidents caused by defects
in the vehicle; but that should not mean that the owner should have to inquire into the
garage’s liability insurance cover when he took the car to be serviced.
139
Glaister v Appleby in Westmorland Town Council [2009] EWCA Civ 1325; [2010] P.I.Q.R.
P6 at [63] per Toulson L.J.
140
e.g. removing asbestos lagging without taking the recognised precautions.
141
Ferguson v Welsh [1987] 1 W.L.R. 1553 at 1560. Fairchild v Glenhaven Funeral Services
Ltd [2001] EWCA Civ 1881; [2002] 1 W.L.R. 1052.
142
Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575; [2004] P.I.Q.R. P18.
460 Liability for Land and Structures
weighing the relative risks and burdens.143 The burdens are not only
those that would be directly imposed on the particular occupier if he
were required to take the action contended for by the claimant, they
include the restrictions on the freedom of the majority of people
which will be imposed144 if what is required of the occupier is set at
a level which will prevent the foolhardy145 encountering obvious
risks.146 This is the basis of Tomlinson v Congleton BC147 and even
though that case was, strictly, concerned with the question of
whether there was a danger within the meaning of the Act rather
than breach of the occupier’s duty, the point is the same. As Lord
Hobhouse said:
‘‘It is not, and should never be, the policy of the law to require the
protection of the foolhardy or reckless few to deprive, or interfere
with, the enjoyment by the remainder of society of the liberties
and amenities to which they are rightly entitled.148 Does the law
require that all trees be cut down because some youths may climb
them and fall? Does the law require the coastline and other beauty
spots to be lined with warning notices? Does the law require that
attractive waterside picnic spots be destroyed because of a few
foolhardy individuals who choose to ignore warning notices and
indulge in activities dangerous only to themselves? The answer to
all these questions is, of course, no. But this is the road down
which your Lordships, like other courts before, have been invited
to travel and which the councils in the present case found so
inviting. In truth, the arguments for the claimant have involved an
143
See, e.g. Lewis v Six Continents Plc [2005] EWCA Civ 1805 (no need to make upper
storey hotel window unopenable). ‘‘Not all people live, or can afford to live, in premises
that are completely free of hazards. In fact, nobody lives in premises that are risk-free.
Concrete pathways crack. Unpaved surfaces become slippery, or uneven. Many objects in
dwelling houses could be a cause of injury. People enter dwelling houses for a variety of
purposes, and in many different circumstances. Entrants may have differing capacities to
observe and appreciate risks, and to take care for their own safety’’: Neindorf v Junkovic
[2005] HCA 75; 222 A.L.R. 631 at [8].
144
See Hampstead Heath Winter Swimming Club v London Corp [2005] EWHC 713
(Admin); [2005] 1 W.L.R. 2930, where an attempt was made by the defendants to ban
unsupervised swimming on Hampstead Heath on the ground of risk to the participants.
145
Of course the fudge of the Law Reform (Contributory Negligence) Act 1945 is always
available. The CA in Tomlinson made a two-thirds reduction.
146
Indeed, even where the risk is not obvious and the claimant is not foolhardy there is a
danger of inhibiting ordinary activities if the standard of care is set too high: Cole v Davis-
Gilbert [2007] EWCA Civ 396.
147
[2003] UKHL 47; [2004] 1 A.C. 46, para.9–9, above. Donoghue v Folkestone Properties
Ltd [2003] EWCA Civ 231; [2003] Q.B. 1008; Staples v West Dorset DC, The Times, April
28, 1995; Cotton v Derbyshire Dales DC, The Times, June 20, 1994; Darby v National
Trust [2001] EWCA Civ 189; [2001] P.I.Q.R. P27. The reasoning of Tomlinson applies to
cases under the Package Travel, Package Holidays and Package Tours Regulations SI
1992/3288: Evans v Kosmar Villa Holidays Plc [2007] EWCA Civ 1003; [2008] 1 W.L.R.
297.
148
See Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39; [2006] 1 W.L.R. 953
at [17].
Modern Law: The Occupiers’ Liability Act 1957 461
G. Contributory Negligence
In view of some doubts which existed as to whether the scheme 9–18
of the Law Reform Contributory Negligence Act 1945150 applied
where an invitee was guilty of lack of care for his own safety it is
perhaps surprising that the Occupiers’ Liability Act does not
expressly incorporate the Act of 1945. However, the point is proba-
bly implicit151 and judges have in numerous cases applied the 1945
Act without hesitation to reduce damages.152 Where the claimant’s
fault is extreme it may, of course, amount to the sole legal cause of
his loss.153
H. Exclusion of Liability
We have seen that the occupier may be able to discharge his duty 9–19
by warning the visitor of the danger if the warning is enough to
make the visitor reasonably safe. If he chooses to impose on the
visitor’s permission to enter a condition excluding or restricting his
duty the answer will turn on whether or not the Unfair Contract
149
At [81]. See also Lord Hoffmann at [46]. Vairy v Wyong SC [2005] HCA 62; 223 C.L.R.
422 and Mulligan v Coffs Harbour CC [2005] HCA 63; 223 C.L.R. 486, both claims based
on diving into natural waters and which failed. The reasoning is by no means on all fours
with Tomlinson and Vairy was a divided decision. But there is an emphasis on individual
responsibility and the impracticability of draping miles of coastline with warnings. ‘‘It is
only reasonably to be expected that people will conduct themselves according to dictates
of common sense, which must include the observation of, and an appropriately careful
response to what is obvious. Courts in deciding whether that response has been made are
bound to keep in mind that defendants have rights and interests too. A tendency to see
cases through the eyes of plaintiffs only is to be avoided’’: Mulligan at [80] per Callinan
and Heydon JJ. See also Roads and Traffic Authority of NSW v Dederer [2007] HCA 42.
Legislation in most Australian states provides that there is no liability for the materialisa-
tion of an obvious risk of a dangerous recreational activity (see Dederer at [253]).
150
See the 12th edn of this work, p.217.
151
The statement of Diplock L.J.: ‘‘My neighbour does not enlarge my duty of care for his
safety by neglecting it himself’’ (Wheat v Lacon & Co Ltd [1966] 1 Q.B. 335 at 372) which
was approved by Viscount Dilhorne in the House of Lords [1966] A.C. 552 at 576, is not
inconsistent with this. The point is that a person cannot, by carelessness of his own safety,
thereby put an occupier in breach of the common duty of care.
152
See, e.g. Woolins v British Celanese Ltd (1966) 1 K.I.R. 438; Stone v Taffe [1974] 1 W.L.R.
1575.
153
See, e.g. Brayshaw v Leeds CC [1984] 2 C.L. 234.
462 Liability for Land and Structures
Terms Act 1977 applies to the case. This Act, despite its short title,
extends much further than the control of contractual exemption
clauses. Section 2 provides that:
154
Defined in s.14, e.g. a sign at the entry to the premises.
155
See s.11.
156
The Act does not prevent exclusion of a stricter duty: s.1(1)(b). By virtue of s.1(4) it is
immaterial whether liability ‘‘arises directly or vicariously’’. This would probably cover
any situations where the occupier is liable for the negligence of an independent
contractor.
157
By s.14 ‘‘ ‘business’ includes a profession and the activities of any government department
or local or public authority’’. The concept of business liability is relevant for various other
purposes under the Unfair Contract Terms Act. For a full survey, see Benjamin’s Sale of
Goods.
158
See, e.g. White v Blackmore [1972] 2 Q.B. 651.
Modern Law: The Occupiers’ Liability Act 1957 463
that person such access for the purposes concerned falls within
the business of the occupier.’’
9–21 It will be noticed that Ashdown’s case was concerned not with the
static condition of the land on which the claimant was a licensee but
with the current activities of the occupier. Clearly, therefore, the
power to exclude liability is not restricted to the static condition of
the structure, but it is less easy to justify the existence of that power
with regard to current activities.
163
It was rejected by Lord Greene M.R. in Wilkie v L.P.T.B. [1947] 1 All E.R. 258 at 260. Cf.
Gore v Van Der Lann [1967] 2 Q.B. 31. Odgers, ‘‘The Strange Case of Mrs. Gore’’ (1970)
86 L.Q.R. 69.
164
On the other hand, as Lord Denning M.R. forcefully points out in White v Blackmore
[1972] 2 Q.B. 651 at 665–666, this approach derogates severely from the purpose of
s.2(4)(a) of the Act. Further, the duty to trespassers has risen since Ashdown’s case:
below.
165
Odgers [1957] C.L.J. 39, 54.
166
See para.9–26, below.
Modern Law: The Occupiers’ Liability Act 1957 465
167
Cf. Clerk and Lindsell, Torts, 19th edn, para.12–74, where it is argued that the statutory
duty to a trespasser may be excluded by an adequate notice.
168
On the authority of Fosbroke-Hobbes v Airwork Ltd [1937] 1 All E.R. 108. Cmd. 9305
(1954), para.55. See, too, para.79.
169
Defined in s.3(3).
170
Section 3(1).
171
1957 Act s.3(4).
466 Liability for Land and Structures
172
It may be that as far as personal injuries are concerned much the same effect is achieved
by the Unfair Contract Terms Act 1977 s.2(1), above. According to Law Com. No.69,
p.133 ‘‘contract term’’ bears, ‘‘its natural meaning of any term in any contract (and is not
limited to the terms in a contract between the instant parties)’’. However, the provisions of
the Occupiers’ Liability Act are more favourable to the claimant since (1) they are not
confined to business occupation and (2) they extend to all types of loss or damage whereas
the Unfair Contract Terms Act prohibition is a qualified one with regard to property
damage.
173
1957 Act s.3(2). The wording of this subsection differs from that of s.2(4)(b), para.9–15,
above, but the effect of the two subsections is probably the same and if s.2(4)(b) includes
demolition (Ferguson v Welsh [1987] 1 W.L.R. 1153) so should s.3(2).
174
However, the 1999 Act would not apply if the obligation to admit the third party was an
implied one, because the third party would not then be expressly identified in the contract:
s.1(3).
175
Contracts (Rights of Third Parties) Act 1999 s.1(2).
176
1999 Act s.1((1)(b).
177
[1957] 1 Q.B. 409, above.
178
See para.9–19, above.
Modern Law: The Occupiers’ Liability Act 1957 467
duty of care, for the alternative view would tend to defeat the object
of s.3 of the Occupiers’ Liability Act.179
J. Damage to Property
The Act provides180 that the rules which it enacts shall apply: 9–24
179
Cf. Clerk & Lindsell, Torts, 19th edn, para.12–55; North, Occupiers’ Liability (1971),
pp.151–152. It must be admitted, however, that the Law Reform Committee seem to have
been concerned only with the position of a person affected by an exempting term unknown
to him: Cmnd. 9305 (1954), para.55.
180
Section 1(3)(b). North, Occupiers’ Liability (1971), pp.94–112 (based on the author’s
article, ‘‘Damage to Property and the Occupiers’ Liability Act 1957’’ (1966) 30 Conv
(N.S.) 264).
181
The last phrase would seem to allow an action by an owner who is not a visitor, as in Drive
Yourself Lessey’s Pty Ltd v Burnside [1959] S.R.(NSW) 390: but cf. North, Occupiers’
Liability (1971), pp.101–105.
182
e.g. if, with your permission, I leave my car in the drive outside your house and a tile falls
off the roof and damages it: A.M.F. International Ltd v Magnet Bowling Ltd [1968] 1
W.L.R. 1028. Damages may be recovered not only in respect of actual damage to the
property but also in respect of consequential financial loss: at 1049–1051 per Mocatta
J.
183
Cf. Fairline Shipping Corp v Adamson [1975] Q.B. 180.
184
Tinsley v Dudley [1951] 2 K.B. 18. See also Ashby v Tolhurst [1937] 2 K.B. 242; Deyong
v Shenburn [1946] K.B. 227; Edwards v West Herts Group Hospital Management Commit-
tee [1957] 1 W.L.R. 418.
468 Liability for Land and Structures
to put goods on land (as in the case of most car parks) does not make
the occupier a bailee.185
185
Tinsley v Dudley, above, fn.184; Hinks v Fleet [1986] 2 E.G.L.R. 243; Chappell v National
Car Parks, The Times, May 22, 1987; John C. Dogherty v Drogheda Harbour Commis-
sioners [1993] 1 I.R. 315.
186
Contrast the Occupiers’ Liability (Scotland) Act 1960. See McGlone v British Railways
Board, 1966 S.C.(H.L.) 1.
187
Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358 at 365. This is the
position under the Irish Occupiers’ Liability Act 1995 s.4(1). However, s.4(2) then directs
the court to have regard, in determining whether there has been reckless disregard, to the
factors specified in the English Act of 1984 s.1(3) (below).
188
[1972] A.C. 877.
189
See, e.g. Pannett v P. McGuinness & Co Ltd [1972] 2 Q.B. 599; Melvin v Franklins
(Builders) Ltd (1973) 71 L.G.R. 142; Harris v Birkenhead Corp [1976] 2 W.L.R. 279.
190
Law Com. No.75.
191
Vodden v Gayton [2001] P.I.Q.R. P4 (owners of servient tenement across which fenced
track ran occupiers of the track; no breach of duty on facts).
192
See para.9–5, above. As to persons exercising rights under the Countryside and Rights of
Way Act 2000, see below.
193
Section 1(7).
194
See para.14–42, below.
Liability to Trespassers and other Non-Visitors 469
212
Robert Addie and Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358.
213
Videan v British Transport Commission [1963] 2 Q.B. 650; British Railways Board v
Herrington [1972] A.C. 877.
214
Consider the case of the trespasser shot on a grouse moor by its owner. In Revill Neill L.J.
admitted that if the case were framed as the negligent organisation of a shooting party by
the owner of the estate, it would plainly fall within the 1984 Act.
215
[1972] A.C. 877. See the 12th edn of this work.
216
Above.
217
Above, fn.209.
218
So it seems that the common law is to be looked at to interpret the Act (Ratcliff v
McConnell, above, fn.203) and the Act is to be looked at to decide the common law!
219
Section 1(1) provides that the Act is to replace the rules of the common law in respect of
personal injury. s.1(8), preventing recovery in respect of ‘‘loss of or damage to property’’,
applies only to breaches of duty under s.1.
220
Tutton v A.D. Walter Ltd [1986] Q.B. 61. The judge’s decision, however, was that the
categories of ‘‘visitor’’ and ‘‘trespasser’’ were inapt terms to be applied to the bees and the
ordinary law of negligence applied.
472 Liability for Land and Structures
‘‘(a) [A] risk resulting from the existence of any natural feature of
the landscape, or any river, stream, ditch or pond whether or not
a natural feature, or (b) a risk of [the entrant] suffering injury
when passing over, under or through any wall, fence or gate,
except by proper use of the gate or of a stile.’’225
221
On the facts, a trespasser might of course be unforeseeable when a lawful visitor would
not.
222
Buckland v Guildford Gas Light and Coke Co [1949] 1 K.B. 410; Davis v St Mary’s
Demolition and Excavation Co Ltd [1954] 1 W.L.R. 592; Creed v McGeogh & Sons Ltd
[1955] 1 W.L.R. 1005.
223
Lord Wilberforce [1972] A.C. at 914 and Lord Pearson at 929. Cf. Lord Diplock at 943.
See also the Restatement, Torts (2d), ss.383–386.
224
Occupiers’ Liability Act 1984 s.1(4)(a) as substituted by s.13(1) of the Countryside and
Rights of Way Act 2000.
225
Occupiers’ Liability Act 1984 s.1(6A) as inserted by s.13(2) of the Countryside and Rights
of Way Act 2000. Plants, shrubs and trees ‘‘of whatever origin’’ are regarded as natural
features: s.1(6B). See also s.306 of the Marine and Coastal Access Act 2009.
226
Section 1(6C).
227
Which the entrants will become if they abuse their privilege: Countryside and Rights of
Way Act 2000 s.2.
Liability to Trespassers and other Non-Visitors 473
A. Contractors
If D is working on B’s land and causes injury to a visitor C it is 9–30
the ordinary principles of negligence which apply, and not the
Occupiers’ Liability Act 1957. This was established as the law
before the Act in A. C. Billings & Sons Ltd v Riden230 but now the
distinction between a duty at common law and the common duty of
care under the Act will rarely be of importance.
228
para.9–9, above.
229
Occupiers’ Liability Act 1984 s.1A as inserted by s.13(3) of the Countryside and Rights
of Way Act 2000. Also to Codes of Conduct to be issued under that Act. Cf. Dept of
Natural Resources v Harper [2000] V.R. 1.
230
[1958] A.C. 240. The case arose before the Act. It is, of course, possible for a contractor
to be an occupier within the meaning of the Act: A.M.F. International Ltd v Magnet
Bowling Ltd [1968] 1 W.L.R. 1028.
474 Liability for Land and Structures
i. Vendor
9–32 (a) Common law. There is, of course, a contract between vendor
and purchaser of land but the implied contractual obligations as to
quality are very much less extensive than they are in contracts for
the sale of goods even if the vendor is a builder or developer, and
hence ‘‘in the business’’ of selling houses. The basic rule is caveat
emptor though this may be displaced by express terms in the
contract or misrepresentations. In one situation, however, there is a
limited implied obligation, namely, when there is a contract for the
sale of a house to be built or completed by the vendor.232 There is
then a threefold implied warranty: that the builder will do his work
in a good and workmanlike manner,233 that he will supply good and
proper materials and that it will be reasonably fit for human habita-
tion.234 This warranty avails only the first purchaser from the builder
and the limitation period (six years) will start to run when the
defective work is done, not when it comes to the purchaser’s notice.
The latter rule is, however, somewhat mitigated by the fact that if
the builder knowingly covers up defective work this will constitute
concealment of the cause of action so that time will not run until the
purchaser discovers, or could with reasonable diligence have dis-
covered, the defect.235 In practical terms, the NHBC insurance
scheme, which is considered below, is a good deal more important
than the implied contractual warranties. While the law of contract
may be of limited importance in the context of dwellings it may
have a larger role to play in respect of defects in commercial
buildings and in such cases recovery by, or for the benefit of, a
subsequent transferee may be possible, either by the transferee if the
original contracting party’s claim is assigned to him236 or by the
contracting party for the benefit of the transferee.237
9–33 As for the law of tort, the original position was that if the builder
was not himself the vendor he was liable for injury caused by
231
[1991] 1 A.C. 398.
232
Thus there is no implied warranty if the house is already completed before sale.
233
The Supply of Goods and Services Act 1982 s.13, seems to apply but not to add anything
of substance.
234
Hancock v B.W. Brazier (Anerley) Ltd [1966] 1 W.L.R. 1317.
235
Limitation Act 1980 s.32(1)(b); King v Victor Parsons & Co [1973] 1 W.L.R. 29.
236
Darlington BC v Wiltshier Northern [1995] 1 W.L.R. 68.
237
See Linden Gardens Trust Ltd v Lenesta Sludge Disposal [1994] 1 A.C. 85 and Alfred
McAlpine Construction Ltd v Panatown Ltd [2001] 1 A.C. 518. As the latter case shows,
the builder may give some direct undertaking to the third party. In some cases, the
Contracts (Rights of Third Parties) Act 1999 may also be applicable.
Liability of Vendors and Lessors 475
However, the question which has given rise to difficulty is ‘‘for what
type of loss is the builder liable at common law?’’. Personal injuries
caused by structural defects in premises, though not unknown,240 are
rare in comparison with complaints that the premises are inade-
quately built and are deteriorating, perhaps with a long-term threat
of collapse. It was to just such cases that the courts in the 1970s
extended the liability of the builder, even though a house which
threatens to collapse (or even one which does collapse, causing no
injury to person or other property) is surely analogous to a manu-
factured article which is fragile and inferior in quality, matters
which have traditionally been looked on as the province of contract
rather than tort. In other words, the loss, though having physical
symptoms in the form of, for example, cracks in walls, is in its
nature economic. Orthodoxy was restored by the House of Lords in
Murphy v Brentwood DC.241 The case concerned only the liability of
a local authority in connection with the approval of the plans of a
238
Otto v Bolton [1936] 2 K.B. 46. Winfield in (1936) 52 L.Q.R. 313 suggested that if no one
had ever sued in tort for injury arising from a ruinous house until after Donoghue v
Stevenson the ‘‘jerry-builder’’ would then have been held to be the ‘‘neighbour’’ of the
injured person.
239
To be construed ejusdem generis?
240
See, e.g. Otto v Bolton, above, fn.238; Sharpe v E.T. Sweeting & Son Ltd [1963] 1 W.L.R.
605.
241
[1991] 1 A.C. 398. Cooke, ‘‘An Impossible Distinction’’ (1991) 107 L.Q.R. 46; Giles and
Szyzczak, ‘‘Negligence and Defective Buildings: Demolishing the Foundations of Anns?’’
(1991) 11 L.S. 85; Howarth, ‘‘Negligence after Murphy: Time to Re-think’’ [1991] 50
C.L.J. 58; Markesinis and Deakin, ‘‘The Random Element in their Lordships’ Infallible
Judgment’’ (1992) 55 M.L.R. 619; Wallace, ‘‘Anns Beyond Repair’’ (1991) 107 L.Q.R.
228.
476 Liability for Land and Structures
‘‘The injury will not now ever occur unless the claimant causes it
to do so by courting a danger of which he is aware and his
expenditure [in removing the danger] is incurred not in preventing
242
The plans had been prepared by apparently competent consulting engineers, but since the
authority was under no duty in respect of the loss in question the HL did not find it
necessary to consider how far the authority was entitled to rely on the engineers.
243
DoE v Thomas Bates & Son Ltd [1991] A.C. 499, decided on the same day, is a direct
authority applying Murphy to a builder.
244
See para.5–44, above.
245
It is not entirely clear why this should be so with regard to the first purchaser. If even in
the absence of a contract there may be a special relationship of proximity sufficiently akin
to contract to attract liability for economic loss (Junior Books), should there not be such
liability where there is a contract? Despite occasional wistful looks in that direction
(para.1–8, above) we do not have a doctrine of non cumul des obligations. Where the
house was yet to be constructed there would, after all, be a more extensive contractual
warranty. Nevertheless, in Lancashire and Cheshire Association of Baptist Churches Inc v
Howard & Seddon Partnership [1993] 3 All E.R. 467 liability in tort was denied even
though there would seem to have been a clear contractual duty (the right of action for
which was assumed to be statute-barred for the purpose of the proceedings). Since the case
concerned ‘‘business’’ premises and the defendants acted as both architects and builders it
seems to make Junior Books even harder to explain. Cf. the majority in Bryan v Maloney
(1995) 182 C.L.R. 609, who point out that it appears to be the classic instance of
assumption of responsibility and actual reliance.
246
At least after Anns v Merton LBC [1978] A.C. 728.
247
[1978] A.C. 728 at 760. The logic of this requirement lies in the fact that the local
authority’s duty of care (with which the cases were primarily concerned) originated in its
functions under the public health legislation. Though the measure of damages is not much
discussed in the case law, it seems that liability would only have been in such an amount
as was necessary to avert the danger.
248
See Lord Oliver in Murphy, above, fn.241, at 488. In Dutton v Bognor Regis UDC [1972]
1 Q.B. 373 at 396 (overruled in Murphy) Lord Denning M.R. described any attempted
distinction between the two cases as ‘‘impossible’’.
Liability of Vendors and Lessors 477
The argument that the loss is in truth economic and that the ‘‘avert-
ing of danger’’ does not change its nature is logically compelling,250
though it raises severe difficulties for an owner who simply cannot
afford to abandon his house.251 The justification that if the claimant
does not abandon the property and suffers injury he is the author of
his own loss may, however, mislead if it is divorced from the
underlying nature of his complaint. Suppose, for example, that the
claimant owns property which is initially sound and the defendant
by negligence causes it damage which renders it dangerous. It may
well be that if the claimant chooses to remain in the property
(unrepaired because he cannot immediately afford to repair it) rather
than move into temporary accommodation, he is the author of his
own loss if the property collapses on him,252 but no one would
suggest that he was therefore precluded from recovering the cost of
repairs from the defendant. In such a case he had something which
was perfect and which was rendered imperfect by what the defen-
dant did; in Murphy the essence of the complaint was that the
property was imperfect from the beginning, it was not ‘‘damaged’’,
it was simply worth less than he paid for it. The argument that if the
house owner remained and suffered injury he would be the author of
his own loss was advanced in a slightly different context in Targett
v Torfaen Borough Council253 where the claimant was a weekly
tenant of a council house and was aware of the defect and the danger
presented by it, but had failed to persuade the council to repair it.
The Court of Appeal, in finding for the claimant, distinguished
Murphy on the ground that the House of Lords was there concerned
with the nature of the loss and could not be taken to have intended
to lay down any absolute rule to the effect that a claimant suffering
personal injury from a defective building was automatically barred
by his knowledge of the defect.254 So to hold would be absurdly
249
Murphy, above, fn.241, at 488 per Lord Oliver. See also DoE v Thomas Bates & Son Ltd
[1991] 1 A.C. 499 (building safe if used below design loading).
250
In fact, to impose a requirement of imminent danger leads to absurdity, as Lord Bridge
points out at 480. Assume that the building is not at present a danger, that the defect can
be cured at a cost of £1,000 now, but that it will gradually get worse and become a danger,
at which point the cost of cure is likely to be £5,000. The requirement appears to make the
owner wait until the later time in order to have a claim.
251
It is suggested in Murphy at 472 that many householders will have loss insurance
(subsidence is the standard problem). Murphy itself was said to be ‘‘largely’’ a contest
between loss insurers and the local authority’s liability insurers; but nowadays loss
insurance in respect of subsidence commonly excludes cases where it is caused by a
structural defect, as opposed to, e.g. ground movement.
252
The case is more obvious with continued use of a chattel, e.g. an unroadworthy car.
253
[1992] 3 All E.R. 27.
254
The CA pointed out that its own decision in Rimmer v Liverpool CC [1985] Q.B. 1, which
was inconsistent with this view, had not been referred to in Murphy.
478 Liability for Land and Structures
This theory of the complex structure was not embraced with any
enthusiasm in the D.&F. Estates case, rather it was offered as a
possible explanation of the line of cases centring on Anns v Merton,
which the House of Lords was at that stage unwilling to overrule
without further argument. It is clear as a result of Murphy that these
cases cannot be supported in this way. When a single builder builds
a house from the foundations upwards he is creating a single,
integrated unit and it is completely unrealistic to argue that the
foundations (the usual source of problems) are one piece of property
and, when they fail, they cause damage to ‘‘other’’ property—the
walls, floors, etc. of the house.260 However, some difficult and
perhaps arbitrary lines will still have to be drawn. If, for example,
something ancillary to the building (say, the central heating boiler)
malfunctions and sets the building on fire then the manufacturer of
the boiler (or the negligent installer) would be liable for the damage
255
Nicholls V.C. at [1992] 3 All E.R. 37.
256
Both Targett and Rimmer concern lettings but no distinction can be drawn between tenants
and purchasers. If anything, the former are likely to be in a better position to find
alternative accommodation than the latter.
257
Illustrated by Bellefield Computer Services v E Turner & Sons [2000] BLR 97 and [2002]
EWCA Civ 1823; [2003] Lloyd’s Rep. P.N. 53.
258
[1989] A.C. 177.
259
[1991] 1 A.C. at 476.
260
However, the position was held to be different where the defendants inserted underpinning
(itself defective) to cure an existing defect: Jacobs v Morton & Partners (1996) 72 B.L.R.
92.
Liability of Vendors and Lessors 479
His Lordship did not set out the reasoning behind this possible
exception, but it could perhaps be justified on the basis that the
building would constitute a nuisance in respect of which the adjoin-
ing landowner264 would be able to obtain an injunction requiring
repair or demolition.265 Alternatively, it may represent a rather
broader principle whereby the claimant may recover the cost of
removing a danger which threatens others266 (for example members
of his family, visitors and even trespassers) and for which the
defendant is responsible. If this is confined to the cost of demolition
where that is less than the cost of repairs it does not represent too
serious a derogation from the reasoning upon which Murphy is
based.
While Murphy v Brentwood certainly clarified the law, it has been 9–36
the subject of widespread criticism and three major Commonwealth
courts have declined to accept it. In Winnipeg Condominium Corp v
261
[1991] 1 A.C at 470–478.
262
[1991] 1 A.C. at 497. In this case it is clearly essential to insist on the defendant being a
separate contractor, otherwise we would be a long way back towards Anns v Merton; but
if a sole builder negligently instals something which is clearly not a fixture he would surely
be liable for resulting damage to the building. Where is the line to be drawn? The
suggestions in The Orjula [1995] 2 Lloyd’s Rep. 395 and Payne v John Setchell Ltd [2002]
P.N.L.R. 146 that Murphy ‘‘disapproves’’ the complex structure theory is, with respect,
something of an over-simplification.
263
[1991] A.C. at 475.
264
Or the local authority under the ‘‘statutory nuisance’’ procedure: para.14–1, below.
265
Though the builder may be said to have created the nuisance, no injunction could be
obtained against him because he is not in occupation. Though the building owner’s loss is
still ‘‘economic’’, it seems just that the builder should have to pay the cost, imposed on the
house owner by law, of averting the threatened collapse.
266
See The Orjula [1995] 2 Lloyd’s Rep. 395, where Mance J. held it arguable that it could
apply to the cost of decontamination work on a cargo ordered by harbour authorities.
480 Liability for Land and Structures
‘‘[I]n the [early 1970s] law reform was being pursued through two
different channels—the Law Commission and Parliament on the
one hand, and the courts on the other—without either apparently
275
Lord Bridge said [1991] 1 A.C. at 479: ‘‘I am content for present purposes to assume,
though I am by no means satisfied that the assumption is correct, that where the local
authority . . . have in fact approved the defective plans or inspected the defective
foundations and negligently failed to discover the defect, their potential liability in tort is
co-extensive with that of the builder.’’
276
See para.5–46, above.
277
Hone v Benson (1978) 248 E.G. 1013; Defective Premises Act 1972 s.3. For mere defects
of quality there is of course no liability because of Murphy v Brentwood. The law is the
same in New Zealand (where Murphy is not followed) because of the importance of
encouraging socially useful do-it-yourself activity: Willis v Castellein [1993] 3 N.Z.L.R.
103.
278
Andrews v Hopkinson [1957] 1 Q.B. 229 (dealer selling goods to a finance company to be
let by it to the claimant on hire-purchase terms).
279
See Rimmer v Liverpool CC [1985] Q.B. 1 (a landlord-tenant case).
280
It may be of some significance that the Defective Premises Bill, cl.3, would have made the
‘‘mere’’ vendor liable in respect of defects of which he knew, but this was rejected by
Parliament.
281
See Law Com. No.40 (1970).
282
Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] Q.B. 858 at
876.
482 Liability for Land and Structures
The common law developments had the effect of making the Act
something of a dead letter but Murphy v Brentwood has now
restored it to primacy. The provisions of the Act cannot be excluded
or restricted by any agreement.283
9–38 Section 1 of the Defective Premises Act 1972 imposes upon
persons who undertake work for, or in connection with, the provi-
sion284 of a dwelling285 a statutory duty to see that the work taken on
is done286 in a workmanlike or professional manner, with proper
materials and so that as regards that work the dwelling will be fit for
habitation when completed.287 The range of persons on whom the
duty is imposed therefore goes beyond the builder himself and
includes the architect288 and surveyor and any sub-contractors
involved,289 though the manufacturer of standard components is not
covered.290 The duty is owed not only to the persons ordering the
work but also to every person who then or later acquires an interest
(whether legal or equitable) in the dwelling. The duty is therefore a
statutory hybrid, having characteristics of both contract and tort: on
the one hand, it covers mere defects of quality (provided they make
the house unfit for human habitation) without any necessity for
imminent danger of personal injury; on the other hand it may pass
283
Section 6(3).
284
This does not include work of rectification on an existing building: Jacobs v Morton &
Partners (1996) 72 B.L.R. 92.
285
Industrial and commercial premises are therefore outside the scope of this section. Such
premises are also outside the scope of the NHBC scheme.
286
The Act applies as much to failing to do necessary work as to doing work badly: Andrews
v Schooling [1991] 1 W.L.R. 783.
287
This is in some ways stricter than a duty of care. It corresponds closely with the implied
warranty at common law in a contract for the construction of a house (see para.9–32,
above) and in that context it has been held that the warranty in relation to materials is strict:
Hancock v B.W. Brazier (Anerley) Ltd [1966] 1 W.L.R. 1317; see also Supply of Goods
and Services Act 1982 s.4. A sub-contractor may now also owe a duty of care at common
law even in respect of defects of quality in the very limited circumstances in which Junior
Books Ltd v Veitchi Co Ltd applies: para.5–40, above.
288
Payne v John Setchell Ltd [2002] P.N.L.R. 146 (structural engineer).
289
See also s.2(4) (developers), but note the important provisions of s.1(2), (3), which will
generally relieve a person of liability if he does the work properly in accordance with
instructions given by another. This would appear to cover not only the builder on whom
the client imposes detailed specifications, but also the sub-contractor who receives instruc-
tions from the builder. However, ‘‘a person shall not be treated . . . as having given
instructions for the doing of work merely because he has agreed to the work being done
in a specified manner’’.
290
He may, however, be liable under the Consumer Protection Act 1987 Pt I (para.10–16,
below) and if he were negligent he might be in breach of a common law duty. A builder
held liable under s.1 might anyway seek a contractual indemnity from him. A local
authority exercising powers of inspection probably cannot be said to, ‘‘take on work for or
in connection with the provision of a dwelling’’; but cf. the doubts of Lord Denning M.R.
and Roskill L.J. in Sparham-Souter v Town and Country Developments (Essex) Ltd [1976]
Q.B. 858 at 870, 877.
Liability of Vendors and Lessors 483
291
‘‘The analogy is not with the common law of tort but with the rule contained in the Bills
of Lading Act 1855 that a subsequent purchaser of goods carried by sea succeeds to the
rights of the person who contracted with the carrier thereof’’: Weir, Casebook on Tort, 3rd
edn, p.24.
292
See s.2.
293
This seems to have begun with the 1988 amendments and for some years appears not to
have been widely known: see Wallace, ‘‘Anns Beyond Repair’’ (1991) 107 L.Q.R. 228.
294
Section 1(5).
295
The reach of the common law is illustrated by Dennis v Charnwood BC [1983] Q.B. 409.
Barrow-upon-Soar UDC in 1955 negligently passed plans for the claimant’s house. The
defendants succeeded to their liabilities in 1974 under the local government reorganisation.
An action commenced in 1978 succeeded. Lawton L.J. commented that, ‘‘a compulsory
insurance scheme for builders of houses might provide better justice than the uncertainties
of litigation’’, but the claim in Dennis would have been far outside the time limits of the
NHBC scheme or the Latent Damage Act (below) and it must be doubted whether such
long-term cover would be actuarially acceptable.
296
See para.26–11, below.
484 Liability for Land and Structures
first place.297 It is one of the curiosities of this area that, just as Anns
v Merton contained no mention of the Defective Premises Act 1972,
so Murphy v Brentwood is silent on the Latent Damage Act
1986.298
Finally, there are the Building Regulations,299 which impose
detailed obligations on builders. In Anns v Merton Lord Wilberforce
thought that the builder might be liable for breach of statutory duty
by reason of non-compliance with building byelaws, the then equiv-
alent of the building regulations,300 though this was doubted even
before Murphy v Brentwood.301 It seems inconceivable that Lord
Wilberforce’s view can represent the law after Murphy, especially
bearing in mind that there has existed since 1974 a statutory provi-
sion creating just such a cause of action but which has never been
brought into force.302
ii. Lessor
297
Where there is damage to other property or personal injury time will run under the general
law of limitation from the date when that injury or damage occurs.
298
However, the two cases are not on all fours. The HL in Anns can fairly be said to have
ignored a legislative scheme introduced into Parliament when there was no clear liability
at common law and which might thereby have been regarded as ‘‘pre-empting’’ the area.
At the time of the Latent Damage Act the common law liability seemed fairly solidly
established and Parliament may be taken to have intended to deal with the ancillary
problems thrown up by it without necessarily giving it positive legislative approval.
299
Now SI 2000/2531.
300
[1978] A.C. 728 at 759. Cf. Solomons v R. Gertzenstein Ltd [1954] 2 Q.B. 243 (London
Building Acts).
301
Worlock v S.A.W.S. (1982) 26 E.G. 774; Perry v Tendring DC (1984) 30 Build. L.R.
118.
302
Building Act 1984 s.38 (formerly Health and Safety at Work, etc. Act 1974 s.71). Is there
another example of a provision which has lain dormant for 26 years? If it were brought into
force it is very arguable that the definition of ‘‘damage’’ would lead to the same result as
under Murphy.
303
Collins v Hopkins [1923] 2 K.B. 617.
304
Liverpool CC v Irwin [1977] A.C. 239. As to licences for occupation of business premises,
see Wettern Electric Ltd v Welsh Development Agency [1983] Q.B. 796.
305
Which will require that the contract (a) purports to confer a benefit on the third party and
(b) sufficiently ‘‘identifies’’ him.
Liability of Vendors and Lessors 485
(b) Statute. Sections 1 and 3 of the Defective Premises Act, which 9–40
have been discussed above in relation to vendors, apply equally to
lessors.308 Statute, however, also imposes certain non-excludable
obligations during the currency of the lease. By s.8 of the Landlord
and Tenant Act 1985 there is implied into contracts for the letting of
a house at a very low rent an undertaking by the landlord that it is,
and will be kept, fit for human habitation, but the rent limits are so
low that the section is never in practice applicable.309 By s.11 of the
same Act310 there is imposed upon the landlord in relation to leases
for less than seven years an obligation to carry out certain repairs to
the structure and to installations for sanitation and the supply of
water, gas and electricity. Though primarily designed to allow the
tenant to compel the landlord to do repairs, these provisions would
also avail the tenant if, for example, he suffered personal injury as
a result of the landlord’s breach of obligation, but being contractual
covenants their breach gave rise to no liability towards the tenant’s
family or visitors. This was first changed by s.4 of the Occupiers’
Liability Act 1957, which imposed on the landlord a tortious duty of
care in respect of dangers arising from default in his repairing
obligations under the lease.311 This was replaced and carried very
much further by s.4 of the Defective Premises Act 1972. Where
premises are let under a tenancy which puts on the landlord an
obligation to the tenant for the maintenance or repair of the prem-
ises, the landlord owes to all persons who might reasonably be
expected to be affected by defects in the state of the premises a duty
306
Robbins v Jones (1863) 15 C.B.(N.S.) 221. ‘‘Fraud apart, there is no law against letting a
tumbledown house’’: at 240 per Erle C.J.
307
Anns v Merton London Borough [1978] A.C. 728 was a case of a long lease, but where the
landlord did not create the defect, only the House of Lords can impose a duty: Rimmer v
Liverpool CC [1985] Q.B. 1; McNerny v Lambeth BC [1989] 19 E.G. 77; Boldack v East
Lindsey DC (1999) 31 H.L.R. 41.
308
See para.9–38, above.
309
Quick v Taff-Ely BC [1986] Q.B. 809 at 817. For an update, see Law Com. No.238, s.4.3.
In the original legislation of 1885 the rental figure in London was £20 per annum, now it
is £80. The 1885 figure was 222 per cent of the average rent. In 1995 the statutory figure
was less than 4 per cent of the average council house rent.
310
Extended by the Housing Act 1988 s.116, to cover parts of the building and installations
outside the demised premises.
311
Whether those obligations arose from express covenants in the lease or from the equivalent
statutory obligations existing before the Landlord and Tenant Act 1985. Care should be
taken to note that we are now concerned with dangers arising on the premises which the
landlord has demised. If he retains part in his own occupation (e.g. staircases and lifts in
a block of flats), he is liable for that qua occupier under the general provisions of the
Occupiers’ Liability Act: above.
486 Liability for Land and Structures
312
‘‘Safety’’ is narrower than ‘‘fitness for habitation’’: Law Com. No.238, s.5.28. Nor is the
landlord required to make safe an existing ‘‘design’’ defect: Alker v Collingwood Housing
Association [2007] EWCA Civ 343; [2007] 1 W.L.R. 2230.
313
Sykes v Harry [2001] EWCA Civ 167; [2001] Q.B. 1014. In relation to gas appliances the
landlord is under what appears to be an absolute duty to maintain in safe condition under
the Gas Safety (Installation and Use) Regulations 1994, SI 1886.
314
Thus the tenant could not compel such a landlord to repair under the Landlord and Tenant
Act 1985 s.17.
315
Section 4(4). Smith v Bradford Metropolitan Council (1982) 44 P.&C.R. 171; Barrett v
Lounova Ltd [1989] 1 All E.R. 351. Such a power is said to exist in the case of small
houses let on periodic tenancies (Mint v Good [1951] 1 K.B. 517, para.14–27, below).
316
Cf. the position of the tenant-occupier himself: para.9–25, above.
317
In other words the section creates liability in nuisance, though it probably adds nothing to
the common law in this respect: para.14–27, below.
318
Sykes v Harry, above, fn.313.
319
Section 4(4).
CHAPTER 10
1
Miller, Product Liability and Safety Encyclopaedia; Miller and Goldberg, Products
Liability, 2nd edn; Howells, Law of Product Liability; Stapleton, Product Liability
(1994).
2
The duties of the creditor under a contract of hire-purchase are for practical purposes the
same as those of a seller: see the Supply of Goods (Implied Terms) Act 1973, as amended
by the Consumer Credit Act 1974. The Supply of Goods and Services Act 1982 implies
similar terms into other contracts for the transfer of goods (e.g. exchange) and hire of
goods. Most material used in medical treatment here will not be ‘‘supplied’’ under contract.
However, the Supreme Court of Canada has declined to imply an absolute warranty of
fitness where there is a contract: ter Neuzen v Korn (1995) 127 D.L.R. (4th) 577.
3
If the purchaser is a ‘‘consumer’’ the clause will be void under the Unfair Contract Terms
Act 1977, s.6(2). Otherwise it will be subject to a test of reasonableness: s.6(3).
487
488 Liability for Defective Products
13
Evans v Triplex Safety Glass Co [1936] 1 All E.R. 283.
14
Stennett v Hancock [1939] 2 All E.R. 578.
15
Donoghue v Stevenson [1932] A.C. 562; Fisher v Harrods [1966] 1 Lloyd’s Rep. 500.
Where the original buyer has resold the product to the claimant there will be no implied
condition of satisfactory quality or fitness for purpose in that contract unless the sale was
in the course of a business: Sale of Goods Act 1979 s.14(2), (3).
16
Because a third party seeking to enforce a term in a contract to which he is not a party must
show (a) that the contract purported to confer a benefit on him and (b) that he was
identified by name, class or description in the contract. Nor will the Act generally be of
assistance to the buyer from the retailer seeking to establish a contractual right against the
manufacturer. However, art.6 Directive 1999/44/EC required that manufacturers’ guaran-
tees should be legally enforceable and the Sale and Supply of Goods to Consumers
Regulations 2002 SI 3045/2002 made them so. They probably were already (as a collateral
contract) where the buyer knew he would get one before he entered into the sale contract
with the retailer.
17
[1932] A.C. 562, para.5–5, above.
18
The ‘‘privity of contract fallacy’’ held that because the manufacturer (A) had a contract
with the retailer (B) he could not owe a tort duty to the consumer (C).
19
If the fraud of the transferor could be proved he would be liable for that: Langridge v Levy
(1837) 2 M. & W. 519; (1838) M. & W. 337.
20
Hodge v Anglo-American Oil Co (1922) 12 Ll.L. Rep. 183 at 187.
490 Liability for Defective Products
A. Persons Liable
10–3 The principle has been extended from manufacturers to include
repairers,28 fitters, erectors,29 and assemblers.30 Where a manu-
21
This is sometimes known as the ‘‘narrow rule’’ in Donoghue v Stevenson. The ‘‘wide rule’’
about the duty of care in general has been considered, para.5–5, above.
22
[1932] A.C. at 599. An American court had anticipated this by 16 years: MacPherson v
Buick Motor Co (1916) 111 N.E. 1050.
23
Read v J. Lyons & Co [1947] A.C. 156 at 172–173 per Lord Macmillan, at 180–181 per
Lord Simonds.
24
para.10–12, below.
25
Simon Brown L.J. in Hayes v Leo Scaffolding Ltd, Unreported, CA, December 3, 1996.
26
See para.10–17, below.
27
See para.10–28, below.
28
Stennett v Hancock [1939] 2 All E.R. 578; Haseldine v Daw [1941] 2 K.B. 343.
29
Brown v Cotterill (1934) 51 T.L.R. 21.
30
Howard v Furness-Houlder Argentine Lines Ltd [1936] 2 All E.R. 296.
Liability at Common Law 491
31
Winward v T.VR. Engineering [1986] B.T.L.C. 366.
32
E. Hobbs v Baxenden Chemical Co [1992] 1 Lloyd’s Rep. 54; Hamble Fisheries Ltd v
Gardner [1999] 2 Lloyd’s Rep. 1; Hollis v Dow Corning (1996) 129 D.L.R. (4th) 609. See
also Carroll v Fearon [1998] P.I.Q.R. P416.
33
In the case of a gratuitous transfer, it is true that older authorities held that, unless the
product was in the class of dangerous things, the transferor was liable only for wilful or
reckless conduct, i.e. when he actually knew of the danger: Gautret v Egerton (1867) L.R.
2 C.P. 371 at 375; Coughlin v Gillison [1899] 1 Q.B. 145. The validity of these cases is
now very doubtful (see Griffiths v Arch Engineering Co Ltd [1968] 3 All E.R. 217 at 220;
Marsh (1950) 66 L.Q.R. 39) and it is submitted that in the modern law the gratuitous
nature of the transfer is simply a factor to be taken into account in assessing what is
reasonable care by the transferor. Cf. Chaudhury v Prabhakar [1989] 1 W.L.R. 29
(gratuitous agent inspecting property liable to principal, though the existence of a duty of
care was conceded).
34
[1957] 1 Q.B. 229. See, too, White v John Warwick & Co [1953] 1 W.L.R. 1285; Griffiths
v Arch Engineering Co Ltd [1968] 3 All E.R. 217.
35
The finance company in a hire-purchase agreement gives the same implied warranties
(now non-excludable) as to the condition of the goods as does a seller in a sale: see
above.
36
[1957] 1 Q.B. 229 at 237. Cf. Rees v Saville [1983] R.T.R. 332 (duty of private purchaser;
MOT certificate).
492 Liability for Defective Products
37
He was also prepared to hold the dealer liable on a collateral contract with the
claimant.
38
Those who test and certify goods may incur liability for negligence: N v Medical Research
Council (1997) 7 Med. L.R. 309; Perrett v Collins [1998] 2 Lloyd’s Rep. 255. See further,
para.5–13, above.
39
Watson v Buckley, Osborne, Garrett & Co [1940] 1 All E.R. 174 (distributors of a
dangerous hair dye held liable because they advertised it as positively harmless and
requiring no tests); Devilez v Boots Pure Drug Co [1962] C.L.Y. 2015; Goodchild v
Vaclight [1965] C.L.Y. 2669.
40
Vacwell Engineering Co Ltd v B.D.H. Chemicals Ltd [1971] 1 Q.B. 88. An appeal from the
judgment of Rees J. was settled: [1971] 1 Q.B. 111n.
41
Fisher v Harrods [1966] C.L.Y. 8148.
42
See para.25–6, below.
43
[1979] R.T.R. 265.
Liability at Common Law 493
with all its faults and without warranty’’. It was then resold by the
purchaser to one Clay and eight days later it crashed because of
corrosion in the chassis, injuring the claimant passenger. It was
conceded before the House of Lords that the defendant’s duty would
be satisfied by giving adequate warning to his purchaser44 and that
if the defendant knew only that the car might be dangerous but had
no knowledge of the specific defect the ‘‘all faults’’ terms on which
it was sold would provide such a warning. The House seems to have
thought these concessions rightly made and, no specific knowledge
having been established, the claimant’s claim failed. No concluded
opinion was expressed on what the position would have been if the
defendant had had knowledge of the defect but two judges said that
it should not be assumed that on such facts he would be in breach of
duty.45
44
Cf. Goodwear Treaders Ltd v D.&B. Holdings Ltd (1979) 98 D.L.R (3d) 59 (suppliers of
tyre held liable to third party when they knew that purchaser would ignore their warning
of its unsuitability for his purpose).
45
Viscount Dilhorne and Lord Scarman. Cf. Lord Hailsham who thought (at 303) that the old
decision in Ward v Hobbs (1878) 4 App. Cas. 13 might have to be reconsidered in the light
of developments in the law of negligence.
46
Paine v Colne Valley Electricity Supply Co [1938] 4 All E.R. 803.
47
Brown v Cotterill [1934] 51 T.L.R. 21.
48
Watson v Buckley [1940] 1 Al E.R. 174.
49
Vacwell Engineering Co Ltd v B.D.H. Chemicals Ltd [1971] 1 Q.B. 88.
50
Haseldine v Daw [1941] 2 K.B. 343.
51
Herschtal v Stewart & Ardern [1940] 1 K.B. 155; Andrews v Hopkinson [1957] 1 Q.B.
229.
52
Grant v Austalian Knitting Mills [1936] A.C. 85.
53
Grant v Australian Knitting Mills, above, fn.52; Griffiths v Arch Engineering Co Ltd
[1968] 3 All E.R. 217; Cassidy v Imperial Chemical Industries Ltd, The Times, November
2, 1972.
54
Brown v Cotterill, above, fn.47 (child injured by falling tombstone); Stennett v Hancock
[1939] 2 All E.R. 578 (pedestrian hit by flange of lorry wheel). In Lambert v Lewis [1978]
1 Lloyd’s Rep. 610 manufacturers were held liable for a design defect in a vehicle coupling
which caused a trailer to come adrift and injure the claimant. This was not challenged on
appeal: [1982] A.C. 225.
55
Ch.9, above.
56
Donoghue v Stevenson [1932] A.C. at 585.
494 Liability for Defective Products
C. Burden of Proof
10–6 The duty owed is that of reasonable care59 and the burden of
proving negligence is on the claimant. Although in Donoghue v
Stevenson60 itself Lord Macmillan said that in a case such as that
there was no justification for applying res ipsa loquitur,61 the prac-
tice of the courts is to draw inferences of negligence in suitable
product liability cases as much as in any other. The question in each
case is whether the claimant has given sufficient evidence to justify
the inference of negligence against the defendant and he is not
necessarily required to specify what the defendant did wrong62 and,
indeed, any other rule would stultify the principle of Donoghue v
Stevenson, for normally it will be impossible for a claimant to bring
evidence of particular negligent acts or omissions occurring in the
defendant’s manufacturing processes. In Mason v Williams & Wil-
liams Ltd63 the claimant was injured while using a cold chisel
manufactured by the defendants and which was too hard for its
purpose. Finnemore J. held that since the claimant had established
that nothing had happened to the chisel after it left the defendants’
factory which could have caused the excessive hardness, the defen-
dants’ negligence was established. It is suggested that the claimant
will generally discharge his burden of proof by showing that the
article was defective and that, on a balance of probabilities, the
defect arose in the course of manufacture64 by the defendant. In
many cases in practice this comes very close to the imposition of a
strict liability, for even if the defendant gives evidence that the
quality control system in his factory complies with approved prac-
tice, there is still the possibility—indeed it perhaps becomes
stronger by this very evidence—that one of his servants was careless
57
Barnes v Irwell Valley Water Board [1938] 2 All E.R. 650.
58
Watson v Buckley [1940] 1 All E.R. 174; Holmes v Ashford [1950] 2 All E.R. 76; Vacwell
Engineering Co Ltd v B.D.H. Chemicals Ltd [1971] 1 Q.B. 88; Thompson v Johnson &
Johnson [1991] 2 VR. 449. Macleod (1981) 97 L.Q.R. 550. For a claim concerning
instructions which was based on contract see Wormell v R.H.M. Agriculture (East) Ltd
[1987] 1 W.L.R. 1091.
59
A manufacturer is not liable on the ground only that an independent contractor employed
by him had been negligent: Taylor v Rover Co Ltd [1966] 1 W.L.R. 1491.
60
[1932] A.C. 585 at 622.
61
See para.5–89, above.
62
In Grant the claimant succeeded because if excess sulphites were left in the garment, that
could only be because someone was at fault. ‘‘The appellant is not required to lay his finger
on the exact person in all the chain who was responsible, or to specify what he did wrong.
Negligence is found as a matter of inference from the existence of the defects taken in
conjunction with all the known circumstances’’: at 101 per Lord Wright.
63
[1955] 1 W.L.R. 549.
64
Or repair, etc. according to the business of the defendant.
Liability at Common Law 495
‘‘[T]he decision in that case did not depend on the bottle being
stoppered and sealed; the essential point in this regard was that
the article should reach the consumer or user subject to the same
defect as it had when it left the manufacturer.’’67
E. Intermediate Examination
10–8 As originally formulated by Lord Atkin the principle applies
where there is, ‘‘no reasonable possibility of intermediate examina-
tion’’. These words have been the subject of much analysis, ‘‘almost
as if they formed part of a statute’’72 but the better view is that they
do not constitute an independent requirement which the claimant
must satisfy but rather are to be taken into account in determining
whether the injury to the claimant was foreseeable.73 Even a proba-
bility of an intermediate examination will not exonerate the defen-
dant unless it gives him reason to expect that it will reveal the defect
and that this will result in the elimination of the defect or at least the
claimant’s being warned of it in such a way as to make him safe.74
In Griffiths v Arch Engineering Co Ltd75 the claimant borrowed
from the first defendants a portable grinding tool which had been
lent to them by its owners, the second defendants. The tool was in
a dangerous condition because an incorrect part had been fitted to it
at some time by a servant of the second defendants, and the claimant
was injured in consequence. Although the first defendants had an
opportunity of examining the tool, the second defendants had no
reason to suppose that an examination would actually be carried out
70
Davie v New Merton Board Mills Ltd [1957] 2 Q.B. 368 at 378–379 per Ashworth J. The
manufacturers’ liability was not in issue on appeal: [1959] A.C. 604.
71
If both are causes, then damages should be reduced under the Law Reform (Contributory
Negligence) Act 1945, as in Griffiths v Arch Engineering Co Ltd [1968] 3 All E.R.
217.
72
M/S Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 W.L.R. 1 at 22 per
Lloyd L.J.
73
[1987] 1 W.L.R. 1 at 23.
74
The, ‘‘duty does not cease to exist because there is a possibility or probability of inspection
by an intermediary or by the neighbour himself before the article is taken into use. If an
inspection is certain and will reveal the defect and the person making the inspection will
appreciate the danger, then no doubt a risk to the neighbour is not reasonably foreseeable’’:
McIlveen v Charlesworth Developments [1982] N.I. 216 at 221; Pearson Education Ltd v
Charter Partnership Ltd [2007] EWCA Civ 130; [2007] B.L.R 324. It may not be so much
a matter of intermediate examination as of intermediate treatment. In Regal Pearl Pty Ltd
v Stewart [2002] NSWCA 291 it would have been practically impossible for the importer
to test frozen prawns for hepatitis A virus and he was entitled to rely on their being
properly cooked.
75
[1968] 3 All E.R. 217. Lambert v Lewis [1978] 1 Lloyd’s Rep. 610 (point not involved on
appeal [1982] A.C. 225). Cf. Taylor v Rover Co Ltd [1966] 1 W.L.R. 1491.
Liability at Common Law 497
and they were liable to the claimant. The fact that the first defen-
dants were also liable to the claimant meant not that the second
defendants had a defence to the claimant’s claim but that the case
was one for ultimate apportionment of liability between the defen-
dants.76 On the other hand, in Kubach v Hollands77 a manufacturer
sold a chemical to an intermediary with an express warning that it
had to be tested before use. The intermediary was liable for the
resulting injury, but the manufacturer was not and it would be
difficult to do business on any other basis.78 Prescription drugs will
commonly have untoward side-effects upon a minority of users and
a manufacturer will normally fulfil his duty under Donoghue v
Stevenson by giving adequate warning to the prescribing physician
(who is far more likely than is the patient to be able to understand
the warning)79: if the physician fails to heed the warning his default
may properly be regarded as the sole cause of injury to the
patient.80
76
See now the Civil Liability (Contribution) Act 1978, para.21–4, below. If the claimant
himself neglects an opportunity of examination it may be a case for reduction of damages
under the Law Reform (Contributory Negligence) Act 1945. If his default is so extreme as
to break the chain of causation there may be a complete defence: Nitrigin Eireann
Teoranta v Inco Alloys Ltd [1992] 1 All E.R. 854 at 862.
77
[1937] 3 All E.R. 970.
78
Similarly, one may well sell an unroadworthy vehicle for scrap and if it is then used on the
road that will be the purchaser’s responsibility. See also Hurley v Dyke, para.10–4, above.
Viridian Inc v Bovar Inc (2002) 216 D.L.R. (4th) 122 (product supplied to the ‘‘sophisti-
cated intermediary’’ was standard part supplied for no disclosed purpose; manufacturer
entitled to expect examination; no liability).
79
Hollis v Dow Corning (1996) 129 D.L.R. (4th) 609 (breast implants).
80
See Hollis v Dow Corning, above, fn.79, but what if there is no warning? In Hollis v Dow
Corning the SCC held that in such a case the manufacturer cannot escape liability by
giving evidence tending to show that the doctor would not have passed the information on.
That would leave the claimant in the position of failing against the doctor (who is not
negligent because he received no warning) and against the manufacturer. Cf. Walker Estate
v York Finch General Hospital [2001] SCC 23; [2001] 1 S.C.R. 647.
498 Liability for Defective Products
the context of the duty of care and economic loss81 and the related
area of defective premises.82 In so far as Junior Books v Veitchi Co
Ltd83 remains an authority on economic loss it may no doubt be
applicable to chattels where the requisite special and unusual rela-
tionship subsists between the parties,84 but that will not normally be
so between manufacturer and ultimate consumer, even if the manu-
facturer is aware of the destination of his product.85
10–10 However, the undoubted proposition that Donogue v Stevenson
applies where the product causes damage to other property of the
claimant causes some difficulty where failure of a component in a
complex product causes damage to the product itself.86 This is
essentially the same issue as that of the ‘‘complex structure’’ which
has been discussed earlier in connection with Murphy v Brentwood
DC.87 It is clear that if the negligently manufactured component is
a replacement or added88 part the manufacturer is liable for damage
to the rest of the article89 whether or not he was the manufacturer of
the article in its original state.90 The discussion of complex struc-
tures in Murphy v Brentwood is somewhat inconclusive but mem-
bers of the House of Lords did not rule out the possibility that
sub-contractors constructing or installing elements of a building
which then caused damage to the building as a whole might be liable
for this damage. The problem in the case of chattels may be con-
siderably more complex: in the case of a motor vehicle, for example,
there may be hundreds of component parts by dozens of different
manufacturers and the ‘‘manufacturer’’ of the vehicle may in reality
be no more than a designer and assembler. On the basis of what is
81
See para.5–44, above.
82
See para.9–33, above.
83
[1983] 1 A.C. 520.
84
See para.5–44, above.
85
See Simaan General Contracting Co v Pilkington Glass Ltd (No.2) [1988] Q.B. 758 where
C ordered building components from D via a contract between A and B because the
building owner required use of D’s components. C’s claim against D failed. See also Man
B & W Diesel etc Ltd v PT Bumi International Tankers [2004] SGCA 8; [2004] 2 S.L.R.
300, where the decision against liability rests on the absence of sufficient proximity rather
than any general rule of law.
86
See Tettenborn [2000] L.M.& C.L.Q. 333.
87
See para.9–35, above.
88
For the case where the part is a component of a new product produced by the claimant, see
Bacardi-Martini Beverages Ltd v Thomas Hardy Packaging Ltd [2002] EWCA Civ 549;
[2002] 2 Lloyd’s Rep. 379, para.5–44, above.
89
For example a replacement tyre on a car which bursts and causes a crash damaging the car.
In Andrew Weir Shipping Ltd v Wartsila UK Ltd [2004] EWHC 1284 (Comm); [2004] 2
Lloyd’s Rep. 377 (fire starting in ship’s engine) there was no dispute that there was
physical damage, the contest being whether the defendants were under a duty to warn the
owners of the risk. However, the question of assumption of responsibility or ‘‘special
relationship’’ may be relevant both to the existence of liability for economic loss and to the
existence of a duty to speak: at [59].
90
The defendants in Nitrigin Eireann Teoranta v Inco Alloys Ltd [1992] 1 All E.R. 854 were
manufacturers of the original and replacement material, though the case concerned only
limitation.
Liability at Common Law 499
91
Cf. the facts of Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All E.R. 220
where (1) the action was against the seller and (2) the problem arose from the process of
assembly rather than a failure of a component. However, the fact that the damage was
repaired under the manufacturer’s warranty shows why the issue is of limited practical
importance in the case of vehicles.
92
Not for the value of the radio itself: Aloe Coal Co v Clark Equipment Co 816, F. 2d 110,
cited with approval by Lord Keith in Murphy v Brentwood DC at [1991] 1 A.C. 469.
93
Yet a car radio, while easily detachable, can only be used in a car; and tyres can be
removed and put on another car.
94
[1987] 1 W.L.R. 1.
95
An action in contract against other defendants who had sold the compound and pails to the
claimants also failed.
96
With whose judgment Fox L.J. agreed.
97
Mance J. in The Orjula [1995] 2 Lloyd’s Rep. 395 thought that the view of Nicholls L.J.
gained some support from Murphy v Brentwood DC [1991] 1 A.C. 398.
500 Liability for Defective Products
‘‘If the hidden defect in the chattel is the cause of personal injury
or of damage to property other than the chattel itself, the manu-
facturer is liable. But if the hidden defect is discovered before any
such damage is caused, there is no longer any room for the
application of the Donoghue v Stevenson principle. The chattel is
now defective in quality, but is no longer dangerous.102 It may be
valueless or it may be incapable of economic repair. In either case
the economic loss is recoverable in contract by a buyer or hirer of
the chattel entitled to the benefit of a relevant warranty of quality,
but is not recoverable in tort by a remote buyer or hirer of the
chattel.’’103
98
[1989] A.C. 117.
99
[1991] 1 A.C. 398.
100
476 U.S. 858 (1986).
101
See further Prosser and Keeton, Torts, 5th edn, p.708.
102
If a badly made fire alarm fails to function and a building is burned down the manufacturer
is in principle liable for the damage. But if the defect is discovered before any fire has
occurred he is not liable for the cost of replacing it. The law may be different in Canada:
Hughes v Sunbeam Corp (Canada) Ltd (2002) 219 D.L.R. (4th) 467.
103
[1989] A.C. 177 per Lord Bridge.
Liability at Common Law 501
Looked at against the background of the general law of tort the level 10–12
of protection given to victims of dangerous goods by Donoghue v
Stevenson may be thought not unreasonable, though it may be hard
to justify the strict liability in respect of death or personal injury107
which the purchaser acquires by virtue of his contract of sale. Such
a view is, however, out of accord with the spirit of a time in which
consumer interest has become one of the most important pressures
for law reform. In the United States, liability for negligence was
overtaken by judicial reform in favour of the consumer. The first
104
[1991] 1 A.C. 398.
105
See para.9–34, above.
106
e.g. in Junior Books v Veitchi Lord Fraser thought that the claimant in tort could be in no
better position than the purchaser from the manufacturer: [1983] 1 A.C. 520 at 534.
107
As opposed to the liability for financial loss caused by the failure of the goods to
function.
502 Liability for Defective Products
108
Baxter v Ford Motor Co 12 P. 2d 409 (1932). This has obvious affinities with the collateral
contract.
109
Henningsen v Bloomfield Motors 161 A 2d 69 (1960). Cf. the alternative forms of the
Uniform Commercial Code, art.2–318.
110
(1963) 27 Cal. Rptr. 697.
111
See now the 3d Restatement of Torts, Product Liability, on this topic (1998).
112
See, e.g. Law Com. No.82, Liability for Defective Products (1977), para.38.
113
This argument proves too much—it would suggest strict liability for any injury caused in
the production and distribution process, e.g. an accident to a worker in the factory or a
crash caused by the driving of a delivery van. Liability under the Consumer Protection Act
1987 is confined to injuries caused by a defect in the product, which is by no means the
same thing as injuries caused by the product.
114
A sufficiently bad claims record should raise his premium costs to such a level that he is
driven off the market.
115
On the basis of its personal injury survey the Pearson Commission in 1978 estimated that
between 30,000 and 40,000 injuries per year (about 1 per cent of all injuries) might be
attributable to defective products other than drugs and that the risk of death was lower than
for other categories of risk: Cmnd. 7054, Vol.1, para.1201. The 1987 Act hardly figured
in case law for 12 years but there have been some important decisions since 2000.
116
See para.10–6, above; but tort compensation was recovered in only 5 per cent of cases
(half the rate for work accidents and one-fifth of the rate for road accidents) and the
average payment was only half that for all personal injury accidents.
117
See Teff and Munro, Thalidomide: The Legal Aftermath (1976).
118
A draft version of the Directive (different in a number of significant respects) was
considered by the Law Commission (Law Com. No.82 (1977)) and the Pearson
Commission.
Liability under the Consumer Protection Act 1987 503
our law accord with the Directive and this was done by Pt I of the
Consumer Protection Act 1987119 which came into force on March
1, 1988,120 and which expressly states that it is to:
the Directive was notified. It was widely thought that this meant that
the Directive merely set a minimum standard and left it open to the
local law to impose a stricter or more extensive liability. However,
the European Court of Justice has ruled that this is incorrect in the
light of the fact that divergences in liability law may distort competi-
tion and ‘‘maximal’’ rather ‘‘minimal’’ harmonisation is imposed.122
Hence the French transposition of the Directive, which put the
liability of the supplier on the same level as the manufacturer
(whereas under the Directive the supplier is liable only if the
119
Miller, Product Liability and Safety Encyclopaedia, Division III; Fairest, The Consumer
Protection Act 1987; Howells, Comparative Product Liability (1993). For a highly critical
account of the changes produced by the Directive, see Stapleton, ‘‘Products Liability
Reform—Real or Illusory’’ (1986) 6 O.J.L.S. 392 and Stapleton, Product Liability
(1994).
120
The Act applies if the product was supplied to any person by the producer on or after that
date. Hence it did not apply in Carroll v Fearon [1998] P.I.Q.R. P416, even though the
accident took place after the commencement of the Act.
121
Section 1(1). Surprisingly, perhaps, the Directive (85/374) is not annexed to the Act. It can
be found in the Official Journal of the European Communities, No.L 210/29.
122
Gonzalez Sanchez v Medicina Asturiana SA [2002] E.C.R. I–3901.
504 Liability for Defective Products
A. Who is Liable?
10–14 Subject to a point discussed below, the Act does not impose
liability on persons who merely supply goods, though it must again
be emphasised that the supplier usually has a contractual liability
which is more onerous than that imposed by the Act, albeit only to
his immediate purchaser. The three principal categories of persons
liable under the Act are listed in s.2(2) and the first is the producer
of the product,125 who is further defined in s.1(2) as:
123
Commission v France [2002] E.C.R. I–3827.
124
At [31].
125
Section 2(2)(a).
126
This is the effect of the definition of ‘‘product’’ in s.1(2), though this very important point
could, perhaps, have been stated more clearly.
127
Section 2(5).
128
Ch.21, below.
Liability under the Consumer Protection Act 1987 505
129
If X extracts oil and Y refines it into petroleum, X falls within paragraph (b). Does Y fall
within paragraph (a) or paragraph (c)? If (c), it is presumably irrelevant that it has been
abstracted in another form.
130
A cup of coffee is served in a restaurant. Is the restaurant a producer under para.(a) or
para.(c)? It must be one or the other but in Bogle v McDonalds Restaurants Ltd [2002]
EWHC 490 (QB) the defendants seem to have conceded it was (a).
131
A similar issue may arise over franchised outlets but in Bogle v McDonalds Restaurants
Ltd, above, fn.130, the defendants accepted responsibility for franchisees.
132
Section 2(2)(c) (since 1994 all EU and most former EFTA). However, the importing must
be, ‘‘in order to supply it to another’’. An airline which brings an American airliner to
England to use it here is not liable under this paragraph: s.46(9).
133
The conflict of laws is outside the scope of this book but it should be noted that under the
current rules C could sue A either here or in Belgium. If the latter, the Belgian judgment
would be enforceable here. Fears were expressed in Parliament about the prospect of
nominally capitalised ‘‘front’’ companies being used to import goods into the EEC. Such
a company could be sacrificed and a judgment against it would exhaust the Act. However,
the control of this sort of activity is a matter for company law, not tort.
506 Liability for Defective Products
B. Products
10–16 A product is any goods or electricity136 and ‘‘goods’’ is further
defined as including, ‘‘substances,137 growing crops138 and things
comprised in land by virtue of being attached to it and any ship,
aircraft or vehicle’’.139 Components of a building are, therefore,
covered, so that a manufacturer of defective steel joists would be
liable for injury caused by the collapse of a block of flats but it is
thought that the building as a whole is not ‘‘goods’’ and that a
builder is not therefore responsible under the Act for shoddy work-
manship,140 though the law of negligence and the Defective Prem-
ises Act 1972 of course apply to these cases. It seems that
information is not within the Act even though it is incorporated in
134
‘‘Supply’’ is defined in s.46(1) and extends a good deal more widely than supply under a
sale. But a finance company is not a supplier for the purposes of this Act; the ‘‘effective
supplier’’ (e.g. the garage in a car hire-purchase transaction) is: s.46(2).
135
The request may be made to any supplier, not merely the one who directly supplied the
goods to the claimant.
136
Section 1(2).
137
It was conceded in A v National Blood Authority [2001] 3 All E.R. 289 that blood and
blood products for transfusion were within the Act. Contrast American law, where this
category of liability has been uniformly rejected and is rejected by Restatement 3d §19.
138
Until 2000 the producer of primary agricultural produce and game (the farmer or fisher-
man) was exempt from liability under the 1985 Directive if he supplied them before they
had undergone an industrial process. This exemption was removed by the Consumer
Protection Act 1987 (Product Liability) (Modification) Order 2000, SI 2000/2771, imple-
menting Directive 1999/34/EC. While there is no doubt as to the legislative intention, it
must be observed that the farmer does not fall easily into any of the definitions of producer
in s.1(2). With a little strain he could be described as the ‘‘producer of . . . raw material’’
under art.3(1) of the 1985 Directive.
139
Section 45(1).
140
Even if this view is wrong, the same result will be reached in cases where the builder sells
the house as a result of the combined effect of ss.4(1)(b), 46(3), 46(4).
Liability under the Consumer Protection Act 1987 507
tangible form in a book141 but the same may not be true of compu-
terised information, where the line between ‘‘software’’ and ‘‘hard-
ware’’ may be difficult to draw sensibly. If an airliner crashes
because a component in an automatic landing device fails above a
certain temperature there is clearly a defective product within the
Act. Can the position really be any different if it is programmed so
that it simply does not operate in certain, foreseeable conditions or
if it gives the pilot a misleading indication?142 It has been said that
while software as such is not ‘‘goods’’ within the Sale of Goods Act,
a disk containing a programme is, and when that is sold143 the
statutory implied terms apply to the software as well as the disk
itself.144 Misleading instructions for use of a product are clearly not
to be equated with ‘‘pure’’ information, for they may themselves
render an otherwise perfect product defective.145
C. Damage
The Act applies to death or personal injury no matter how large 10–17
or small the loss146 but the position with regard to property damage
is more restricted. First, there is no liability in respect of loss of or
damage to the product itself or the whole or any part of any product
which has been supplied with the product in question comprised in
it.147 If, therefore, my car radio catches fire as a result of faulty
components and burns out the car, neither the car assembler nor the
radio manufacturer is strictly liable,148 but if the same thing were to
happen with a replacement radio liability would be imposed on the
manufacturer of that. Secondly, no liability arises unless the dam-
ages (apart from interest) would be at least £275.149 Thirdly, the Act
is inapplicable unless the property is of a description ordinarily
141
This was certainly the Government’s intention, though two remarkably opaque sub-clauses
in the Bill which were designed to make this clear were removed. Cf. Whittaker, ‘‘Euro-
pean Product Liability and Intellectual Products’’ (1989) 105 L.Q.R. 125. American courts
have generally declined to apply products liability theory to information. A book contains
tangible elements like paper and intangible ideas expressed therein: Winter v G.P. Putnam’s
Sons 938 F. 2d 1033 (C9, 1991).
142
It must, however, be confessed that the distinction between this and the book which
contains misleading information is not easy to discern, still less to state. Cf. Brocklesby v
US 767 F. 2d 1288 (C9,1985), para.11–28, below.
143
Or hired: Supply of Goods and Services Act 1982.
144
St Albans DC v I.C.L. [1996] 4 All E.R. 481 at 493.
145
See s.3(2)(a).
146
The Act did not adopt the provisions of the Directive, art.16, whereby liability for death
or personal injury caused by identical items with the same defect might be limited to 70
million ECU. There would be formidable practical difficulties in the application of such a
provision.
147
Section 5(2).
148
Compare the rather uncertain position at common law: para.10–9, above.
149
Section 5(4). It seems that the Directive, art.9(2), from which this curious limit stems, is
mandatory. It is a curiosity in English conditions, being well below the level at which most
lawyers would probably advise embarking on litigation.
508 Liability for Defective Products
D. Defect
10–18 This is the core of the Act, the proposition that the damage must
be caused wholly or partly by a defect in the product.152 Defect153 is
defined in s.3 as being present where, ‘‘the safety of the product is
not such as persons generally are entitled to expect’’.154 Section 3
goes on to provide that that all the circumstances are to be taken into
account in determining whether the product is as safe as persons
generally are entitled to expect, specifically drawing attention to the
following:
‘‘(a) [T]he manner in which, and the purposes for which, the
product has been marketed, its get-up, the use of any mark
in relation to the product and any instructions for, or warn-
ings with respect to, doing or refraining from doing anything
in relation to the product;
(b) what might reasonably be expected to be done with or in
relation to the product and
(c) the time when the product was supplied by its producer to
another; and nothing . . . shall require a defect to be inferred
from the fact alone that the safety of a product which is
supplied after that time is greater than the safety of the
product in question.’’
156
A distinction maintained by Restatement, Torts, Product Liability 3d §2.
157
[2001] 3 All E.R. 289.
158
At [65]. Cf. Richardson v LRC [2000] P.I.Q.R. P164. In Pollard v Tesco Stores Ltd [2006]
EWCA Civ 393 where a child-resistant cap did not quite conform to its design standards,
it was held that the public could reasonably expect such a cap to be difficult to open but
not to be compliant with design standards (about which they would know nothing).
510 Liability for Defective Products
range in the market at which the product is aimed—if all cars were
required to be fitted with ABS brakes and four-wheel drive there
would be no cheap cars available to the public. The relationship of
the Act with the law of negligence in these cases has not been fully
explored but it must surely be that the court is required to come to
a judgment on whether the risks associated with the product in its
present form are outweighed by the benefits that it brings, otherwise
there would be liability for injuries caused by products rather than
for injuries caused by defects in products, which would be neither
socially acceptable nor within the scope of the Directive. While
scientific evidence is no doubt relevant and often helpful there is no
escaping the fact that in the last resort the judgment is a ‘‘value’’
one: there is no scientific formula which will tell us whether the risk
of allowing cars to be made without advanced safety systems is
greater or less than the benefits obtained by having cheaper cars.
‘‘Benefit’’ should not be taken too narrowly for this purpose because
it may include elements that are completely unquantifiable. The
dangers of alcohol are well known but in our society it is a generally
accepted source of pleasure and even if some may think that the
(very roughly quantifiable) cost still outweighs the (wholly unquan-
tifiable) benefit, it is important that we respect people’s right to self-
determination, so even if alcohol could be said to be defective in any
sense of the word, it is not so within the meaning of the Act. The
necessity of adopting a cost-benefit approach was candidly admitted
by the DTI explanatory note on the Directive, which commented, in
relation to drugs:
‘‘The more active the medicine, and the greater its beneficial
potential, the more extensive its effects are likely to be, and
therefore the greater the chances of an adverse effect. A medicine
used to treat a life threatening condition is likely to be much more
powerful than a medicine used in the treatment of a less serious
condition, and the safety that one is reasonably entitled to expect
of such a medicine may therefore be correspondingly
lower.’’159
10–21 The ultimate question for the common law of negligence in such
cases would be, ‘‘was it reasonable to market this design in the light
of the risks and benefits?’’ (not that that is necessarily the same as
‘‘do the measurable financial costs of the risks exceed the measur-
able benefits?’’). No doubt under the Act (where the safety of the
159
A different view is taken in the National Blood Authority case, that there is no weighing
of risks and benefits but rather that the general knowledge of the inherent danger is a factor
in the standards persons are entitled to expect. The distinction is probably only significant
where the inherent danger comes to light after the product has been used for some
time.
Liability under the Consumer Protection Act 1987 511
164
Stapleton, Product Liability (1994) (writing from the standpoint that the Act is a misguided
and ineffective compensation measure which sticks much too closely to common law
concepts, a proposition perhaps now less easy to defend than when it was put forward)
argues that reformers are illogical in readily accepting this proposition while at the same
time rejecting (as many of them do) the ‘‘development risks’’ defence now enshrined in
s.4(1)(e): ‘‘It is odd that risks discovered after circulation should be taken into account to
show that a product was defective all along, but the development of better products after
circulation should not be taken into account to demonstrate that the benefits of the product
were all along less than supposed.’’
165
In New Zealand on the basis of negligence liability it was held that although there are now
statutory requirements for warnings on cigarette packets a manufacturer was not under a
duty in tort to warn in the 1960s because the danger to health was common knowledge by
that time: Pou v British American Tobacco (NZ) Ltd [2006] NZHC 451.
166
See Worsley v Tambrands Ltd, December 3, 1999, QBD. These matters are obviously
intimately connected with foreseeable use. By way of example—(1) most perfume is
highly inflammable, but should a manufacturer have to give warning of this? Yes,
according to an American court in Moran v Faberge, 332 A. (2d) 11 (1975)—claimant
dowsing candle in perfume. (2) Sealing compounds are inflammable and contain warnings
not to expose to naked flame. Should this extend to a warning to extinguish the pilot light
on a stove? Yes, according to the Supreme Court of Canada, reversing an appeal court in
Lambert v Lastoplex Chemicals (1971) 25 D.L.R. (3d) 121, decided on a negligence
standard.
Liability under the Consumer Protection Act 1987 513
167
Provided, that is, he does not put in so much information that consumers are likely not to
bother to read it! There is no blanket rule that the manufacturer may safely ignore a danger
which is ‘‘obvious’’, for the product may foreseeably get into the hands of children or other
incompetents and if a simple design change will reduce the danger to them, the law may
require it: see Miller, op. cit., Division III. But warnings of obvious dangers may detract
from safety by diminishing the significance of warnings about non-obvious risks.
168
The time of the supply by the producer: s.4(2).
169
See generally, Newdick, ‘‘The Development Risks Defence of the Consumer Protection
Act 1987’’ [1988] C.L.J. 455 and Newdick, ‘‘Risk, Uncertainty and ‘Knowledge’ in the
Development Risk Defence’’ (1992) 20 Anglo-American L.R. 309.
170
European Commission v UK [1997] All E.R. (EC) 481.
514 Liability for Defective Products
F. Other Defences
10–24 Section 4 contains other defences which, like s.4(1)(e), are
defences in the proper sense of that term, i.e. matters which must be
raised and proved by the defendant. To the common law mind some
of them are matters which might more naturally be regarded as
171
Advocate-General Tesauro in his opinion had given the example of an article published
only in Chinese in Manchuria. In A v National Blood Authority, above, at [49] Burton J.
regarded as a more realistic example results which had not been published and were held
within the research department of a company.
172
A v National Blood Authority [2001] 3 All E.R. 289.
173
The decision of the German Supreme Court in NJW 1995, 1262 can be read as holding that
the defence can never apply to non-standard products. However, Burton J, in the National
Blood Authority case thought that this would not be so if the very possibility of the
existence of the non-standard product were unknown.
174
Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 A.C. 31; Ashington Piggeries
Ltd v Christopher Hill Ltd [1972] A.C. 441.
175
See Law Com. No.82, para.105; Cmnd. 7054, Vol.1, para.1259.
Liability under the Consumer Protection Act 1987 515
1. damage
2. attributable to a defect
3. in an article for which the defendant is responsible under the
Act, as producer or otherwise.
Suppose that the law required all wine to contain sulphur dioxide.
Suppose also that the ingredient was then found to be harmful. The
producer would have a defence without reference to the ‘‘develop-
ment risks’’ defence of s.4(1)(e). This defence does not mean that
compliance with minimum legal standards automatically provides a
defence.176 The hypothetical wine law forbids the addition of ingre-
dients A, B and C. The producer adds ingredient X, widely thought
to be beneficial, but then discovered to be harmful. Subject to
s.4(1)(e), the producer is liable. Perhaps a more likely state of affairs
is one where an ingredient is expressly permitted by law even
though it is believed, or even known, to carry some risk of injury.
Section 4(1)(a) would seem not to provide a defence, though it
might be very difficult to establish a case of negligence in such
circumstances.177
2. That the defendant did not at any time supply the product to
another
Being a supplier does not involve liability under the Act unless
the ‘‘tracing’’ provision of s.2(3) comes into play. But even a
producer is not liable if he has not supplied178 the article to another.
‘‘Supply’’ is widely defined to include hiring out or lending but it
does not cover merely putting goods in someone’s hands for him to
use, so if D produces a machine for internal use in the factory and
it has a defect which injures workman C the Act does not
apply.179
176
Nor does it under Restatement (3d), s.3(d).
177
Cf. Albery and Budden v B.P. Oil, para.5–82, above, a claim in negligence.
178
See s.46.
179
Miller, op. cit., points out that for the same reason the Act would have no application to
an incident like the Bhopal disaster; but see Veedfald v Arhus Amtskommune [2001] E.C.R.
I–3569.
516 Liability for Defective Products
G. Contributory Negligence
The Consumer Protection Act applies the Law Reform (Contribu- 10–26
tory Negligence) Act 1945185 by providing that when damage is
caused partly by a defect in a product and partly by the fault of the
person suffering the damage then the defect is to be treated as if it
were the fault of every person liable for it under the Act.186 In
‘‘deeming’’ fault to exist in the producer the Act recognises the
difficulty of balancing blameworthy against non-blameworthy con-
duct, though it does not really solve the problem. However, there is
plenty of experience under acts and regulations on industrial safety
of applying apportionment of liability to strict liability situations
and the courts should have no difficulty with this. Where the claim-
ant’s fault is extreme then it may amount to the sole cause in law and
deprive him of damages altogether; in many cases, exactly the same
result may be reached by concluding that the claimant’s use of the
product is so unusual that it is not defective, even if it has caused
damage.
H. Exclusion of Liability
Section 7 enacts a simple rule invalidating any limitation or 10–27
exclusion of liability, ‘‘by any contract term, by any notice or by any
other provision’’, no matter what the nature of the damage.187 Of
course, care must be taken to distinguish substance from form:
183
Oddly, perhaps.
184
Whether the Act also applies in this situation would not seem to matter.
185
See para.6–43, above.
186
Section 6(4). Various other Acts are also applied by s.6, e.g. the Fatal Accidents Act 1976
and the Congenital Disabilities (Civil Liability) Act 1976.
187
Contrast s.2 of the Unfair Contract Terms Act 1977, para.25–6, below, which makes
exclusion of liability for property damage caused by negligence subject to a reasonable-
ness test.
518 Liability for Defective Products
I. Limitation
10–28 This is dealt with in Ch.26. At this stage, however, it is worth
noting the ‘‘cut-off’’ provision whereby any liability is extinguished
10 years after the product has been put into circulation, thus smoth-
ering to some extent the risk of mass disaster litigation arising from
defects which come to light only after many years.188 This does not,
however, affect the common law of negligence.
3. CONCLUSION
192
COM/2000/0893. See p.8. Apart from the fact that no uniform statistics are kept, many
cases will be based on negligence and contract law as well as on strict tort liability.
193
Curiously, the UK has had a very low rate of cases arising from the Directive, even though
there is a common view in Europe that the English legal system has a more ‘‘American’’
culture than others. Of course, many claims may have been settled out of court.
194
Originally in the Consumer Protection Act 1961, succeeded by the Consumer Safety Act
1978. See also General Product Safety Regulations 2005, SI 2005/1803.
195
Except in so far as safety regulations provide otherwise.
196
Section 41.
CHAPTER 11
THE title of this chapter raises the difficulty of arranging a general 11–1
account of tort law, for a good deal of the law about liability for
damage done by statements will be found elsewhere in this book.
Statements may cause harm even if true, as where they involve
invasions of a person’s privacy or breach of his confidences. Liabil-
ity for untrue statements has a wider canvas. (1) A statement may
injure a person’s reputation, if defamatory and published to a third
party; (2) it may cause direct injury by shock to the person to whom
it is addressed; (3) it may cause him to act in reliance on it and suffer
loss as a result; (4) or it may cause him loss because it is addressed
to other persons who, in reliance on it, act (perhaps perfectly
lawfully) to his detriment. The first is covered by the tort of defama-
tion, the subject of a separate chapter, which also looks at privacy
and confidence.1 The second is the liability under Wilkinson v
Downton, which has been considered in connection with intentional
1
Ch.12.
521
522 Liability for Statements
2
[1897] 2 Q.B. 57, para.4–36, above.
3
Not always. Liability for deceit has been found in cases of false claims of paternity: P v
B (paternity: damages for deceit) [2001] 1 F.L.R. 1041; A v B [2007] EWHC 1246 (QB);
[2007] 2 F.L.R. 1051. Cf. Magill v Magill [2005] HCA 51, 231 A.L.R. 277; but the
principle in McFarlane v Tayside Health Board [2000] 2 A.C. 59 (para.24–15, below)
blocks any claim for expenditure on the maintenance of the child even though the cause
of action is different.
4
Ch.18.
5
[1990] 2 A.C. 605, para.5–9, above.
6
See para.5–34, above.
7
[2006] EWCA Civ 1299; [2007] P.I.Q.R. P7.
8
White v Jones, para.5–37, above.
9
[2005] EWHC 2866 (QB).
Deceit 523
1. DECEIT
Since Pasley v Freeman12 in 1789, it has been the rule that A is 11–2
liable in tort to B if he knowingly or recklessly (i.e. not caring
whether it is true or false) makes a false statement to B with intent
that it shall be acted upon by B, who does act upon it and thereby
suffers damage. This is the tort of deceit (or ‘‘fraud’’), and for
liability in deceit the defendant must make the statement with
knowledge of its falsity or at least reckless whether it is true or
false.13 It was for long thought that this meant that there could be no
liability in tort for a false statement honestly made, however negli-
gent its maker may have been and however disastrous its conse-
quences: a careless person is not a dishonest one. Eventually
10
A duty to the patient is undeniable and it must be pointed out that in these cases the
potential liability would be many millions of pounds.
11
See para.5–40, above.
12
(1789) 3 T.R. 51.
13
Derry v Peek (1889) 14 App.Cas. 337. In one instance, the law allows (but does not
compel) the making of a false statement: Rehabilitation of Offenders Act 1974 s.4(2).
524 Liability for Statements
however, the House of Lords held that there may in certain circum-
stances be a duty of care upon the maker of a statement,14 and thus
that a person may be liable for a false statement honestly but
negligently made. Such liability cannot be brought under the tort of
deceit—it is liability for negligence and not for fraud—but its
existence has a profound bearing on liability for statements as a
whole. If there may be liability in negligence it may be of little more
than academic interest that absence of fraudulent intent is fatal to a
claim founded on deceit. Nevertheless, the tort has not been abol-
ished (indeed it seems to be arising with greater frequency) and the
claimant may have good reason for seeking to establish a case of
deceit (for example, there is no need to establish a duty based on a
special relationship,15 it may enable him to avoid a disclaimer which
would otherwise be valid,16 his claim cannot be met by an allegation
of contributory negligence17 and the rules on damages will be more
favourable to him18). However, a case based on deceit should not be
advanced without clear instructions and credible material to support
it19 and it must be unequivocally pleaded20 and distinctly proved,21
for fraud is inherently less likely than negligence.22 Summary judg-
ment is now in principle available in a case of deceit23 but is rather
unlikely in practice.
2. ESSENTIALS OF DECEIT
11–3 The five things that the claimant has to establish in a common law
action of deceit may be summarised as follows24:
14
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465. See, too, the
Misrepresentation Act 1967 s.2.
15
Noel v Poland [2001] B.C.L.C 645 at [48.
16
It should be noted that ‘‘fraud’’ is sometimes used in equity in a broader sense than the
common law tort of deceit: see Armitage v Nurse [1998] Ch. 241.
17
See para.6–44, above.
18
See para.11–14, below. Oddly, however, the effect of Royscott Trust v Rogerson [1991] 2
Q.B. 297 is to apply the deceit rule on damages to the statutory cause of action under the
Misrepresentation Act 1967 s.2(1).
19
Though not necessarily admissible evidence at the pleading stage: Medcalf v Weatherill
[2002] UKHL 27; [2003] 1 A.C. 120.
20
‘‘Knew or ought to have known’’ is not taken as two alternative allegations, the first of
which imputes fraud: Armitage v Nurse, above, fn.16, at 257.
21
Hornal v Neuberger Products Ltd [1957] 1 Q.B. 247.
22
H (Minors), Re [1996] A.C. 563 at 586, but on principle it would not seem necessary for
the claimant to establish damage to the same elevated standard: G.E. Commercial Finance
Ltd v Gee [2005] EWHC 2056 (QB) at [122].
23
CPR 24.
24
There is no general liability for ‘‘fraud’’ in the sense of dishonesty unless it amounts to the
tort of deceit or to equitable fraud. Amalgamated Metal Trading Ltd v D.T.I., The Times,
March 21, 1989. However, a principal may recover damages for ‘‘fraud’’ in respect of a
transaction into which his agent is bribed (Mahesan v Malaysia Government Officers’
Co-operative Housing Society [1979] A.C. 374) although there will not usually be any
representation to the principal. This has been described as, ‘‘not . . . deceit, but a special
form of fraud’’: Petrotrade Inc v Smith [2001] 1 Lloyd’s Rep. 486 at 490. The Fraud Act
Essentials of Deceit 525
2006 for the first time create a general criminal offence of fraud, replacing a number of
offences of obtaining by deception. Tort and crime overlap here but they are not identical
in their requirements.
25
The damage is the gist of the action: Smith v Chadwick (1884) 9 App. Cas. 187 at 196 per
Lord Blackburn; Briess v Woolley [1954] A.C. 332. See Renault UK v Fleetpro Technical
Services Ltd [2007] EWHC 2541 (QB).
26
Ward v Hobbs (1878) 4 App. Cas. 13 at 16 per Lord O’Hagan; Bradford Building Society
v Borders [1942] 1 All E.R. 205 at 211 per Lord Maugham; Advanced Industrial
Technology Corp Ltd v Bond Street Jewellers Ltd [2006] EWCA Civ 923. For a criminal
case, see R. v Barnard (1837) 7 C. & P. 784.
27
Gordon v Selico (1984) 275 E.G. 899. But there is a difference between the concealing of
a serious defect and doing minor acts to make a property more attractive to a
purchaser.
28
Bradford Building Society v Borders, above, fn.26, at [1942] 1 All E.R. 205 at 211 per
Lord Maugham, citing Peek v Gurney (1873) L.R. 6 H.L. 377 at 390 per Lord Chelmsford,
at 403 per Lord Cairns. Cf. the rule in s.551 of the Restatement 2d.
526 Liability for Statements
If, then, I make a promise believing that I shall fulfil it, the reason
that I am not liable for deceit if I do not fulfil it is not that my
promise was not a statement of fact but that the statement of fact
involved in the promise was true.30 If at the time I made it I had no
intention of fulfilling my promise, I may be liable for deceit. So in
Edgington v Fitzmaurice31 directors of a company were held liable
for deceit in procuring the public to subscribe for debentures by
falsely stating in a prospectus that the loan secured by the deben-
tures was for the purpose of completing buildings of the company,
purchasing horses and vans and developing the trade of the com-
pany; in fact the directors intended to use it for paying off pressing
liabilities.32
purposes of deceit provided at least that the parties are not on equal
footing with respect to knowledge of the law or to general intelli-
gence.35 A great many statements which we should not hesitate to
describe as statements of fact involve inferences from legal rules36
and the distinction between law and fact is by no means as precise
as might at first appear. So, in West London Commercial Bank Ltd v
Kitson,37 where directors of a company, knowing that the private
Act of Parliament which incorporated the company gave them no
legal power to accept bills of exchange, nevertheless represented to
the claimant that they had such authority there was held to have been
deceit:
41
One professional lawyer would not normally act in a professional capacity in reliance upon
another’s statement of law in an adversarial situation. Statements made in connexion with
judicial proceedings may anyway fall within the different principle of witness immunity:
Walsh v Sprecher Grier Halberstam LLP [2008] EWCA Civ 1324.
42
See above. In Ward v Hobbs (1878) 4 App. Cas. 13, a failure to warn of a dangerous defect
in goods sold was not deceit, though the result may have turned on the fact that the sale
was ‘‘with all faults’’. Cf. Mummery L.J. in Hamble Fisheries Ltd v L. Gardner & Sons
Ltd [1999] 2 Lloyd’s Rep. 1 at 9. But now it might amount to negligence: Hurley v Dyke
[1979] R.T.R. 265.
43
Peek v Gurney (1873) L.R. 6 H.L. 377 at 403 per Lord Cairns. ‘‘Half the truth will
sometimes amount to a real falsehood’’: at 392 per Lord Chelmsford. Arkwright v Newbold
(1881) 17 Ch.D. 301 at 317–318; Briess v Woolley [1955] A.C. 333. ‘‘A cocktail of truth,
falsity and evasion is a more powerful instrument of deception than undiluted falsehood’’:
Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997]
A.C. 254 at 274 per Lord Steyn.
44
Legh v Legh (1930) 143 L.T. 151 at 152 per MacKinnon L.J.
45
Brownlie v Campbell (1880) 5 App. Cas. 925 at 950; Conlon v Simms [2006] EWCA Civ
1749; [2008] 1 W.L.R. 484 at [130]. For the criminal law see s.3 of the Fraud Act
2006.
Essentials of Deceit 529
51
Slough Estates Plc v Welwyn Hatfield DC [1996] 2 P.L.R. 50.
52
(1870) L.R. 10 Eq. 73.
53
Briess v Woolley [1954] A.C. 333 at 353 per Lord Tucker.
54
(1889) 14 App. Cas. 337.
55
‘‘A man may be said to know a fact when once he has been told it and pigeonholed it
somewhere in his brain where it is more or less accessible in case of need. In another sense
of the word a man knows a fact only when he is fully conscious of it. For an action of
deceit there must be knowledge in the narrower sense and conscious knowledge of falsity
must always amount to wickedness and dishonesty’’: Armstrong v Strain [1951] 1 T.L.R.
856 at 871 per Devlin J. For recklessness, see Angus v Clifford [1891] 2 Ch. 449 at 471
per Bowen L.J.; Derry v Peek (1889) 14 App. Cas. 337 at 371 per Lord Herschell.
Essentials of Deceit 531
C. Intent
The statement must be made with intent that the claimant shall act 11–11
upon it. So long as that is satisfied, it need not be made to him either
56
At 14 App. Cas. 374. ‘‘Recklessness’’ in the third situation is a species of dishonest
knowledge: AIC Ltd v ITS Testing Services (UK) Ltd [2006] EWCA Civ 1601; [2007] 1
Lloyd’s Rep 555 at [257].
57
However, the word ‘‘dishonest’’ is frequently used in the civil cases. It should be
understood as simply meaning knowledge or recklessness as to untruth.
58
Society of Lloyd’s v Jaffray [2002] EWCA Civ 1101 at [66].
59
Standard Chartered Bank v Pakistan National Shipping Corp [2000] 1 Lloyd’s Rep. 218
(on appeal on other issues, [2002] UKHL 43, [2003] 1 A.C. 959); Brown Jenkinson & Co
Ltd v Percy Dalton (London) Ltd [1957] 2 Q.B. 621.
60
G.E. Commercial Finance Ltd v Gee [2005] EWHC 2056 (QB); [2006] 1 Lloyd’s Rep 337.
However, if there is the requisite state of mind the fact that a person purports to speak on
behalf of a company does not insulate him from personal liability: para.24–23, below.
532 Liability for Statements
61
It has been held that a fraudulent misrepresentation may be made to a machine acting on
behalf of the claimant, rather than to an individual, if the machine was set up to process
certain information in a particular way in which it would not process information about the
material transaction if the correct information were given: Renault UK v Fleetpro Techni-
cal Services Ltd [2007] EWHC 2541 (QB).
62
(1837) 2 M. & W. 519 4 M. & W. 337. See Clerk & Lindsell, Torts, 19th edn,
para.18–29.
63
Abu Dhabi Investment Co v H. Clarkson & Co [2008] EWCA Civ 699.
64
Peek v Gurney (1873) L.R. 6 H.L. 377. But the statutory remedy under the Financial
Services and Markets Act 2000 s.90, is not so limited. As to the position in common law
negligence, see para.11–25, below. The question of to whom it was contemplated the false
statement would be communicated is one of fact and if A makes a false statement to B with
the intention that C will hear of it and act upon it, he cannot escape liability by telling B
that it is for B’s private use only: Commercial Banking Co of Sydney Ltd v R.H. Brown &
Co [1972] 2 Lloyd’s Rep. 360.
65
Andrews v Mockford [1896] 1 Q.B. 372.
66
Polhill v Walter (1832) 3 B. & Ad. 114; Edgington v Fitzmaurice (1885) 29 Ch.D. 459 at
482; Brown Jenkinson & Co Ltd v Percy Dalton (London) Ltd [1957] 2 Q.B. 621.
67
It has been held in Australia that there may be fraud even though the victim is aware to
some extent of the untruth of the statement, so long as he is not aware of the full extent
of the untruth: Gipps v Gipps [1978] 1 N.S.W.L.R. 454.
68
Downs v Chappell [1997] 1 W.L.R. 426.
69
For this purpose the knowledge of the claimant’s agent is not to be imputed to the
claimant, e.g. where a house-agent acting for the claimant knew that a prospective tenant
of the claimant’s house was a woman of immoral character, but the claimant was unaware
of this: Wells v Smith [1914] 3 K.B. 722. However, it is pointed out in Spencer, Bower &
Essentials of Deceit 533
Turner, Actionable Misrepresentation, 3rd edn, p.216, that the rule can hardly be applied
in this unqualified form to a corporation.
70
It is sometimes said that there is no actionable deceit when the defect in what is sold is so
obvious that any sensible purchaser would have discovered the untruth of the representa-
tion upon inspection (see Prosser & Keeton, Torts, 5th edn, p.750). It is doubtful if the
English cases support such a proposition as a rule of law, as opposed to a common sense
matter of evidence pointing to the conclusion that the claimant was not in fact misled.
71
Standard Chartered Bank v Pakistan National Shipping Corp (Nos 2 and 4) [2002] UKHL
43; [2003] 1 A.C. 959. See para.6–44, above.
72
(1867) L.R. 2 H.L. 99.
73
So too, Dobell v Stevens (1825) 3 B. & C. 623.
74
S. Pearson & Son Ltd v Dublin Corp [1907] A.C. 351 at 360 per Lord Ashbourne; Cf.
Diamond v Bank of London & Montreal [1979] Q.B. 333 at 347.
75
Edgington v Fitzmaurice (1885) 29 Ch.D. 459.
76
J.E.B. Fasteners Ltd v Marks Bloom & Co [1983] 1 All E.R. 583 at 589 per Stephenson
L.J.
77
In the sense that one should not allow the fraudster to say ‘‘you would still have acted in
the same way’’, but there is no reason why the claimant should not be allowed to prove that
he would have acted differently as cogent evidence of inducement: Parabola Investments
Ltd v Browallia Cal Ltd [2009] EWHC 901 (Comm).
78
Downs v Chappell [1997] 1 W.L.R. 426; Smith v Kay (1859) 7 H.L. Cas. 750 at 759. See
also Bristol and West B.S. v Mothew [1998] Ch. 1 (negligent misrepresentation, but see
Hagen v I.C.I. [2002] I.R.L.R. 31).
534 Liability for Statements
79
Smith v Chadwick (1884) 9 App. Cas. 187 at 201 per Lord Blackburn; Arkwright v
Newbold (1881) 17 Ch.D. 301 at 324 per Cotton L.J.; AIC Ltd v ITS Testing Services (UK)
Ltd [2006] EWCA Civ 1601; [2007] 1 Lloyd’s Rep 555 at [253].
80
Angus v Clifford [1891] 2 Ch. 449 at 472 per Bowen L.J.; Smith v Chadwick (1892) 20
Ch.D. 27 at 79 per Lindley L.J.; Gross v Lewis Hillman Ltd [1970] Ch. 445.
81
Akerhielm v De Mare [1959] A.C. 789 at 805 per Lord Jenkins. This proposition is subject
to the limitation that the meaning placed by the defendant on the representation may be so
far removed from the sense in which it would be understood by any reasonable person as
to make it impossible to hold that the defendant honestly understood the representation to
bear the meaning claimed by him and honestly believed it in that sense to be true; Henry
Ansbacher & Co Ltd v Brinks Stern, The Times, June 26, 1997. Note that where liability
for a negligent, as distinct from a fraudulent, misstatement is in issue, the important
question concerns the sense in which the claimant, not the defendant, understood it: W.B.
Anderson & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All E.R. 850 at 855–856 per
Cairns J.
82
(1884) 9 App. Cas. 187.
Essentials of Deceit 535
lost his action. On the question of the actual meaning of the state-
ment, the court was evenly divided, but there is no doubt that if an
allegation is deliberately put forth in an ambiguous form with the
design of catching the claimant on that meaning of it which makes
it false, it is fraudulent and indeed is aggravated by a shabby attempt
to get the benefit of a fraud without incurring the responsibility.83
E. Damage
The damage which the claimant must prove that he has suffered 11–14
in consequence of acting upon the statement will usually be financial
but it may consist of personal injury84 or mental distress85 or
damage to property; and it has also been held that loss of possession
of a regulated tenancy under the Rent Acts, even without actual
financial loss, will suffice.86
In principle the claimant is entitled, so far as money can do it, to
be put into the position in which he would have been if the fraudu-
lent statement had not been made and the defendant must make
reparation for all the actual losses which flow from his deceit. The
rule thus differs from that governing the damages recoverable for
breach of contract87 in that the claimant cannot recover the gains he
would have made from that transaction (his expectation loss). He
may recover for the loss of opportunity to lay out his money in other,
more profitable ways which he is unable to pursue as a result of the
tort,88 but a decision that he may recover on the basis of what his
deal with the defendant would have been had the latter told him the
truth seems almost to elide the difference between the two measures
of damages.89 Where the claimant has been induced to buy property
by a fraudulent representation the normal assessment of damages is
the difference between the price he paid and the real value of the
property, but this is only a method of giving effect to the overriding
83
(1884) 9 App. Cas. 187 at 201 per Lord Blackburn.
84
Langridge v Levy (1837) 2 M. & W. 519 (1838) 4 M. & W. 337; Burrows v Rhodes [1899]
1 Q.B. 816. See also Graham v Saville [1945] 2 D.L.R. 489; Beaulne v Ricketts (1979) 96
D.L.R. (3d) 550 (bigamy); Allan v Ellis & Co [1990] 11 E.G. 78 (misdescription in survey
causative of claimant’s subsequent fall); Banks v Cox [2002] EWHC 2166 (Ch)
(depression).
85
Shelley v Paddock [1979] Q.B. 120, affirmed [1980] Q.B. 348; Saunders v Edwards [1987]
1 W.L.R. 1116; A v B [2007] EWHC 1246 (QB); [2007] 2 F.L.R. 1051; Kinch v Rosling
[2009] EWHC 286 (QB). In F. v Wirral MBC [1991] Fam. 69 it is suggested that deceit
leading to loss of parental ‘‘rights’’ could be actionable.
86
Mafo v Adams [1979] 1 Q.B. 548.
87
McConnel v Wright [1903] 1 Ch. 546 at 554–555 per Collins M.R.
88
East v Maurer [1991] 1 W.L.R. 461; 4Eng Ltd v Harper [2008] EWHC 915; [2009] Ch 91.
The claimant does not need to identify a specific alternative transaction: Parabola Invest-
ments Ltd v Browallia Cal Ltd [2009] EWHC 901 (Comm), affirmed [2010] EWCA Civ
486.
89
Clef Aquitaine S.A.R.L. v Laporte Materials (Barrow) Ltd [2001] Q.B. 488.
536 Liability for Statements
90
Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997]
A.C. 254 at 284.
91
Peek v Derry (1887) 37 Ch. D. 541 at 591 (reversed on a different point (1889) 14 App.
Cas. 337). For an extreme application of this in a case of innocent misrepresentation, see
Naughton v O’Callaghan [1990] 3 All E.R. 991, though quaere whether it is consistent
with Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] A.C. 191.
92
See para.6–29, above.
93
Doyle v Olby (Ironmongers) Ltd [1969] 2 Q.B. 158; Smith New Court, above, fn.90.
94
Above, fn.90.
95
In fact the HL said that the correct figure was the rather larger loss produced by the
difference between the price paid and sums actually realised by their sale. However, C
asked only for restoration of the trial decision. Note that if C had been able to rescind the
contract he would have recovered the price in exchange for the shares and the quantum of
loss would have been irrelevant. A claim to rescind seems to have been abandoned because
the shares had been sold, but Lord Browne-Wilkinson was of the tentative opinion that C
might have rescinded by tendering an equivalent quantity of other Ferranti shares.
96
Lord Browne-Wilkinson at [1997] A.C. 267.
97
Cockburn C.J.’s example in Twycross v Grant (1877) 2 C.P.D. 469 at 544–545. See also
MAN Nutzfahrzeuge A.G. v Freightliner Ltd [2005] EWHC 2347 (Comm) at [242] (‘‘bad
apple’’ financial controller within acquired company, on appeal on other issues [2007]
EWCA Civ 910; [2008] P.N.L.R. 6).
Essentials of Deceit 537
to the fraud) from which it dies.98 It may be, however, that the
fraudster bears the risk of subsequent general falls in the market
where, by the nature of the transaction, the claimant will be ‘‘locked
into’’ the property99 or where it is acquired with the intention of
retaining it. In Banque Bruxelles Lambert SA v Eagle Star Insurance
Co Ltd100 the House of Lords held that a negligent valuer did not
bear this risk because his liability was confined to the consequences
of the information which he gave being wrong, but the position in a
case of fraud, where the law looks to the consequences of the
transaction, was left open.101
The claimant must, of course, give credit for any benefit he may 11–15
have received from the transaction into which he entered as a result
of the deceit, provided it may fairly be said to be causally related to
the transaction.102 Further, the law:
‘‘[S]trict though it is, still requires the plaintiff to mitigate his loss
once he is aware of the fraud. So long as he is not aware of the
fraud, no question of a duty to mitigate can arise. But once the
fraud has been discovered, if the plaintiff is not locked into the
asset and the fraud has ceased to operate on his mind, a failure to
take reasonable steps to sell the property may constitute a failure
to mitigate his loss requiring him to bring the value of the
property into account as at the date when he discovered the fraud
or shortly thereafter.’’103
98
The other example in Twycross v Grant, approved by Lord Steyn in Smith New Court. Both
he and Cockburn C.J. plainly thought that D would be liable for the difference between the
price paid and the ‘‘true’’ value, but should D be liable at all in such a case? Has the
supervening event prevented his fraud having damaging effect? The view that D is liable
for the difference between the price paid and the true value can of course be defended by
reference to a mechanical rule based on assessment of damages at the time of the sale but
such a rule is rejected in Smith New Court. Naughton v O’Callaghan, above, fn.91, is a
difficult case. The horse ‘‘as was’’ would have been worth, at the time of sale, a very large
proportion of the price paid. Its value fell sharply because it turned out not to be a winner;
but there was no evidence that it would have been a winner ‘‘as represented’’.
99
As where he lends money on an over-valued security.
100
[1997] A.C. 191, para.6–27, above.
101
In Downs v Chappell [1997] 1 W.L.R. 426, Hobhouse L.J. in a case of fraud applied what
seems to be essentially the negligence principle and Lord Steyn (and perhaps Lord
Browne-Wilkinson) in Smith New Court said that this was wrong. May J. in Slough Estates
Plc v Welwyn Hatfield DC [1996] 2 P.L.R. 50 imposed liability in deceit for losses
attributable to a general fall in the market. ‘‘A windfall is an unexpected piece of good
fortune. The expression does not necessarily imply that it is undeserved. Damages may be
undeserved as a windfall if they amount to or include sums which the injured plaintiff
ought not in fairness to receive. If, as I conceive, the policy of the law is to transfer the
whole foreseeable risk of a transaction induced by fraud to the fraudulent defendant, and
if, as I conceive, the court does not speculate what, if any, different transaction the plaintiff
might have done if the fraudulent representation had not been made, damages on this basis
are not to be regarded as a windfall, but the proper application of the policy of the
law.’’
102
Cf. Hussey v Eels [1990] 2 Q.B. 227 (not a case of fraud).
103
Smith New Court [1997] A.C. 254 per Lord Browne-Wilkinson.
538 Liability for Statements
11–16 Derry v Peek settled that liability for deceit is liability for fraudulent
and not for careless statements, but for many years the case was
treated as authority for more than that, for the House of Lords was
taken to have held that there could be no tortious liability of any
kind for a misstatement so long only as it was not fraudulent.108
However, the House itself in Nocton v Lord Ashburton109 in 1914
pointed out that Derry v Peek had not ruled out every form of
liability (independent of statute) but that for fraud. Not only would
there be liability in contract110 but it could exist in equity as well, for
a fiduciary relationship, such as that of solicitor and client, although
based upon loyalty, could in certain circumstances lead to equitable
compensation for advice which was not ‘‘dishonest’’ in the common
law sense. Fifty years later, in Hedley Byrne & Co Ltd v Heller &
Partners Ltd,111 the House was able to rely on Nocton v Lord
Ashburton as showing that Derry v Peek governed only liability for
deceit so that they were not precluded from holding that a tortious
duty of care in making statements might exist. In the period between
these cases it was also recognised that there could be liability for
physical damage caused by a misleading statement.112 Many cases
which are primarily thought of in terms of acts also contain elements
of misstatement: no harm would have come to the pursuer in
Donoghue v Stevenson, for example, if there had been no implied
representation that the ginger beer was fit for human consumption.
104
As to exemplary damages, see para.22–8, below.
105
Doyle v Olby (Ironmongers) Ltd [1969] 2 Q.B. 158; Downs v Chappell [1997] 1 W.L.R.
426. In Hornal v Neuberger Products Ltd [1957] 1 Q.B. 247, the claimant was induced to
buy a lathe by a fraudulent representation that it was fit for immediate use. Although it was
worth what he paid for it, he was put to seven weeks delay in preparing it for use and
recovered damages for this delay.
106
See, e.g. Mullett v Mason (1866) L.R. 1 C.P. 559; Nicholls v Taylor [1939] V.L.R. 119.
107
Witting, Liability for Negligent Misstatement (2004).
108
However, the year after Derry v Peek, Parliament imposed liability for false statements in
prospectuses by the Directors Liability Act 1890.
109
[1914] A.C. 932.
110
Which sometimes led to the artificial finding of contracts: De La Bere v Pearson [1908]
1 K.B. 280.
111
[1964] A.C. 465.
112
See, e.g. Watson v Buckley, Osborne, Garrett & Co Ltd [1940] 1 All E.R. 174; Devillez v
Boots Pure Drug Co (1962) 106 S.J. 552. See also Clayton v Woodman & Son (Builders)
Ltd [1962] 2 Q.B. 533 (reversed on the facts [1962] 1 W.L.R. 585) and The Apollo [1891]
A.C. 499.
Liability for Negligent Misstatement 539
Indeed, in some cases the distinction between word and deed is for
all practical purposes nonexistent. Quite apart from contract, a
doctor is as much liable for negligently advising his patient to take
a certain drug as he is for negligently injecting the drug himself.
However, in Hedley Byrne the loss was unquestionably pecuniary or
economic.
The facts of Hedley Byrne were that the claimants, who were
advertising agents, were anxious to know whether they could safely
give credit to a company, Easipower, on whose behalf they had
entered into various advertising contracts, and they therefore sought
bankers’ references about Easipower. For this purpose the claim-
ants’ bankers approached the defendants, who were Easipower’s
bankers, and on two occasions the defendants gave favourable
references. These were passed on to the claimants by their bankers
and, although the defendants did not know who the claimants were
and had in fact marked their communications to the claimants’
bankers ‘‘Confidential. For your private use . . . ’’, they did know
the inquiry was made in connection with an advertising contract.
They must also have known that the references were to be passed on
to a customer.113 In reliance on these references the claimants
incurred expenditure on Easipower’s behalf and, when Easipower
went into liquidation, they suffered substantial loss. This loss they
sought to recover from the defendants in an action based upon the
defendants’ alleged negligence in giving favourable references con-
cerning Easipower. At first instance McNair J. held that the defen-
dants owed no duty to the claimants, and this decision was affirmed
in the Court of Appeal114 both on the ground that the case was
covered by authority and also on the ground that it would not be
reasonable to impose upon a banker an obligation to exercise care
when informing a third party of the credit-worthiness of his client.
In the House of Lords the decision in favour of the defendants was
affirmed, but none of their Lordships based his decision on a general
rule of non-liability for negligent misstatement. On the contrary,
Lords Reid, Devlin and Pearce held that, assuming the defendants to
have been negligent, the only reason for exonerating them was that
the references had been given ‘‘without responsibility’’.115 Lord
Hodson and, perhaps, Lord Morris considered that even without this
denial of responsibility there was no duty of care on the facts, but
nevertheless agreed that a duty of care in making statements was a
legal possibility.116
113
[1964] A.C. 465 at 482, 503.
114
[1962] 1 Q.B. 396.
115
See para.11–30, below.
116
See, too, Royal Bank Trust Co (Trinidad) Ltd v Pampellone [1987] 1 Lloyd’s Rep. 218,
which also provoked a difference of opinion as to whether a duty was owed on the
facts.
540 Liability for Statements
A. A Special Relationship
11–17 We have seen that Hedley Byrne has been regarded as the progen-
itor of the principle of ‘‘assumption of responsibility’’, which has
now been extended beyond liability for statements. In that broader
context the decision has really become part of the background to the
House of Lords cases in the 1990s concerning services to be per-
formed for the claimant or a third party.117 However, we are now
concerned with Hedley Byrne in the particular context of statements
and advice and it should not be assumed that all cases based upon
assumption of responsibility have common characteristics: for
example, in the situations dealt with in this section it is always
necessary that the claimant should have relied on the statement,
whereas reliance is not always necessary in the broader
context.118
It is clear from Hedley Byrne that for a duty of care to arise in
respect of speech or writing, something more is required than in the
straightforward case of physical damage caused by an act where,
generally speaking, foreseeability of harm will be sufficient. This is
very largely because a statement is likely to cause economic loss
rather than physical harm and the risk of crushing liability is exacer-
bated by the fact that information is likely to be disseminated among
a large number of persons even if it was originally addressed only to
a small group. In some activities, for example auditing or financial
advice, the potential liability is so great that it is beyond the capacity
of the insurance market.119 Their Lordships in Hedley Byrne were in
general agreement that Donoghue v Stevenson had little, if any,
direct bearing on the problem of negligent misstatement and that a
duty of care would exist in relation to statements only if there is a
‘‘special relationship’’ between the parties, a relationship (to use the
currently fashionable terminology) of close ‘‘proximity’’. Indeed,
Lord Devlin spoke in terms of a relationship ‘‘equivalent to con-
tract’’120 and in a later case where liability was imposed on a valuer
engaged by a mortgagee for loss incurred by the mortgagor as a
result of a negligent report, the relationship between the valuer and
mortgagor was described as ‘‘akin to contract’’.121 While expressly
disclaiming any intention to lay down conditions which were either
conclusive or exclusive, Lord Oliver in Caparo Plc v Dickman122
117
See para.5–34, above.
118
See para.5–37, above.
119
See para.5–14, above.
120
[1964] A.C. at p.530. Lord Devlin’s formulation does not, however, mean that the
defendant must have intended to make a contract: McInerny v Lloyd’s Bank Ltd [1973] 2
Lloyd’s Rep. 389 at 400 (on appeal [1974] 1 Lloyd’s Rep. 246).
121
Smith v Eric S. Bush [1990] 1 A.C. 831 at 846 per Lord Templeman. However, the
situation here was different: the recipient had paid for the advice but he had paid a third
party, who was the direct recipient.
122
[1990] 2 A.C. 605 at 638.
Liability for Negligent Misstatement 541
B. Professional Advisers
There is a view that liability is further restricted to professional 11–18
advisers or those claiming equivalent skills. This is based on the
majority view in the Privy Council in Mutual Life and Citizens’
Assurance Co Ltd v Evatt.124 The claimant, a policyholder in the
defendant company, sought advice from it as to the financial sound-
ness of another company, ‘‘Palmer’’, with which it was closely
associated. The information he was given was incorrect and he lost
his money. It was held by the majority that the omission from the
claimant’s declaration of any allegation that the defendant was in the
business of supplying information or advice or had claimed to
possess the necessary skill to do so was fatal. However, the broader
approach of the minority that:
123
See Patchett v Swimming Pool and Allied Trades Association Ltd [2009] EWCA Civ 717
(trade association website; advice to seek further information). Cf. HSBC Bank Plc v So
[2009] EWCA Civ 296 (no reason to investigate matter where other party had made
unqualified statement about matter within its own knowledge.
124
[1971] A.C. 793. The appeal was on the defendants’ demurrer to the claimant’s declaration
in accordance with the old form of procedure then still current in New South Wales.
125
[1971] A.C. 793 at 812 per Lords Reid and Morris.
542 Liability for Statements
C. Voluntariness
11–19 There is a clear thread running through Hedley Byrne that the duty
arises from an ‘‘undertaking’’, express or implied, to use due care, a
voluntary assumption of responsibility, but it is plain that these
expressions should not be understood as requiring any actual or
subjective acceptance of legal liability by the defendant. In Smith v
Eric S. Bush, Lord Griffiths said that:
does not give rise to any duty of care.146 Further, it is no doubt the
case, as has been held in Australia, that it would normally be
unreasonable for a property developer to rely upon a city develop-
ment plan as an assurance that the level of development specified
therein was feasible and that therefore there was no assumption of
141
Harris v Evans [1998] 1 W.L.R. 1285. In fact the case involved not advice but the making
of a prohibition notice, which brought into play the statutory appeal process. In Welton v
North Cornwall DC [1997] 1 W.L.R. 570, where the defendants’ environmental health
officer imposed wholly excessive hygiene requirements upon the claimants’ guest house,
the claim was described as ‘‘well within’’ Hedley Byrne and ‘‘incontrovertible’’. The court
in Harris was able to distinguish Welton because there the ‘‘advice’’ was directly given to
the claimant, whereas in Harris the officer caused the local authority to impose the
prohibition notice, but it clearly had doubts about Welton.
142
Glanzer v Shepherd 135 N.E. 275 (1922).
143
Ministry of Housing and Local Government v Sharp [1970] 2 Q.B. 223.
144
See para.9–33, above.
145
King v North Cornwall DC, February 8, 1995, CA, where, however, the authority’s
response amounted to no more than a statement that an inspection had been made.
146
Haddow v Secretary of State for the Environment [2000] Env L.R. 212; Tidman v Reading
BC [1994] E.G.C.S. 180; Fashion Brokers Ltd v Clarke Hayes [2000] Lloyd’s Rep. P.N.
398. See also R. v Customs and Excise, Ex p. F & I Services Ltd [2000] S.T.C. 364 (VAT
advice).
Liability for Negligent Misstatement 545
153
See below.
154
Holt v Payne Skillington (1995) 49 Con LR 99 (where, however, there was no sufficient
pleaded case).
155
J. Nunes Diamonds Ltd v Dominion Electric Co (1972) 26 D.L.R. (3d) 699. Though not
a Hedley Byrne case, Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] A.C.
80 is another example of the principle (para.1–9, above). It may not be easy to discern the
distinction between (1) a duty going beyond the contract and (2) a duty inconsistent with
the contract. The first category is plainly not confined to matters which have nothing to do
with the subject matter of the contract (e.g. being knocked down by the careless driving
of your accountant).
156
See White v Jones [1995] 2 A.C. 207.
157
Smith v Eric S. Bush [1990] A.C. 831.
158
See the dissenting judgment of Denning L.J. (which was approved in Hedley Byrne) in
Candler v Crane Christmas & Co [1951] 2 K.B. 164; Morgan Crucible v Hill Samuel Bank
Ltd [1991] Ch. 295; Electra Private Equity Partners v K.P.M.G. Peat Marwick [2001]
B.C.L.C. 589.
159
As in Pacific Associates Inc v Baxter [1990] 1 Q.B. 993 and Galliford Try Infrastructure
Ltd v Mott MacDonald Ltd [2008] EWHC 1570 (TCC). But there is certainly no rule that
the fact that the parties have arranged their relationships so that there is no direct
contractual link precludes a duty of care: Henderson v Merrett Syndicates Ltd [1995] 2
A.C. 181; Riyad Bank v Ahli United Bank (UK) [2006] EWCA Civ 780; [2006] 2 Lloyd’s
Rep 292.
160
Smith v Eric S. Bush, above, fn.157. In McCullagh v Lane Fox & Partners Ltd [1996] 1
E.G.L.R. 35 the estate agent was at the time of the statement entitled to assume that the
buyer would take independent advice.
161
James McNaughton Paper Group Ltd v Hicks Anderson & Co [1991] 2 Q.B. 295 (draft
accounts requested as quickly as possible for use in negotiation; buyers aware of poor state
of client’s affairs).
Liability for Negligent Misstatement 547
F. Agents
The statement may be made by the agent of one party to a 11–22
transaction, in the sense of representing that party in the matter. The
principal will incur liability for what the agent says if that is within
the scope of his authority (and, depending on the terms of any
contract between the agent and the principal) the principal will in
turn have recourse against the agent, but the question of the agent’s
personal liability in tort to the recipient of the statement164 may
arise, for example if the principal is insolvent. In Williams v Natural
Life Health Foods Ltd165 the House of Lords held that a director of
a company did not owe a duty of care to its customers merely
because he worked on the fulfilment of the contract which they
made with the company—there must be something in his conduct to
justify a finding of assumption of personal responsibility. However,
it was never doubted in earlier cases that a valuer was (in theory)
personally liable to the house buyer whose intended house he
surveyed and in Merrett v Babb166 the Court of Appeal held that this
was so, notwithstanding Williams,167 even though the house buyer
had never had any communication with him and his employer was
insolvent and uninsured.168 On the other hand, in Gran Gelato Ltd
v Richcliff (Group) Ltd169 (which was not referred to in Merrett)
Nicholls V.C. declined to impose a duty of care upon the vendor’s
solicitor in answering inquiries before contract because the vendor’s
liability for the acts of his agent done on his behalf was a reasonable
162
Lord Goff in Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 181
163
Electra Private Equity Partners v K.P.M.G. Peat Marwick [2001] B.C.L.C. 589; Bank of
Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No.2) [1998]
PNLR 564. However, if the assumption of responsibility is clear such questions may tend
to answer themselves: Customs and Excise Commrs v Barclays Bank [2006] UKHL 28;
[2007] 1 A.C. 181 at [85].
164
The agent will generally not be party to any contract with the recipient. Nor will the agent
incur a personal liability under the Misrepresentation Act 1967 s.2(1): Resolute Maritime
v Nippon Karji Kyokai [1983] 1 W.L.R. 857.
165
[1998] 1 W.L.R. 830. See para.24–23, below.
166
[2001] EWCA Civ 214; [2001] Q.B. 1174. See also McCullagh v Lane Fox & Partners Ltd
[1996] 1 E.G.L.R. 35.
167
Which May L.J. at [45] regarded as turning on the fact that it involved a director.
168
The trustees in bankruptcy had cancelled the principal’s insurance without run-off cover.
Did they owe a duty of care to the valuer?
169
[1992] Ch. 560.
548 Liability for Statements
and sufficient legal protection for the purchaser, even though that
liability would become worthless in the event of the vendor’s
insolvency, which seems difficult to reconcile with Merrett. What
was being done in Gran Gelato was not concerned with an adversar-
ial matter, where there is no doubt that one should deny a duty of
care in the agent to the third party,170 but on the other hand it cannot
be described as a merely ministerial act. Perhaps the case represents
a general rule only for solicitors who are doing no more than
representing their clients in conveyancing transactions171 or transac-
tions of a similar nature. Certainly it does not rule out the possibility
that even in such a transaction there may be facts to support a direct
assumption of responsibility172; and in Dean v Allin & Watts173 the
Court of Appeal held that a solicitor acting for a borrower on a loan
transaction owed a duty of care to the lender to create the effective
security which was fundamental to the transaction and which the
borrower was willing to grant to the lender.
G. Failure to Speak
11–23 Failure to speak raises the same issues as omissions generally in
the law of negligence and misrepresentation. There is no general
duty to volunteer information for the protection of others, even
between contracting parties,174 and even where there is a duty to
disclose, that primarily relates to the avoidance of the contract,
though it seems that in a suitable case there may be damages for
deceit.175 However, everything turns on the responsibility which the
defendant has assumed towards the claimant: if, as is clear, D may
be liable for an omission if he has undertaken the management of
C’s affairs,176 there is no reason why he should not be equally liable
if he fails to perform an undertaking to warn C of hazards or
170
See the position of lawyers in connection with litigation, para.5–60, above. See also
Sulzinger v C.K. Alexander Ltd (1971) 24 D.L.R. 137 (insurance adjuster) and Huxford v
Stoy Hayward, The Times, January 11, 1989 (person advising on appointment of receiver;
no duty to company’s guarantors).
171
The view of Hobhouse L.J. in McCullagh v Lane Fox & Partners Ltd, above. See also
Lord Goff in White v Jones [1995] 2 A.C. 207 at 256, though the point was not in issue
there.
172
See the approval of Allied Finance and Investments Ltd v Haddow [1983] N.Z.L.R. 22 at
[1992] Ch. 571.
173
[2001] EWCA Civ 758; [2001] 2 Lloyd’s Rep 249; cited with approval by Lord Bingham
in Customs and Excise Commrs v Barclays Bank Plc [2006] UKHL 28; [2007] 1 A.C. 181
at [22]. Cf. Brownie Wills v Shrimpton [1998] 2 N.Z.L.R. 320.
174
Still less on the part of those who play no active part in the transaction: Bentley v Wright
[1997] V.R. 175. The relationship between banker and customer is not fiduciary and in the
absence of some positive assumption of responsibility the bank does not owe a duty to
advise the customer on the wisdom of a transaction in respect of which he seeks a loan:
Williams & Glyns Bank Ltd v Barnes [1981] Com. L.R. 205; Murphy v HSBC Plc [2004]
EWHC 467 (Ch).
175
See para.11–8, above.
176
Henderson v Merrett Syndicates [1995] 2 A.C. 145 at 181.
Liability for Negligent Misstatement 549
177
Holt v Payne Skillington (1995) 49 Con. L.R. 99 (no duty on facts). Cf. Van Oppen v
Bedford School [1989] 1 All E.R. 273 and Reid v Rush & Tompkins Group Plc [1990] 1
W.L.R. 212 where, despite an existing relationship, there was no implied undertaking to
advise about insurance and Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986]
A.C. 80 (no duty to check bank statements to check against fraud). In Hamble Fisheries
Ltd v L. Gardiner & Sons Ltd [1999] 2 Lloyd’s Rep. 1 there was no relationship at all,
simply the fact that C owned an engine made by D’s predecessor. Cf. Andrew Weir
Shipping Ltd v Wartsila UK Ltd [2004] EWHC 1284 (Comm), [2004] 2 Lloyd’s Rep
377.
178
In McCullagh v Lane Fox & Partners Ltd [1996] 1 E.G.L.R. 35 D was not under a duty
when the statement was made because he expected C to verify the postion. Before C acted
upon it, it became clear that he would not be doing so. Sir Christopher Slade (Nourse L.J.
concurring) held that D was not liable unless he had knowledge of C’s reliance at that time
(which he did) and of the untruth of the statement (which he did not). Contra, Hobhouse
L.J.
179
IFE Fund SA v Goldman Sachs International [2007] EWCA Civ 811; [2007] 2 Lloyds Rep
449.
180
No doubt the sort of situation the courts have had in mind is that of a claimant ‘‘cadging’’
free advice from a professional person at a party. However, if, say, an investment adviser
were officiously to seek out someone in such a situation and suggest the purchase of
particular shares, the ‘‘social occasion’’ factor might not help him.
181
[1989] 1 W.L.R. 29.
182
[1978] Q.B. 574.
550 Liability for Statements
as far as the common law was concerned, two members of the court
were of the view that, given the impromptu, ‘‘off the cuff’’ circum-
stances of the response, the defendant’s only duty was to give an
honest answer.183
The fear of imposing an unreasonably onerous duty in respect of
responses to comparatively informal inquiries may, in the alter-
native, be met by manipulation of the standard of care required. If it
is unreasonable to expect a banker answering a query about a
customer to spend time and trouble in searching records and so on,
then a duty to take such care as is reasonable in all the circumstances
of the case does not require him to do so. The duty of care is not a
duty to take every possible care still less is it a duty to be right.
Similarly, a surveyor conducting a valuation for mortgage purposes
is not expected to go to the lengths required in an expensive
structural survey; but if his inspection reveals grounds for suspicion
he must take reasonable steps to follow the trail, even though he is
working to a standard fee-he must ‘‘take the rough with the smooth’’
or decline to proceed.184
183
See also Titan Steel Wheels Ltd v Royal Bank of Scotland Plc [2010] EWHC 211 (Comm)
(mere sales conversation). There was a difference of opinion in Hedley Byrne as to the
outcome of the case in the absence of the disclaimer. See also the disclaimer in Royal Trust
Co (Trinidad) Ltd v Pampellone [1987] 1 Lloyd’s Rep. 218 (where, even though there was
no duty to consider the advisability of the claimant’s investment, there was, it seems, a
duty to convey accurately the information the defendants held).
184
Roberts v J. Hampson & Co [1990] 1 W.L.R. 94; Smith v Eric S. Bush [1990] 2 A.C. 831.
Cf. Cross v Davis Martin & Mortimer [1989] 10 E.G. 110.
185
Lord Reid (at 482) and Lord Morris (at 493) regarded it as sufficient that it was obvious
that the inquiry was being made by someone thinking of doing business with Easipower,
but the later cases suggest that some more specific knowledge of the nature of the
transaction is necessary.
186
[1990] 2 A.C. 605. See also the decisions of the High Court of Australia in Esanda
Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 C.L.R. 241 and the Supreme
Court of Canada in Hercules Management Ltd v Ernst & Young (1997) 146 D.L.R. (4th)
577.
Liability for Negligent Misstatement 551
187
On the policy factors, see para.5–11, above. The majority of the CA ([1989] Q.B. 653),
though accepting the arbitariness of the result, would have allowed existing shareholders
to sue in respect of further acquisitions. The HL did not decide whether shareholders who,
in reliance on an under-valuation, sold existing holdings could sue, but since the basis of
the decision is that any duty is owed to the shareholders as a whole it is thought the answer
should be ‘‘No.’’ So also where a shareholder sues for diminution in value of retained
shares because of loss of opportunity to ‘‘turn the company round’’. The purpose of the
audit is still to inform the collective process of management, not to protect individual
holdings: Hercules Managements Ltd v Ernst & Young (1997) 146 D.L.R. (4th) 577.
188
However, ss.534 to 538 of the Companies Act 2006 now allows auditors to enter into a fair
and reasonable agreement for limitation of liability with the audited company. In June
2008 the European Commission issued a recommendation on limiting liability of auditors
(2008/473/EC). However, one of optional methods proposed is via limitation
agreements.
189
According to The Independent, March 26, 1991, further proceedings by the audited
company in Caparo were contemplated on the basis that the company had suffered damage
by becoming part of a group that had paid too much for it!
190
Al Saudi Banque v Clarke Pixley [1990] Ch. 313, approved in Caparo. Cf. R. Lowe
Lippmann Figdor & Franck v A.G.C. (Advances) Ltd [1992] 2 V.R. 671. Similarly (though
it was a case of reliance by a third party) in South Pacific Mfg. Co v NZ Consultants &
Investigations [1992] 2 N.Z.L.R. 282 it was held that even if an insurer’s investigator
could owe a duty to the insured he would not do so to a creditor or shareholder of the
insured.
552 Liability for Statements
191
See para.24–22, below.
192
[2009] UKHL 39; [2009] 3 W.L.R. 455.
193
Lord Mance at [228]. His Lordship’s powerful dissent is based on the claimed incon-
sistency of the majority view with some elementary principles of company law and denies
that recovery by the company would be inconsistent with Caparo because the loss of the
company and the creditors are not the same, though there may be an overlap.
194
[2000] 1 W.L.R. 1921. Cf. Stringer v Peat Marwick Mitchell & Co [2000] 1 N.Z.L.R. 450;
but a claim by a person who provides a bond to the audited firm for the fulfilment of its
duties to the regulatory body would be, ‘‘at or near the margin of existing decisions’’:
Independents’ Advantage Insurance Co Ltd v Cook [2003] EWCA Civ 1103; [2004]
P.N.L.R. 3.
195
Cf. also Royal Bank of Scotland v Bannerman Johnstone Maclay [2005] CSIH 39; [2005]
P.N.L.R. 43 (overdraft facility supplied by C; business plan prepared by D; monthly
management accounts and annual accounts audited by D required by C; duty of care
arguable).
Liability for Negligent Misstatement 553
struck out, for the purpose of the prospectus was to invite participa-
tion in the rights issue, not market dealings in the shares.205 None-
theless, market practices (and hence reasonable expectations) may
change and it may be that Al Nakib represents too narrow a view in
modern conditions. In Possfund Custodian Trustee Ltd v Dia-
mond206 the claimants proposed to produce expert evidence that the
current perception of the function of a prospectus in the unlisted
securities market was that it was intended to influence after-market
purchases as well as applications for allotment and Lightman J.
accordingly held that the issue of liability was arguable and could
only be determined at trial. This was so even though the statutory
liability in this area, which extends to after-market purchasers as
well as allottees, applied only to listed securities.207 Another exam-
ple of a refusal to strike out208 is Morgan Crucible Co Plc v Hill
Samuel Bank Ltd209 where the claimants were bidders for FCE and
the defendants had issued profit forecasts in circulars to shareholders
in FCE advising them to reject the bid.210 Although this was the
primary or immediate purpose of the circulars it would be unrealistic
in the normal take-over situation to deny that the circulars were also
intended to persuade the bidders to increase the amount of their
bid211 and this was, arguably, another purpose of the circulars.212
11–27 If the reliance by the claimant takes place outside the relevant
purpose, the defendant’s knowledge of the reliance is irrelevant: it
would have made no difference in Caparo if at the time of the audit
a partner in the defendant firm had been aware, as a result of a
conversation in the pub, that his next-door neighbour was interested
in acquiring Fidelity shares. At the opposite extreme, a bidder for a
company may extract from the auditors a warranty that the accounts
are an accurate view of the company’s financial health, in which
205
The result is the same as in the deceit case of Peek v Gurney (1873) L.R. 6 H.L. 377. See
also Denning L.J. in Candler v Crane Christmas [1951] 2 K.B. 164 at 183: ‘‘for the
guidance of the very person in the very transaction in question.’’
206
[1996] 1 W.L.R. 1351.
207
For the somewhat complicated statutory background see [1996] 1 W.L.R. 1351 at 1359.
208
It would of course be wrong to treat refusals to strike out as decisions in favour of liability
and such cases are often compromised without a trial. Note, however, that from the
defendant’s point of view failure on a striking-out application is a serious matter because
he has to prepare for trial. Courts are now even more reluctant to strike out: see para.5–3,
above.
209
[1991] Ch. 295.
210
The claim was brought against (1) the directors of FCE, who had issued the circulars, (2)
a merchant bank, FCE’s advisers, and (3) FCE’s auditors. The claims against (2) and (3)
were allowed to go to trial, even though they were at one step removed from those against
the directors.
211
In which the circulars were successful. An increased bid was made and a further circular
recommended acceptance. The action was brought after the claimants had acquired FCE
and, so they alleged, discovered the forecasts to have been exaggerated.
212
At first instance Hoffmann J. had referred to ‘‘the knowledge, intention and purposes’’ of
the parties as ‘‘an impoverished set of concepts’’ to determine the issue of duty. The CA
said it was not sure what he meant by this.
Liability for Negligent Misstatement 555
‘‘[H]old that the auditors assumed responsibility for the use which
a dishonest employee of the audited company might make of the
accounts in the context of the parent company’s negotiations for
the sale of the company would . . . be to impose on them a
liability greater than they could reasonably have thought they
were undertaking.’’217
217
[2007] EWCA Civ 910; [2008] P.N.L.R. 6 at [56].
218
This was, after all, essentially the position in Hedley Byrne.
219
The point was left undecided in Omega Trust Co Ltd v Wright Son & Pepper (1997) 75 P.
& C.R. 57 since the case turned on the disclaimer, but Henry L.J.’s judgment seems
sympathetic to this submission.
220
In Smith v Carter 1995 S.L.T. 295 the point is made that it is not uncommon for one person
to instruct a report as the undisclosed agent of others whose interest in a property
transaction might not be fully known at the early stages.
221
Machin v Adams (1997) 59 Con. L.R. 14. The majority held that there was no duty. Why,
precisely, is not clear, perhaps because he might believe that the purchaser had his own
expert (though the contract—unfulfilled in this respect and unknown to the architect
—between vendor and purchaser had provided for the appointment of a joint
architect!).
Liability for Negligent Misstatement 557
J. Physical Damage
Liability for physical damage is plainly much wider than for 11–28
economic loss. Nevertheless, some intriguing questions remain to be
explored by the courts on the extent of liability for physical damage
caused by negligent misstatements. Cases like Caparo effectively
block liability for economic loss caused by generally published
information. However, in Candler v Crane Christmas & Co Den-
ning L.J. gave his opinion that a marine hydrographer would not be
liable for omitting a reef and causing the wreck of an ocean liner.224
Though the matter has not been much discussed here, cases in other
jurisdictions seem not to have adopted a blanket rejection of liability
in all cases arising from generally published material225 and it would
seem unreasonable to deny liability where, say, a handbook on
222
Cf. Restatement, 2d, s.552, ‘‘or in a substantially similar transaction’’. In J.E.B. Fasteners
Ltd v Marks, Bloom & Co [1981] 3 All E.R. 289 it was held that a duty was owed by
accountants to a person whom they believed might be approached by the company for
financial support even though in fact he effected a takeover rather than making a loan. The
claim failed for lack of causative reliance (on appeal [1983] 1 All E.R. 583). It was said
in Caparo that the case might have been correctly decided on its facts and it seems that the
accountants had in fact been aware of developments right up to the acquisition.
223
Gooden v Northamptonshire CC [2001] EWCA Civ 1744 (where there was a difference of
opinion on what the authority ought to have foreseen).
224
[1951] 2 K.B. 164 at 182. Lord Brown appears to have agreed in Sutradhar v National
Environmental Research Council [2006] UKHL 33; [2006] 4 All E.R. 490.
225
In the Willemstad (1976) 136 C.L.R. 529 producers of a navigation plotting chart were held
liable at first instance. There was no appeal on the issue of duty by these defendants. In
Brocklesby v US 767 F.2d 1288 (C9,1985) the publisher of an inaccurate instrument
approach chart for aircraft was held liable on strict product liability and negligence
theories.
558 Liability for Statements
K. Immunity
11–29 As with any other head of negligence, there may be reasons of
public policy which prevent a duty of care arising. Hedley Byrne has
not affected the immunity from suit of a judge227 but there is no
reason for extending that immunity to a person appointed as a
valuer228 or to an architect granting certificates of completion of
work under a building contract229: there is a difference between the
judicial function and a duty to act fairly. Although there was some
doubt about the position of an arbitrator at common law, s.29 of the
Arbitration Act 1996 provides that:
L. Disclaimer of Responsibility
11–30 It must not be overlooked that, in the result, judgment in Hedley
Byrne went to the defendants and this, at least in the opinion of the
majority, was because they had supplied the information ‘‘without
responsibility’’.230 In effect, therefore, the liability created by the
House of Lords would exist only if the defendant has been too
careless of his own interests or too proud to protect himself by such
a declaration or was unable for some reason (such as professional
conduct rules) to do so. However, this situation was radically altered
by the Unfair Contract Terms Act 1977.231 By s.2(2) of the Act, a
person cannot by means of any contract term or notice restrict his
liability for loss or damage other than personal injury232 caused by
negligence in the course of a business unless he shows that the term
or notice is reasonable and s.1(1)(b) defines ‘‘negligence’’ as includ-
ing the breach of any common law duty to take reasonable care or
226
See the decision of a French court on such facts cited by Whittaker, ‘‘European Product
Liability and Intellectual Products’’ (1989) 105 L.Q.R. 125. On instructions accompanying
products, see para.10–5, above.
227
See para.24–8, below. A sequestrator, though an officer of the court, is not immune from
suit: I.R.C. v Hoogstraten [1985] Q.B. 1007.
228
Arenson v Casson Beckman Rutley & Co [1977] A.C. 405.
229
Sutcliffe v Thackrah [1974] A.C. 727.
230
Lord Hodson and, perhaps, Lord Morris would have reached the same conclusion even in
the absence of the disclaimer.
231
The Unfair Terms in Consumer Contracts Regulations 1999 apply only to a ‘‘term in a
contract’’. They might be relevant where liability was being asserted concurrently in
contract and tort.
232
Personal injury is governed by s.2(1), which is still more onerous on the defendant.
Liability for Negligent Misstatement 559
233
Smith v Eric S. Bush [1990] 1 A.C. 831; but cf. Nourse L.J. in First National Commercial
Bank v Loxleys [1997] P.N.L.R. 211.
234
IFE Fund SA v Goldman Sachs International [2007] EWCA Civ 811; [2007] 2 Lloyds Rep
449.
235
Note, however, that the disclaimer will commonly be a ‘‘notice’’ rather than a ‘‘contract
term’’ and by s.11(3): ‘‘in relation to a notice . . . the requirement of reasonableness . . .
is that it should be fair and reasonable to allow reliance on it, having regard to all
circumstances obtaining when the liability arose or (but for the notice) would have arisen.’’
Cf. s.11(1), in relation to contract terms, which fixes the point of time as that when the
contract was made.
236
Smith v Eric S. Bush, above, fn.233.
237
Omega Trust Co Ltd v Wright Son & Pepper [1997] 75 P. & C.R. 57.
238
McCullagh v Lane Fox & Partners Ltd [1996] 1 E.G.L.R. 35; and see Bank of Scotland
v Fuller Peiser 2002 S.L.T. 574 (survey commissioned by purchaser of hotel; disclaimer
reasonable against lending bank). Note that under the Property Misdescriptions Act 1991
an estate agent may incur criminal liability, subject to a defence of due diligence, for false
or misleading statements about property; but this does not give rise to civil liability:
s.1(4).
239
H.I.H. Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6;
[2003] 2 Lloyd’s Rep. 61.
560 Liability for Statements
240
This was the view of the CA in H.I.H. Casualty and General Insurance Ltd v Chase
Manhattan Bank [2001] EWCA Civ 1250; [2001] 2 Lloyd’s Rep. 483. However, the HL
did not have to decide the point since the clause did not cover such a situation. It is
probably ‘‘extraordinarily unlikely’’ that parties to a contract will agree such a term, ‘‘with
sufficient clarity to raise squarely the question of whether it should be lawful to do so’’:
Lord Hoffmann [2003] UKHL 6; [2003] 2 Lloyd’s Rep. 61 at [81]. Cf. Frans Maas (UK)
Ltd v Samsung Electronics (UK) Ltd [2004] EWHC 1502 (Comm); [2004] 2 Lloyd’s Rep.
251 (wilful wrongdoing of servants in performance of contract).
241
See the judgment of Hobhouse L.J. in McCullagh v Lane Fox & Partners Ltd [1996] 1
E.G.L.R. 35.
242
See below.
243
This is perhaps supported by McCullagh v Lane Fox & Partners Ltd, above, fn.241,
though the point there was different, there being no duty at the time the statement was
made and the disclaimer being made before it became known that the statement would be
acted on without verification.
244
See para.5–37, above.
245
So also where there is a statement about C to X, X must act in reliance on it in relation to
C: Spring v Guardian Assurance [1995] 2 A.C. 296. A case which falls within neither
pattern is Wildgust v Norwich Union [2006] IESC 19; [2006] 1 I.R. 570. C has a policy
with D on the life of X, assigned to Y as security for a loan; because of industrial action
a premium is missed. Y becomes aware of this but is told incorrectly by D that C has paid.
X dies and D refuses to pay C on the lapsed policy. Liable to C.
Liability for Negligent Misstatement 561
its policies. The trial judge held that while the claimant had certainly
been guilty of incompetence he had not been dishonest and that the
sources in G who had supplied information to the compiler of the
reference had failed to exercise reasonable care, although they were
not malicious.262 There was some dispute as to whether the claim-
ant’s status was that of employee or independent contractor but
nothing was thought to turn upon that and for convenience the
judgments were largely couched in terms of the former status.263
The words were plainly defamatory but the provision of a reference
at the request of a prospective employer is the classic occasion of
qualified privilege264 and the finding of lack of malice was therefore
fatal to the claimant’s libel claim, as it was to the alternative claim
for malicious falsehood. However, a majority of the House of
Lords265 held that if causation of loss could be established266 the
claimant had a cause of action in negligence. The argument (which
had convinced the Court of Appeal) that the imposition of liability
for negligence would subvert the protection which the law of defa-
mation had deliberately cast around referees was rejected by the
House of Lords because there were significant differences between
the two heads of liability: on the one hand, negligence required
proof of fault and damage; on the other, an inaccurate statement
might be damaging without being defamatory, in that it reflected on
a person’s suitability for employment without being defamatory of
him.267 It was, of course, accepted that the introduction into this area
of liability for negligence would significantly affect for the worse
the position of the referee, but this was said to be a necessary change
in the law in view of developments in the relationship between
employer and employee.
262
The above is a somewhat simplified account, since the reference was in fact compiled by
an employee of GRE, the parent company of G, on the basis of information supplied by
other employees of GRE and an employee of A (which was itself two associated com-
panies) but this was treated as the responsibility of G. Lord Goff did not think GRE were
under any duty of care to the claimant but the other members of the majority treated all
four companies as one unit.
263
See, e.g. [1995] 2 A.C. at 340 and at 341.
264
See para.12–46, below.
265
Lord Keith dissenting.
266
For which purpose the case had to be remitted to the Court of Appeal.
267
e.g. that a student got a lower class of degree than was in fact the case.
564 Liability for Statements
11–34 The duty extends to not making misleading (as opposed to simply
untrue) statements269 but does not extend to an obligation to write a
‘‘full’’ reference.270 The majority of the judges in Spring were of the
view that there would be a parallel liability based on the (termi-
nated) contract between the former employer and the claimant.271
As far as the tort liability is concerned, there is some difference in
the reasoning employed: Lord Goff’s speech rests primarily upon
the principle of assumption of responsibility, but the other members
of the minority base their reasoning upon the general tripartite
approach to the duty of care in Caparo v Dickman.272 Looked at as
a case of assumption of responsibility, the decision may be said to
stand between Hedley Byrne273 and the fullest extension of the
principle in White v Jones.274 In the latter case there was no reliance
at all by the claimants. In Spring the direct reliance on the statement
was by the new employer who rejected the claimant but there is
commonly an element of reliance by the claimant, who will have
asked for the reference or will at least know that it is likely to be
given. It seems, however, that there would be liability in such a case
even if the claimant is entirely unaware that the reference is being
written.275
11–35 It is clear from the case that because a former employer is liable
to the subject of a reference it by no means follows that the same
applies to a reference written by a social acquaintance.276 The
speeches concentrate very heavily upon the ‘‘reference situation’’
and emphasise the close degree of proximity between the parties and
it therefore seems most unlikely that the law will be developed so as
to create liability for damaging but non-malicious and non-defama-
tory statements which are published generally (for example that a
268
[1995] 2 A.C. at 346 per Lord Woolf. Similar reasoning applies to malicious falsehood,
which is wider than defamation in that the statement need not be defamatory, but it still
requires malice.
269
Bartholomew v Hackney LBC [1999] I.R.L.R. 246.
270
Kidd v Axa Equity and Law [2000] I.R.L.R. 301.
271
There is some discussion in the case of whether there could be a duty on the employer to
provide a reference (as opposed to taking care when he does provide one).
272
See para.5–9, above.
273
This was also, of course, a case about a reference but it involved liability to the recipient,
not to the subject.
274
See para.5–37, above.
275
Cf. Wade v State of Victoria [1999] 1 V.R. 121. However, Spring may not be the law in
Australia: Cornwall v Rowan [2004] SASC 384; 90 S.A.S.R. 269.
276
[1995] 2 A.C. 296 at 319, 336, 345.
Injury to Persons not Relying on the Statement 565
company has ceased to trade or that its sales are lower than in fact
they are).277 However, there are obvious relationships which are as
‘‘proximate’’ as those of referee and subject.278 Consider, for exam-
ple, the case of a doctor who is commissioned by an insurer to report
on the health of a proposer or by an employer on the health of a
prospective employee. Both cases seem very similar to the case of
a reference, save that they are carried out under contract with a
person other than the claimant.279 However, in X v Bedfordshire
CC,280 Lord Browne-Wilkinson, in rejecting the argument that a
social worker and psychiatrist investigating a case of suspected child
abuse owed a duty of care to the child said:
the child, though still not to the parents.284 Secondly, the denial of
duty in X v Bedfordshire rested primarily upon the view that a duty
of care would cut across and interfere with the statutory framework
of child care, a matter which is hardly relevant to the case of the
insurance company or the employer’s doctor.285 Thirdly, it has since
been held in Phelps v Hillingdon London Borough Council286 that
where an educational psychologist was asked to assess a child in
circumstances where it was clear that others would act on the
assessment, a duty of care was owed to the child despite the fact that
the psychologist had been engaged to report to the education author-
ity. ‘‘The duty to the pupil would march hand in hand with the
professional’s responsibilities to his own employer.’’287 It is hard to
see why the same could not be said of the insurer’s or employer’s
doctor.288
284
D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151; [2004] Q.B. 558 and
[2005] UKHL 23; [2005] 2 A.C. 373, para.5–53, above.
285
A case where denial of a duty seems amply justified on policy grounds is Mortensen v
Laing (sub nom. South Pacific Manufacturing Co v New Zealand Security Consultants &
Investigations) [1992] 2 N.Z.L.R. 282 (insurer’s claims investigator owed no duty to the
insured in respect of the investigation report, which led to the insured suffering a
conviction—subsequently set aside—for arson; to impose a duty would not only cut across
the law of qualified privilege in respect of defamation—not in itself enough after Spring
—but would also provide a means of bypassing the law of malicious prosecution, the
absolute privilege which might attach to the investigator’s report as prepared with a view
to potential litigation between his client and the insured and the procedural privilege of the
insurer to produce the report in such litigation. In any event, the insured still had his claim
on the contract against the insurer).
286
[2001] 2 A.C. 619.
287
[2001] 2 A.C. at 666 per Lord Nicholls.
288
In Farah v British Airways, The Times, January 26, 2000, the CA, referring to Spring,
declined to strike out a claim alleging that a Home Office immigration liaison officer
negligently and wrongly advised an airline that the claimants did not have the required
documentation to obtain access to this country, with the result that they lost their
flights.
CHAPTER 12
567
568 Defamation, Privacy and Related Matters
12–1 MOST legal systems confer some protection on the related interests
of reputation, dignity and privacy, though this may be via the
criminal law.1 In England libel,2 one of the two forms of defamation,
was a common law crime, though for many years it was almost
moribund and quite eclipsed in practical importance by tort liability.
The crime was abolished by s.73(b) of the Coroners and Justice Act
2009.3 Until almost the end of the 20th century the emphasis of the
law was very much on the protection of reputation and there was
certainly no general wrong of invasion of privacy. Technically that
is still so but the wrong of misuse of private information, having
grown out of the law of breach of confidence, comes very close to
being a general privacy tort. There have always been restrictions on
obtaining an injunction against the publication of defamatory mate-
rial so the almost exclusive remedy is damages awarded after the
event. Reputation is rarely an asset in respect of which damage can
be calculated in financial terms (indeed, evidence of actual financial
loss is rarely given) but damages in defamation cases may be
substantial,4 no doubt because awards reflect juries’5 ideas of the
value of dignity and honour as well as reputation strictly so called.
There is a more powerful flavour of punishment and deterrence in
1
Students of conflicts of laws will recall that Machado v Fontes [1897] 2 Q.B. 231 arose
because the Brazilian law of defamation was criminal only. The criminal law plays a
significant role in the protection of reputation in a number of European countries and many
cases coming before the European Court of Human Rights in this area have arisen from
criminal prosecutions.
2
i.e. a statement damaging reputation couched in a permanent form: see para.12–4, below.
Slander (e.g. spoken words) was not criminal on the same basis.
3
However, there are a number of statutory crimes penalising statements likely to cause
disorder or hatred. These are not founded on protection of reputation but may be applicable
where formerly there would have been an offence of defamatory libel.
4
Though not so high as they were a few years ago: below, para.12–71.
5
Trial by jury is still the ‘‘default’’ mode of trial for defamation, though a quite high
proportion of cases now seem to be heard by judge alone.
Defamation, Privacy and Related Matters 569
defamation than one commonly finds in the law of torts. Even where
a claim for defamation fails the claimant may have a remedy under
some other part of the law, most particularly the law of negligence6
and the law of malicious falsehood7 but in these torts damages
follow more conventional lines and are not recoverable for injury to
reputation as such. There is more scope for obtaining an injunction
to restrain disclosure of private information but where damages are
sought after the event they have some similarities with damages for
defamation in that, for example, they are much concerned with
assuaging the claimant’s hurt feelings (though overall they are
lower).
11
Gatley, Libel and Slander, 11th edn; Duncan and Neill, Defamation, 3rd edn; Carter-Ruck,
Libel and Privacy, 6th edn; Price, Defamation, 4th edn. The law of defamation rests mainly
upon the common law, but there are important statutes, notably the Defamation Acts of
1952 and 1996.
12
The main reason being that Parliament, in dealing with broadcasting in the Defamation Act
1952, took this as the test at common law: ‘‘shall be deemed to be publication in a
permanent form’’.
13
Cook v Cox (1814) 3 M. & S. 110 at 114.
14
These example show that it is only broadly true to say that libel is addressed to the eye,
slander to the ear.
Defamation: Definition and Elements 571
That, of course, does not deal with the position where there is
nothing defamatory in the visual part of the film, but it is submitted
that that case, too, should be libel: the distinction between libel and
slander is anachronistic (indeed over-ripe for abolition) and fine
distinctions should not be encouraged. Other borderline cases which
should also, it is submitted, be libel are the playing of a video tape,18
or a record or audio tape or disc,19 or the calling up of defamatory
material on a computer screen or its distribution on the Internet.20
Obviously if an oral utterance is communicated to a person it is a
slander which is published and if a written statement is shown it is
libel, but an oral statement by A may be written down by D and
shown by D to B. In that case D publishes a libel. No doubt A’s
original uttering of the words to D was slander, but the communica-
tion to B is not by word of mouth.21 Conversely, if A writes to D
15
Broadcasting Act 1990 s.166, replacing a similar provision in the Defamation Act 1952.
For a consideration of television broadcasting in the absence of any statutory provision, see
Wainer v Rippon [1981] V.R. 129.
16
Theatres Act 1968 s.4. This does not apply to performances given on domestic occasions
in private dwellings: s.7.
17
Slesser L.J. (1934) 50 T.L.R. 581 at 587.
18
The only difference between this and a film is that the image cannot be viewed in any way
unless the tape is played in a machine.
19
Winfield thought, however, that playing a record should be slander on the ground that
although the matter was embodied in a permanent form, its publication was transient and
appealed to the ear. In practice of course most publications of defamatory sound recordings
giving rise to complaint will be in broadcasts. Is it libel or slander when defamatory
material is imparted to a parrot and it repeats it? See Chicken v Ham, Herbert, Uncommon
Law, p.75.
20
Although there have now been a number of defamation cases about the Internet here, in the
United States and the Commonwealth it has not been necessary to pay much attention to
the libel/slander issue. A purely aural Internet transmission was held slander in Mickelberg
v 6 P.R. Southern Cross Radio Pty Ltd [2001] WASC 150. On the Internet in general see
Collins, Law of Defamation and the Internet, 2nd edn.
21
On liability for repetition see below, para.12–24.
572 Defamation, Privacy and Related Matters
22
Forrester v Tyrrell (1893) 9 T.L.R. 257; Robinson v Chambers [1946] N.I. 148. In Osborne
v Boulter [1930] 2 K.B. 226 Scrutton and Slesser L.JJ. were of the view that reading back
a dictated statement in the presence of a third party was slander; contra Greer L.J.
Forrester v Tyrrell was not cited.
23
It may of course be a publication on a privileged occasion: below, para.12–52.
24
Eglantine Inn Ltd v Smith [1948] N.I. 29 at 33. Compare the situation where a third party
is present, the situation with which the dicta in Osborne v Boulter are concerned.
25
Bower, Actionable Defamation, 2nd edn, art.13. See, too, Bowen L.J. in Ratcliffe v Evans
[1892] 2 Q.B. 524. For other meanings of the phrase see Jolowicz in [1960] C.L.J. 214.
26
Roberts v Roberts (1864) 5 B. & S. 384; Davies v Solomon (1871) L.R. 7 Q.B. 112.
27
Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] Q.B. 946.
Defamation: Definition and Elements 573
28
Jameel at [69]. For a strong example where the accusation, made only to two people, was
of terrorism, see Noorani v Calver [2009] EWHC 561 (QB).
29
Vicars v Wilcocks (1806) 8 East 1.
30
(1861) 9 H.L.C. 597.
31
(1861) 9 H.L.C. 597 at 600.
32
See also Bowen v Hall (1881) 6 Q.B.D. 333.
33
Allsop v Allsop (1865) 5 H. & N. 534.
34
In Wheeler v Somerfield [1966] 2 Q.B. 94 it was said that there was no known case of a
libel claimant recovering damages for injury to health, but in libel, unlike slander, mere
worry and distress is a proper element of damages.
574 Defamation, Privacy and Related Matters
12–6 ii. Exceptional cases of slander actionable per se. There are
four exceptional cases in which slander is actionable without proof
of special damage. Three of them stem from the common law and
may have originated in the idea that the nature of the allegation
made damage so likely that it should be presumed.
Had it not been for the intervention of the legislature in the case of
broadcasting the distinction would probably have become an
absurdity. The Faulks Committee recommended in 197555 that the
distinction should be abolished and fears that this might lead to a
flood of petty actions for spoken words appear not to be borne out
by experience in other parts of the world.56
B. What is Defamatory
12–11 As we shall see, truth is normally a complete defence to an action
for defamation57 but this is separate from the question of whether
the statement is defamatory, which looks solely to the effect of the
statement upon the claimant’s reputation. Thus the statement ‘‘C is
50
Allegations of sexual harassment would now seem to be likely to fall into this category:
Houston v Smith, The Times, October 26, 1991 (news report).
51
New Zealand, the Australian states and most Canadian provinces. Ireland moved to this
position by s.6 of the Defamation Act 2009. The distinction does not exist in Scots law,
though the expressions ‘‘libel’’ and ‘‘slander’’ are in common use there.
52
e.g. by providing that all cases of slander are actionable per se.
53
Thorley v Kerry (1812) 4 Taunt. 355. See earlier editions of this book and for detail see
Holdsworth in (1924) 40 L.Q.R. 302 and (1925) 41 L.Q.R. 13; Kaye, ‘‘Libel and
Slander—Two Torts or One?’’ (1975) 91 L.Q.R. 524.
54
Thorley v Kerry (1812) 4 Taunt. 355 at 364.
55
Cmnd. 5909, Ch.2.
56
However, some jurisdictions which have abolished the distinction have a special provision
allowing the court to dismiss a trivial case.
57
Below, para.12–26.
Defamation: Definition and Elements 577
58
Parmiter v Coupland (1840) 6 M. & W. 105.
59
Words which expose to ridicule are defamatory even if none of the other tests is satisfied:
Berkoff v Burchill [1996] 4 All E.R. 1008. Compare Norman v Future Publishing Ltd
[1999] E.M.L.R. 325 (poking gentle fun).
60
Drummond-Jackson v BMA [1970] 1 W.L.R. 691 at 700.
61
Sim v Stretch (1936) 52 T.L.R. 669 per Lord Atkin.
62
Youssoupoff v MGM (1934) 50 T.L.R. 581 at 584 per Scrutton L.J.
63
(1934) 50 T.L.R. 581.
64
An alternative interpretation of the film was that she was seduced.
65
It has been said that the result would have been the same in New South Wales in 1986:
Krahe v T.C.N. Channel Nine News (1986) 4 N.S.W.L.R. 536 at 546. Cf. LNS v Persons
Unknown [2010] EWHC 119 (QB), para.12–87, below.
66
Mount Cook Group v Johnstone Motors Ltd [1990] 2 N.Z.L.R. 488. See also Clark v
Express Newspapers [2004] EWHC 481 (QB) (politician ‘‘ratted’’ on manifesto
promise).
67
For examples see Turner v MGM Pictures Ltd [1950] 2 All E.R. 449; Angell v H.H. Bushell
& Co Ltd [1968] 1 Q.B. 813; Drummond-Jackson v BMA [1970] 1 W.L.R. 688.
578 Defamation, Privacy and Related Matters
68
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, 235 A.L.R. 402.
69
See below, para.12–72.
70
Ratcliffe v Evans [1892] 2 Q.B. 524.
71
See Sungravure Pty Ltd v Middle East Airlines (1978) 5 A.L.R. 147 (not defamatory at
common law to say that an airline, without any fault on its part, was peculiarly susceptible
to hijacking); Dawson Bloodstock Agency v Mirror Newspapers [1979] 2 N.S.W.L.R. 733
(not defamatory to say stud farm had closed because of virus).
72
Hough v London Express Newspaper [1940] 2 K.B. 507 at 515. In Morgan v Odhams
Press Ltd [1971] 1 W.L.R. 1239 at 1246 Lord Reid referred to this as a proposition so
obvious that no one had had the hardihood to dispute it, but in modern practice such a
claim must be at risk of being struck out as an abuse of process: para.12–5, above.
73
Sim v Stretch (1936) 52 T.L.R. 669.
74
See Quilty v Windsor [1999] S.L.T. 346 and for Australia, John Fairfax Publications Pty
Ltd v Rivkin [2003] HCA 50; 201 A.L.R. 77 at [140].
Defamation: Definition and Elements 579
75
The Times, April 13, 1926.
76
Lewis v Daily Telegraph Ltd [1964] A.C. 234 at 258 per Lord Reid.
77
Charleston v News Group Newspapers Ltd [1995] 2 A.C. 65. The position would be
different if the antidote was in a place where the reader would be unlikely to find it, but
Charleston is strongly criticised by Kirby J. in Chakravarti v Advertiser Newspaper [1998]
HCA 37 at [134]; (1998) 193 C.L.R. 519. He said that, ‘‘it ignores the realities of the way
in which ordinary people receive, and are intended to receive, communications of this
kind. It ignores changes in media technology and presentation.’’
78
In Arab News Network v Jihad Al Khazen [2001] EWCA Civ 118 Keene L.J. said at [30]
that, ‘‘we are today a much more diverse society than in the past and that the reputation
of a person within his own racial or religious community may be damaged by a statement
which would not be regarded as damaging by society at large. This is an issue which may
need to be addressed at some stage in the future.’’
79
Leetham v Rank (1912) 57 Sol. Jo. 111; Myroft v Sleight (1921) 90 L.J.K.B. 883.
80
Compare Peck v Tribune Co 214 U.S. 185 (1909). It is defamatory of a Muslim to say that
he has insulted the Prophet because the reasonable man disapproves of any insult to
religious beliefs: Shah v Akram (1981) 79 L.S. Gaz. 814.
580 Defamation, Privacy and Related Matters
81
Byrne v Deane [1937] 1 K.B. 818. In Mawe v Piggott (1869) L.R. 4 C.L. 54 the potential
consequences for the claimant were a good deal more serious, as they might have been in
Williams v MGN Ltd [2009] EWHC 3150 (QB).
82
Greer L.J. dissenting in Byrne v Deane thought such an imputation could be implied into
the libel.
83
‘‘Trite law’’: Berkoff v Burchill [1996] 4 All E.R. 1008 at 1018.
84
Below, para.12–66.
85
Loveless v Earl [1999] E.M.L.R. 530 at 538–539.
86
[1929] 2 K.B. 331.
87
Followed in Hough v London Express Newspaper Ltd [1940] 2 K.B. 507.
Defamation: Definition and Elements 581
jury that they are so, may nevertheless indicate to them that the
evidence cannot reasonably bear any other interpretation. In practice
the issue is not very likely to be presented in this bald form because
there may be a dispute as to what the words mean. Here, too, the
judge has a similar role in deciding whether the words are capable
of bearing a defamatory meaning. His task is to, ‘‘evaluate the words
complained of and to delimit the range of meanings of which the
words are reasonably capable’’,88 excluding meanings which are
‘‘fanciful, absurd or factitious’’.89 It is then for the jury to decide
which, if any, of the meanings held capable of being defamatory the
words do in fact bear.90 The Human Rights Act 1998 does not
require a change in approach in favour of defendants on these issues,
for:
88
Mapp v News Group Newspapers Limited [1998] Q.B. 520 at 526.
89
Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [20].
90
As far as the jury is concerned, the words have a single, ‘‘right’’ meaning: Slim v Daily
Telegraph [1968] 2 Q.B. 157 at 174 (though there may be no way of knowing whether they
follow this requirement, which may be thought to be artificial). If the case is tried by judge
alone it follows that he must decide what the words mean, not what they are capable of
meaning. The same ‘‘single meaning’’ rule does not apply to malicious falsehood: Ajino-
moto Sweeteners Europe SAS v Asda Stores Ltd [2010] EWCA Civ 609.
91
Berezovsky v Forbes Inc [2001] EWCA Civ 1251; [2001] E.M.L.R. 45 at [14].
92
(1882) 7 App. Cas. 741.
582 Defamation, Privacy and Related Matters
necessarily have done so.93 Even if it is the law that where there are
a number of possible explanations it is not reasonable to pick on the
one defamatory of the claimant,94 the Henty case is perhaps a
dubious application of that principle for it might be thought that the
first reason that would occur to any reasonable person was that the
bank was unsound95 and the decision has been subjected to con-
siderable criticism. Salmon L.J. said that the principles, never better
formulated than in Henty’s case, were perhaps never worse
applied.96 Of course, no one would deny that where the statement
has only one reasonable meaning, the court should not allow it to be
tortured into a defamatory meaning.97
12–14 In Henty’s case the controversy was whether the words were
capable of bearing any defamatory meaning at all, but in Lewis v
Daily Telegraph Ltd98 the defendants admitted that the words were
defamatory. What they denied was that they were defamatory in the
particular sense alleged by the claimants. The defendants had pub-
lished a paragraph in their newspaper stating that officers of the City
of London Fraud Squad were investigating the affairs of the claim-
ant company (which was defamatory but true99) and the claimants
alleged that these words carried the meaning that the company’s
affairs were being conducted fraudulently or dishonestly. By a
majority the House of Lords held that the words were not capable of
bearing that meaning. As Lord Devlin pointed out, one cannot make
a rule about the fundamental question—what is the meaning which
the words convey to the ordinary person—which anyway depends
upon the context of the statement,100 but the ordinary sensible
93
Lord Selborne L.C. placed some weight on the fact that Hentys had not authorised the
showing of the circular to strangers. He (and Lord Blackburn) thought the case might have
been different if there had been a general distribution in the first place. Scrutton L.J. in
Tolley v Fry [1930] 1 K.B. 467 at 476 said that he had difficulty in, ‘‘understanding that
the circular incapable of a defamatory meaning to a limited audience might be capable of
a defamatory meaning if published more widely’’. For the present law on repetition see
below, para.12–24.
94
In Stubbs v Russell [1913] A.C. 386, however, Lord Shaw would have allowed one
defamatory meaning to go to the jury when there were three other non-defamatory ones.
There are other statements supporting the view that where words are fairly capable of
several meanings, some defamatory, others not, the case should be left to the jury: Cassidy
v Daily Mirror Newspapers Ltd [1929] 1 K.B. 331 at 339; Newstead v London Express
Newspapers Ltd [1940] 1 K.B. 377 at 396; Aspro Travel Ltd v Owners Abroad Group
[1996] 1 W.L.R. 132 at 137.
95
See the dissent of Lord Penzance.
96
Slim v Daily Telegraph Ltd [1968] 2 Q.B. 157 at 187. Scrutton L.J. in Youssoupoff v MGM
(1934) 50 T.L.R. 581 at 594, thought that the law and the facts got pretty far apart from
each other in Henty’s case.
97
Jones v Skelton [1963] 1 W.L.R. 1362 at 1370.
98
[1964] A.C. 234.
99
Such a statement might bear the meaning that the claimant had behaved in such a way as
to give reasonable grounds for suspicion or at least that there were grounds to investigate
the matter.
100
‘‘A man who wants to talk at large about smoke may have to pick his words very carefully
if he wants to exclude the suggestion that there is also a fire’’: [1964] A.C. at 285.
Defamation: Definition and Elements 583
from giving any reasons for that conclusion, lest it be argued that the
expressed reasons might influence his summing-up to the jury.106
Under CPR PD 53 at any stage after the service of the particulars
of claim either party may apply to a judge for a determination
whether or not the words complained of are capable of bearing a
particular meaning or are capable of being defamatory of the
claimant.
12–15 ii. Innuendo. The words of which the claimant complains may be
either (a) defamatory in their natural and ordinary meaning or (b)
defamatory only or in addition to (a), in the light of facts and
circumstances known to persons to whom the words were published.
The natural and ordinary meaning includes implications: it is as
defamatory of C to say that justice miscarried when he was acquitted
of murdering X, as it is to say outright that he did murder X.107
112
CPR PD 53 para.2.3(1).
113
Lord Devlin in Lewis v Daily Telegraph [1964] A.C. 234 at 279 doubted the value of the
technical distinction, but it is recognised by PD 53.
114
Grubb v Bristol United Press Ltd [1963] 1 Q.B. 309 at 327.
115
At the time of the publication: Grappelli v Derek Block (Holdings) Ltd [1981] 1 W.L.R.
822. The issue of whether a statement is defamatory must be determined as at the time of
publication; but consider a serial publication.
116
For a possible exception where it may be inferred that some readers of a general
publication knew the facts see Fullam v Newcastle Chronicle [1977] 1 W.L.R. 651 at 659
and Grappelli’s case, above, fn.115, at 830.
586 Defamation, Privacy and Related Matters
117
Consolidated Trust v Brown (1948) 49 S.R. (NSW) 86 at 90.
118
Lord Devlin’s example in Lewis v Daily Telegraph [1964] A.C. 234 at 278. See also
Cassidy v Daily Mirror [1929] 2 K.B. 331; Morrison v Ritchie (1902) 4 F. 645. It seems
that in principle a defendant may contend that words which are defamatory in their
ordinary sense are not so because of special knowledge possessed by the persons to whom
they were published, but he will have to show that all the persons to whom the words were
published knew those facts, which might be very difficult and impossible in the case of a
generally circulated libel: Hankinson v Bilby (1847) 16 M. & W. 422.
119
It is often said that a publication in a foreign language necessarily raises a legal innuendo
but this is doubtful: Gatley, Libel and Slander, 11th edn §34.28. If there is a true innuendo
a witness with the requisite special knowledge may be asked how he understood the words,
but such evidence is inadmissible where the ordinary meaning is relied on. If a document
in French said that the claimant was ‘‘une putain’’ she would be relying on the ordinary
meaning of those words. Of course it is necessary to prove that the words were published
to persons who understood the language but publication to persons who can read French
may be inferred without specific proof: if a newspaper in Serbo-Croat is published in
England it seems reasonable to infer that at least some of the purchasers understood Serbo-
Croat.
120
Even Mafia may be used in a non-defamatory, metaphorical sense meaning a close-knit
group: Brooks v Lind, The Times, March 26, 1997, OH.
121
‘‘Blackleg’’ in the 1850s apparently meant a gambler: Barnett v Allen (1858) 3 H. & N.
376.
122
More generally, the suggestion in Lennon v Scottish Daily Record and Sunday Mail Ltd
[2004] EWHC 359 (QB); [2004] E.M.L.R. 18 that the ordinary reader must now be
credited with having achieved a level of education which was not widely accessible to
earlier generations must surely be debatable.
123
[1931] A.C. 333.
Defamation: Definition and Elements 587
The reality appears to be that a case like Tolley v Fry is one where
the claimant is clearly required to particularise what imputations he
says are implied in the publication but that the question whether
evidence is required on the other aspects of the case (the claimant’s
status and notoriety, the practices of advertisers and opinion within
the sport) is a matter of degree.
iii. Abuse. It is commonly said that mere vulgar spoken abuse is 12–17
not defamation nor indeed any other tort127 but this needs some
explanation. Spoken words which are prima facie defamatory are
not actionable if it is clear that they were uttered merely as general
124
Though the correspondence showed that the defendants were aware of the risk of the
inference complained of.
125
Compare the mordant remark of Scrutton L.J. dissenting in the CA: ‘‘It is difficult to know
what judges are allowed to know, though they are ridiculed if they pretend not to know.
A jury is certainly allowed to know something not in the evidence when they are
constantly told to use their knowledge as ‘men of the world’ in interpreting the
evidence.’’
126
[1931] A.C. at 339.
127
‘‘For mere general abuse spoken no action lies’’: Mansfield C.J. in Thorley v Kerry (1812)
4 Taunt. 355 at 365. Pollock C.B. and Wilde B. in Parkins v Scott (1862) 1 H. & C. 153
at 158, 159. Abuse may of course be a crime under public order or race relations legislation
and may lead the speaker to be bound over to keep the peace.
588 Defamation, Privacy and Related Matters
12–18 iv. Reputations protected. Any living human being may be the
claimant in a defamation action.133 There is no doubt that a trading
corporation may sue for defamation in respect of words affecting its
trading reputation or property134 and the same is probably true of
non-trading corporations in so far as they raise funds and own
property.135 However, in English law a governmental body (whether
a local authority or an organ of central government) cannot sue even
if the statement in no way concerns its ‘‘governing’’ reputation.136
128
For entertaining cases on abuse see Rambo v Cohen 587 N.E. 2d 147 (Ind. 1992) and
Ralston v Fomich [1994] 2 W.W.R. 284 (variations on the theme of ‘‘son of a bitch’’).
129
Donoghue v Hayes (1831) Hayes (Ir. Ex.) R. 265. Given the content of many satirical radio
and television shows, there are remarkably few cases on this. Perhaps the reason is that the
public figures lampooned have more sense than to sue; but for a case where a radio skit
was held capable of imputing drug dealing to a café proprietor see Entienne v Festival City
Broadcasters [2001] SASC 60.
130
See, e.g. Penfold v Westcote (1806) 2 B. & P. (N.R.) 335.
131
e.g. words scrawled on a board during a dispute between a lecturer and a member of his
class.
132
Publications on the Internet are technically libel but for this purpose bulletin board
exchanges should perhaps be treated as more akin to slander: Smith v ADVFN Plc [2008]
EWHC 1797 (QB). Of course written or spoken words may be protected on some other
ground such as fair comment, which does not have to be ‘‘fair’’ in any meaningful sense,
below, para.12–35. See, e.g. Jameson v BBC (unreported): newspaper editor described as
‘‘the man who thinks erudite is a kind of glue’’ and ‘‘east end boy made bad’’.
133
One cannot be liable for defaming the dead: below, para.23–3.
134
Metropolitan Saloon Omnibus Co v Hawkins (1859) 4 H. & N. 87; South Hetton Coal Co
v North Eastern News Association Ltd [1894] 1 Q.B. 133; Steel & Morris v UK [2005]
E.M.L.R. 15, ECHR. The underlying action by the McDonald’s fast food chain lasted 313
days. The damages and costs (which must have been well over £1,000,000) will have been
completely irrecoverable from the litigant in person defendants, but the ECHR found that
the lack of legal aid for the defendants contravened art.6.
135
For trade unions see below, para.18–35.
136
Derbyshire CC v Times Newspapers Ltd [1993] A.C. 534 (management of local authority
pension fund). Ballina SC v Ringland (1994) 33 N.S.W.L.R. 680. Unlike the CA, the HL
in Derbyshire found it unnecessary to rely upon the European Convention on Human
Rights.
Defamation: Definition and Elements 589
It was clear that the claimant was the person referred to on his giving
proof that he had one eye and bore a name similar to that of Anson,
the famous admiral. A reference to A may by implication also
amount to a reference to B, so that for example a derogatory
statement about the conduct of a company may impute wrongdoing
or incompetence to its directors or officers. In such a case there are
two questions: is the statement capable of referring to the directors?
and does it defame them?147
In the above cases there is at least some ‘‘peg or pointer’’ in the
article itself which points to the claimant but this is not necessary
given the fundamental principle. In Morgan v Odhams Press Ltd148
a newspaper article alleged that a girl had been kidnapped by a dog-
doping gang. At the relevant time the girl had been staying at the
claimant’s flat and the claimant produced six witnesses who swore
that they understood from the article that he was connected with the
gang. A majority of the House of Lords held that these facts
constituted sufficient material to leave to the jury. The test of
whether the words ‘‘refer to the claimant’’ in this situation is
whether a hypothetical, sensible reader, having knowledge of the
special circumstances, would believe that the claimant was referred
to.149 In such a case of course it is essential that the claimant shows
that the material was published to persons who knew the special
facts. Where, on the other hand, the article identifies the claimant on
its face, so that no true innuendo is necessary, it seems that the
claimant does not need to show that anyone who read it knew him
and therefore was actually put in mind of him. Provided there is
evidence that the words were published to others, the question is
whether ordinary, sensible readers, knowing of the claimant, would
be of opinion that the words referred to him (though evidence that
people actually did so may of course inflate the damages). Thus in
Shevill v Presse Alliance SA150 the court refused to strike out a claim
by a claimant in Yorkshire in respect of an issue of France Soir, of
which perhaps 10 copies had been sold in Yorkshire and 230 in
England and Wales.
147
Aspro Travel Ltd v Owners Abroad Group [1996] 1 W.L.R. 132. For the reverse case of
imputations about officers reflecting on the company see Jameel v Times Newspapers Ltd
[2004] EWCA Civ 983; [2004] E.M.L.R. 31.
148
[1971] 1 W.L.R. 1239.
149
The minority in Morgan dissented because they thought that there was no material in the
article which a reasonable person could sensibly infer to apply to the claimant; they did not
accede to the ‘‘key or pointer’’ argument which had found favour in the court below.
150
[1992] 1 W.L.R. 1. The case went to the House of Lords and the European Court of Justice
on the jurisdiction point: [1995] 2 A.C. 18; [1996] A.C. 959. Article 5(3) of the Brussels
Convention giving jurisdiction to the courts of the country where the harmful event
occurred was satisfied by the presumption of damage which attaches to libel in English
law, but a minimal publication here may lead the court to refuse service out of the
jurisdiction or to strike out the claim as an abuse of process: Jameel (Yousef) v Dow Jones
[2005] EWCA Civ 75; [2005] 2 W.L.R. 1614.
Defamation: Definition and Elements 591
151
Hayward v Thompson [1982] Q.B. 47, distinguishing Grappelli v Derek Block (Holdings)
Ltd [1981] 1 W.L.R. 822, where the issue was not identification but the meaning of the
words.
152
Baltinos v Foreign Language Publications Ltd (1986) 6 N.S.W.L.R. 85.
153
Hayward v Thompson, above, fn.151, at 72 per Sir Stanley Rees. In Astaire v Campling
[1966] 1 W.L.R. 34 various disparaging things had been said in newspapers about a ‘‘Mr
X’’ in the world of boxing. The defendants’ article stated that the claimant was known as
‘‘Mr X’’. This was not actionable by the claimant unless the defendants in some way
adopted or repeated what had been said before.
154
[1910] A.C. 20..
155
Mere coincidence of name is not of course necessarily enough to lead to this conclusion
otherwise it would be impossible to write fiction. Hulton v Jones must be on the margins
of this type of case and the jury may have been influenced by the fact that the claimant had
once worked for the newspaper, even though his counsel accepted that they had forgotten
about him.
592 Defamation, Privacy and Related Matters
what the psalmist said in haste of us all was not defamatory even if
it had been untrue; (c) words which appear to apply to a class may
be actionable if there is something in the words, or in the circum-
stances in which they were published,166 which indicates a particular
claimant or claimants167; (d) in practice the smaller the group upon
which the attack is directed the more likely it is that the claimant
will be able to make out a case, so that if the reference is to a limited
group like trustees, members of a firm or tenants of a particular
building, all will generally be able to sue168; (e) it has been said that
each member of a body:
‘‘[N]o matter how large [would be] defamed when the libel
consisted in the assertion that no one of the members of a
community was elected unless he had committed a murder’’,169
162
Indeed it has been said to be misleading to speak of class defamation: Orme v Associated
Newspapers Ltd, The Times, February 4, 1981.
163
We are of course talking only about the civil law. Attacks on groups may be criminally
punishable in various ways.
164
Lord Porter in Knuppfer’s case at [1944] A.C. 124. A representative action will not assist
the claimant in a ‘‘class’’ case: such an action does not get over the problem of
identification.
165
(1858) 1 F.& F. 347 at 349.
166
See the example in Eldredge, Law of Defamation (1978) §10 of a speaker who attacks
surgeons while glaring at a surgeon in the audience.
167
Le Fanu v Malcolmson (1848) 11 H.L.C. 637.
168
Browne v D.C. Thomson 1912 S.C. 359. In Foxcroft v Lacey (1613) Hob. 89, 17 men were
indicted for conspiracy and D said, ‘‘These defendants are those that helped to murder
Henry Farrer’’. It was held that each could sue. Hyams v Peterson [1991] 3 N.Z.L.R. 648.
It must also be borne in mind that where there is a charge of wrongdoing against a group
of persons the claimant may be impliedly referred to by association: see above, para.12–19
and MCormick v John Fairfax (1989) 16 N.S.W.L.R. 458.
169
Lord Porter in Knuppfer’s case at [1944] A.C. 124; Sauls v Hendrickse 1992 (3) S.A.
912.
594 Defamation, Privacy and Related Matters
but it is thought that to bring this into play the charge must be very
specific indeed170; (f) whether there is evidence upon which the
words can be regarded as capable of referring to the claimant is
always a matter for the judge and this case is no different.171
A conundrum arises where a charge is made in terms like ‘‘one of
these people stole my watch’’. Logically it can be argued that the
statement does not impute the wrongdoing to any individual,172 but
it is not clear that this is the law173 and the statement would seem to
impute suspicion, which is itself defamatory, though to a lesser
degree.174
D. Publication
12–22 There is no actionable wrong of defamation unless the words are
communicated to at least one person other than the claimant. Pub-
lication in the commercial sense, as in a book or newspaper or
broadcast is not necessary, though these are of course likely to
attract larger damages.175 In principle it is still the law that publica-
tion to one person will suffice but nowadays this must be read in the
light of the court’s power to strike out the claim as an abuse of
process. In Duke of Brunswick v Harmer176 a libel on the Duke in a
newspaper was time-barred so the Duke sent his agent to purchase
another copy and that publication to the agent was held to be a new
cause of action, the time running from that day. Nowadays, how-
ever, the claim would be struck out, for if the agent read the article
it is unlikely he would have thought less of the Duke and if he did,
the Duke brought it on his own head.177 On the other hand, the
publication of a slander to only one person might have a very
damaging effect.178 Publication is of the essence of libel and slander
because the wrong is injury to reputation, not insult, and reputation
is what other people think of one, and not one’s own opinion of
oneself.179 Where defamatory material is contained in a newspaper
or book it will be presumed that a significant number of readers read
170
Thus it obviously would not apply to ‘‘all lawyers are thieves’’, perhaps because no
sensible person can take that as anything but general abuse.
171
Knuppfer’s case at [1944] A.C. 121, 124.
172
MCormick v John Fairfax (1989) 16 N.S.W.L.R. 458; Blaser v Krattiger 195 P. 359 (Or.
1921).
173
Farrington v Leigh, The Times, December 10, 1987; Pryke v Advertiser Newspapers
(1984) 37 S.A.S.R. 175.
174
Lewis v Daily Telegraph [1964] A.C. 234.
175
However, commercial publication is of significance for the purposes of the defence of
innocent dissemination: below, para.12–23.
176
(1849) 14 Q.B. 185.
177
Jameel (Yousef) v Dow Jones Inc [2005] EWCA Civ 75; [2005] Q.B. 946 at [56].
178
Crossland v Wilkinson Hardware Stores Ltd [2005] EWHC 481 (QB).
179
Bata v Bata [1948] W.N. 366.
Defamation: Definition and Elements 595
180
Al Amoudi v Brisard [2006] EWHC 1062; [2007] 1 W.L.R. 113.
181
Eglantine Inn Ltd v Smith [1948] N.I. 29.
182
Or, in modern conditions transmits the information to them on a disk or network.
183
See below, para.12–53. If the claimant comes across the memorandum by disclosure in
other proceedings there are restrictions on the use he can make of it outside those
proceedings: CPR 31.22.
184
Riddick v Thames Board Mills Ltd [1977] Q.B. 881. Cf. Hunt J. in Jones v Amalgamated
TV Services Pty Ltd (1991) 23 N.S.W.L.R. 364 and the judgment of Giles J.A. in State
Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd [2001] NSWCA 47; (2001)
51 NSWLR 399.
185
Riddick’s case per Lord Denning M.R. For the abolition of the doctrine in relation to
personal injuries see above, para.8–3.
186
See Lonzim Plc v Sprague [2009] EWHC 2838 (QB).
187
Wennhak v Morgan (1888) 20 Q.B.D. 635 at 639.
596 Defamation, Privacy and Related Matters
i. Distributors. The common law spreads the net of liability very 12–23
wide. In the case of an article in a newspaper, for example, not only
is the author treated as a publisher, but so is the editor, the printer,
the proprietor of the newspaper,194 indeed anyone who participated
in the publication.195 However, those concerned with the mere
mechanical distribution of material—newsagents, libraries,196 book-
sellers—could escape liability if they could prove: (a) that they were
innocent of any knowledge of the libel contained in the work; (b)
that there was nothing in the work or in the circumstances in which
it came to them or was disseminated by them which ought to have
led them to suppose that it contained a libel; and (c) that when the
work was disseminated by them, it was not by any negligence on
their part that they did not know it contained the libel.197 This is in
practice replaced198 by the defence under s.1 of the Defamation Act
1996.
It is a defence for the defendant to show that he was not the
author,199 editor or publisher (in the commercial sense200) of the
statement, that he took reasonable care in relation to the publication
and that he did not know, and had no reason to believe, that what he
did caused or contributed to the publication of a defamatory state-
ment.201 More specifically, s.1(3) provides that certain persons are
not to be considered as author, editor or publisher, though the list is
not exclusive for the court may have regard to it by way of analogy
in cases falling outside it. Distributors are covered, as they were at
common law, but printers202 are now brought within the statutory
because post office officials would have the right, almost never exercised, to open a half-
penny stamped letter in the course of delivery. Again, even if he gummed the flap of the
envelope down before mailing it, the risk of actionable publication was increased if he did
not write ‘Private’ on the front of the envelope. However, he was quite safe if he put the
letter to his wife in an envelope, did not write ‘‘private’’ on it, did not gum the flap down
and mailed it with a half-penny stamp if, in the event, the letter happened to be read on
delivery by his wife’s curious butler.’’
194
In modern conditions newspapers are of course always operated as companies.
195
Hence there may be many separate publications before it is issued to the public, though it
is that which will in practice be sued on. Technically there is a separate publication to each
reader. In practice the edition will be sued on as a whole but the issue of separate
publications may be significant if a true innuendo is relied on. Now that many newspapers
publish Internet editions, we have another example of separate publication: Green v Times
Newspapers Ltd, January 17, 2001, QBD.
196
There are special provisions for copyright libraries in the Legal Deposit Libraries Act
2003.
197
Vizetelly v Mudie’s Select Library Ltd [1900] 2 Q.B. 170. Though as Scrutton L.J. pointed
out in Sun Life Assurance Co of Canada v W.H. Smith & So Ltd (1934) 150 L.T. 211 (b)
and (c) might be combined in a single question.
198
The common law defence has not been formally abolished: Metropolitan International
Schools Ltd v DesignTechnica Corp [2009] EWHC 1765 (QB).
199
‘‘Author’’ is defined as the originator of the statement: s.1(2).
200
i.e. whose business is issuing material to the public or a section of the public: s.1(2)
201
Section 1(1).
202
Printers were often sued because they were more claim-worthy than the originators of the
material they printed.
598 Defamation, Privacy and Related Matters
203
Section 1(3)(a). There are equivalent provisions for processors and distributors of films or
sound recordings (s.1(3)(b) and electronic media (s.1(3)(c)).
204
Comparatively few programmes are live.
205
Section 1(3)(d). Presumably ‘‘control’’ means ‘‘right of control’’: it is no more possible to
prevent an ad-lib remark by an employee than by a contributor to a programme but it
would be surprising if the broadcasting company were not liable for the acts of the
former.
206
Section 1(3)(e).
207
See Godfrey v Demon Internet Ltd [2001] Q.B. 201. If a newsgroup is ‘‘moderated’’ new
messages will be examined for content. Presumably whoever does this is an ‘‘editor’’ but
it will be extraordinarily difficult to identify all but the most glaring defamatory
messages..
208
See s.1(5).
209
It is understood that this was done under the old law, e.g. by asking what contributors
proposed to say and emphasising to them that they should not make defamatory
statements.
210
Godfrey v Demon Internet Ltd [2001] Q.B. 201. Though he must have a reasonable
opportunity to make inquiry into the complaint.
Defamation: Definition and Elements 599
216
See below, para.19–14.
217
The dispute between Sir James Goldsmith and Private Eye was eventually
compromised.
218
Distinguish the case where A tells a story to D and D is sued for repeating it: see
para.12–27, below.
219
Cutler v McPhail [1962] 2 Q.B. 292 (where there had been a release of the claim in respect
of the republication—criticised in Timms v Clift [1998] 2 Qd. R. 100).
220
As in Slipper v BBC [1991] 2 Q.B. 283 with regard to the ‘‘preview’’ action. In this
situation what counts is not whether the statement is ‘‘repeated’’ but whether the second
publication conveys the sting of the first: McManus v Beckham [2002] EWCA Civ 939;
[2002] 1 W.L.R. 2982. See Baturina v Times Newspapers [2010] EWHC 696 (QB).
221
Ward v Weeks (1830) 7 Bing. N.C. 211; Weld-Blundell v Stephens [1920] A.C. 945.
222
Cutler v McPhail, above, fn.219.
223
Sims v Wran [1984] 1 N.S.W.L.R. 317.
Defamation: Definition and Elements 601
2. DEFENCES
There are a number of specialised defences to defamation. These 12–25
are:
1. Justification (truth)
2. Fair comment
3. Privilege, which may be
(a) absolute or
(b) qualified.
4. Offer of amends under the Defamation Act 1996.
12–27 i. Must be true in substance. The defendant need not show that
the charge he seeks to justify is precisely true in every particular:
what matters is whether it is substantially true and it has been said
that journalists, ‘‘need to be permitted a degree of exaggeration even
in the context of factual assertions’’.231 Subject to that, it is a general
principle that the justification must be as broad as the charge, and
must justify the precise charge. To justify the repetition of a defama-
tory statement already made, therefore, the defendant must prove
that the content of the statement was true, not merely that it was
made.232 If I say to you, ‘‘Smith told me that Brown swindled his
creditors’’, I can justify this only by proof that Brown did swindle
his creditors; it is idle to show merely that Smith gave me the
information or that I have not ‘‘adopted’’ the allegation as my
own.233 This is commonly known as the ‘‘repetition rule’’.234 It has
sometimes been suggested that the rule in its present form is incom-
patible with the European Convention on Human Rights, at least
where the media publish material on matters of public concern.
However, in some cases of this type the media may be able to plead
privilege, where truth is not necessary.235 This was applied, for
example, where the press reported accusations and counter-accusa-
tions by two sides in a political dispute in which the public had a
legitimate interest.236 In this limited sense English law may now
230
Gulf Oil (Great Britain) Ltd v Page [1988] Ch. 327, below, para.18–22.
231
Eady J. in Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB) at [108].
232
For the detailed application of this in the context of an accusation that there are reasonable
grounds to suspect the claimant of wrongdoing see Musa King v Telegraph Group Ltd
[2004] EWCA Civ 613; [2004] E.M.L.R. 23 (passage not in [2005] 1 W.L.R. 2282).
233
If I say ‘‘Smith told me that Brown swindled his creditors, which shows that Smith is a
liar’’ that is not defamatory of Brown because the antidote counters the bane. It is of course
defamatory of Smith.
234
Shah v Standard Chartered Bank [1999] Q.B. 240 (which goes so far as to hold that even
if the imputation is only that the defendant is under suspicion it is not enough to show that
the imputation came from a reputable source: the defendant must point to conduct by the
claimant which justifies the suspicion). Distinguish the situation where the question is
whether Smith is liable for the repetition by me: para.12–24, above.
235
See para.12–53, below.
236
Al Fagih v H.H. Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634; [2002]
E.M.L.R. 13.
Defences 603
244
Above, para.12–16.
245
Lucas-Box v News Group Newspapers Ltd [1986] 1 W.L.R. 147.
246
Applied in Irving v Penguin Books Ltd April 11, 2000 (QB).
247
Compare Lord Denning in Moore v News of the World Ltd [1972] 1 Q.B. 441 at 448: ‘‘That
is a very complicated section, but it means that a defendant is not to fail simply because
he cannot prove every single thing in the libel to be true.’’ On the guidance which the judge
might give the jury about the relative gravity of the charges see Jackson v John Fairfax
[1981] 1 N.S.W.L.R. 36.
248
Polly Peck (Holdings) Plc v Trelford [1986] Q.B. 1000; Bookbinder v Tebbit [1989] 1
W.L.R. 640. For a clear example see McKeith v News Group Newspapers Ltd [2005]
EWHC 1162 (QB).
249
Cruise v Express Newspapers Plc [1999] Q.B. 931 at 954.
Defences 605
250
Khashoggi v I.P.C. Magazines Ltd [1986] 1 W.L.R. 1412.
251
[1988] 1 W.L.R. 96.
252
[1989] 1 W.L.R. 640.
253
Compare Lewis v Daily Telegraph, above, para.12–13, where the court held that the words
used did not impute the direct charge.
254
Berezovsky v Forbes Inc [2001] EWCA Civ 1251; [2001] E.M.L.R. 45. Nor is s.5 of the
1952 Act relevant.
255
Polly Peck (Holdings) Plc v Trelford [1986] Q.B. at 1023.
606 Defamation, Privacy and Related Matters
256
Plato Films v Speidel [1961] A.C. 1090. The restriction on such evidence is commonly
known as the rule in Scott v Sampson (1882) 8 Q.B.D. 491.
257
Pamplin v Express Newspapers Ltd (Note) [1988] 1 W.L.R. 116.
258
Atkinson v Fitzwalter [1987] 1 W.L.R. 201; Prager v Times Newspapers Ltd [1988] 1
W.L.R. 77.
259
Report of the Supreme Court Procedure Committee (1991).
Defences 607
260
[2001] 1 W.L.R. 579.
261
See para.12–66, below.
262
Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 W.L.R. 3469.
263
Turner at [56].
264
Turner, above, fn.262, at [53] and [54].
265
Laurence v Chester Chronicle, The Times, February 8, 1986.
608 Defamation, Privacy and Related Matters
‘‘[B]e treated for all purposes in law as a person who has not
committed or been charged with or prosecuted for or convicted
of or sentenced for the offence . . . the subject of that
conviction’’.268
266
This he did not always succeed in doing: Hinds v Sparks [1964] Crim. L.R. 717; Goody
v Odhams Press Ltd [1967] 1 Q.B. 333.
267
‘‘Claimant’’ was substituted for ‘‘person’’ by s.12 of the Defamation Act 1996. The
original form inhibited a plea of justification in an action brought by a police officer who
had been involved in an investigation leading to a conviction.
268
Section 4(1).
269
By s.49 of the Criminal Justice and Immigration Act 2008 the rehabilitation scheme is
extended to cautions. However, there is no amendment of s.8 of the 1974 Act so that it
seems that there are no circumstances in which the defendant can defeat a claim in respect
of a spent caution to which he referred.
270
Section 8(5).
Defences 609
B. Fair Comment
It is a defence to an action for defamation that the statement is a 12–31
fair comment on a matter of public interest.273
Honest criticism ought to be, and is, recognised in any civilised
system of law as indispensable to the efficient working of any public
institution or office, and as salutary for private persons who make
themselves or their work the object of public interest. The defence
has been recognised for a long time in English law, and, although
criticism of government and of public functionaries was not always
so freely allowed as today, it is now fully recognised as one of the
essential elements of freedom of speech which is not to be whittled
down by legal refinement. At one time, fair comment and qualified
privilege were not clearly distinguished but now they are distinct
defences. Fair comment is both wider and narrower than qualified
privilege: it is wider in that, provided the matter commented on is of
public interest, it is open to anyone, whereas in the case of qualified
privilege at common law there must generally be a reciprocal duty
or interest in the matter between the giver of the information and the
recipient, which may present obstacles to establishing that a state-
ment to the public at large is protected by privilege; it is narrower in
that, subject to what is said below, fair comment is not applicable to
statements of fact.
271
Herbage v Pressdram Ltd [1984] 1 W.L.R. 1160. If the writer wishes to plead non-
malicious justification, the provisions of s.13 of the Civil Evidence Act 1968 will still be
available to him for the purpose of proving the offence and conviction but will not, of
course, be finally conclusive on the issue of liability. The position of the writer of a
reference after the Act appears to be that he is not obliged to disclose a spent conviction
of which he knows and incurs no liability to the addressee for failing to do so (s.4(2)). If
he chooses to disclose he may plead non-malicious privilege or justification but it remains
to be seen how far such an answer may be non-malicious. In fact, however, the Rehabilita-
tion of Offenders Act 1974 (Exceptions) Order SI 1974/1023, as amended, has the effect
of excluding from the protection of the Act members, or those who wish to be members,
of a very wide range of professions and occupations.
272
Silkman v Heard, February 28, 2001, QBD. It is difficult to regard it as buttressing the right
to private life under art.8 because until the rehabilitation period has expired the conviction
is in the public domain.
273
That is to say, a comment on the claimant or his conduct. If the defendant writes a critical
piece on the state of the law of libel (which he is perfectly entitled to do without relying
on fair comment) he cannot use that to repeat allegations of fact about the claimant, the
truth of which he has failed to establish in previous proceedings: Baldwin v Rusbridger
[2001] E.M.L.R. 47.
610 Defamation, Privacy and Related Matters
allegation of fact, but if the words were, ‘‘A murdered his father and
is therefore a disgrace to human nature’’, the latter words are clearly
a comment on the former.277 The key point is not the nature of the
statement standing alone but whether, in the context in which it is
published, it can be seen to be a comment upon facts stated or
referred to in it. The underlying reason for this, fair comment being
more favourable to the defendant than justification, is that to:
‘‘[S]tate accurately what a man has done, and then to say that such
conduct is dishonourable or disgraceful, is comment which may
do no harm, as everyone can judge for himself whether the
opinion expressed is well-founded or not. Misdescription of con-
duct, on the other hand, only leads to the one conclusion detri-
mental to the person whose conduct is misdescribed, and leaves
the reader no opportunity for judging for himself the character of
the conduct condemned.’’278
It follows from this that the defence of fair comment, although
concerned with ‘‘evaluation’’ may embrace certain inferences or
deductions or conclusions of fact drawn from other facts stated or
referred to. So in Branson v Bower279 a statement that the claimant’s
motive for his actions was revenge fell within the scope of fair
comment. However, the defence will not apply to statements of fact
which are verifiable in the ordinary way, such as that there exist
reasonable grounds to suspect the claimant of crime.280
It is for the judge to rule whether the words are capable of being
regarded as comment and for the jury to decide whether they
are.281
What is a sufficient reference to the facts upon which the com-
ment purports to be made is something upon which no hard and fast
rule can be laid down. Certainly it is not necessary that the com-
mentator should set out verbatim in the alleged libel all the facts
277
Cooper v Lawson (1838) 8 A. & E. 746 at 752; Telnikoff v Matusevitch [1992] 2 A.C. 343
at 358; Branson v Bower [2001] EWCA Civ 791; [2001] E.M.L.R. 32.
278
Christie v Robertson (1889) 19 N.S.W.L.R. 157 at 161.
279
Above, fn.277.
280
Hamilton v Clifford [2004] EWCA Civ 1407. The distinction is not very satisfactory but
the reason behind it has some force. A wide extension of fair comment to inferences of fact
from other facts would largely subvert the ‘‘repetition rule’’ (see para.12–27, above) if the
charge were carefully framed. The charge in Hamilton was that there were reasonable
grounds to suspect criminality by the claimants. To justify that one would have to show
that the claimants had behaved in a way that gave such grounds. What the defendant was
trying to do was to frame a plea of fair comment in terms of: ‘‘The claimants are being
investigated by the Metropolitan Police [fact]; from this I honestly conclude that there
must be reasonable grounds to suspect them of criminality.’’ See also Galloway v Tele-
graph Group Ltd [2004] EWHC 2786 (QB); [2005] E.M.L.R. 7 at [185], affirmed [2006]
EWCA Civ 17.
281
See British Chiropractic Association v Singh [2010] EWCA Civ 350 where, however, the
trial was to be by judge alone and the CA disagreed with his conclusion that it was
fact.
612 Defamation, Privacy and Related Matters
For comment to be fair it must first of all be based upon true facts 12–34
in existence when the comment was made.286 You cannot invent
untrue facts about a person and then comment upon them.287 They
must also have been known to the commentator, at least in a general
way, when the comment was made.288 To the proposition that the
facts commented on must be true there is, however, one necessary
exception, namely, that fair comment may be based upon an untrue
statement which is made by some person upon a privileged occa-
sion, e.g. a statement made by a witness in the course of judicial
proceedings, and properly attributed to him in a fair and accurate
report of those proceedings. Moreover if the comment is upon the
statement of another person, even if the statement was not made on
a privileged occasion, the statement need not always be proved to be
true, for in some cases such proof is impossible. If C publishes a
statement that there are men on the planet Mars and D criticises this
allegation as unfounded, D’s criticism may well be fair comment,
for it is based on fact in the sense that it refers to an assertion
actually made by C. D is not bound to prove that there are men on
Mars—in fact it is the very thing that he denies. Suppose, however,
that A’s statement were false and defamatory of C, then if D repeats
it with some comment of his own, and C sues D for defamation, D
cannot successfully plead fair comment unless his comment is a
repudiation of the lie; for any other kind of comment of his would
be an acceptance of a lie put in circulation by A: i.e. comment based
upon what is untrue.
A number of points should be noticed about the relationship
between fair comment and justification. First, justification is as
much applicable to a comment as to a statement of fact, though in
order to succeed on this basis the defendant must of course satisfy
the jury that the comment represents the correct view of the matter,
a more severe hurdle than showing that the comment is such as an
honest person might make.289 Of course, justification may have to be
relied on if for some reason fair comment is not available, for
example if the subject of the comment is not a matter of public
interest. Secondly, if the facts upon which the comment is made are
set out in the article complained of, they may themselves be defama-
tory and if they are sued on they must be justified290 (unless they are
the subject of privilege): fair comment is not a defence to assertions
286
Cohen v Daily Telegraph Ltd [1968] 1 W.L.R. 916.
287
Joynt v Cycle Trade Publishing Co [1904] 2 K.B. 292 at 294; Hunt v Star Newspaper Co
Ltd [1908] 2 K.B. 309 at 317, 320; Silkin v Beaverbrook Newspapers Ltd [1958] 1 W.L.R.
743 at 746; London Artists Ltd v Littler [1969] 2 Q.B. 375; Thornton v Telegraph [2009]
EWHC 2863 (QB).
288
Lowe v Associated Newspapers Ltd, above, fn.284 (see the summary at [74]).
289
See Broadway Approvals Ltd v Odhams Press Ltd (No.2) [1965] 1 W.L.R. 805 at
817–818.
290
[1965] 1 W.L.R. 805; Truth (NZ) Ltd v Avery [1959] N.Z.L.R. 274.
614 Defamation, Privacy and Related Matters
12–35 (c) Fair comment and malice. Finally, the comment must be fair.
The adjective is potentially misleading,292 for it is clear that for
comment to be fair it is not necessary that the jury should accept it
as correct and therefore the test is not what the ordinary reasonable
man would think about the subject matter of the comment. Beyond
this, however, the matter becomes more complicated and it is neces-
sary to pay careful attention to the nature of the burden of proof on
the different aspects of fair comment.
First, there is the so-called objective question of whether the
statement falls within the bounds of what the law regards as fair
comment. There have been numerous attempts to formulate a test
for this, but the best is probably that of Lord Esher M.R. in Merivale
v Carson293 as modified by Lord Porter in Turner v Metro-Goldwyn-
Mayer294: ‘‘would any honest295 man, however prejudiced he might
be, or however exaggerated or obstinate his views, have written this
criticism?’’ At this stage it is not necessary to inquire whether the
defendant actually held the view put forward, what counts is
whether an honest person might hold that view. Mere violence in
291
Kemsley v Foot [1952] A.C. 345 at 358.
292
Or even ‘‘meaningless’’: Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 A.C.
127 at 193.
293
(1887) 20 Q.B.D. 275 at 281.
294
[1950] 1 All E.R. 449 at 461.
295
Lord Esher had said ‘‘fair’’. Lord Porter would substitute ‘‘honest’’ ‘‘lest some suggestion
of reasonableness . . . should be read in.’’
Defences 615
criticism does not make it unfair. So, in the case of literary criticism,
views which are extravagant and the outcome of prejudice on the
part of the writer are not beyond the bounds of fair comment and in
McQuire v Western Morning News Co Ltd,296 where a critique of a
play indicated that it was dull, vulgar and degrading, the Court of
Appeal, in giving judgment for the defendants, said that the case
ought not even to have been left to the jury.297 Nor need comment
on a literary production be confined to criticism of it as literature—it
can be criticised for its social effect as freely as it can for bad
writing.298
‘‘The basis of our public life is that the crank, the enthusiast, may
say what he honestly thinks as much as the reasonable man or
woman who sits on a jury.’’299
It has sometimes been said that a rather stricter rule applies where
the claimant is charged with base, dishonourable or wicked motives.
For example, in Hunt v Star Newspaper,300 Cozens-Hardy M.R. said
that in such a case the true question was whether, ‘‘the comment
made . . . upon [the] facts was fair and such as might, in the opinion
of the jury, be reasonably made’’; and in Campbell v Spottis-
woode301 Cockburn C.J. referred to the danger to public affairs if the
law, ‘‘were to sanction attacks [upon persons taking part in] them,
destructive of their honour and character, and made without any
foundation’’.
It is submitted that, whatever may have been the position a
century ago, modern experience of the conduct of public figures,
both at home and abroad, amply demonstrates that any special
protection in respect of charges of base or dishonourable motives is
not justified.302 There are two recent judicial statements against any
special rule in these cases303 and that now probably represents the
position.
If the statement is comment in this objective sense the defence 12–36
will succeed unless the claimant is able to show that it was actuated
296
[1903] 2 K.B. 100.
297
Unfortunately, the more competent a juror to judge the matter criticised, the harder it will
be for him to observe the rule that he should not substitute his views for those of the
critic.
298
Kemsley v Foot [1952] A.C. 345 at 356.
299
Silkin v Beaverbrook Newspapers Ltd [1958] 1 W.L.R. 743 at 747.
300
[1908] 2 K.B. 304 at 317; see also at 320; Dakhyl v Labouchere [1908] 2 K.B. 325n at
329n.
301
(1863) 3 B. & S. 679.
302
The Faulks Committee recommended that there should be no special rule for case of this
type.
303
Sir Anthony Mason in the Hong Kong Final Court of Appeal in Eastern Express Publisher
Ltd v Mo [1999] 3 H.K.L.R. D. 530 at 543 and Eady J. in Branson v Bower [2001]
E.M.L.R. 33.
616 Defamation, Privacy and Related Matters
304
Somerville v Hawkins (1851) 10 C.B. 583; Turner v MGM [1950] 1 All E.R. 449 at 455;
Telnikoff v Matusevitch [1991] 1 Q.B. 102 where (a) the defendant believed passionately
in the evil of anti-Semitism and (b) he and the claimant were total strangers, so that no
reasonable jury could have held that his dominant motive was to injure the claimant (on
appeal, [1992] 2 A.C. 343).
305
Below, para.12–63.
306
Cheng v Tse Wai Chun [2000] 3 H.K.L.R.D. 418. Although this is a decision of the Hong
Kong Final Court of Appeal, the leading judgment is given by Lord Nicholls and it was
quickly accepted as stating English law: Sugar v Associated Newspapers Ltd, February 6,
2001, QBD; Branson v Bower [2001] E.M.L.R. 33.
307
In Egger v Viscount Chelmsford [1965] 1 Q.B. 248 (see below, para.12–65) it was held
with regard to qualified privilege that one co-publisher was not ‘‘infected’’ with the malice
of another. The view of Davies L.J. that this might not be so with regard to fair comment
was, it is submitted, based upon a view of the nature of that defence which cannot stand
after Telnikoff v Matusevitch.
308
Lyon v Daily Telegraph [1943] K.B. 746.
309
Gros v Cook (1969) 113 Sol. Jo. 408.
Defences 617
ii. Pleading. By analogy with the stance taken on pleading justifi- 12–37
cation,312 the defendant should spell out his defence of fair comment
with sufficient precision to enable the claimant to know what state-
ments are said to attract the defence.313 The usual form of pleading
is that, ‘‘the said words are fair comment on a matter of public
interest, namely . . . ’’, followed by particulars of the facts on which
the comment is based. The alternative, the so-called rolled-up plea,
often used where the facts relied on were set out in the article, has
fallen out of use. This ran:
Despite its appearance this was not a combined plea of fair comment
and justification,314 but of fair comment only, so that if any defama-
tory portion of the article is found to be a statement of fact, it does
not protect the defendant. The plea fell out of use when it ceased to
be possible in this way to avoid giving particulars.
C. Privilege
In addition to the cases covered by the defence of fair comment 12–38
the law recognises that there are other occasions on which freedom
of communication without fear of an action for defamation is more
important than the protection of a person’s reputation. Such occa-
sions are said to be ‘‘privileged’’, and the privilege may be either
absolute or qualified. The term privilege is apt to be misleading. For
the moment it prevails, but in the longer term it might be replaced
by ‘‘immunity’’. Absolute privilege covers cases in which complete
freedom of communication is regarded as of such paramount impor-
tance that actions for defamation cannot be entertained at all: a
310
The Irish Defamation Act 2009 s.20, renames it ‘‘honest opinion’’, but under that it is for
the defendant to show that it was his opinion.
311
Lloyd L.J. in Telnikoff v Matusevitch in the CA (above, fn.304).
312
Above, para.12–28.
313
Control Risks Ltd v New English Library Ltd [1990] 1 W.L.R. 183.
314
Sutherland v Stopes [1925] A.C. 47.
618 Defamation, Privacy and Related Matters
i. Absolute privilege.
315
Adam v Ward [1917] A.C. 309.
316
The Bill of Rights was declared law by 2 W. & M., c.1 (1689). For an unsuccessful
challenge under the European Convention on Human Rights see A v UK (2003) E.H.R.R.
51. The legislation creating the Scottish Parliament and the Northern Irish and Welsh
Assemblies also contains provisions conferring absolute privilege.
317
What is a ‘‘proceeding in Parliament’’ is not wholly clear. See for example Parliamentary
Privilege Act 1770, Re [1958] A.C. 331, on a letter written by an MP to a Minister. Section
13(5) of the Defamation Act 1996 makes it clear that the privilege extends to, inter alia,
giving evidence before either House or a committee and the presentation or submission of
a document to either House or a committee. See also Hamilton v Al Fayed [2001] A.C. 395
(proceedings before the Parliamentary Commissioner for Standards); Erglis v Buckley
[2005] QSC 25; Adams v Guardian Newspapers Ltd [2003] ScotCS 131; 2003 S.L.T. 1058;
Stewart v Ronalds [2009] NSWCA 277.
318
There may be no objection to proof of what was done in the House as a mere matter of
history. Rost v Edwards [1990] 2 Q.B. 460 (Member not allowed to call evidence of fact
as to his membership of a standing committee) was doubted in Prebble v Television New
Zealand [1995] 1 A.C. 321. See also Hyams v Peterson [1991] 3 N.Z.L.R. 648 (reference
to Parliamentary proceedings to show that words refer to claimant) and Pepper v Hart
[1993] A.C. 593 (use of Parliamentary proceedings as an aid to interpret legislation). For
a full review see Office of Government Commerce v Information Commr [2008] EWHC
774 (Admin); [2009] 3 W.L.R. 627.
Defences 619
replied, ‘‘Yes, and A.B. [who has nothing at all to do with the case]
picked my pocket there’’ that would not be privileged.330 However,
the privilege is to be given the widest application and extends to
anything a witness might naturally and reasonably say when giving
evidence with reference to the subject matter of the proceedings; it
is certainly not limited by technical legal considerations of
relevance.331
Judicial privilege, in the wide sense explained above, applies not
only to an ordinary law court but also whenever there is an author-
ised inquiry which, though not before a court of justice, is before a
tribunal which has similar attributes,332 e.g. an employment tribu-
nal,333 a military court of inquiry334 or the Disciplinary Committee
of the Law Society,335 but an industrial conciliation procedure,336 a
social security adjudication,337 and an investigation by the Commis-
sion of the EU into breaches of the competition provisions of the
Treaty338 have been held not to possess these attributes. In any case
it is essential that the tribunal be one ‘‘recognized by law’’; only
qualified privilege applies to things said before a domestic tribunal
established by contract.339
The absolute privilege is not confined to what is said in the
presence of the court or tribunal for otherwise it would be impos-
sible to prepare a case. In Watson v McEwan where privilege was
held to apply to what was said by a witness to a solicitor taking a
proof of his evidence, Lord Halsbury said that:
‘‘[I]f the law were otherwise . . . the object for which the
privilege exists is gone, because then no witness could be called;
330
Seaman v Netherclift (1876) 2 C.P.D. at 56.
331
(1876) 2 C.P.D. at 60 per Bramwell J.A.; Samuels v Coole & Haddock, Unreported, May
22, 1997, CA. An attempt by a witness to introduce a ‘‘spent conviction’’ within the
Rehabilitation of Offenders Act 1974 (above, para.12–30) would be privileged, but a
report of such an attempt might not be.
332
Lord Esher M.R. in Royal Aquarium Society Ltd v Parkinson [1892] 1 Q.B. 431 at 442. For
a modern statement of the law see Trapp v Mackie [1979] 1 W.L.R. 377, HL (Sc.). For a
modern, statutory example see the Inquiries Act 2005. The Upper Tribunal under the
Tribunals, Courts and Enforcement Act 2007 has the same ‘‘powers, rights, privileges and
authority’’ as the High Court or Court of Session.
333
Wilson v Westney [2001] EWCA Civ 839.
334
Dawkins v Lord Rokeby (1873) L.R. 8 Q.B. 255, affirmed (1875) L.R. 7 H.L. 744. Heath
v MPC [2004] EWCA Civ 943 (police disciplinary tribunal).
335
Addis v Crocker [1961] 1 Q.B. 11. That the Committee sits in private makes no difference
provided that its functions are similar to those of a court of justice. Marrinan v Vibart
[1963] 1 Q.B. 234, affirmed [1963] 1 Q.B. 528 (barrister). Compare an organisation or
company’s internal disciplinary committee: Gregory v Portsmouth CC [2000] 1 A.C.
419.
336
Tadd v Eastwood [1985] I.C.R. 132.
337
Purdew v Serres-Smith, The Times, September 9,1992.
338
Hasselblad (GB) Ltd Orbinson [1985] Q.B. 475; but on another aspect of this case, see
below.
339
Trapp v Mackie [1979] 1 W.L.R. 377 at 379. See also Gregory v Portsmouth CC [2000]
1 A.C. 41 (committee to exercise disciplinary powers over councillors).
Defences 621
an action for libel based on a letter from the defendant to the Under-
Secretary of State concerning the claimant’s removal to the list of
half pay officers was rightly dismissed, on the ground that to allow
any judicial inquiry into such matters would tend to deprive officers
of State of their freedom of action, ‘‘in matters concerning the public
weal’’. The decision in Isaacs & Sons Ltd v Cook357 shows that the
fact that a report relates to commercial matters does not preclude it
falling within this principle.358 The extent of this head of absolute
privilege is, however, somewhat uncertain, though there is certainly
no blanket immunity for communications between civil servants.
One High Court judge has suggested that it does not extend to
officials below the rank of Minister,359 and in Merricks v Nott-
Bower360 the Court of Appeal refused to strike out a claim for libel
based on a report on two police officers written by a Deputy
Commissioner of the Metropolitan Police to the Commissioner. The
position is equally uncertain in relation to military affairs. In Daw-
kins v Lord Paulet361 a majority of the Queen’s Bench held that a
report on a lieutenant-colonel made by a major-general to the adju-
tant-general of the Army was covered by absolute privilege, but
Cockburn C.J. delivered a strong dissenting judgment and in Daw-
kins v Lord Rokeby362 the Exchequer Chamber regarded the matter
as open for consideration by the House of Lords.
The argument generally advanced for absolute rather than qual-
ified privilege is to the effect that a person will perform his duties
better by being released from the fear of being sued than by being
given an easily substantiated defence if he is sued, but this is as true
of public services and private concerns as it is of the State. Absolute
privilege should be reserved for those cases alone in which complete
freedom of communication is so important that it is right to deprive
the citizen of his remedy for all defamatory statements made about
him including even those made maliciously. No one could claim that
this is true of all communications between all servants of the Crown.
It is submitted, therefore, that the caution of the Court of Appeal in
Merricks v Nott-Bower was fully justified and that care should be
taken not to extend absolute privilege further than can be shown to
be really necessary. It is no less in the interest of the State that
justice should be done to the citizen than that the machinery of
government should be able to work without fear of legal action.
357
[1925] 2 K.B. 391.
358
For a comparable principle, based on the comity of nations, whereby a foreign embassy
document is subject to absolute privilege, see Fayed v Al-Tajir [1988] Q.B. 712.
359
Henn-Collins J. in Szalatnay-Stacho v Fink [1946] 1 All E.R. 303. The CA made no
reference to this point: [1947] K.B. 1.
360
[1965] 1 Q.B. 57; Richards v Naum [1967] 1 Q.B. 620.
361
(1869) L.R. 5 Q.B. 94.
362
(1873) L.R. 8 Q.B. 255. On appeal the decision was on the basis of witness immunity:
(1875) L.R. 7 HL 744.
624 Defamation, Privacy and Related Matters
363
See, e.g. Sarah Getty Trust, Re [1985] Q.B. 956.
364
On the privilege see generally Three Rivers DC v Bank of England (No.6) [2004] UKHL
48; [2005] 1 A.C. 610. It is restricted in certain contexts by statute (though not in relation
to litigation advice): Bowman v Fells [2005] EWCA Civ 226; [2005] 1 W.L.R. 3083.
365
See, e.g. R. v CC West Midlands, Ex p. Wiley [1995] 1 A.C. 274.
366
As in Minter v Priest [1930] A.C. 558. And see the remarks of Mustill L.J. in Fayed v
Al-Tajir [1988] Q.B. 712.
367
[1985] Q.B. 475.
368
But see above as to the present law.
369
See above, para.12–41. However, Otton L.J. in Mahon v Rahn [1998] Q.B. 424 seems to
regard the Hasselblad case as an example of ‘‘witness immunity’’.
Defences 625
370
This, ‘‘includes any tribunal or body exercising the judicial power of the state’’:
s.14(3).
371
The ECJ or any court attached to it, the European Court of Human Rights and certain
international criminal tribunals: s.14(3)
372
Regarded as creating an absolute privilege in McCarey v Associated Newspapers Ltd
[1964] 1 W.L.R. 855.
373
It might be regarded as making little sense that a law report in The Times the next day was
absolutely privileged but a fuller version in the Weekly Law Reports two months later was
not. However, the original legislation was probably aimed at newspaper reports of things
like crime and divorce cases which involved evidence rather than law. There are both
common law and statutory privileges for non-contemporaneous reports (below,
para.12–57) and it does not seem likely that malice could be established. It is true that
under the statutory qualified privilege the defendant must show that the report was, ‘‘of
public concern and for the public benefit’’ but as far as English proceedings are concerned,
‘‘citizens in this jurisdiction are entitled to know what goes on in public hearings before
any of Her Majesty’s courts’’: Crossley v Newsquest (Midlands South) Ltd [2008] EWHC
3054 (QB) at [26].
374
It is thought that for this purpose ‘‘publication’’ should be treated as the initial issue of the
material. It would be very strange if a report on LAWTEL were absolutely privileged on
the day it was placed on the database but not when it was accessed six months later; but
material from previous hearings will be similarly protected in so far as it is necessary to
explain the case reported: Crossley v Newsquest (Midlands South) Ltd, above, fn.373.
375
See, e.g. Contempt of Court Act 1981 s.4.
376
McDougall v Knight (1886) 17 Q.B.D. 636 at 642.
377
Kimber v Press Association Ltd [1893] 1 Q.B. 65 at 71.
378
Hope v Leng Ltd (1907) 23 T.L.R. 243. On a report containing comment see Curistan v
Times Newspapers Ltd [2008] EWCA Civ 432; [2009] Q.B. 231 (a case of qualified
privilege under s.15 of the Defamation Act 1996, but the concept of a ‘‘fair and accurate
report’’ must have common features across the law of privilege).
379
Wright v Outram (1890) 17 R. 596.
626 Defamation, Privacy and Related Matters
public, who have the right to attend and therefore it is said that it is
confined to what passes in open court,380 and does not extend to the
publication of the contents of documents such as pleadings and
affidavits, which are not brought up in court.381 However, this may
need reconsideration in view of changes in the way litigation is
conducted and the provision in rules of court for public access to
documents.382
12–45 ii. Qualified privilege. Until the 1990s the law in this section
would have been comparatively simple to explain in outline, though
its application in practice would frequently have raised difficult
questions of degree. One might have said that there were three basic
propositions about the common law. First, where the defendant
showed that the statement was made on an occasion of qualified
privilege he had a defence unless the claimant could prove that he
was guilty of malice: the question was whether the defendant had
acted honestly, not whether he had acted responsibly or carefully.
Secondly, there were a number of situations where generally pub-
lished reports were subject to qualified privilege, for example
reports of court proceedings or proceedings in Parliament. Some of
these were duplicated by statutory provisions. Thirdly, the law
accorded qualified privilege to communications between persons
who had a common interest or between whom there was a reciprocal
duty and interest. This category concerned essentially private com-
munications: there was, except in very exceptional circumstances,
no community of interest between a newspaper and its readers, nor
did the former have any duty to inform the latter.
Two developments have now rendered this a very incomplete
picture. The decision of the House of Lords in Reynolds v Times
Newspapers Ltd383 created a category of qualified privilege for the
general communication of matters of public concern. It is not con-
fined to the news media but they will in almost all cases be the
persons relying on it. Despite sharing the same name (perhaps for
want of anything better) this is a completely different animal from
traditional privilege for the defendant must show that he acted in
conformity with the standards of ‘‘responsible journalism’’. Com-
mon law malice is therefore irrelevant, ‘‘because ‘‘the propriety of
the conduct of the defendant is built into the conditions under which
the material is privileged’’.384
380
On irrelevant matters such as interruptions see Hope v Leng Ltd, above, fn.378, and
Farmer v Hyde [1937] 1 K.B. 728.
381
This was common ground in Stern v Piper [1997] Q.B. 123.
382
See para.12–27, above.
383
[2001] 2 A.C. 127. Para.12–53, below.
384
Jameel (Mohamed) v Wall Street Journal Europe Sprl [2006] UKHL; [2007] 1 A.C. 359
at [46] per Lord Hoffmann.
Defences 627
(I) DUTY AND INTEREST. The common law has for many years 12–46
conferred qualified privilege upon statements made by D to X about
C: (a) which D is under a legal, moral or social duty to communicate
to X and which X has a corresponding interest in receiving; or (b)
where X has an interest to be protected and D has a corresponding
385
W v JH [2008] EWHC 399 (QB).
386
Under s.13 of the Act.
387
Clift v Slough BC [2009] EWHC 1550 (QB).
388
The claim might also be brought as one for malicious falsehood (para.12–72, below).
Again the issue would be one of malice, though unlike in defamation the claimant would
have to prove the statement false.
389
[1995] 2 AC 296, para.11–33, above.
628 Defamation, Privacy and Related Matters
390
(1834) 1 C.M. & R. 181 at 193.
391
Kearns v General Council of the Bar [2003] EWCA Civ 331; [2003] 1 W.L.R. 1357 at
[39].
392
Adam v Ward [1917] A.C. 309 at 334 per Lord Atkinson.
Defences 629
This does not mean that both parties must have a duty or both an
interest: one may have an interest and the other a duty, as in the
common case of an employment reference. In Watt v Longsdon393 B
was a foreign manager of the X Co. He wrote to the defendant, a
director of the company, a letter containing gross charges of immor-
ality, drunkenness and dishonesty on the part of the claimant, who
was managing director of the company abroad. The defendant wrote
a reply to B in which he stated his own suspicions of the claimant’s
immorality and asked B to get confirmation of B’s own allegations
in order that the defendant might communicate them to the claim-
ant’s wife whom the defendant stated to be an old friend of his.
Then, without waiting for any corroboration of B’s statement, the
defendant showed B’s letter to S, the chairman of the board of
directors and largest shareholder in the company and also to the
claimant’s wife. All the allegations against the claimant were false.
He sued the defendant for libel: (a) in writing what he did to B; (b)
in communicating B’s letter to S; (c) in communicating B’s letter to
the claimant’s wife. The defendant pleaded qualified privilege. The
Court of Appeal had little difficulty in holding that: (a) the defen-
dant’s letter to B was privileged, because both B and the defendant
had a common interest in the affairs of the company, and that
entitled them to discuss the behaviour of the claimant as another
employee of the company and to collect further information for the
chairman of the Company; (b) the defendant’s communication of
B’s letter to S was privileged, because a duty to make it arose both
from the fact of employment in the same company and from the
possibility that S might be asked by the claimant for a testimonial if
the claimant were to seek other situation; but the court held that (c)
the communication of the letter to the claimant’s wife was not
privileged. No doubt she had the strongest possible interest in
hearing a statement about the husband’s moral conduct; no doubt
also there may be occasions on which a friend of the wife is under
a duty, or has a corresponding interest, in informing her of state-
ments about her husband—indeed each case must depend on its own
circumstances, the nature of the information and the relation of the
speaker to the wife.394 However, here the defendant had no sufficient
interest or duty, for the information came from a very doubtful
source and he had never consulted the claimant nor obtained any
confirmation of the outrageous accusations before passing them to
the wife.
393
[1930] 1 K.B. 130.
394
Scrutton L.J. at [1930] 1 K.B. 149.
630 Defamation, Privacy and Related Matters
‘‘The question of moral or social duty being for the judge, each
judge must decide it as best he can for himself. I take moral or
social duty to mean a duty recognised by English people of
ordinary intelligence and moral principle, but at the same time not
a duty enforceable by legal proceedings, whether civil or
criminal.’’
As ‘‘all or, at all events, the great mass of right-minded men in the
position of the defendant would have considered it their duty under
the circumstances’’396 to give the information, the learned Lord
Justice thought that the privilege arose. Scrutton L.J. in Watt v
Longsdon397 referred to the difficulties in this area when he
asked:
‘‘Is the judge merely to give his own view of moral and social
duty, though he thinks that a considerable portion of the commu-
nity hold a different opinion? Or is he to endeavour to ascertain
what view the great mass of right-minded men would take?’’
It is suggested that the answer to this is that the judge’s view, if, as
is probable, it takes account of the arguments of counsel on each
side, as well as of his own personal predictions, is the nearest
approach that is possible to the ascertainment of right-minded opin-
ion. You cannot subpoena as witnesses a portion of the community
in order to discover what they regard as a moral duty. Of course
opinions may differ on the issue of whether there is such a duty as
should be recognised by law.398 The existence of a particular rela-
tionship399 is often a guide to the existence of a privileged occasion
—thus the classic example of ‘‘duty and interest’’ is the situation
where a former employer gives a reference on a former employee.
However, it is wrong to suppose that the mere existence of any
relationship will necessarily suffice to raise the duty without weigh-
ing all the circumstances of the particular case before the court. In
any event, when faced with a novel situation the court must proceed
from principle.
395
[1891] 2 Q.B. 341 at 350.
396
Informing a guest that his servant was suspected by the police of theft.
397
[1930] 1 K.B. 130 at 144.
398
As they did in Coxhead v Richards (1846) 2C.B. 569, where the court was evenly
divided.
399
What Eady J. in Komarek v Ramco Energy [2002] EWHC 2501 (QB) at [46] called the
‘‘off the peg’’ categories.
Defences 631
12–49 c. Reality of interest and duty. The question is whether the law
recognises an interest or duty, not whether the defendant believes
there is one, so that in Hebditch v MacIlwaine no privilege was held
to exist in respect of a complaint to a body with no jurisdiction in the
matter.414 While the principle remains valid, this case may have
taken a rather narrow view of interest on its facts415 and in any event
there must be circumstances in which a person is entitled to act upon
what he honestly and reasonably, though wrongly, believes are the
facts. Thus if a person receives a request for a reference from
someone who represents that he is a prospective employer but in fact
is a nosy busybody, the giver of the reference should not lose the
protection of privilege because the recipient has no legitimate inter-
est. However, the defendant can only rely on matters which were
known to him at the time when he published the statement for the
purposes of establishing a duty.416
In deciding whether there is a sufficient common interest in
respect of a communication it may be important to consider the
stage which has been reached in the matter upon which the state-
ment is made. In De Buse v McCarthy417 a committee of the council
had been charged to inquire into the loss of petrol from depots and
the report of the committee was placed in public libraries in the
borough as part of the agenda papers for the meeting of the council
at which it was to be considered. The Court of Appeal held that at
that stage, the report being still a matter of internal administration
upon which no decision or resolution had been made, the council
had neither a duty nor an interest in making the contents known to
the body of ratepayers. Although it was not necessary to decide the
matter, the court accepted that the position might have been different
once the council had come to a decision on the matter.418
412
Laughton v Bishop of Sodor and Man (1872) L.R. 4 P.C. 495.
413
Bowen-Rowlands v Argus Press, The Times, March 26, 1926.
414
[1894] 2 Q.B. 54; Blagg v Stuart (1846) 10 C.B. 899.
415
Compare Beach v Freeson [1972] 1 Q.B. 14 (Lord Chancellor having no formal dis-
ciplinary powers over solicitors but having a interest in receiving complaints in view of his
position in the legal system).
416
G.K.R. Karate (UK) Ltd v Yorkshire Post Newspapers Ltd [2000] 1 W.L.R. 2571; Loutch-
ansky v Times Newspapers Ltd [2001] EWCA Civ 536; [2002] Q.B. 321.
417
[1942] 1 K.B. 156.
418
Hence the preference of Lord Greene M.R. for, ‘‘an interest or duty to make the commu-
nication in question’’ rather than an ‘‘interest in the subject-matter’’.
Defences 633
419
London Association etc. v Greenlands Ltd [1916] 2 A.C. 15 at 26.
420
[1908] A.C. 390.
421
[1916] 2 A.C. 15.
422
[1916] 2 A.C. 15 at 26.
423
Quaere whether the last element is always necessary: see [1916] 2 A.C. 15 at 42.
424
See also Barr v Mussleburgh 1912 S.C. 174.
634 Defamation, Privacy and Related Matters
425
See ss.157–160. Under s.160 the bureau may be required to provide the Director General
of Fair Trading with a copy of the file. The publication to the Director would clearly attract
qualified privilege since it would be done in pursuance of a statutory duty.
426
i.e. in respect of the publication to the creditor.
427
The original Consumer Credit Bill would have given the protection of qualified privilege
to publications by or to a licensed credit bureau. The Faulks Committee thought that
privilege should apply to publications by, but not to, a bureau.
428
Section 13. Replacing the Data Protection Act 1984.
429
Horrocks v Lowe [1975] A.C. 135 at 151 per Lord Diplock.
430
[1917] A.C. 309 at 318, 339, 340, 348.
431
Lord Diplock’s expression in Horrocks v Lowe.
432
Lord Dunedin in Adam v Ward at 327.
433
Above, para.12–49.
Defences 635
434
(1834) 1 C.M. & R. 250.
435
Nevill v Fine Art and General Insurance Co [1895] 2 Q.B. 156 at 170 per Lord Esher
M.R.
436
[1997] Q.B. 650. On the position of a solicitor speaking in defence of his client’s interests
see also Regan v Taylor [2000] E.M.L.R. 549.
437
Turner v MGM Pictures [1950] 1 All E.R. 449 at 470 per Lord Oaksey.
438
The newspaper failed on the issue of privilege for its position had to be judged independ-
ently of that of the solicitors’ client.
439
See e.g. Brady v Norman [2008] EWHC 2481(QB) (union journal with circulation of
18,000; about 130 subscribers not connected with union).
440
As in Pittard v Oliver [1891] 1 Q.B. 474.
441
(1884) L.R. 9 C.P. 393. See also De Buse v McCarthy, fn.417, above.
636 Defamation, Privacy and Related Matters
which would have been privileged if sent by sealed letter was not so
protected when sent by telegram. However:
442
Edmondson v Birch & Co [1907] 1 K.B. 371 at 382.
443
Boxsius v Goblet Frères [1894] 1 Q.B. 842.
444
Lawless v Anglo-Egyptian Co (1869) L.R. 4 Q.B. 262.
445
Bryanston Finance Ltd v de Vries [1975] Q.B. 703 at 727, 736, cf. below, para.12–65.
446
e.g. if A discovers that B, a notorious asset stripper is seeking to take over A’s company,
the publication of A’s views about B to A’s employees may be protected because they
have a common interest in the welfare of the company; but even if such a common interest
is present, it is hard to see how A can rely on it, since in dictating the letter to the third
party A’s purpose is not to inform the typist.
447
Bryanston Finance Ltd v de Vries, above, fn.445 per Lord Diplock and Lawton L.J. Contra,
Lord Denning M.R. Perhaps the view of Lord Diplock should be discounted as he
dissented from the actual decision, but this would seem to be rather a narrow view.
448
If the intended publication is to a third party but this never in fact takes place (e.g. because
it is restrained by injunction) it is, ‘‘the use which the author . . . intends to make of it . . .
that attracts whatever ancillary privilege there may be’’: Bryanston Finance Ltd v de Vries
[1975] Q.B. at 729 per Diplock L.J.
449
[1930] 2 K.B. 226.
450
Tench v GW Ry (1873) 33 Up. Can. Q.B. 8.
Defences 637
In such cases the fact that the communication is likely to come to the
attention of ‘‘uninterested’’ persons is really irrelevant.
451
Kearns v General Council of the Bar [2003] EWCA Civ 331; [2003] 1 W.L.R. 1357.
452
Hewitt v Grunwald [2004] EWHC 2959 (QB) at [74].
453
Dwyer v Esmonde (1873) 2 L.R. Ir. 243. See also the previous para.
454
Allbutt v General Council of Medical Education (1889 23 Q.B.D. 400; Perera v Peiris
[1949] A.C. 1 (on the Roman-Dutch law of Ceylon, but the PC seems to have thought it
was the same as English law in this respect). Contrast Chapman v Ellesmere [1932] 2 K.B.
431, though that would now fall under Sch.1 to the Defamation Act 1996.
455
See below, para.12–60.
456
See Blackshaw v Lord [1984] Q.B. 1 (civil servant alleged to be implicated in wasting
taxpayers’ money).
457
[1984] Q.B. 1 at 27.
458
Despite Webb v Times Publishing Co [1960] 2 Q.B. 535.
638 Defamation, Privacy and Related Matters
Now, of course, the Human Rights Act 1998 gives a form of direct
effect to the Convention by means of the provision requiring a
public authority (which includes a court) not to act in a manner
inconsistent with it.465 This was not in force at the time of Reynolds,
but the Act had been passed and in any event the Convention had
long bound the UK on an international plane. In the view of the
House of Lords, reputation (including that of public figures) remains
a major value underpinning many activities and functions in society
and its protection is for the public good as well as that of the
individual defamed; however, modern conceptions of democracy
require that the role of the media466 in informing the public of
matters of controversy be more readily recognised than has been the
case in the past. The leading speech is that of Lord Nicholls, with
whom Lord Cooke and Lord Hobhouse explicitly agreed. Lord
459
‘‘Congress shall make no law . . . abridging the freedom of speech, or of the press’’.
460
New York Times v Sullivan 376 U.S. 254 (1964).
461
There is no federal common private law. The issue is therefore the effect of the Constitu-
tion upon the state common law.
462
It may be that in the case of a purely private libel the common law position remains
acceptable: Dun & Bradstreet v Greenmoss Builders 472 U.S. 749 (1985).
463
Gertz v Robert Welch Inc 418 U.S. 323 (1974).
464
[2001] 2 A.C. 127.
465
See above, para.2–9.
466
The privilege created by Reynolds is not confined to the news media, though in practice
they will most frequently seek to take advantage of it: Seaga v Harper [2008] UKPC 9;
[2009] 1 A.C. 1. One can imagine that it could apply to a website drawing attention to
fraudulent trading practices.
Defences 639
467
In comparing English and American law it should be borne in mind that in the United
States there is pre-trial disclosure of sources, whereas the media here will generally be
unwilling to reveal the identity of an informant and the courts will rarely compel them to
do so. Since the refusal cannot, therefore, be treated as amounting to evidence that the
source is unreliable, an extensive application of privilege can put the claimant in a very
difficult position.
468
Past numbers of a newspaper may now often be accessed on an Internet archive and it may
be necessary to draw a distinction between the print and electronic publications. A story
in print which later turns out to be untrue may be protected by Reynolds, but it does not
follow that the same protection extends to the maintenance of the material on the Internet
after the truth has come out: Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB).
469
Miller v Associated Newspapers Ltd [2004] EWHC 2799; [2004] E.M.L.R. 33; Flood v
Times Newspapers Ltd, above, fn.468.
470
Grobelaar v News Group Newspapers Ltd [2001] EWCA Civ 33; [2001] 2 All E.R. 437;
Galloway v Telegraph Group Ltd [2006] EWCA Civ 17; [2006] E.M.L.R. 11.
471
The decision of the CA had been based on similar factors but the court had subsumed these
under a new, additional ‘‘circumstantial’’ element to be added to the tests of interest and
duty: [1998] 3 W.L.R. 863. Lord Cooke in the HL thought that the difference between what
the House decided and the threefold approach of the CA was largely ‘‘a matter of
arrangement’’ ([2001] 2 A.C. at 224).
640 Defamation, Privacy and Related Matters
The list is not exhaustive. The weight to be given to these and any
other relevant factors will vary from case to case. Any disputes of
primary facts will be a matter for the jury, if there is one. The
decision on whether, having regard to the admitted or proved
facts, the publication was subject to qualified privilege is a matter
for the judge. This is the established practice and seems sound. A
balancing operation is better carried out by a judge in a reasoned
judgment than by a jury. Over time, a valuable corpus of case law
will be built up.’’472
However, it has since been said that the recognition that reputation
is a right encompassed in art.8 of the European Convention on
Human Rights means that in all cases there must be a balancing
exercise between the protection of this right and that of freedom of
expression and there is no longer a built-in bias in favour of the
latter.481
There is some disagreement in Jameel as to whether this privilege
is based on reciprocal duty and interest.482 Lord Hoffmann thought
it, ‘‘might more appropriately be called the Reynolds public interest
defence rather than privilege’’483 and Lord Scott said that:
484
At [137].
485
Jameel (Mohamed) v Wall Street Journal Europe Sprl [2006] UKHL; [2007] 1 A.C. 359
at [46] per Lord Hoffmann.
486
The other claimant was one of his companies.
487
Jameel v Wall Street Journal Europe Sprl (No.2) [2005] EWCA Civ 74; [2005] Q.B. 904
at [70].
Defences 643
The Court of Appeal has subsequently said that this is not incon-
sistent with the repetition rule, which is concerned with meaning
and justification, and privilege as a whole (of which this is a form)
assumes the existence of the rule and is a qualification of it.
490
At [52] per Simon Brown L.J.
491
Roberts v Gable [2007] EWCA Civ 721; [2008] Q.B. 502 at [61(3)].
492
[2007] EWCA Civ 721; [2008] Q.B. 502 at [91] per Sedley L.J.
493
Charman v Orion Publishing Ltd [2007] EWCA Civ 972; [2008] 1 All E.R. 750 at
[49].
Defences 645
494
Law of Libel Amendment Act 1888 s.3.
495
Defamation Act 1952 s.9(2).
496
Above, para.12–44 (this applies to certain overseas proceedings).
497
Webb v Times Publishing Co [1960] 2 Q.B. 535.
498
para.2.
499
There is a theoretical argument for its continued relevance in that the Schedule does not
apply to matter, ‘‘which is not of public concern and the publication of which is not for the
public benefit (below, para.12–60), but it is unlikely that this is practically different from
the legitimate public interest of the common law: see Gatley, Libel and Slander, 11th edn,
§14.102.
500
Cornwall v Rowan [2004] SASC 384; 90 S.A.S.R. 269.
501
The publication of extracts from Parliamentary papers etc. is privileged under s.3 of the
Parliamentary Papers Act 1840, provided the defendant proves he published bona fide and
without malice (this burden of proof is unique). Again, the matter seems largely covered
by Sch.1, para.7 of the 1996 Act.
502
(1868) L.R. 4 Q.B. 73. For the background to this case see the 14th edn of this book,
p.358.
503
However, the Joint Committee on Parliamentary Privilege thought it arguable that s.1 of
the Parliamentary Papers Act could be interpreted to confer absolute privilege on the
broadcasting of proceedings: HL Paper 43/HC214-1, 1998–99. The Member whose words
are broadcast of course enjoys absolute privilege under the Bill of Rights. Compare s.13(2)
of the Defamation Act 1992 (NZ) which confers absolute privilege on live broadcasting of
Parliament. See also the Faulks Committee (Cmnd. 5909).
504
para.1.
646 Defamation, Privacy and Related Matters
12–60 (I) SCHEDULE 1 TO THE DEFAMATION ACT 1996. This dates back to
the Law of Libel Amendment Act 1888,509 which was updated in the
Schedule to the Defamation Act 1952. It confers the protection of
qualified privilege upon a very wide range of reports and, though it
is not now confined to reports in the news media,510 it remains of
considerable importance to them, notwithstanding Reynolds,
because it gives clear and predictable answers to issues which might
be unclear under that case. However, unlike the common law privi-
lege it is confined to reports of what others have said on public
occasions or in statements of an ‘‘official’’ or ‘‘quasi-official’’
nature—it does not cover the newspaper’s own conclusions from its
inquiries or ‘‘reports’’ which are heavily editorialised with com-
ment.511 The 1996 Act made many changes of detail and con-
siderably expanded the range of protected reports. However, the
basic structure of the previous law is retained and it may be expected
that decisions under that will remain authoritative.
The reports and other statements privileged under the Schedule
are divided into two categories, the first (Pt I) comprising those
which are privileged, ‘‘without explanation or contradiction’’, and
the second (Pt II) those which are privileged, ‘‘subject to explana-
tion or contradiction’’. As regards matters in the second category,
the defence of qualified privilege is lost if512 it is proved that the
defendant has been requested by the claimant to publish in a suitable
manner513 a reasonable letter or statement by way of explanation or
505
Below, para.12–61. Note, however, that it is suggested in Wason v Walter at 93 that the
common law privilege would apply to a report of a secret debate or where publication had
been forbidden by the House, which would not be so with the statutory privilege.
506
It is perhaps surprising that fair and accurate reports of Parliamentary proceedings are not
subject to absolute privilege.
507
Searles v Scarlett [1892] 2 Q.B. 56.
508
Sch.1, para.5.
509
Indeed, as far as reports of public meetings are concerned it can be traced to the Newspaper
Libel and Registration Act 1881.
510
As it was until the 1996 Act.
511
Henry v BBC [2005] EWHC 2787 (QB).
512
See Defamation Act 1996 s.15(2).
513
Which means in the same manner as the publication complained of or in a manner that is
adequate and reasonable in the circumstances.
Defences 647
514
For discussion of a similar Australian provision see Chakravarti v Advertiser Newspapers
Ltd [1998] HCA 37; (1998) 93 C.L.R. 519.
515
Of course, if the defendant does not rely on the Schedule there is no such right.
516
Tsikata v Newspaper Publishing [1997] 1 All E.R. 655 (decided under the 1952 Act).
517
Tsikata v Newspaper Publishing at 671 per Ward L.J.
518
Defamation Act 1996 s.15(3). These are, at least in theory, distinct requirements: Kelly v
O’Malley (1889) 6 T.L.R. 62; Crossley v Newsquest (Midlands South) Ltd [2008] EWHC
3054 (QB).
519
Section 15(4).
520
Kingshott v Associated Kent Newspapers Ltd [1991] 1 Q.B. 88. Contrast common law
privilege.
521
By para.16(4) the European Parliament is a legislature (also for the purposes of paras 3 and
7). Without this specific provision it might not be such.
522
para.1. As to the common law, see above, para.12–58.
523
para.2. For the avoidance of doubt the International Court of Justice and other judicial or
arbitral tribunals deciding matters in dispute between states are expressly included in the
definition of court: para.16(3)(d). For absolute privilege see above, para.12–44.
524
para.3. This includes the report of the inquiry, even though that may be delivered to a
government officer and released by him: Tsikata v Newspaper Publishing [1997] 1 All E.R.
655, CA. ‘‘Common sense informs us that the proceedings of public inquiry begin with the
evidence but end with the findings’’: per Ward L.J. at 669.
525
The fact that there are doubts about the correctness of the conclusions does not remove the
privilege: Tsikata v Newspaper Publishing [1997] 1 All E.R. 655, CA.
526
para.4.
648 Defamation, Privacy and Related Matters
the public or as the eyes and ears of the public to whom they report.
A public meeting does not require any participation or opportunity
for participation by those attending it.538
A fair and accurate report of proceedings at a general meeting of
a UK public company539; or a fair and accurate copy of or extract
from any document circulated to members of a UK public company:
(a) by or with the authority of the board of directors; or (b) by the
auditors; or (c) by any member of the company in pursuance of a
right conferred by statutory provisions540; or a fair and accurate
copy of or extract from any document circulated to members of a
UK public company which relates to the appointment, resignation,
retirement or dismissal of directors of the company.541 The same
protection is conferred in relation to corresponding meetings of or
documents circulated to members of a public company formed
under the law of any of the Channel Islands or the Isle of Man or of
another Member State.542
A fair and accurate report of the findings or decision543 of any of
the following associations formed in the UK or another Member
State, or of any committee or governing body of such an
association544:
12–63 (c) Malice. It is now time to look in more detail at the ‘‘malice’’
which defeats qualified privilege both at common law (except under
Reynolds v Times Newspapers, where it is irrelevant) and under
statute. It was once common to describe this as ‘‘express’’ malice to
distinguish it from the (fictitious) implied malice which was pleaded
in the statement of claim. Now that this practice has almost entirely
ceased,548 there seems no point in retaining ‘‘express’’ either.
Malice means use of the privileged occasion for some improper
purpose.
545
The publication in The Times of the decision of the domestic tribunal in Chapman v
Ellesmere [1932] 2 K.B. 431 would now be covered.
546
Copies or extracts from adjudications, etc. are treated in the same way.
547
para.15.
548
See Lord Hope in Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 at 229.
549
Clarke v Molyneux (1877) 3 Q.B.D. 237 at 246 per Brett L.J. For a full discussion see
Roberts v Bass [2002] HCA 57; 212 C.L.R. 1.
Defences 651
‘‘It is only where his desire to comply with the relevant duty or to
protect the relevant interest plays no significant part in his
motives for publishing what he believes to be true that . . .
malice can properly be found.’’550
550
Horrocks v Lowe [1975] A.C. 135 at 151..
551
As in the tort of deceit, conscious indifference to the truth is here equivalent to knowledge
of falsity, for it equally involves lack of honest belief.
552
See, e.g. Stuart v Bell [1891] 2 Q.B. 341. The same will be true in the case of privileged
reports, for otherwise the reporter might have to censor his report, making it inaccurate and
losing the privilege that way: Waterhouse v Broadcasting Station 2 G.B. Pty Ltd (1988) 1
N.S.W.L.R. 58.
553
Horrocks v Lowe [1975] A.C. at 150.
554
See Boston v W.S. Bagshaw & Sons Ltd [1966] 1 W.L.R. 1126 and Seray-Wurie v Charity
Commission [2008] EWHC 870 (QB). It is almost inconceivable that summary judgment
could be given for the claimant on the issue of the defendant’s malice: Hayter v Fahie
[2008] EWCA Civ 1336.
555
Adam v Ward [1917] A.C. 309 at 327, 330, 335.
556
Nevill v Fine Arts and General Insurance Co [1895] 2 Q.B. 156 at 170.
557
Broadway Approvals Ltd v Odhams Press Ltd (No.2) [1965] 1 W.L.R. 805 at 815 per
Sellers L.J.
652 Defamation, Privacy and Related Matters
558
See above.
559
See, e.g. Fountain v Boodle (1842) 3 Q.B. 5 (statement that C incompetent and ill-
tempered; evidence that D had kept C in service for a year without complaint and had
recommended her for another position left to jury on question of whether belief genuinely
held).
560
Simpson v Robinson (1848) 12 Q.B. 511.
561
Broadway Approvals Ltd v Odhams Press Ltd (No.2) [1965] 1 W.L.R. at 825. A plea of
justification should not, of course, be made unless the defendant has evidence of the truth
of the statement. Where a plea of justification is evidence of malice for the purposes of
privilege it may also be relevant on damages.
562
Sadgrove v Hole [1901] 2 K.B. 1; Oddy v Paulet (1865) 4 F. & F. 1009; Chapman v
Ellesmere [1932] 2 K.B. 421 at 474.
563
A similar problem arises in relation to the inclusion of irrelevant material: above,
para.12–51.
564
Longdon-Griffiths v Smith [1951] 1 K.B. 295; Meekings v Henson [1964] 1 Q.B. 472.
565
Smith v Streatfield [1913] 3 K.B. 764.
566
[1965] 1 Q.B. 248; Richardson v Schwarzenegger [2004] EWHC 2422 (QB).
Defences 653
567
Thus there is no doubt that a newspaper would be vicariously liable for the malice of the
journalist who wrote the article, but the position is different if the servant played no part
in the creation of the libel but merely distributed it: Hay v Australasian Institute (1906) 3
C.L.R. 1002.
568
Even though the typist could recover a full indemnity under the Civil Liability (Contribu-
tion) Act 1978. In some of these cases the agent might have an alternative defence under
s.1 of the Defamation Act 1996 (above, para.12–23) but that is narrower than privilege
since negligence is in issue.
569
CPR PD 53, para.6.1. This will come to the attention of the press and will be protected by
absolute privilege: Barnet v Crozier [1987] 1 W.L.R. 272. These are commonly very
briefly reported in the ‘‘quality’’ press (but not in other newspapers) along the lines of, ‘‘X
accepted substantial damages in the High Court yesterday in settlement of an action for
libel against the Daily Weasel arising from a report that he had been concerned in wasting
public money as an officer of Gloomshire Council. Mr Z for the Weasel said that his clients
unreservedly withdrew any imputation against Mr X, wished it to be known that the
publication had arisen from a regrettable error on their part and apologised for the worry
and distress suffered by Mr X.’’
570
This has been said to be illogical (Carson v John Fairfax (1993) 113 A.L.R. 577) but it
seems to be the settled general practice here: Rantzen v Mirror Group Newspapers (1986)
Ltd [1994] Q.B. 670 at 683.
571
Section 2 of the 1843 Act; s.1 allows the defendant to offer an apology in mitigation of
damages only.
654 Defamation, Privacy and Related Matters
572
CPR Pt 36. Formerly known as making a payment into court but the payment in is no
longer necessary. This is a powerful weapon, particularly so in defamation cases, where the
amount of damages is likely to be more unpredictable than in the general run of tort cases.
The offer is not revealed to the jury and if they make an award which is less advantageous
than the settlement offered the defendant will get costs from the date specified in the offer
(being not less than 21 days). Now (but not under the former RSC) the claimant may make
a formal settlement offer and if this is refused and the claimant recovers a judgment at least
as advantageous as the offer, the defendant may be made to pay interest at 10 per cent
above base rate and pay costs on an indemnity basis. Under the former procedure it was
a simple matter of comparing the amount of the defendant’s offer and the verdict. Now the
matter of whether the verdict is as advantageous as the offer has to be looked at more
generally: Jones v Associated Newspapers [2007] EWHC 1489 (QB); [2008] 3 All E.R.
911 (verdict for £1 more than offer one year later not as advantageous).
573
See further the 14th edn of this book, p.332.
574
Hulton v Jones 1910] A.C. 20, above, para.12–20.
575
Though the court could award costs on an indemnity basis.
576
There would, for example, be no point in making an offer of amends if the publication was
plainly on an occasion of absolute privilege.
577
It must be in writing and be expressed to be under the Act: s.2(3).
578
Strictly, in the words of the statute, ‘‘person aggrieved’’ since no proceedings may have
been started when the offer is made.
579
Section 2(4).
Defences 655
591
The defendant may, however, rely on any other defence in respect of a meaning to which
a qualified offer does not relate: s.4(4).
592
Warren v Random House Group Ltd [2008] EWCA Civ 834; [2009] Q.B. 600.
593
Tesco Stores Ltd v Guardian News & Media Ltd [2009] E.M.L.R. 5.
594
Cmnd. 5909 (1975).
595
Report on Practice and Procedure in Defamation (July 1991) (no command number or
other publishing designation).
Procedure and Remedies in Defamation 657
Rights and that the conditional fee system is open to everyone, even
those who could afford to finance the litigation from their own
resources.603 Proposals have been made across the board for the
abolition of the ability to recover the successful claimant’s success
fee and ATE premium604 but the Government as an interim measure
has said that it proposes to limit success fees in defamation cases to
10 per cent.605 Very occasionally the libel claimant has ample means
and the defendant is impecunious, as was the case in Steel v UK,606
where the McDonald’s Corp had obtained judgment for £76,000
damages against the unwaged defendants in person (which there was
not the remotest hope of enforcing) and had not sought an order for
claimants’ costs (which must have been a seven-figure sum). The
European Court of Human Rights held that the absence of legal aid
for the defendants contravened art.6 of the Convention.
It is also argued that the virtually exclusive emphasis of the law
on damages as a remedy militates against what a claimant will (or
should, according to some conventional wisdom, which is perhaps
inclined to underrate the motives of anger and revenge) regard as the
major purpose of his claim, the vindication of his good name. The
recovery of damages, whether by judgment or settlement, will not
necessarily achieve this end unless it is widely publicised.607 Fur-
thermore, the defences available in a defamation action, while they
are undoubtedly necessary to protect freedom of speech, may have
the effect that the issue of the truth of the allegations is wholly608 or
partly suppressed and a wholly unfounded and very damaging
accusation may still lead to a verdict for the defendant which on its
face says nothing about the jury’s opinion on the truth of the
accusation.609 Even where the claimant’s reputation is vindicated it
will only be after protracted litigation, the expense of which is at
least in part produced by the necessity to hold the balance between
the protection of reputation and free speech. On the face of it,
603
Campbell v M.G.N. (No.2), above, fn.601.
604
See para.1–27, above.
605
Ministry of Justice CP1/2010.
606
[2005] E.M.L.R. 15, ECHR.
607
For statements in open court on settlement, see above, para.12–66.
608
The most extreme example is a statement made on an occasion of absolute privilege, which
cannot even get to the jury.
609
It is now rare to instruct the jury to answer a series of questions by way of special verdict,
but they sometimes volunteer the information, e.g. ‘‘the words were untrue but the
defendant was not malicious’’. However, it has been suggested that now that reputation is
regarded as a protected interest under art.8 of the European Convention on Human Rights
the court might grant a declaration of falsity under s.7 of the Human Rights Act 1998 even
if the common law claim were defeated by privilege: W v Westminster CC [2004] EWHC
2866 (QB). However, this would be unworkable in a trial by jury and anyway it might be
said that it would require the defendant to deal with the issue of falsity when he has a
perfectly good, ‘‘cheap’’ defence on another basis.
Procedure and Remedies in Defamation 659
610
e.g. Germany. See Braithwaite, International Libel Handbook (1995), Ch.7.
611
See O.J. (L) 298 (1989). This is apparently regarded as satisfied in this country by s.146
of the Broadcasting Act 1990, requiring publication of a summary of an adjudication.
612
See the remarks in the Supreme Court of Canada in Hill v Church of Scientology (1995)
126 D.L.R. (4th) 129 at 176.
613
See, e.g. John v Mirror Group Newspapers [1997] Q.B. 586.
614
Under Sch.1 to the Defamation Act 1996 certain reports are privileged subject to explana-
tion or contradiction (above, para.12–62) but there is no way of compelling a correction
if the defendant is willing to forgo the statutory defence.
615
The phrase is the Faulks Committee’s (Cmnd. 5909, 1975). This was also the view of the
Calcutt Committee (Cm. 1102, 1990) and the Neill Committee (1990). The power to
compel publication of an adjudication under s.146 of the Broadcasting Act 1990 may be
explained by the fact that the broadcast media are regulated in a way that the print media
have not been since the end of the 17th century. The Press Complaints Commission is of
course a voluntary body.
616
Lord Hoffmann is quite open about the deterrent function in The Gleaner Co Ltd v
Abrahams [2003] UKPC 55; [2004] 1 A.C. 628 at [53].
617
It is difficult to transfer experience in non-common law systems simply because the
criminal law plays a much larger part in many of them.
660 Defamation, Privacy and Related Matters
618
See the Neill Report, para.XVIII 14. Compare the provisions of the Defamation Act 1992
(NZ) s.24 and the Irish Defamation Act 2009 ss.28 and 30. However, neither removes the
sanction of damages as an alternative. The Irish Act provides that the court may require a
correction and prescribe its content, the NZ provisions merely allow it to recommend. The
Irish Act specifically provides that the applicant for a declaratory order is not required to
prove the statement false. For further difficulties with declaratory relief see Young J.A. in
Bracks v Smyth Kirk [2009] NSWCA 401.
619
This is considered, among other matters relating to libel and privacy, in the 2010 Report
of the House of Commons Culture Media and Sport Committee: HC 362–1, February 9,
2010. See now Preface.
620
See para.12–54, above.
Procedure and Remedies in Defamation 661
621
See Beta Construction v Channel Four [1990] 1 W.L.R. 1042.
622
Supreme Court Act 1981 s.69(1). The mere fact that the trial is likely to be a lengthy one
is not a reason for refusing a jury under s.69(1). The formation of an opinion under s.69(1)
is not a matter of discretion, though if such an opinion is formed there is still a discretion
to order trial by jury: Viscount de L’Isle v Times Newspapers Ltd [1988] 1 W.L.R. 1042;
Aitken v Preston [1997] E.M.L.R. 415.
623
Faulks Report, Cmnd, 5909, para.490. It should not be assumed that juries are necessarily
favoured by claimants and disliked by defendants. If the resources of the defendant are
considerable the prospect of a long and costly trial may raise the stakes in favour of the
defence.
624
It also now seems more common for the parties to agree to trial by judge alone even where
the summary procedure is not applicable. Galloway v Telegraph Group Ltd [2004] EWHC
2786; [2005] E.M.L.R. 7 (affirmed [2006] EWCA Civ 17) is a high profile example. There
is nothing to prevent the parties agreeing to settle their differences by other means. It is
believed that a High Court judge was awarded £7,500 in 1991 by an arbitrator in respect
of a libel in a local newspaper; but the Neill Committee concluded that neither the various
forms of alternative dispute resolution nor the Press Complaints/Broadcasting Standards
Commissions could become a substitute for the action.
625
See CPR PD 53 s.5. In fact the position is rather more complicated for CPR Pt 24 now
provides an alternative route to summary disposal of a defamation claim. Although the
wording is slightly different, the ‘‘prospects of success’’ tests are the same: James Gilbert
v MGN [2000] E.M.L.R. 680. However, s.8 only enables the whole case to be disposed of,
whereas Pt 24 can be used to dispose of a particular issue, e.g. a defence.
626
See Swain v Hillman [2001] 1 All E.R. 91, CA, a Pt 24 case.
627
Defamation Act 1996 s.8(2). The concept of a reason why a claim should be tried even
though it has no realistic prospect of success is at first sight a curious one. Some factors
are listed in s.8(5) but in the case of one of them (‘‘the extent to which there is conflict of
evidence’’) it would seem that the court would anyway not be in a position to say that there
was no realistic prospect of success.
662 Defamation, Privacy and Related Matters
628
In the past the general Order 14 procedure did not apply to defamation.
629
Section 8(3).
630
Section 9(1). The maximum figure may be varied by order.
631
Section 9(2), which contemplates that the content and venue will normally be agreed by
the parties. See also above, para.12–66.
632
A defendant wishing to take advantage of s.8 may legitimately waive a triable defence:
Milne v Telegraph Group Ltd [2001] E.M.L.R. 30. The origin of the summary procedure
is a Bill drafted by Lord Hoffmann in 1989. The proposal was not supported by the Neill
Committee, which doubted whether there were large numbers of ‘‘trivial’’ libels which did
not settle anyway: Ch.XVII.
633
Section 8(3).
634
See Milne v Telegraph Group Ltd, above, fn.632 (newspaper report that C had been called
a vindictive liar—£5,000). Compare the maximum figure of £10,000 with the £25,000 the
CA thought proper as general damages in John v Mirror Group Newspapers [1997] Q.B.
586, below.
635
Mawdsley v Guardian Newspapers Ltd [2002] EWHC 1780 (QB).
636
In theory at least the same is true if the award is inadequate, but the approach to this has
been even more cautious.
Procedure and Remedies in Defamation 663
since the Courts and Legal Services Act645 and it is permissible for
the judge646 to indicate the sum that might be appropriate.647 An
award of damages for defamation may include elements of aggra-
vated or exemplary damages. These are considered later.648
Whether or not it is strictly so as a matter of precedent, the
maximum allowable damages for defamation (leaving aside exem-
plary damages and proved financial loss) seems to be the maximum
sum for non-pecuniary loss in personal injury cases (currently some-
thing above £250,000).649 There are plainly differing judicial opin-
ions on this matter650 but a number of elements differentiate an
award of damages for defamation from one for personal injury,
which have to be borne in mind when it is contended that it is
unacceptable for a libel claimant to be awarded as much as the
victim of a catastrophic personal injury: personal injury damages are
nearly always awarded for negligence or breach of statutory duty
rather than intentional wrongdoing; in global terms such damages
have a far greater economic impact on society than those for defa-
mation; a defamation claimant may well in the long term suffer
serious financial loss from the attack on his reputation but is com-
monly unable to prove that (or what its amount may be) to the
required legal standard; and there is an undoubted element of deter-
rence in defamation damages which requires that awards should be
substantial and it is not necessarily correct to assume that the only
purpose of tort law is compensation.651
4. MALICIOUS FALSEHOOD652
645
These are summarised in Gatley, Libel and Slander, 11th edn, Appendix 3 (and
Supplement).
646
According to a press report (The Times, January 24, 1998, ‘‘A good joke worth sharing’’)
Popplewell J. in Allason v BBC Worldwide (description of former MP as ‘‘conniving little
shit’’) told the jury that £10,000 (the maximum figure for the summary remedy) might be
a proper figure. The claimant lost, though whether because the jury found the statement not
to be defamatory or to be fair comment or both, is not clear.
647
Although it is indicated in John that counsel might make suggestions to the jury in practice
they do not do so: Kiam v MGN Ltd [2002] EWCA Civ 43; [2003] Q.B. 281 at [55].
648
See below, para.22–8.
649
Other elements in personal injury awards (loss of earnings and expenses) are of course
irrelevant. Libel juries may have been misled in the past by believing that multi-million
pound awards in personal injury cases represented non-pecuniary loss.
650
Compare Lord Hoffmann in The Gleaner Co Ltd v Abrahams [2003] UKPC 55; [2004] 1
A.C. 628 and Sedley L.J. in Kiam v MGN Ltd [2002] EWCA Civ 43; [2003] Q.B. 281.
651
‘‘Oil and vinegar may not mix in solution but they combine to make an acceptable salad
dressing’’: The Gleaner Co Ltd v Abrahams, above, fn.650, at [54] per Lord Hoffmann.
652
Injurious falsehood is an alternative name.
Malicious Falsehood 665
653
Above, para.11–2.
654
Above, para.11–16.
655
Below, para.18–44.
656
The tort has lost most of its importance in Australia and New Zealand because of the
enactment of a statutory wrong of engaging in misleading or deceptive conduct in the
course of trade or commerce. See, e.g. s.52(1), Trade Practices Act 1974 (Cwth.).
657
In the case of the representation about greater efficiency that would also be the tort of
deceit, but only against the purchasers of the product who were misled.
658
Kingdom of Spain v Christie, Manson & Woods Ltd [1986] 1 W.L.R. 1120.
659
Wilts United Dairies v Robinson & Sons [1958] R.P.C. 94.
660
Cf. the position in defamation.
661
[1892] 2 Q.B. 524; Joyce v Motor Surveys Ltd [1948] Ch. 252.
666 Defamation, Privacy and Related Matters
B. Malice
12–74 This expression is never easy to define in the law of torts, but here
it is essentially the same as the malice which defeats qualified
privilege in defamation.668 The requirement is satisfied if the defen-
dant knows that the statement is false or if he is reckless, i.e. makes
662
Sheperd v Wakeman (1662) 1 Sid. 79.
663
Al Raschid v News Syndicate Co 191 N.E. 713 (1934). The deportation proceedings were
not ‘‘judicial proceedings’’ for the purposes of the tort of malicious prosecution.
664
[1991] F.S.R. 52.
665
Lonrho Plc v Fayed [1988] 3 All E.R. 464 (though no claim for malicious falsehood
appears to have been made). On appeal on another point [1989] 2 All E.R. 65 and [1992]
1 A.C. 448.
666
White v Mellin [1895] A.C. 154 at 164; Hubbuck & Sons Ltd Wilkinson [1899] 1 Q.B.
86.
667
De Beers Products Ltd v International General Electric Co of New York [1975] 1 W.L.R.
972; D.S.G. Retail v Comet Group, February 8, 2002, QBD (prices). Even imprecise
assertions of superiority may be actionable if they denigrate the claimant’s wares in a
manner which a reasonable person would take seriously: White v Mellin, above, fn.666, at
171; Alcott v Miller’s Karri etc. Ltd (1904) 91 L.T. 722. For the statutory remedy for
unfounded claims of patent infringement see Clerk and Lindsell, Torts, 19th edn,
para.26–99.
668
Spring v Guardian Assurance Plc [1993] 2 All E.R. 273 (reversed on another point, [1995]
2 A.C. 296).
Malicious Falsehood 667
C. Damage
Save in cases falling within the provisions of s.3(1) of the Defa- 12–75
mation Act 1952 proof of special (i.e. actual, pecuniary) damage is
required673 but this is satisfied by proof of a general loss of business
where the falsehood is in its very nature intended, or is reasonably
likely, to produce and actually does produce in the ordinary course
of things, such loss; for there are businesses, like those of an
auctioneer or a publican, where the customers are often so fleeting
in their patronage that it would be almost impossible for the claim-
ant to name in particular such of them as have ceased to deal with
him as a consequence of the defendant’s tort.674 By s.3(1) of the
Defamation Act 1952 it is no longer necessary to allege or prove
special damage if (a) the words complained of are published in
writing or other permanent form,675 or if (b) the words are calcu-
lated676 to cause pecuniary damage to the claimant in respect of any
office, profession, calling, trade or business carried on by him at the
669
Shapiro v La Morta (1923) 40 T.L.R. 39 and 201; Balden v Shorter [1933] Ch. 427;
Loudon v Ryder (No.2) [1953] Ch. 423 (absence of malice does not preclude declaration
of right); McDonalds Hamburgers v Burgerking (UK) Ltd [1986] F.S.R. 45.
670
Greers Ltd v Pearman & Corder Ltd (1922) 39 R.P.C. 406 at 417 (assertion of trade mark
infringement after years of disclaimer of right to exclusive use).
671
If there is no belief in the truth of the statement it does not matter that the defendant’s
motive is only to advance his own interests: Wilts United Dairies v Robinson & Sons
[1957] R.P.C. 220 (on appeal but not on this point [1958] R.P.C. 94).
672
Dunlop v Maison Talbot (1904) 20 T.L.R. 579.
673
White v Mellin [1895] A.C. 154; Royal Baking Powder Co v Wright & Co (1900) 18 R.P.C.
95 at 99.
674
Ratcliffe v Evans [1892] 2 Q.B. 524 at 533. Cf. Joyce v Sengupta [1993] 1 W.L.R. 337 at
347.
675
Fielding v Variety Inc [1967] 2 Q.B. 841. Broadcasting is publication in a permanent form:
s.3(2).
676
Which means ‘‘likely to’’: Customglass Boats v Salthouse Bros [1976] R.P.C. 589 (equiva-
lent provision of NZ Act).
668 Defamation, Privacy and Related Matters
677
Khodaparast v Shad [2000] 1 W.L.R. 618. On causation of damage see Palmer Bruyn &
Parker v Parsons [2001] HCA 69; 185 A.L.R. 280.
678
[1993] 1 W.L.R. 337.
679
Malice may rebut the defences of fair comment or qualified privilege but those defences
only apply to certain types of statements or statements made on certain occasions.
680
Joyce v Sengupta, above, fn.678; Lonrho v Fayed (No.5) [1993] 1 W.L.R. 1489 at
1504.
681
Joyce v Sengupta. Until 2000 malicious falsehood claims were eligible for legal aid. It is
no longer eligible for the replacement, litigation funded by the Legal Services
Commission.
Malicious Falsehood 669
5. PRIVACY
The English common law does not give any direct action for the 12–78
invasion of privacy as such.683 The law in the United States took a
different course at the end of the 19th century684 but, like the law of
defamation there, has been affected by the constitutional protection
afforded to freedom of speech by the First Amendment.685 In France
and Germany general rights of personal privacy exist (the first by
legislation,686 the second by judicial decision687) but damages are
modest by English defamation standards.
However, the technically correct proposition that there is no
common law tort of invasion of privacy would be seriously mislead-
ing if not substantially qualified. The protection of privacy is a value
recognised by the law and underlying certain specific rules of law
but it is not a principle of law in itself capable without more of
giving a cause of action for its infringement.688 There is in fact
considerable protection for the interest of privacy in a number of
ways. First, there is the ‘‘incidental’’ protection afforded by torts like
trespass and nuisance which are primarily focused on other interests;
secondly, there are various statutory provisions, most particularly
those relating to data protection and the behaviour of public author-
ities under the Human Rights Act 1998; thirdly, the last few years
have seen the substantial development of the old law of breach of
confidence so that it has developed an offshoot which we are
probably now justified in calling the tort of misuse of private
information.
689
The clear exception, but of limited scope, is the Rehabilitation of Offenders Act 1974,
above, para.12–30, but while that may prevent the dragging up of old convictions it is no
use if what is revealed is a crime for which the claimant was never convicted. The other
exception, whereby truth may not be a defence if the case is framed as conspiracy (below,
para.18–22) is perhaps more dubious.
690
Those legal systems which recognise a wrong of invasion of privacy and make truth a
defence only to defamation where the publication is in the public interest therefore have
some difficulty in separating the two wrongs. See the discussion in Independent News-
papers Holdings Ltd v Suliman [2004] ZASCA 57.
691
Palmer v National Sporting Club Ltd (1906) in MacGillivray’s Copyright Cases
(1905–1910), p.55; Sports etc. Agency v ‘‘Our Dogs’’ Publishing Co Ltd [1916] 2 K.B.
880; [1917] 2 K.B. 125.
692
Compare in US law, Melvin v Reid 297 P. 91 (1931); and see McDonald v North
Queensland Newspaper [1997] 1 Qd. R. 62.
693
As in Tolley v Fry [1931] A.C. 333, above, para.12–16. There was an arguable defamatory
implication in Kaye v Robertson [1991] F.S.R. 62, in that the paper which published the
purported interview had a notoriously low reputation but the case was not clear enough to
obtain the interlocutory injunction which was sought.
694
Of course there have been occasions when the concept of a statement which would lower
the claimant in the estimation of right-thinking people has been stretched: see Youssoupoff
v MGM (1934) 50 T.L.R. 581, para.12–11, above. In Ettingshausen v Australian Consoli-
dated Press (1991) 23 N.S.W.L.R. 443 it is suggested that to publish a nude photograph
of the claimant would be defamatory even if it did not convey the imputation that it had
been published with his consent. Sed quaere, even though at that time truth was not a
defence in New South Wales unless publication was for the public benefit.
695
Morris v Beardmore [1981] A.C. 446 at 464.
696
Thus in Kaye v Robertson, above, fn.693, the defendants probably committed trespass
against the Charing Cross Hospital, but the claimant was only a licensee there; but in some
cases the impact on the occupier’s guests might affect the damages awarded to the
occupier: NSW v Ibbett [2006] HCA 57; 231 A.L.R. 485.
Privacy 671
after a brief flirtation with a wider rule, that has been affirmed to be
also the case for the law of nuisance.697 Further, neither tort is apt to
deal with modern means of electronic and optical surveillance,
which may be carried on from a great distance.698 There is no
trespass in watching or listening from outside699 and it is difficult to
see how the law of nuisance could be stretched to cover an ‘‘inter-
ference’’ of which the occupier was wholly unaware at the time.
Thus in Malone v Metropolitan Police Commissioner700 the claim-
ant failed in his action for a declaration that the tapping of his
telephone on the authority of the Secretary of State was unlawful
because, inter alia, there was no right to ‘‘telephonic privacy’’.701
Another actionable form of interference with proprietary rights
which may indirectly involve a court in protecting privacy is breach
of copyright. In Williams v Settle702 the claimant’s father-in-law had
been murdered in circumstances which attracted publicity. The
defendant, who had taken the photographs at the claimant’s wedding
two years previously, sold one for publication in the national press.
The copyright in the photographs was the claimant’s and therefore
the court was able to award him heavy damages for the defendant’s
‘‘scandalous conduct’’ which was, ‘‘in total disregard not only of the
legal rights of the claimant regarding copyright but of his feelings
and his sense of family dignity and pride.’’703 Under current copy-
right law the rights in such a photograph would probably be in the
photographer but, ironically, this is one instance in which the law
does address the issue of privacy head on, for under s.85 of the
Copyright, Designs and Patents Act 1988, breach of which is action-
able as a breach of statutory duty, a person who for private and
domestic purposes commissions the making of a photograph or film
has the right to prevent the issue of copies to the public.
B. The Human Rights Act 1998 and the Data Protection Act
1998
There is no doubt that the ‘‘development’’ of the law of con- 12–80
fidence into a law of misuse of private information has been influ-
enced by the presence of the European Convention on Human
697
Hunter v Canary Wharf [1997] A.C. 655.
698
Such conduct may contravene the current code of the Press Complaints Commission
(above, para.12–67) but that does not give rise to a legal remedy.
699
Except perhaps against the person from whose land it is done: below, para.13–5.
700
[1979] Ch. 344.
701
The matter is now governed by the Interception of Communications Act 1985, but this is
criminal, not civil.
702
[1960] 1 W.L.R. 1072. See the observations on this case by Lord Devlin in Rookes v
Barnard [1964] A.C. 1129 at 1225.
703
Compare Bradley v Wingnut Films [1994] E.M.L.R. 195 (use of C’s family gravestone in
‘‘comedy horror’’ film disclosed no cause of action).
672 Defamation, Privacy and Related Matters
Rights but the effect of the Human Rights Act 1998 is also to some
extent to create a free-standing right of privacy in English law.
Article 8 of the Convention provides:
‘‘1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.’’
716
See Durant v Financial Services Authority [2003] EWCA Civ 1746; [2004] F.S.R. 28.
717
What this means is difficult and controversial: Johnson v Medical Defence Union above,
fn.715.
718
In particular in accordance with the requirements of Sch.2 or, in the case of ‘‘sensitive
personal data’’ in accordance with the further requirements of Sch.3.
719
i.e. in his notification to the data subject or the Information Commissioner, who admin-
isters the regulatory scheme of the Act.
720
See Campbell v MGN Ltd [2002] EWCA Civ 1373; [2003] Q.B. 633 (no appeal to the HL
on this aspect).
721
Prince Albert v Strange (1849) 1 De G. & Sm. 652 (catalogue of etchings by Queen
Victoria and Prince Albert).
722
As in Argyll v Argyll [1967] Ch. 302 and Stephens v Avery [1988] Ch. 449 (sexual
behaviour).
723
Att Gen v Guardian Newspapers Ltd (No.2) [1990] A.C. 109 at 281.
Privacy 675
Thus was born (after a quite short gestation period) a cause of action
which has now come to be described as ‘‘misuse of private informa-
tion’’. As Lord Nicholls put it in Campbell v MGN Ltd726:
‘‘This cause of action has now firmly shaken off the limiting
constraint of the need for an initial confidential relationship. In
doing so it has changed its nature . . . Now the law imposes a
‘duty of confidence’ whenever a person receives information he
knows or ought to know is fairly and reasonably to be regarded as
confidential. Even this formulation is awkward. The continuing
use of the phrase ‘duty of confidence’ and the description of the
information as ‘confidential’ is not altogether comfortable. Infor-
mation about an individual’s private life would not, in ordinary
usage, be called ‘confidential’. The more natural description
today is that such information is private. The essence of the tort
is better encapsulated now as misuse of private information.’’
Later the same judge said that we now have, ‘‘two distinct causes of
action, protecting two different interests: privacy and secret (‘con-
fidential’) information.’’727 In Campbell the defendant newspaper
published information about the claimant’s attendance at Narcotics
Anonymous and photographs of her leaving the premises, and the
photographs and part of the contents of the article were held by the
majority of the House of Lords to be actionable. In fact the informa-
tion must have come to the defendants either from another person at
724
Hellewell v CC Derbyshire [1995] 4 All E.R. 473 at 475. Under art.3(1) of the Code of
Practice of the Press Complaints Commission the use of long lens photography is only
forbidden if the complainant is in a place where he has a reasonable expectation of privacy
and not, e.g. in the street or on a beach.
725
Eady J. in W.B. v H. Bauer Publishing Ltd [2002] E.M.L.R. 8.
726
[2004] UKHL 22; [2004] 2 A.C. 457 at [14].
727
Douglas v Hello! Ltd (No 3) [2007] UKHL 21; [2008] 1 A.C. 1 at [255] (a dissenting
speech, but not on this point).
676 Defamation, Privacy and Related Matters
738
Att Gen v Guardian Newspapers Ltd (No.2) [1990] 1 A.C. 109 at 256.
739
Information about (non-spent) criminal convictions should probably be regarded as con-
clusively in the public domain, even though it might be hard to trace without access to
police computer records.
740
Douglas v Hello! Ltd (No.3) [2005] EWCA Civ 595; [2006] Q.B. 125 at [105].
741
[2007] UKHL 21; [2008] A.C. 1.
742
Even though they had sold the photographic rights to the co-claimant magazine. The
defendant magazine had obtained unauthorised photographs to use in a ‘‘spoiler’’. This
case straddles ‘‘personal’’ and ‘‘commercial’’ secrets. The successful claimants received
modest damages for distress and the inconvenience of having to select new photographs.
The co-claimant magazine’s much larger claim succeeded in a divided HL on the ground
of breach of confidence.
743
Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2008] Ch. 57.
744
Even well-known people are entitled to some private life: X v Persons Unknown [2006]
EWHC 2783 (QB); [2007] E.M.L.R. 10.
745
Author of a Blog v Times Newspapers Ltd [2009] EWHC 1359 (QB); Mahmood v
Galloway [2006] EWHC 1286; [2006] E.M.L.R. 26.
746
See MacCaba v Lichtenstein [2004] EWHC 1579 (QB); [2005] E.M.L.R. 6 at [7].
678 Defamation, Privacy and Related Matters
‘‘[N]ot for the state or for the media to expose sexual conduct
which does not involve any significant breach of the criminal law.
That is so whether the motive for such intrusion is merely pruri-
ence or a moral crusade. It is not for journalists to undermine
human rights, or for judges to refuse to enforce them, merely on
grounds of taste or moral disapproval.’’753
On the other hand, we have not yet reached the stage where conduct
must be unlawful in order to justify its disclosure.
consolation prize.766 Here again the law differs radically from that
applicable in defamation cases. It is practically impossible to obtain
an interim767 injunction against defamation if the defendant asserts
that he will raise one of the standard defences like truth or privi-
lege.768 However, under s.12(3) of the Human Rights Act 1998,
where the court is considering whether to grant any relief which, if
granted, might affect the exercise of the right of freedom of expres-
sion under art.10 of the European Convention on Human Rights:
‘‘On its proper construction the effect of section 12(3) is that the
court is not to make an interim restraint order unless satisfied the
applicant’s prospects of success at the trial are sufficiently favour-
able to justify such an order being made in the particular circum-
stances of the case. As to what degree of likelihood makes the
prospects of success ‘sufficiently favourable’, the general
approach should be that courts will be exceedingly slow to make
interim restraint orders where the applicant has not satisfied the
court he will probably (‘more likely than not’) succeed at the trial.
In general, that should be the threshold an applicant must cross
before the court embarks on exercising its discretion, duly taking
into account the relevant jurisprudence on article 10 and any
countervailing Convention rights. But there will be cases where it
is necessary for a court to depart from this general approach and
a lesser degree of likelihood will suffice as a prerequisite. Cir-
cumstances where this may be so include those . . . where the
766
The award in Mosley v News Group Newspapers Ltd above, fn.751, was £60,000. Since it
is difficult to think of more damaging revelations which would not justify disclosure on
public interest grounds, this must be near the maximum.
767
i.e. a holding injunction pending trial: see para.22–50, below.
768
Bonnard v Perryman [1891] 2 Ch. 269. Para.22–50, below. In ABC v O’Neill [2006] HCA
46; 229 A.L.R. 457 there is a very detailed review of the history of Bonnard v Perryman
and analysis of its underpinnings and modern justification in the judgment of Heydon J.
769
Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462; [2005] E.M.L.R. 10.
770
See para.22–50, below.
682 Defamation, Privacy and Related Matters
771
Cream Holdings Ltd v Bannerjee [2004] UKHL 44; [2005] 1 A.C. 253 at [22]. In Douglas
v Hello! Ltd (No.3) [2005] EWCA Civ 595; [2005] 3 W.L.R. 881 the CA at the
interlocutory stage ([2001] Q.B. 967) had refused an interim injunction on the ground that
damages would be an adequate remedy. In the appeal from the trial the court recanted and
considered that the facts clearly justified an interim injunction. Certainly the facts were
such that there could be no realistic argument that the occasion was not private or that there
was a public interest in disclosure.
772
McKennitt v Ash [2006] EWCA Civ 1714; [2008] Q.B. 73 at [86]; see also at [80].
Privacy 683
It has been said that there are four broad groups of cases:
773
[2008] Q.B. 73 at [79]. In P v Quigley [2008] EWHC 1051, QBD an interim and then a
permanent injunction were granted in respect of scandalous fictional matter. Eady J. said
at [7], ‘‘there is no suggestion that this is a libel claim in disguise and that [the claimants]
are seeking to suppress defamatory allegations which [the defendant] would wish to allege
were true.’’
774
LNS v Persons Unknown [2010] EWHC 119 (QB) at [96].
684 Defamation, Privacy and Related Matters
775
Above, fn.774.
CHAPTER 13
TRESPASS TO LAND
1. TRESPASS DEFINED
TRESPASS to land is the name given to that form of trespass which is 13–1
constituted by unjustifiable interference with the possession of land.
Contrary to popular belief trespass is not criminal in the absence of
some special statute which makes it so.1 Since the decision in
Fowler v Lanning,2 it may be asked whether tortious liability for
trespass to land, like that for trespass to the person, requires proof of
intention or at least negligence on the part of the defendant. We
1
The familiar notice, ‘‘Trespassers will be prosecuted’’ is thus, normally, no more than a
‘‘wooden falsehood’’. The punitive element which originally attached to trespass finally
disappeared in 1694, but it had fallen into obsolescence long before that date: Winfield,
Province of the Law of Tort, p.11. However, there are a growing number of exceptions to
the basic rule. Under the Criminal Law Act 1977, as modified by the Criminal Justice and
Public Order Act 1994, it is a crime to (1) trespass with a weapon of offence, (2) trespass
on a foreign diplomatic mission, (3) refuse to leave premises on being required to do so
by a displaced residential occupier, (4) enter premises by violence except as a displaced
residential occupier. The crime of conspiracy to trespass is abolished by s.5(1) of the Act.
Under the Criminal Justice and Public Order Act 1994, s.61, it is an offence for two or
more persons, having trespassed on land with the common purpose of residing there for
any period, to refuse to obey the direction of a police officer to leave the land. For the
reasons behind this offence, see Wilts CC v Frazer [1986] 1 W.L.R. 109. Under the 1994
Act s.68, there is an offence of ‘‘aggravated trespass’’ where persons trespass on land to
disrupt a lawful activity taking place there. Under s.128 of the Serious Organized Crime
and Police Act 2005 it is an offence to trespass on a site designated by the Secretary of
State.
2
[1959] 1 Q.B. 426. See para.4–33, above.
685
686 Trespass to Land
3
Conway v George Wimpey & Co Ltd [1951] 2 K.B. 266 at 273–274; Jolliffe v Willmett &
Co [1971] 1 All E.R. 478.
4
Hence the possibility, long appreciated, of using trespass as a means of testing title. In
Costello v City of Calgary (1997) 152 D.L.R. (4th) 453 the defendants had held the
property for nine years under a claim of right.
5
By the Limitation Act 1623 s.5, if the defendant disclaimed any title to the land and proved
that his trespass was involuntary or negligent and that he had tendered sufficient amends
before the action was brought, he had a defence to an action for trespass; but Basely v
Clarkson (1682) 3 Lev 37 excluded from the scope of s.5 an intentional act done in
ignorance that it was infringing the claimant’s right. Hence the defence was extremely
restricted. See Williams, Liability for Animals, p.196.
6
Smith v Stone (1647) Style 65. Though he could, no doubt, be required to leave. In real life,
such an issue is much more likely to arise out of a claim by the entrant for injury suffered
on the land, as in Public Transport Commission (NSW) v Perry (1977) 14 A.L.R. 273.
7
See, e.g. River Wear Commissioners v Adamson (1877) 2 App. Cas. 743.
8
[1986] Q.B. 240.
9
Despite the reference to ‘‘knowing’’, this is a negligence standard, though it is not the tort
of negligence since no damage is required.
10
Cf. Fowler v Lanning, para.4–33, above.
11
Entick v Carrington (1765) 2 Wils. K.B. 275 at 291, per curiam Blackstone, Comm. iii,
209–210. If unintentional trespasses are to be relegated to the tort of negligence, proof of
damage would, of course, become essential.
Trespass Defined 687
2. POSSESSION
Trespass to land, like the tort of trespass to goods which is con- 13–2
sidered in a later chapter, consists of interference with possession,
and it is necessary to say something here of this concept.13 Our law
has, however, not worked out a consistent theory of possession, and
its meaning may turn upon the context in which it is used.14
Mere physical presence on the land or the use15 or de facto control
of it does not amount to possession sufficient to bring an action of
trespass. It is, for example, generally said that a lodger in another’s
house does not have possession,16 nor does a servant occupying a
room in his employer’s house17 or a guest in an hotel. On the other
hand, a lessor of land gives up possession to his tenant so that the
tenant alone can bring trespass during the currency of the lease—
even against the lessor unless, of course, the lessor’s entry was
effected in accordance with the provisions of the lease.18 Most of the
cases on the distinction between a tenant and a licensee (who does
not have possession) have arisen in the context of security of tenure
under the Rent Acts, but it is clear that the matter is to be determined
by the substance of the agreement between the parties rather than by
the label which they have chosen to attach to their relationship19 and
the hallmark of a tenancy is the right in the tenant to ‘‘exclusive
12
In the modern law an action for a declaration might be used to settle disputed rights.
13
A more elaborate discussion of possession will be found in the 8th edition of this work.
See further Wonnacott, Possession of Land (2006); Pollock and Wright, Essay on Posses-
sion in the Common Law; Harris, ‘‘The Concept of Possession in English Law’’, Oxford
Essays in Jurisprudence, p.69.
14
Towers & Co Ltd v Gray [1961] 2 Q.B. 351 at 361 per Lord Parker C.J.
15
A person who has been granted a right to grow crops in another’s land has sufficient
possession to sue for trespass to land in respect of damage to them: Monsanto Plc v Tilly
[2000] Env L.R. 313.
16
Allan v Liverpool Overseers (1874) L.R. 9 Q.B. 180 at 191–192 per Blackburn J., adopted
by Davies L.J. in Appah v Parncliffe Investments Ltd [1964] 1 W.L.R. 1064 at
1069–1970.
17
White v Bayley (1861) 10 C.B.(N.S.) 227.
18
Lane v Dixon (1847) 3 C.B. 776. Aliter if there was only an oral contract for a lease,
unenforceable by virtue of the Law of Property Act 1925 s.40: Delaney v T.P. Smith Ltd
[1946] K.B. 393, but a tenant in occupation under an unenforceable contract can certainly
bring trespass against a stranger: at 397 per Tucker L.J.
19
Street v Mountford [1985] A.C. 809; Antoniades v Villers [1990] A.C. 417; Aslan v Murphy
[1990] 1 W.L.R. 766.
688 Trespass to Land
3. INTERFERENCE
28
Hunter v Canary Wharf Ltd [1997] A.C. 655, para.14–15, below (a case of nuisance but,
it is thought, still in point).
29
For an explanation of this term, see Alicia Hosiery Ltd v Brown Shipley & Co Ltd [1970]
1 Q.B. 195 at 207 per Donaldson J.
30
It is, however, sufficient for an action of conversion and is explained more fully in
connection with that tort, para.17–17, below.
31
See Dunlop v Macedo (1891) 8 T.L.R. 43.
32
The action for mesne profits is explained, para.13–18, below.
33
For a modern, power-assisted example, see Rigby v CC Northamptonshire [1985] 1 W.L.R.
1242. Discharging water into the flowing watercourse of another is trespass: British
Waterways Board v Severn Trent Water Ltd [2001] EWCA Civ 276; [2001] 1 W.L.R. 613
at [38].
690 Trespass to Land
A. Trespass on Highway
13–5 It is obvious that a person who uses a highway for the purpose of
travelling from one place to another commits no trespass against
anyone, but at one time it was held that the right of user of the
highway was confined to use for passage and matters incidental
thereto, like resting. Otherwise there was a trespass against the
owner of the subsoil.37 However, in Director of Public Prosecutions
v Jones38 (where the civil law issue arose in the context of a charge
of taking part in a trespassory assembly under the Public Order Act
1986) the majority of the House of Lords held that it was not a
trespass to participate in a peaceful assembly on the highway so long
as it was reasonable and caused no obstruction. Lord Irvine L.C.
went to far as to say that any reasonable use of the highway, not
involving nuisance or obstruction, was lawful. However, he did not
seem to regard as wrongly decided earlier cases in which it had been
held to be trespass to use the highway to disrupt shooting39 or to
gain information about racehorse trials40 on land crossed by the
highway. As in all cases of trespass, however, only the person
34
Westripp v Baldock [1938] 2 All E.R. 779 affirmed [1939] 1 All E.R. 279; Gregory v Piper
(1829) 9 B. & C. 591; Home Brewery Co Ltd v William Davis & Co (Leicester) Ltd [1987]
Q.B. 339.
35
Hillen v I.C.I. (Alkali) Ltd [1936] A.C. 65; Canadian Pacific Ry v Gaud [1949] 2 K.B. 239
at 249 per Cohen L.J., at 254–255 per Singleton L.J.; R. v Jones [1976] 1 W.L.R. 672; but
a lessee holding over after the termination of his lease is no trespasser, for trespass can
only be committed against the person in present possession of the land: Hey v Moorhouse
(1839) 6 Bing. N.C. 52. Cf. Minister of Health v Bellotti [1944] K.B. 298 (licensee holding
over after termination of licence and after lapse of reasonable time, becomes a
trespasser).
36
Smith v Giddy [1904] 2 K.B. 448, 451; Davey v Harrow Corp [1958] 1 Q.B. 60. As to
removal of the intruding growth, see para.22–47, below.
37
At common law this is the person whose land abuts upon the highway. Cf. Tithe
Redemption Commission v Runcorn UDC [1954] Ch. 383, and Highways Act 1980
ss.263–265. Where the top surface is vested in a highway authority, there would seem no
reason why that authority could not bring proceedings for trespass: see the comment of
Collins L.J. in DPP v Jones [1998] Q.B. 563 on the view of Lord Denning M.R. in
Hubbard v Pitt [1976] Q.B. 142.
38
[1999] A.C. 240.
39
Harrison v Duke of Rutland [1893] 1 Q.B. 142.
40
Hickman v Maisey [1900] 1 Q.B. 752.
Interference 691
B. Trespass to Subsoil
Any intrusion upon the subsoil is just as much a trespass as entry 13–6
upon the surface, and subsoil and surface may be possessed by
different persons. If A is in possession of the surface and B of the
subsoil, and I walk upon the land, that is a trespass against A, but not
against B. If I dig holes vertically in the land, that is a trespass
against both A and B. If I bore a tunnel from my land into B’s
subsoil, that is a trespass against B only.42 Even if the landowner has
been deprived of ownership of minerals by statute (as is the case
here with oil) intrusions beneath the surface, such as pipelines, in
order to obtain them still amount to trespass, though in such a case
the quantum of damages will be very limited.43
41
Farrugia v G.W. Ry [1947] 2 All E.R. 565.
42
Cox v Glue (1848) 5 C.B. 533.
43
Bocardo SA v Star Energy UK Onshore Ltd [2009] EWCA Civ 579; [2009] 3 W.L.R. 1010
(permission to appeal [2010] 1 W.L.R. 113).
44
Pickering v Rudd (1815) 4 Camp. 219 at 220–221. Lord Ellenborough considered that if
the claimant suffered any damage from such an invasion, his remedy lay in an action on
the case.
45
[1957] 2 Q.B. 334. For the effect of the demise of a top floor, see Haines v Florensa (1990)
9 E.G. 70.
46
Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 W.L.R. 411; Anchor Brewhouse
Developments v Berkley House (Docklands Developments) (1987) 284 E.G. 625.
47
In the Woollerton & Wilson case the injunction was suspended for long enough to allow
the defendant to complete the works but this cannot be supported: Jaggard v Sawyer
[1995] 1 W.L.R. 269.
692 Trespass to Land
the law allows him to take a ‘‘dog in the manger’’ attitude48 and
force the defendant to pay him a sum in excess of any damage he has
suffered.49
Although an intrusion into air space at a relatively low height
constitutes trespass,50 it is now settled that the landowner’s rights in
airspace extend only to such height as is necessary for the ordinary
use and enjoyment of the land and structures on it,51 so that the flight
of an aircraft ‘‘several hundred feet’’ above a house is not a trespass
at common law52; but if an aircraft, or anything from it, falls upon
the land or comes into contact with a structure on it, that might be
a trespass, no matter the height from which it fell.53
Quite apart from the position at common law, it is provided by
statute that civil aircraft which fly at a reasonable height (having
regard to wind, weather and all the circumstances of the case) do not
commit trespass.54 A landowner is not, however, without protection
from persistent aerial surveillance from a height outside his zone of
user, for such conduct may constitute a nuisance.55 The Civil Avia-
tion Act also provides that if material loss or damage56 is caused57
to any person or property by, or by a person in, or an article or
person falling from an aircraft while in flight, taking off58 or land-
ing, then, unless the loss or damage was caused or contributed to by
the negligence of the person by whom it was suffered, damages are
recoverable without proof of negligence or intention or other cause
of action as if the loss or damage had been caused by the wilful act,
neglect, or default of the owner of the aircraft.59
48
Anchor Brewhouse case, above, fn.46, at 633.
49
Entry on neighbouring land to effect repairs may now be justified: para.13–11, below.
50
Liaquat v Majid [2005] EWHC 1305 (QB); 26 E.G. 130 (CS) (75cm projection 4.5m
above ground).
51
Didow v Alberta Power [1988] 5 W.W.R. 606 (power lines 50 feet up within zone of
user).
52
Bernstein v Skyviews & General Ltd [1978] Q.B. 479. The maxim cujus est solum ejus est
usque ad coelum is not, therefore, to be taken literally.
53
Unless the contact were without negligence. In view of the Civil Aviation Act 1982
s.76(2), the matter is largely academic in relation to civil aircraft: see below.
54
Civil Aviation Act 1982 s.76(1) (replacing the Civil Aviation Act 1949 s.40(1)). It is
conceivable that s.76 confers a wider exemption than the common law and might, in
certain circumstances, justify an entry even into the zone of normal user.
55
Or harassment under the Protection from Harassment Act 1997.
56
Which includes psychiatric trauma, subject to the usual control mechanisms applicable to
a claim for negligence in respect of such harm: Glen v Korean Airlines Co Ltd [2003]
EWHC 643 (QB); [2003] Q.B. 1386.
57
On the causal scope of somewhat similar legislation see ACQ Pty Ltd v Cook [2009] HCA
28.
58
This expression appears to be confined to the period after the pilot has come to the take-off
position: Blankley v Godley [1952] 1 All E.R. 436n.
59
Section 76(2). Hence if a hijacker flies an aircraft into a building the owner of the aircraft
is liable. There is a proviso to the effect that if the owner’s liability arises only by virtue
of the section and if a legal liability to pay damages for the loss in question exists in some
other person, then the owner is entitled to be indemnified by that other person.
Interference 693
D. Continuing Trespass
Trespass, whether by way of personal entry or by placing things 13–8
on the claimant’s land, may be ‘‘continuing’’ and give rise to actions
from day-to-day so long as it lasts. In Holmes v Wilson,60 highway
authorities supported a road by wrongfully building buttresses on
the claimant’s land, and they paid full compensation in an action for
trespass. They were nevertheless held liable in a further action for
trespass, because they had not removed the buttresses. Nor does a
transfer of the land by the injured party prevent the transferee from
suing the defendant for continuing trespass.61
At one time it may have been the law that trespass did not lie for
omission to remove something from the land which was lawfully
there to begin with,62 although if the thing did damage to the land
after it ought to have been removed an action on the case would lie.
However, more modern authority imposes liability for trespass63 and
there is a close analogy with the situation where a visitor’s stay
exceeds the duration of his licence. However, there is no trespass if
the defendant merely omits to restore land to the same condition
(apart from removing anything which he has put on it) in which he
found it, for example if he fails to fill up a pit which he has dug on
his neighbour’s land. He is, of course, liable in trespass for the
original digging (but not for continuing trespass in allowing it to
remain there) and, no doubt, for negligence if anyone falls into the
pit.64
4. DEFENCES
A. Licence
For the purposes of trespass, the best definition of licence is that 13–9
given by Sir Frederick Pollock. A licence is:
60
(1839) 10 A. & E. 50.
61
Hudson v Nicholson (1839) 5 M. & W. 437 followed in Konskier v Goodman Ltd [1928]
1 K.B. 421.
62
Shapcott v Mugford (1696) 1 Ld. Raym. 187 at 188: trespass vi et armis does not apply to
non-feasance.
63
Konskier v Goodman Ltd, above, fn.61; Restatement, 2d, s.160. Cf. Penarth Dock Co v
Pounds [1963] 1 Lloyd’s Rep. 359 (breach of contract) and see the remarks in Clearlite
Holdings Ltd v Auckland City Corp [1976] 2 N.Z.L.R. 729 at 734. In Konskier’s case it was
held that there was a continuing trespass though negligence (case) would not lie for lack
of a duty to the claimant.
64
Clegg v Dearden (1848) 12 Q.B. 576 at 601; but a tenant who removes fixtures and does
not make good may be liable for waste. This is a tort, but not one of much importance,
since the landlord will normally rely on covenants in the lease: Mancetter Developments
Ltd v Garmanson Ltd [1986] Q.B. 1212.
694 Trespass to Land
65
Torts, 15th edn, p.284.
66
See Robson v Hallett [1967] 2 Q.B. 939 at 950–951 per Lord Parker C.J.; at 953–954 per
Diplock L.J. One cannot rely on an implied licence when one knows that the occupier
would object to the entry: TV3 Network Services v Broadcasting Standards Authority
[1995] 2 N.Z.L.R. 720.
67
Armstrong v Sheppard and Short Ltd [1959] 2 Q.B. 384 at 399 per Lord Evershed
M.R.
68
Exclusion might of course amount to a statutory wrong under one of the pieces of
discrimination legislation.
69
Appleby v UK (2003) 37 E.H.R.R. 38.
70
On a licence granted by one co-occupier and revoked by another, see Robson-Paul v
Farrugia (1969) 20 CCR 820 and NSW v Koumdjiev [2005] NSWCA 247; 63
N.S.W.L.R.353.
71
Thompson v Park [1944] K.B. 408. Cf. Kerrison v Smith [1897] 2 Q.B. 445; King v David
Allen & Sons Ltd [1916] 2 A.C. 54.
72
Cornish v Stubbs (1870) L.R. 5 C.P. 334; Canadian Pacific Ry v The King [1931] A.C.
414; Minister of Health v Bellotti [1944] K.B. 289; Robson v Hallett, above, fn.66.
Defences 695
‘‘A licence to hunt in a man’s park and carry away the deer killed
to his own use to cut down a tree in a man’s ground, and to carry
it away the next day to his own use, are licences as to the acts of
hunting and cutting down the tree, but as to the carrying away of
the deer killed and the tree cut down, they are grants.’’73
73
Thomas v Sorrell (1672) Vaughan 330 at 351 per Vaughan C.J.
74
The court in Wood v Leadbitter (1845) 13 M. & W. 838 at 844–845; Wood v Manley (1839)
11 A. & E. 34; Jones & Sons Ltd v Tankerville [1909] 2 Ch. 440 at 442 per Parker J. Cf.
Frank Warr & Co Ltd v LCC [1904] 1 K.B. 713; Clore v Theatrical Properties Ltd [1936]
3 All E.R. 483.
75
See especially Hurst v Picture Theatres Ltd [1915] 1 K.B. 1; Winter Garden Theatre
(London) Ltd v Millennium Productions Ltd [1948] A.C. 173; Bendall v McWhirter [1952]
2 Q.B. 466; Hounslow v Twickenham Garden Developments Ltd [1971] Ch. 233. Cf. Wood
v Leadbitter (1845) 13 M. & W. 838; Cowell v Rosehill Racecourse Co Ltd (1937) 56
C.L.R. 605.
76
Winter Garden case [1946] 1 All E.R. 678 at 680 per Lord Greene M.R.; Re Spenborough
UDC’s Agreement [1968] Ch. 139. Cf. Winter Garden case [1948] A.C. 173 at 193, per
Lord Porter. Wade, ‘‘What is Licence’’ (1948) 64 L.Q.R. 57 at 69.
77
Winter Garden case [1948] A.C. 173 per Lord Porter; at 189 per Lord Simon. See Munro
v Balnagown Estates Co 1949 S.L.T. 85.
78
[1946] 1 All E.R. 678 at 685 per Lord Greene M.R.; Bendall v McWhirter [1952] 2 Q.B.
466 at 478–483 per Denning L.J. In a proper case, revocation of the licence may be
restrained even though performance has not yet commenced: Verrall v Great Yarmouth BC
[1981] Q.B. 202.
696 Trespass to Land
B. Justification by Law
13–11 Acts which would otherwise be trespasses, whether to land, goods
or the person, are frequently prevented from being so by the exis-
tence of some justification provided by the law. A person entering
land in pursuance of arrangements made for the public to have
access to open country is not a trespasser so long as he does no
damage and complies with the specified restrictions,85 a landlord
79
Wade, ‘‘What is Licence’’ (1945) 64 L.Q.R. 57, p.76; Errington v Errington [1952] 1 K.B.
290 at 297–299 and Bendall v McWhirter [1952] 2 Q.B. 466 at 479–483 per Denning L.J.
Bendall v McWhirter was overruled by National Provincial Bank Ltd v Ainsworth [1965]
A.C. 1175 but, it is submitted, without affecting the statements in the text.
80
(1831) 3 Bing. 682; Davies v Marshall (1861) 10 C.B.(N.S.) 697. See Wade, ‘‘What is
Licence’’ (1945) 64 L.Q.R. 57, pp.68–69.
81
Canadian Pacific Ry v The King [1931] A.C. 414 at 428–429 per Lord Russell.
82
Armstrong v Sheppard & Short Ltd [1959] 2 Q.B. 384. The right to an injuction is not
unqualified and an injunction may be refused on the ground that the injury is trivial.
83
Wandsworth LBC v A [2000] 1 W.L.R. 1246 (parent’s licence to enter child’s school).
84
C.I.N. Properties Ltd v Rawlins [1995] E.G.L.R. 30; Porter v MPC October 20, 1999,
CA.
85
Countryside and Rights of Way Act 2000 s.2.
Defences 697
86
See Clerk and Lindsell, Torts, 14th edn, Ch.16 (not in current edn). The common law of
distress for rent will be replaced by a statutory scheme when the Tribunals, Courts and
Enforcement Act 2007 is fully in force (see para.17–34, below). For distress damage
feasant (the seizure of an animal or chattel by the possessor of land when it is wrongfully
on the land and causing damage to it) see Williams, Animals, Chs I–VIII and the 7th edn
of this work, p.383. In respect of animals, there is now a statutory right of detention and
sale: see para.16–11, below.
87
See Kuru v New South Wales [2008] HCA 26.
88
For search warrants, see ss.8–16. See also the Intelligence Services Act 1994 s.5, as
amended by the Security Service Act 1996.
89
The officer must, unless the circumstances make it impracticable or undesirable, give the
occupier the reason for exercising the power of entry: O’Loughlin v CC Essex [1998] 1
W.L.R. 364. For emergency powers of entry of fire officers see s.44 of the Fire and Rescue
Services Act 2004.
90
‘‘Indictable’’ was substituted here and in the other provisions referred to by the Serious
Organized Crime and Police Act 2005 Sch.7.
91
For the power to enter in pursuit of persons ‘‘unlawfully at large’’ see the Prisoners (Return
to Custody) Act 1995.
92
Only premises occupied by the arrested person: Khan v MPC [2008] EWCA Civ 723
(arrestee giving false address). See also s.32, as amended.
93
Thomas v Sawkins [1935] 2 K.B. 249, but not to investigate a past breach: Kuru v New
South Wales [2008] HCA 26.
94
The bailiff may enter by opening an unlocked door, but may not break open a locked one:
Semayne’s Case (1604) 5 Co. Rep. 91a; Southam v Smout [1964] 1 Q.B. 308; Vaughan v
McKenzie [1969] 1 Q.B. 557.
698 Trespass to Land
to the debtor to execute process, but this he does at his peril. If the
property of the debtor that he is to take is actually there, then he is
justified, but otherwise he is a trespasser.95 Nor is it only officers of
the law who may be thus empowered. A private person may in
certain circumstances arrest a criminal, and it is no trespass if he
breaks into the house of another person in order to prevent him from
murdering his wife,96 or probably from committing other serious
offences.97
Under the Access to Neighbouring Land Act 1992 the court may
make an order allowing access to land for the purpose of carrying
out works which are reasonably necessary for the preservation of
adjoining land and which cannot be carried out, or would be sub-
stantially more difficult to carry out, without entry upon the land. It
is not, however to make the order if it would cause unreasonable
interference with the enjoyment of the land sought to be entered or
unreasonable hardship. The Act does not permit entry for develop-
ment or improvement as such but does permit entry for the purpose
of work of, ‘‘alteration, adjustment or improvement [or] demolition
if merely incidental to the work necessary for preservation’’.98
13–12 Where an entry upon land or other prima facie trespass is justified
by the authority of the law itself, then, according to an ancient
doctrine of the common law, if the actor abuses his authority he
becomes a trespasser ab initio and his act is reckoned as unlawful
from the very beginning, however innocent his conduct may have
been up to the moment of the abuse.99 The doctrine applies only if
the authority is that of the law,100 not that of the other party
concerned,101 and the abuse must be by a positive act, not a mere
omission.102 The explanations of these restrictions on the doctrine
are historical,103 but they show that its purpose, derived from its
origin in the law of distress, was to provide protection against
abuses of authority. Seen in this light it would seem to be unduly
95
Southam v Smout, above, fn.94. ‘‘It is a case of justification not by faith but by works’’:
at 327 per Harman L.J. Cf. Chic Fashions (West Wales) Ltd v Jones [1968] 2 Q.B. 299 but
for the proposed new enforcement regime under the Tribunals, Courts and Enforcement
Act 2007 see fn.86 above.
96
Handcock v Baker (1800) 2 Bos. & P. 260.
97
(1800) 2 Bos. 6 P. 260 at 265, per Chambre J. See Dehn v Att Gen [1988] 2 N.Z.L.R. 564
at 580. Such cases would now fall under the Criminal Law Act 1967 s.3.
98
See s.1(5). For the background to the Act, see Law Com. No.151. See also the Party Wall,
etc., Act 1996.
99
Six Carpenters’ Case (1610) 8 Co. Rep. 146a. The older cases are epitomised in Viner’s
Abridgement, Vol.XX, 2nd edn, pp.499–504.
100
Where entry takes place by virtue of an access order under the Access to Neighbouring
Land Act 1992 the doctrine is excluded by s.3(6) of the Act.
101
Delta Holdings Ltd v Magrum (1975) 59 D.L.R. (3d) 126.
102
(1975) 59 D.L.R. (3d) 126.
103
Holdsworth, H.E.L., vii, pp.499–501.
Defences 699
5. REMEDIES
The action for trespass, besides being used to remedy trespass as a 13–13
pure tort, has also some varieties which are employed for the
recovery of land and the profits thereof, and of these we shall speak
in the next sections on ejectment and mesne profits.
104
Pace the Court of Appeal in Chic Fashions (West Wales) Ltd v Jones [1968] 2 Q.B.
299.
105
[1934] 2 K.B. 164; Harvey v Pocock (1843) 11 M. & W. 740; Canadian Pacific Wine Co
Ltd v Tuley [1921] 2 A.C. 417.
106
[1968] 2 Q.B. 299.
107
This was one of the explanations of the doctrine of trespass ab initio itself given by Coke:
8 Co. Rep. 146b. Winfield ridiculed it (see the 8th edn of this book, p.346) but even though
it contains an element of fiction, it is submitted that it does have some merit.
108
Southam v Smout [1964] 1 Q.B. 308 provides one example, and there are others also. The
power of a private person to arrest on reasonable suspicion of an offence exists only if the
offence suspected has actually been committed (Police and Criminal Evidence Act 1984
s.24A, para.4–22, above), and this cannot be known until further investigations have been
carried out. If a person enters upon land under authority of the National Parks and Access
to the Countryside Act 1949 s.60(1) and then commits a breach of the restrictions
contained in the Second Schedule, it seems that he becomes a trespasser ab initio: the
subsection has effect subject to the provisions of the Schedule (s.60(4)) and the Schedule
itself provides that s.60(1) ‘‘shall not apply to a person who’’ does any of the forbidden acts
on the land. The effect of s.2 and Sch.2 of the Countryside and Rights of Way Act 2000
may be the same.
109
Lord Denning M.R., a member of the court in Chic Fashions, subsequently referred to the
doctrine with approval in Cinnamond v British Airports Authority [1980] 1 W.L.R. 582.
700 Trespass to Land
A. Re-entry
13–14 The remedies for trespass as a pure tort110 need no special men-
tion except the right of re-entry. The person entitled to possession
can enter or re-enter the premises, but the Criminal Law Act 1977
makes it an offence punishable with imprisonment for anyone (other
than a displaced residential occupier) to use or threaten violence for
the purposes of securing entry to any premises occupied by
another.111 This replaces earlier criminal legislation in a series of
Forcible Entry Acts, beginning in 1381. However, in Hemmings v
Stoke Poges Golf Club112 the Court of Appeal held that whatever
might be his criminal liability under the Statutes of Forcible Entry,
a landowner was not civilly liable if he used no more force than
necessary to remove the other party and his property. It is submitted
that the law remains the same under the Criminal Law Act113 and it
has been said in the Supreme Court that, ‘‘self-help is a remedy still
available, in principle, to a landowner against trespassers (other than
former residential tenants).’’114
an imaginary person, and that John Doe had been ejected by another
nonexistent person, Richard Roe (the ‘‘casual ejector’’). Then Smith
began his action with Doe as the nominal claimant against Roe as
the nominal defendant, but he first served on Brown a notice signed
by ‘‘your loving friend, Roe’’, in which Roe informed Brown that
Roe claimed no interest in the land and advised Brown to defend the
action. The fictitious parties then disappeared and the stage was
cleared for the proceedings between Smith and Brown. The title of
the action was ‘‘John Doe on the Demise [i.e. lease] of Smith v
Brown’’, or, more briefly, ‘‘Doe d. Smith v Brown’’. It was useless
for Brown to protest against these fictions: he was not allowed to
defend the action unless he acquiesced in them.115 The remarkable
result was that the question of ownership of land was fought under
the guise of an action of trespass.
These fictions have been long abolished,116 and an action for the
recovery of land differs in no formal respect from any other action.
A special summary procedure has, however, been devised to enable
a claimant to obtain an order for possession against persons in
occupation of his land if they entered or remained there without his
licence or consent, whether or not he is able to identify all, or even
any, of those persons.117
What is it that a person seeking to recover land under the modern 13–16
procedure must show? He succeeds if he shows that he has a ‘‘better
title’’ than the defendant, as where he is a purchaser from an owner
who has been excluded by the defendant. However, nothing
approaching a paper title is necessary. Although it was said that for
ejectment it was insufficient to set up the mere de facto possession
which, as we have seen, will usually enable the claimant to sue for
trespass as a tort,118 this distinction is now very tenuous in view of
115
Sometimes the fictitious names were more descriptive: e.g. Fairclaim v Shamtitle (1762)
3 Burr. 1290.
116
By the Common Law Procedure Act 1852. For the history of the matter, see Holdsworth,
HEL, iii, pp.213–217 vii, pp.4–23. The best account is is Maitland, Equity, pp.352–355
reprinted separately as Forms of Action, pp.56–59. John Doe, however, continues to serve
the law in another context: see Barnett v French [1981] 1 W.L.R. 848, where his
participation was singularly apt, the real defendant being the Dept of the Environment.
117
CPR Pt 55, replacing the former RSC, Ord.113 and CCR, Ord.24. The court’s jurisdiction
extends to making an order for possession of the whole premises, not just that part
presently under adverse occupation provided an intention to decamp can be inferred:
University of Essex v Djemal [1980] 1 W.L.R. 1301. Where the defendants are in
occupation of land A it is possible to grant an injunction restraining them from going on
to other, separate land B to which the claimant fears they may decamp, but the special
procedure for possession is not available in such a case. This is inconvenient because in
cases of ‘‘traveller’’ or ‘‘mass protest’’ trespass the methods of enforcement of injunctions
(sequestration or imprisonment) may not be effective. The reason is that a possession order
would require the defendants to do what they cannot then do, surrender possession of land
B: Secretary of State for Environment etc v Meier [2009] UKSC 11; [2009] 1 W.L.R.
2780.
118
Harper v Charlesworth (1825) 4 B. & C. 574 at 589 per Bayley J., at 592–594 per Holroyd
J.
702 Trespass to Land
Although the airport would not have been able to sue for damages
for trespass, nevertheless, for the purpose of gaining possession it
had a ‘‘superior right’’ to that of the defendants. However, the same
court has subsequently declined to extend this decision to a situation
where the licence was to enter and carry out work on the land but not
to occupy it.124
C. Jus Tertii
13–17 The modern cases on recovery of land have not addressed another
question, which has been controversial: if the claimant relies on his
title to the land, how far may the defendant defeat his claim by
showing a superior right in a third party? In an ordinary action of
trespass the defendant cannot as a general rule set up the defence of
jus tertii,125 but is this rule applicable to the defendant to an action
for the recovery of land? If the claimant must prove his title,126 it
119
(1865) L.R. 1 Q.B. 1. See, too, Doe d. Hughes v Dyeball (1829) Moo. & M. 346.
120
Approved by the Judicial Committee in Perry v Clissold [1907] A.C. 73 at 79.
121
Whale v Hitchcock (1876) 34 L.T. 136.
122
[2000] Q.B. 133.
123
At 150.
124
Countryside Residential (North Thames) Ltd v Tugwell [2000] 34 EG 87.
125
See para.13–2, above.
126
For example, where he is someone who has purchased or inherited the property.
Remedies 703
D. Mesne Profits
The action for mesne profits is another species of the action for 13–18
trespass and lies for the damage which the claimant has suffered
through having been out of possession of his land. By Blackstone’s
127
See above, fn.119.
128
[1907] A.C. 73 at 79.
129
(1849) 13 Q.B. 945.
130
For full discussion of the question, see Wiren, (1925) 41 L.Q.R. 139, Hargreaves,
‘‘Terminology and Title in Ejectment’’ (1940) 56 L.Q.R. 376 Holdsworth, ‘‘Terminology
and Title in Ejectment—A Reply,’’ (1940) 56 L.Q.R. 479.
131
Winfield was firmly of the contrary view: see earlier editions of this book. He contended
that the argument that the law greatly respects possession, ‘‘is a two-edged argument, for
if the law respects possession which the claimant once had, why should it not equally
respect possession which the defendant now has? And it sounds odd to insist that, because
C is the real owner of land, B, who is in wrongful (but legally protected) possession of it,
ought to give it up to A who once had wrongful possession of it.’’
132
Doe d. Johnson v Baytup (1835) 3 Ad. & E. 188. A general denial in a pleading by a tenant
does not amount to a sufficient denial of the landlord’s title to cause a forfeiture of the
lease: Warner v Sampson [1959] 1 Q.B. 297.
133
Lopes L.J. in Dalton v Fitzgerald [1897] 2 Ch. 86 at 93.
704 Trespass to Land
time nothing but a shilling or some trivial sum was usually recover-
able in the action of ejectment because it had been ‘‘licked into the
form of a real action’’134 and its chief purpose had become the trial
of the title to land.135 If the claimant was successful, he got posses-
sion of the land but no compensation for having been kept out of it.
The action for mesne profits enables the claimant to claim a reason-
able rent for the possession of the property by the defendant and
damages for deterioration and the reasonable costs of getting posses-
sion.136 The claimant in an action for the recovery of land may join
with it a claim for mesne profits, and if he does so it is unnecessary
for him to have entered the land before he sues.137 If he prefers he
can still bring the action for mesne profits separately but in that
event he must first enter, for the action is one of trespass, trespass is
a wrong to possession, and until he enters he has not got it. Once he
has entered, however, then, by the fiction of trespass by relation138
the claimant is deemed to have been in possession during the whole
period for which he claims the mesne profits.
134
Goodtitle v Tombs (1770) 3 Wils. K.B. 118 at 120 per Wilmot C.J.
135
Blackstone, Comm, ii, p.205.
136
It does not matter that the claimant cannot show that he could have let the property while
he was out of possession, nor that the defendant has not profited from the property:
Inverugie Investments Ltd v Hackett [1995] 1 W.L.R. 713. See also MoD v Ashman (1993)
66 P. & C.R. 195 at 201.
137
If the claimant’s title to the land has been extinguished by adverse possession, so is his
claim for mesne profits: Mount Carmel Investment Ltd v Peter Thurlow Ltd [1988] 1
W.L.R. 1078.
138
See para.13–3, above.
CHAPTER 14
NUISANCE1
1. INTRODUCTION
IN modern parlance, nuisance is that branch of the law of tort most 14–1
closely concerned with ‘‘protection of the environment’’. Thus nui-
sance actions have concerned pollution by oil2 or noxious fumes,3
interference with leisure activities,4 offensive smells from premises
1
Buckley, Law of Nuisance, 2nd edn.
2
Esso Petroleum Co Ltd v Southport Corp [1956] A.C. 218.
3
St Helen’s Smelting Co v Tipping (1865) 11 H.L.C. 642.
4
Bridlington Relay v Yorkshire Electricity Board [1965] Ch. 436.
705
706 Nuisance
15
Issa v Hackney LBC [1997] 1 W.L.R. 956.
16
In R. v Crown Court at Liverpool, Ex p. Cooke [1997] 1 W.L.R. 700, the CA emphasised
that only ‘‘simple, straightforward’’ claims should be entertained and that even within the
financial limit of £5,000 the magistrates should not engage themselves in what are
essentially civil claims.
17
Under this procedure there is no abatement notice and it is the court which orders the
nuisance to be abated. Since s.82(2) allows for the imposition of a fine in respect of
conduct before the hearing the proceedings are criminal in nature (despite the reference to
‘‘complaint’’ in s.82(1)) and there is therefore power to make a compensation order.
18
Possible reasons include: (1) an injunction may be more effective than a criminal fine
(even though there are ‘‘topping up’’ provisions where the nuisance continues) see, e.g.
City of London Corp v Bovis Construction Ltd [1992] 3 All E.R. 697; (2) the nuisance may
fall outside the matters listed in s.79; (3) where damage has been suffered the case may be
too complex for a compensation order; (4) under s.80(7) it is in some cases a defence to
a prosecution that the ‘‘best practicable means’’ have been used to prevent it. This may be
more favourable to the defendant in some cases than the common law (but see Wivenhoe
Port v Colchester BC [1985] J.P.L. 175).
19
See para.4–38, above.
20
See for example Church of Jesus Christ of Latter Day Saints v Price [2004] EWHC 3245
(QB) and Fowler v Jones, June 10, 2002 (Hayward’s Heath CC) where £10,100 damages
were awarded for nuisance and harassment.
21
Sometimes on a large scale. In Hunter v Canary Wharf Ltd [1997] A.C. 655 there were 690
claimants.
22
For example, there were substantial settlements in 1993 of civil claims arising from alleged
dioxin pollution in Derbyshire where regulatory action had not been taken.
23
McLaren, ‘‘Nuisance Law and the Industrial Revolution’’ (1983) 3 O.J.L.S. 155 concludes
that deficiencies of the law in dealing with pollution in the 19th century stemmed not from
defects in principle (indeed, judges were quite ready to reject the pleas of manufacturers)
but from the disinclination of those best able to take action to put the law in motion.
708 Nuisance
24
2004/35/EC. See Koch, ‘‘European Union’’ in Koziol and Steininger (eds), European Tort
Law 2004.
25
Recital 14. For a discussion of the difficulties of the concept of ‘‘environmental damage’’
see British Columbia v Canadian Forest Products Ltd [2004] SCC 38; [2004] 2 S.C.R. 74
(where, however, the claim was limited by the pleadings and evidence).
26
In addition, art.1 of the First Protocol provides that everyone, ‘‘is entitled to the peaceful
enjoyment of his possessions’’.
27
See para.14–35, below.
28
[2004] EWCA Civ 905; [2004] 1 W.L.R. 2557.
29
Which forbids interference by a public authority with the right.
Introduction 709
A. Public Nuisance
Nuisances are divided into public and private, although it is quite 14–2
possible for the same conduct to amount to both. A public nuisance
is a crime, while a private nuisance is only a tort. A public or
common nuisance is one which materially affects the reasonable
comfort and convenience of life of a class of the public who come
within the sphere or neighbourhood of its operation31; the question
whether the number of persons affected is sufficient to constitute a
class is one of fact in every case, and it is sufficient to show that a
representative cross-section of that class has been so affected for an
injunction to issue.32 This definition is vague and it has been rightly
said that nuisance, ‘‘covers a multitude of sins, great and small’’.33
Public nuisances at common law include such diverse activities as
carrying on an offensive trade, keeping a disorderly house, selling
food unfit for human consumption, obstructing public highways,
throwing fireworks about in the street and holding an ill-organised
pop festival.34 In many cases such conduct will now be covered by
a specific statutory offence and where this is so a criminal prosecu-
tion should normally be brought for that rather than at common
law.35 Subject to this, however, the common law of public nuisance
30
At [43].
31
One cannot add together the effect of numerous acts aimed at individuals and thereby
claim that the public is affected. Thus a malicious bomb hoax call may be a public
nuisance but not a campaign of hate mail to numerous people: R v Rimmington [2005]
UKHL 63; [2006] 1 A.C. 459.
32
Att Gen v P.Y.A. Quarries Ltd [1957] 2 Q.B. 169 at 184 per Romer L.J. (quarrying blasting,
stones and splinters projected from quarry, dust, noise and vibration). Provided it affects
the public it does not matter that only a small number of people in fact use the facility: Jan
de Nul (UK) Ltd v Axa Royal Belge [2000] 2 Lloyd’s Rep. 700 (on appeal, [2002] EWCA
Civ 209; [2002] 1 Lloyd’s Rep. 583). Denning L.J.’s view in P.Y.A. Quarries that a public
nuisance is one which is so widespread in its range or so indiscriminate in its effect that
it would not be reasonable to expect one person as distinct from the community at large
to take proceedings to put a stop to it has been doubted: R v Rimmington above, fn.31, at
[44].
33
Southport Corp v Esso Petroleum Co Ltd [1954] 2 Q.B. 182 at 196 per Denning L.J.
34
Att Gen for Ontario v Orange Productions Ltd (1971)21 D.L.R. (3d) 257.
35
R. v Rimmington, above, fn.31.
710 Nuisance
36
R. v Rimmington, fn.31.
37
Kodilinye, ‘‘Public Nuisance and Particular Damage in Modern Law’’ (1986) 6 L.S.
182.
38
Winterbottom v Lord Derby (1867) L.R. 2 Ex. 316 at 321–322. ‘‘Even if he chose to incur
expense to remove it. There must be some damage to himself, his trade or calling’’: per
Kelly C.B.
39
However, this is not entirely easy to square with the undoubted proposition that the same
thing may be both a public nuisance and a private nuisance to persons whose property
interests are affected. See Sutherland v Canada [2002] BCCA 416, 215 D.L.R. 4th 1.
40
Winterbottom v Lord Derby, above, fn.38.
41
Gouriet v Union of Post Office Workers [1978] A.C. 435 (not a case of public
nuisance).
42
Local Government Act 1972 s.222.
43
It was used in the ‘‘Sunday trading’’ cases (see, e.g. Kirklees MBC v Wickes Building
Supplies Ltd [1993] A.C. 227). However, the grant of an injunction in the case of conduct
falling within the ‘‘ASBO’’ scheme of the Crime and Disorder Act 1998 would only be
justified in an exceptional case: Birmingham CC v Shafi [2008] EWCA Civ 1186; [2009]
1 W.L.R. 1961.
Public and Private Nuisance 711
C. Private Nuisance
14–4 Private nuisance may be described as unlawful interference with
a person’s use or enjoyment of land, or some right over, or in
connection with it.55 It has been said56 that the tort takes three forms:
encroachment on a neighbour’s land57; direct physical injury to the
land; or interference with the enjoyment of the land. The varieties of
the third form are almost infinite but it is still a tort against rights of
property and therefore lies only at the suit of a person with a
sufficient interest in the land.58 Generally, the essence of a nuisance
is a state of affairs that is either continuous or recurrent, a condition
or activity which unduly interferes with the use or enjoyment of
land. It is not necessary that there be any physical emanation from
50
This is not as onerous a requirement as might appear: para.14–28, below.
51
Claimants in Corby Group Litigation v Corby BC [2008] EWCA Civ 463; [2009] 2 W.L.R.
609.
52
See the doubts of Lord Goff in Hunter v Canary Wharf Ltd [1997] A.C. 655 at 692.
53
See para.14–15, below.
54
Colour Quest Ltd v Total Downstream UK Plc [2009] EWHC 640 (Comm); [2009] 2
Lloyd’s Rep 1. Indeed, the same person may have a claim for both.
55
Adopted by Scott L.J. in Read v Lyons & Co Ltd [1945] K.B. 216 at 236; by Lord Goddard
C.J. in Howard v Walker [1947] 2 All E.R. 197 at 199; by Evershed J. in Newcastle-under-
Lyme Corp v Wolstanton Ltd [1947] Ch. 92 at 107 (his dictum on this point was unaffected
by the appeal [1947] Ch. 427 at 467–468); and by Windeyer J. in Hargrave v Goldman
(1963) 37 A.L.J.R. 277 at 283, affirmed [1967] 1 A.C. 645.
56
Hunter v Canary Wharf Ltd [1997] A.C. 655, 695 per Lord Lloyd.
57
e.g. by spreading roots or overhanging branches.
58
See para.14–15, below.
Public and Private Nuisance 713
59
Thompson-Schwab v Costaki [1956] 1 W.L.R. 335 (prostitution); Laws v Florinplace Ltd
[1981] 1 All E.R. 659 (sex shop, interlocutory injunction, triable issue of nuisance
independently of risk of undesirable activities by customers). In Hunter v Canary Wharf
Ltd [1997] A.C. 655, Lord Goff seems to approve Thompson-Schwab. No doubt it is
generally true that nuisance involves some ‘‘emanation’’ from the defendant’s land to the
claimant’s land but (a) this must sometimes be taken rather metaphorically and (b) there
are exceptions, e.g. where works on the defendant’s land cause a watercourse on the
claimant’s land to flood: Bybrook Barn Centre Ltd and others v Kent CC [2001] B.L.R. 55,
but it is essential that the harmful effect has its origin outside the claimant’s land: thus a
landlord who complains that his tenant has caused long-term damage to the property may
have an action for waste or negligence or breach of contract, but not for nuisance: BP Oil
New Zealand Ltd v Ports of Auckland Ltd [2004] N.Z.L.R. 208.
60
Hunter v Canary Wharf Ltd [1997] A.C. 655, para.14–10, below. Bank of NZ v Greenwood
[1984] 1 N.Z.L.R. 525 is a borderline case, but the building was not merely a passive thing
in the landscape—it threw off dazzling reflections. Cf. Wernke v Halas 600 N.E. 2d 117
(Ind., 1992)—offensive sight.
61
‘‘A balance has to be maintained between the right of the occupier to do what he likes with
his own, and the right of his neighbour not to be interfered with’’: Sedleigh-Denfield v
O’Callaghan [1940] A.C. 880 at 903 per Lord Wright.
62
Use your own property in such a way as not to harm that of others.
63
Bamford v Turnley (1862) 3 B. & S. 66 a 79, 83–84. ‘‘Liability is imposed only in those
cases where the harm or risk to one is greater than he ought to be required to bear under
the circumstances’’: per Bramwell B.
64
The maxim was described by Erle J. as an ‘‘ancient and solemn imposter’’: Bonomi v
Backhouse (1858) E.B. & E. 622 at 643.
714 Nuisance
D. Nuisance to Servitudes
14–5 We have so far been considering private nuisance as the inter-
ference with a person’s use or enjoyment of land, and we have seen
that in determining liability, the nature and quality of the defen-
dant’s conduct is a factor of great importance. In addition to this
situation, however, the tort of nuisance provides a remedy for the
infringement of a servitude,65 such as the obstruction of a right of
way or the blocking of an acquired right to light. In Colls v Home
and Colonial Stores Ltd,66 Lord Macnaghten regarded the action for
interference with an easement as sui generis, the function of the
action being to remedy the infringement of a right, not to com-
pensate for the commission of a wrong, so that the nature of the
defendant’s conduct would be a less relevant consideration than in
other cases of nuisance. However, while this may be true of a simple
case of obstruction of a right of way, servitude rights may be as
qualified as the general right to enjoyment.67
3. REASONABLENESS
14–6 The central issue of the whole law of nuisance is the question of
reasonableness of the defendant’s conduct, ‘‘according to the ordi-
nary usages of mankind living in . . . a particular society’’.68 It is
vital to grasp at the outset that reasonableness is being used here in
a sense rather different from that in the law of negligence. It is a
comparatively simple proposition that you are liable for negligence
if you drive a car carelessly against a pedestrian in the street and it
would be ridiculous to say that there are some circumstances in
which you may do so and others in which you may not. In other
words, our attention is concentrated on the relative issue of the
characterisation of the defendant’s conduct as foreseeably likely to
injure and once we have determined this in the claimant’s favour we
immediately progress to legal liability, treating the claimant’s right
to personal security as absolute. Nuisance, however, generally
approaches the issue from the other end and we cannot make such
a proposition as that you may not make a noise which irritates your
neighbour, for common sense tells one that such a rule would be
totally unworkable. Some intrusion by noise (or smells or dust, etc.)
is the inevitable price of living in an organised society in proximity
to one’s neighbours, indeed:
65
i.e. easements, profits a prendre and natural rights.
66
[1904] A.C. 179.
67
For example the right at common law of a riparian owner to take a reasonable amount of
water for agricultural and domestic purposes; but the right to take water is now subject to
extensive statutory control.
68
Sedleigh-Denfield v O’Callaghan [1940] A.C. 880 at 903 per Lord Wright.
Reasonableness 715
‘‘[T]he very nuisance the one complains of, as the ordinary use of
his neighbour’s land, he himself will create in the ordinary use of
his own and the reciprocal nuisances are of a comparatively
trifling character’’.69
69
Bamford v Turnley (1862) 3 B. & S. 62 at 83 per Bramwell B. Kennaway v Thompson
[1981] Q.B. 88 at 94.
70
Bamford v Turnley, above, fn.70, at 83; Cambridge Water Co v Eastern Counties Leather
Plc [1994] 2 AC 264 at 299.
71
All the circumstances of the case, including the utility of the defendant’s activity must be
taken into account in determining whether his conduct is so unreasonable as to amount to
a nuisance (see below) but such matters may be equally relevant to determine whether his
conduct constitutes legal negligence (para.5–83, above). Indeed, where there is physical
damage but no deliberate interference by the defendant one can discern a strong tendency
to run nuisance and negligence together: Bolton v Stone [1951] A.C. 850; Goldman v
Hargrave [1967] 1 A.C. 645.
72
Southwark London Borough Council v Mills [2001] 1 A.C. 1 at 16. Compare Leeman v
Montagu [1936] 2 All E.R. 1677 (750 cockerels crowing between 2 and 7am, no attempt
to rearrange farm, held a nuisance) with Moy v Stoop (1909) 25 T.L.R. 262 (crying
children in day nursery, no lack of care, no nuisance); and see the cases on malicious
activity, para.14–12, below. It has been said that once the interference is of sufficient
magnitude to be a nuisance the burden then shifts to the defendant to show that he took all
proper steps: Hiscox Syndicates Ltd v The Pinnacle Ltd [2008] EWHC 145 (Ch).
73
Cf. Ball v Ray (1873) LR 8 Ch. App. 467.
74
Southwark London Borough Council v Mills, above, fn.72.
716 Nuisance
75
Rapier v London Tramways Co [1893] 2 Ch. 588.
76
Bamford v Turnley (1862) 3 B. & S. 66 at 79 per Pollock C.B.
77
(1865) 11 H.L.C. 642.
78
(1865) 11 H.L.C. at 651.
79
Sturges v Bridgman (1879) 11 Ch.D. 852 at 865 per Thesiger L.J.; Polsue and Alfieri v
Rushmer [1907] A.C. 121; Andreae v Selfridge & Co [1938] Ch. 11; Milner v Spencer
(1976) 239 E.G. 573. The American equivalents are apparently Palm Springs and Pitts-
burgh: Prosser & Keeton, Torts, 5th edn, p.633.
80
(1865) 11 H.L.C. at 653.
Reasonableness 717
81
It seems fairly clear from Lord Westbury’s speech that he did have in mind physical
damage (including visible deterioration). Noises or smells primarily cause only personal
discomfort but they may seriously reduce the selling value of the property affected by them
and injure a business (e.g. a hotel) carried on therein. If this is not ‘‘injury to property’’ it
may be asked whether the distinction is justified. In Hunter v Canary Wharf Ltd [1997]
A.C. 655 at 706 Lord Hoffmann emphasises that even in the case of nuisances of the
‘‘personal discomfort’’ variety the damages are awarded for the effect on the amenity value
of the land.
82
[1961] 1 W.L.R. 683 and see Miller v Jackson [1977] Q.B. 966 at 986.
83
Wheeler v J.J. Saunders Ltd [1996] Ch. 19; Hunter v Canary Wharf Ltd [1997] A.C. 655,
CA (not in issue on appeal to HL).
84
[1993] Q.B. 343; Hawkes Bay Protein Ltd v Davidson [2003] N.Z.L.R. 536.
85
Under the Local Government Act 1971 s.222 (see para.14–3, above).
86
There is no significance in the nature of the claim. The same state of affairs may be both
a public and a private nuisance provided the rights of individuals over land are affected:
para.14–3, above.
87
The planning process of course involves rights of objection and appeal, inquiries and
references to the Minister, in certain circumstances.
88
The local authority was the same body which had granted the planning permission in 1983.
It had power to revoke the permission, to impose conditions or to make traffic schemes to
reduce the disturbance, but to take these steps might have involved it in paying statutory
compensation to the defendants. In view of the authority’s continuing powers and certain
assurances about access which had been given to the defendants in 1983 Buckley J. would
in any event have exercised his discretion to refuse an injunction.
718 Nuisance
89
Most particularly by Peter Gibson L.J. in Wheeler v J.J. Saunders, above, fn.83. Pill L.J. in
Hunter v Canary Wharf, above, fn.83; said he agreed with Peter Gibson L.J.’s approach.
90
Wheeler v J.J. Saunders, above, fn.83; Watson v Croft Promo Sport Ltd [2009] EWCA Civ
15; [2009] 3 All E.R. 249.
91
This is demonstrated most clearly where the activity is actuated by malice, for malicious
conduct can have no utility: see para.14–12, below.
92
Shelfer v City of London Electric Co [1895] 1 Ch. 287; Elliott v Islington London Borough
[1991] 10 E.G. 145; Watson v Croft Promo Sport Ltd, above, fn.90. In Miller v Jackson
[1977] Q.B. 966 Lord Denning M.R., dissenting, thought that public interest must prevail
over private rights of property whether the issue was the existence of a legal nuisance or
the grant of an injunction, but the Court of Appeal has rejected this: Kennaway v
Thompson [1981] Q.B. 88.
93
Bellew v Cement Co [1948] Ir.R. 61.
94
[2003] EWHC 793 (QB); [2003] Env L.R. 34.
95
The claimants pursued a declaration in order to avoid the niceties of the grant of
injunctions against the Crown. It is not clear from the transcript how the proposed
declaration was framed. It could not have been that the flying constituted a nuisance
because that was the basis of the court’s decision to award damages. A declaration in the
form that the defendants should cease or moderate their activities would have been an
injunction in all but name.
Reasonableness 719
C. Abnormal Sensitivity
In considering what is reasonable the law does not take account of 14–9
abnormal sensitivity in either persons or property. If the only reason
why a person complains of fumes is that he has an unusually
sensitive nose or that he owns an exotic flower, he cannot expect any
sympathy from the courts.
In Heath v Mayor of Brighton96 for example, the incumbent and
trustees of a Brighton church sought an injunction to restrain noise
from the defendants’ electrical power station. There was no proof of
diminution of the congregation or of any personal annoyance to
anyone except the incumbent and he was not prevented from preach-
ing or conducting his services, nor was the noise such as to the
distract the attention of ordinary healthy persons attending the
church. An injunction was not granted. It seems that no regard
should be had to the special needs of invalids, or to special occupa-
tional needs, for there is no redress for damage due solely to the
exceptionally delicate nature of the operations carried on by an
injured party.97
Robinson v Kilvert98 illustrates the point with regard to sensitive
property. The defendant began to manufacture paper boxes in the
cellar of a house the upper part of which was in the occupation of the
claimant. The defendant’s business required hot and dry air and he
heated the cellar accordingly. This raised the temperature on the
claimant’s floor and dried and diminished the value of brown paper
which the claimant warehoused there but it did not inconvenience
the claimant’s workmen nor would it have injured paper generally.
It was held that the defendant was not liable for nuisance. A person
who carries on an exceptionally delicate trade cannot complain
because it is injured by his neighbour doing something lawful on his
property, if it is something which would not injure anything but an
exceptionally delicate trade.99 You cannot increase the liabilities of
your neighbour by applying your property to special uses, whether
96
(1908) 98 L.T. 718.
97
Bloodworth v Cormack [1949] N.Z.L.R. 1058 at 1064; Murray v Laus [1960] N.Z.L.R.
126 (noise); cf. Stretch v Romford Football Club (1971) 115 S.J. 741.
98
(1889) 41 Ch. D. 88; Whycer v Urry [1955] C.L.Y. 1939 (CA held practice of ophthalmic
optician in a business area too specially delicate for protection).
99
This is one of many problems posed for the law of nuisance and associated areas by
genetic modification of crops: although there may be no evidence that migration of GM
organisms from one property to another will cause any damage in the sense of making the
non-GM crop unfit for consumption, the loss of accredited ‘‘non-GM’’ status may be
commercially damaging. How far is the non-GM activity ‘‘sensitive’’? How far is it
unreasonable to carry on GM farming in the vicinity? For various aspects of the problem
see Hoffmann v Monsanto Canada Inc [2005] SKQB 225.
720 Nuisance
D. Limits to Protection
14–10 Nowadays it is probably unlikely that many people would regard
as ‘‘unduly sensitive’’ a claimant who complained that his view was
ruined or his sitting room darkened or smoke caused to blow back
down his chimney by the erection of neighbouring premises. Never-
theless it is well established that there is no natural right to a view104
or to light or to the free passage of air105 though the last two at least
may be acquired by prescription106 and may of course be conferred
by grant. The cases on the absence of a right to a view or light
provided the basis of the decision in Hunter v Canary Wharf Ltd107
in which the House of Lords held that the defendants were not liable
in nuisance for constructing a 250-metre high stainless steel-clad
tower which interfered with the claimants’ television reception: if a
landowner has a right, at common law, to build on his land in such
100
Eastern and SA Telegraph Co v Cape Town Tramways [1902] A.C. 381 at 383. However,
there may be liability if defendant fails to adopt such reasonable and practicable precau-
tions as could have avoided the damage without appreciable prejudice to his own interests.
Gandel v Mason [1953] 3 D.L.R. 65 (road contractors liable in nuisance and negligence,
they knew of peculiar sensitivity of mink in whelping season) Nova Mink v TCA [1951]
2 D.L.R. 241 distinguished.
101
McKinnon Industries Ltd v Walker [1951] 3 D.L.R. 577 at 581 per Lord Simonds.
102
Network Rail Infrastructure Ltd v Morris [2004] EWCA Civ 172 at [35] per Buxton
L.J.
103
Network Rail Infrastructure Ltd v Morris, above, fn.102, at [18].
104
Dalton v Angus (1881) 6 App. Cas. 740 at 824. The planning authority will take account
of such matters and is required to notify neighbours of applications, but if it fails to do so
it has been held in Australia that there is no private law remedy: Newcastle CC v Shortland
Management Services [2003] NSWCA 156; cf. Craig v East Coast Bays CC [1986]
N.Z.L.R. 99, at a time when an expansive approach to negligence prevailed in New
Zealand.
105
Bryant v Lefever (1879) 4 C.P.D. 172; Belfast CC v Irish Football Association Ltd [1988]
N.I. 290.
106
See further Clerk & Lindsell, Torts, 19th edn, para.20–112.
107
[1997] A.C. 655.
Reasonableness 721
108
Especially bearing in mind that the direction of these signals may change and the
defendant has no control over that. Cf. Bank of NZ v Greenwood [1984] 1 N.Z.L.R. 525
(intolerable reflection of light from surface of building).
109
[1965] Ch. 436.
110
The interference was only on one channel and was contributed to by the special nature of
the claimants’ relay services. The actual reason for the refusal of the injunction was that
the defendants proposed to correct the matter.
111
Lords Goff and Cooke ([1997] A.C. at 684 and 719) seem favourable. Lord Hoffmann
leaves the issue open (at 708). Lord Lloyd inclines against. See also Nor-Video Services
Ltd v Ontario Hydro (1978) 84 D.L.R. (3d) 221 and Kidner [1989] Conv 279.
112
See para.5–40, above.
113
For an intermediate case see the claim of Hampshire Wildlife Trust in Jan de Nul (UK) Ltd
v Axa. Royal Belge [2002] EWCA Civ 209; [2002] 1 Lloyd’s Rep. 583 (interference with
land by deposit of silt; claimants commissioned survey which showed that no serious
damage done; cost of survey recoverable).
114
They are not likely to amount to much: Gas Act 1986 s.10(9).
115
Anglian Water Services Ltd v Crawshaw Robbins Ltd [2001] B.L.R. 173. If, however, this
is treated as resting on the proposition that it is not a nuisance to prevent something coming
onto the claimant’s land it presents difficulties about saying that interference with tele-
vision reception caused by an activity can be a nuisance. See also Colour Quest Ltd v Total
Downstream UK Plc [2009] EWHC 640 (Comm); [2009] 2 Lloyd’s Rep. 1 at [467] and
Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180 at [151].
116
See Dalton v Angus (1881) 6 App. Cas. 740.
722 Nuisance
E. Temporary Injury
14–11 Where the claimant seeks an injunction to restrain a nuisance, it
will not be issued, except in extreme cases, if the nuisance is
temporary and occasional only. The reason for this is that an injunc-
tion is a remedy depending on the discretion of the court and it will
not be issued where damages would be an adequate remedy. In
Swaine v GN Ry,122 for example, manure heaps which were ordi-
narily inoffensive were occasionally rendered offensive by a delay
in their removal and also by the presence of dead cats and dogs. The
Court of Chancery declined to grant an injunction, leaving the
claimant to his common law action for damages. An instance of the
exceptional circumstances in which the court did grant an injunction
was pile-driving carried on by night for building purposes for to do
it at that time was unreasonable.123
Where the claim is for damages, as distinct from an injunction,
the duration of the alleged nuisance is one of the relevant factors in
determining whether the defendant has acted unreasonably and is
117
[1970] 1 W.L.R. 161.
118
[1987] 1 W.L.R. 1381.
119
[1895] A.C. 587.
120
In the sense that no one can complain of appropriation by another, but it is tortious to
pollute an underground stratum from which neighbours draw water: Ballard v Tomlinson
(1885) 29 Ch.D. 115; Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2
A.C. 264.
121
[1971] 1 W.L.R. 1381 at 1387. The law on support has been modified in other jurisdictions:
see, e.g. Re National Capital Commission and Pugliese (1979) 97 D.L.R. (3d) 631;
Bognuda v Upton & Shearer [1972] N.Z.L.R. 741.
122
(1864) 4 De G.J. & S. 211 at 215–216.
123
De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914) 30 T.L.R. 257. For damages in lieu
of injunction, see generally para.22–53, below.
Reasonableness 723
124
Per Pollock C.B. in Bamford v Turnley (1862) 3 B. & S. 66 at 79 31 L.J.Q.B. 286 at 292
(a dissenting judgment, but certainly not on this point). Bramwell B.’s expression at 294
is too wide.
125
Vaughan Williams J. in Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch. 409
at 413–414; Clift v Welsh Office [1999] 1 W.L.R. 796. Cf. Andreae v Selfridge & Co Ltd
[1938] Ch. 1 at 6 per Sir Wilfrid Greene M.R.: ‘‘Common or ordinary use of land . . . does
not mean that the methods of using land and building on it are in some way to be stabilised
for ever . . . New methods enable land to be more profitably used, either by digging down
into the earth or mounting it up into the skies.’’
126
Iveson v Moore (1699) 1 Ld.Raym. 486.
127
Brett J. in Benjamin v Storr (1874) L.R. 9 C.P. 400 at 407.
128
See Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyd’s Rep. 533 (15–20
minutes firework display with falling debris a nuisance).
129
[1970] 1 W.L.R. 1017 at 1031. The learned judge continued: ‘‘I am satisfied that one
negligent act that causes physical damage to an electric cable does not thereby constitute
a nuisance.’’ Nuisance was not considered on appeal by the Court of Appeal: [1971] 1 Q.B.
337.
130
Compare the facts of Stone v Bolton [1950] 1 K.B. 210 (the element of nuisance was not
discussed in the House of Lords [1951] A.C.850) with those of Miller v Jackson [1977]
Q.B. 966.
724 Nuisance
F. Malice
14–12 Is malice material in nuisance? If A’s legitimate use of his own
property causes to B annoyance which does not amount to a nui-
sance, will the fact that A’s acts are done solely for the purpose of
annoying B convert them into a nuisance?
In Christie v Davey,134 the defendant, exasperated by a consider-
able number of music lessons given by the claimant,135 a teacher of
music whose residence was separated from that of the defendant
only by a party-wall, interrupted the claimant’s lessons by knocking
on the party-wall, beating on trays, whistling and shrieking. North J.
issued an injunction because the defendant had acted deliberately
and maliciously for the purpose of annoying the claimant. The
learned judge added:
‘‘If what has taken place had occurred between two sets of
persons both perfectly innocent, I should have taken an entirely
different view of the case.’’136
131
See also Castle v St Augustine’s Links (1922) 38 T.L.R. 615; Spicer v Smee [1946] 1 All
E.R. 489; Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1 W.L.R.
1434.
132
Colour Quest Ltd v Total Downstream UK Plc [2009] EWHC 640 (Comm); [2009] 2
Lloyd’s Rep. 1 at [421].
133
See para.15–3, below.
134
[1893] 1 Ch. 316; Palmar v Loder [1962] C.L.Y. 2233.
135
Would this now be an ‘‘ordinary use’’ of a terraced house? Southwark London Borough
Council v Mills [2001] 1 A.C. 1.
136
[1893] 1 Ch. at 326–327.
137
[1895] A.C. 587.
Reasonableness 725
138
[1898] A.C. 1.
139
[1936] 2 K.B. 468 at 475. Distinguished in Rattray v Daniels [1959] 17 D.L.R. (2d) 134
(Alberta SC) (noise of bulldozer damaging mink in whelping season).
140
Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch. 409 at 414 per Vaughan
Williams L.J.; Bamford v Turnley (1862) 31 L.J.Q.B. 286 at 294 per Bramwell B.; Grant
v Fynney (1872) L.R. 8 Ch.App. 8 at 12 per Lord Selborne L.C.
141
For the background, see Simpson, ‘‘Victorian Law and the Industrial Spirit’’, Selden
Society Lecture, 1995.
726 Nuisance
14–13 The question of the extent to which fault (in the sense of negligence)
is necessary to establish liability in damages for nuisance has given
rise to great difficulty. There are many judicial statements of various
vintages asserting that liability in nuisance is ‘‘strict’’ but there are
very few cases in which the meaning of that expression has really
been explored. It is impossible to reconcile everything that has ever
been said on this subject but it is submitted that the current law may
be summarised in the following propositions.147
142
Acton v Blundell (1843) 12 M. & W. 324; Broadbent v Ramsbotham (1856) 11 Exch. 602;
Chasemore v Richards (1859) 7 H.L.C. 349.
143
See Fridman, ‘‘Motive in the English Law of Nuisance’’ (1954) 40 Va.L.R. 583.
144
In the case of water flowing in a defined channel a riparian owner can take water only for
use on the adjoining land. Water supplies, whether percolating or channelled, are now
generally subject to licensing control by regional water authorities under statute.
145
[1997] A.C. 655 at 721.
146
Perhaps a somewhat unlikely scenario, given modern planning controls.
147
This section is concerned with private nuisance. As we have seen above, public nuisance
is really a quite different tort but the position on that is even more obscure. The parties in
Claimants in Corby Group Litigation v Corby BC [2008] EWCA Civ 463; [2009] 2 W.L.R.
609 took the preliminary issue of whether it covered personal injuries to the CA. In fact
the claimants were able to establish fault and public nuisance figures hardly at all in the
decision on liability, Aikenhead J. contenting himself with saying that, ‘‘strictly speaking,
negligence or breach of a statutory duty is not essential in public nuisance although, if
there is negligence or a breach of statutory duty which causes life or health to be
endangered, there will be a public nuisance’’: [2009] EWHC 1944 (TCC) at [688].
Standard of Liability in Nuisance 727
148
Report No.32, ‘‘Civil Liability for Dangerous Things and Activities’’, p.25.
149
[1994] 2 A.C. at 300; e.g. Rapier v London Tramways Co [1893] 2 Ch. 588 at 560 per
Lindley L.J.: ‘‘If I am sued for nuisance, and the nuisance is proved, it is no defence on
my part to say, and to prove, that I have taken all reasonable care to prevent it.’’ In its
context, this statement means no more than that if the activity is unreasonably injurious
when carried on with all care, it should not be carried on at all; but see how in Transco Plc
v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1 at [97] Lord Walker cites the passage
in support of the proposition that, ‘‘negligence (in the sense of a demonstrable failure to
take reasonable care) has traditionally been regarded as irrelevant’’.
150
Sedleigh-Denfield v O’Callaghan [1940] A.C. 880 at 904–908 per Lord Wright and at 913
per Lord Romer.
151
This situation is discussed further, para.14–20, below. The burden of proof would appear
to lie upon the claimant (Sedleigh-Denfield v O’Callaghan [1940] A.C. 880 at 887, 899,
908) and it is significant that in Goldman v Hargrave [1967] 1 A.C. 645 the Privy Council
thought it unnecessary to decide whether the cause of action lay in nuisance or negligence.
See also Smith v Littlewoods Organisation Ltd [1987] A.C. 241 at 274 per Lord Goff.
152
Lord Walker in Transco Plc v Stockport MBC above, fn.149, at [96].
728 Nuisance
157
[1980] Q.B. 485.
158
Anthony v The Coal Authority [2005] EWHC (QB) 1654 (where failure to take steps to
prevent foreseeable spontaneous combustion of a spoil tip was actionable; but the defen-
dants would not have been held liable for combustion as a result of fires lit by trespassers).
Cf. Arscott v The Coal Authority [2004] EWCA Civ 892; [2005] Env L.R. 6, where an
increased risk of flooding was not foreseeable when infilling works were done.
159
Liability for tree root damage depends upon the defendant having means of knowledge of
the risk: Delaware Mansions Ltd v Westminster CC [2001] UKHL 55; [2002] 1 A.C. 321.
The principles of factual causation are the same as in negligence, i.e. it is enough to show
that the defendant’s roots made a material contribution to the damage: Loftus-Brigham v
Ealing LBC [2003] EWCA Civ 1490.
160
[1994] 2 A.C. at 269. But even in this situation remoteness of damage is based on
foreseeability: The Wagon Mound (No.2), para.6–18, above.
161
[2003] UKHL 61; [2004] 2 A.C. 1. See Ch.15.
162
Whether this is entirely reconcilable with the view taken in Cambridge Water is another
matter. The whole thrust of that case is that Rylands v Fletcher is not a category of liability
for ultra-hazardous activities and the emphasis is upon its applicability to ‘‘isolated
escapes’’. While ‘‘exceptional risk’’ may not be precisely the same thing as ‘‘ultra-
hazardous’’ it looks rather similar. The speech of Lord Hobhouse comes closer than the
others to equating Rylands v Fletcher with the general rule in private nuisance (see at
[55]–[57]) and at [64] he refers to a ‘‘recognizable’’ rather than an ‘‘exceptional’’ risk, but
despite his criticisms of the use of expressions like ‘‘ordinary’’ and ‘‘reasonable’’ at the end
of the day he goes along with the conclusion that a standard water system in a block of flats
does not attract the rule.
730 Nuisance
‘‘It is for the public benefit that there should be railways, but it
would not be unless the gain of having the railway was sufficient
to compensate the loss occasioned by the use of the land required
for its site; and accordingly no one thinks that it would be right to
take an individual’s land without compensation to make a rail-
way. It is for the public benefit that trains should run, but not
unless they pay their expenses. If one of those expenses is the
burning down of a wood of such value that the railway owners
would not run the train and burn down the wood if it were their
own, neither is it for the public benefit if the wood is not their
own. If, though the wood were their own, they would still find it
compensated them to run trains at the cost of burning the wood,
163
An intermediate position is suggested in Hamilton v Papakura DC [2000] 1 N.Z.L.R. 265
at [74], that liability is prima facie strict subject to a defence of reasonable care in the
ordinary use of land. The PC did not deal with this point: [2002] UKPC 9; [2002] 3
N.Z.L.R. 308.
Standard of Liability in Nuisance 731
A. Private Nuisance
‘‘He alone has a lawful claim [for private nuisance] who has 14–15
suffered an invasion of some proprietary or other interest in
land.’’169 This proposition was reaffirmed by the House of Lords in
Hunter v Canary Wharf Ltd.170 As far as encroachment on or
damage to the land is concerned the proposition is self-evident, but
it is equally applicable to nuisances like smells and noise which
affect the enjoyment of the land, for what is being remedied by the
law is not the personal discomfort of the persons on the land but the
diminution in the value of the land. Of course in such cases there
may not have been any effect on the capital value of the land, but
what may be called the ‘‘amenity value’’ of the land is diminished so
164
Bamford v Turnley (1862) 3 B. & S. 66. The case involved the burning of bricks.
165
Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1 at [29] per Lord
Hoffmann. For a full discussion see Oliphant, ‘‘Rylands v Fletcher and the Emergence of
Enterprise Liability in the Common Law’’ in Koziol and Steininger (eds), European Tort
Law 2004.
166
See para.15–22, below.
167
See para.14–34, below.
168
We all benefit from road transport but we do not require those using it to pay for damage
caused without fault.
169
Read v J. Lyons & Co Ltd [1947] A.C. 156 at 183 per Lord Simonds. The right to sue for
a nuisance derives from the general law; it is not part of a ‘‘package of rights’’ which an
estate owner acquires by conveyance from the transferor: Thornhill v Sita Metal Recycling
Ltd [2009] EWHC 2037 (QB).
170
[1997] A.C. 655. Lord Cooke’s dissent on this point relies in part on art.8 of the European
Convention on Human Rights. Jan de Nul (UK) Ltd v Axa. Royal Belge [2000] 2 Lloyd’s
Rep. 700 at 719, on appeal [2002] EWCA Civ 209; [2002] 1 Lloyd’s Rep. 583 (contractual
mooring rights insufficient; alternative claim for public nuisance); cf. Crown River Cruises
v Kimbolton Fireworks [1996] 2 Lloyd’s Rep. 533 (exclusive occupation of mooring).
732 Nuisance
171
Hence the CA in Bone v Seale [1993] Q.B. 727 was right to award damages for smells
caused by a pig farm but wrong to use the analogy of damages in personal injury cases.
The ‘‘loss of amenity’’ in those cases and ‘‘diminution in amenity value’’ in nuisance cases
are two different things. Where an injunction would be easily obtainable to stop the
nuisance, failure to seek one may affect damages for loss of amenity: Hawkes Bay Protein
Ltd v Davidson [2003] N.Z.L.R. 536. The assessment of diminution in amenity may have
to be via expert evidence on a notional rental value. This may be a somewhat artificial
exercise but no doubt evidence of the actual impact on persons living in the premises will
be relevant: Dobson v Thames Water [2009] EWCA Civ 28; [2009] 3 All E.R. 319 at [33],
where it is also said that if the premises were empty the damages would be nominal.
172
Cf. Khorasandjian v Bush [1993] Q.B. 727 (overruled in Hunter, a situation now within
the Protection from Harassment Act 1997).
173
Lord Lloyd (at 696) was unmoved by the somewhat far-fetched case of the occupier
unwilling to sue because he was less sensitive to smoke than members of his family.
174
[1997] A.C. at 706 per Lord Hoffmann.
Who can Sue 733
the occupier of the land may not frame a claim for personal injuries
as one for private nuisance.175
Since Hunter English courts have become able to give direct
effect to the European Convention on Human Rights and art.8
provides that, ‘‘everyone has the right to respect for his private and
family life [and] his home’’. It is plain that a situation which would
give rise to common law liability for nuisance may also constitute
an infringement of art.8 and where the defendant is a public author-
ity there is a direct right of action which is not on the face of it
constrained by the land-holding qualification set by the common
law. However, where an occupier has been awarded damages at
common law it is most improbable that any additional sum would be
awarded to him for violation of the Convention right; in the case of
non-occupying members of his family, who cannot recover at com-
mon law, it will be necessary, in determining whether ‘‘just satisfac-
tion’’ requires an award of damages to them, to consider how far the
process of assessing the occupier’s damages for diminution in amen-
ity have in fact taken account of the impact of the nuisance on the
family.176
As to the precise nature of the interest required, the ‘‘owner
occupier’’ can obviously sue.177 So can a tenant or a person who has
de facto exclusive possession.178 The position of the reversioner is
dealt with below. The owner of an incorporeal hereditament such as
an easement or profit can sue for disturbance of his right.179A
reversioner can bring an action in nuisance if he can show that there
is a likelihood that permanent injury will be caused to the property
175
There are statements to this effect by Lord Lloyd [1997] A.C. at 696 and Lord Hoffmann
at 706 (but cf. Ribee v Norrie [2001] P.I.Q.R. P128, para.15–9, below). As to public
nuisance see para.14–3, above. Logically the same might be argued to apply to damage to
personal property owned by the occupier but where this is combined with damage to land
or buildings that might cause practical complications. Lord Hoffmann thought the occupier
could recover damages for chattels or livestock as consequential loss (at 706) but that
personal injury was not a consequential loss. See also Crown River Cruises v Kimbolton
Fireworks [1996] 2 Lloyd’s Rep. 533. This assumes of course that even damages for
physical injury to the land are recoverable: cf. [1997] A.C. at 692.
176
Dobson v Thames Water [2009] EWCA Civ 28; [2009] 3 All E.R. 319 (see fn.171, above).
If such a separate award is made it does not call for a reduction in the occupier’s common
law damages: at [44], disapproving Dennis v MoD [2003] EWHC 793 (QB); [2003] Env
L.R. 34 on this point.
177
Where there is a continuing nuisance (e.g. intrusion of tree roots) an owner may recover
damages for remedial work even though some of the damage may have been done before
he acquired the property: Delaware Mansions Ltd v Westminster CC [2001] UKHL 55;
[2002] 1 A.C. 321.
178
[1997] A.C. at 688; Foster v Warblington UDC [1906] 1 K.B. 648; Pemberton v South-
wark LBC [2000] 1 W.L.R. 672 (where the court relied in part upon art.8 of the European
Convention on Human Rights); Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2
A.C. 1 at [92].
179
Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch. 343 (destruction of fish by pollution);
Weston v Lawrence Weaver Ltd [1961] 1 Q.B. 402 (physical damage to an easement of way
without interference with right of passage not actionable).
734 Nuisance
B. Public Nuisance
14–16 As we have seen, if a public nuisance has been committed, any
person who has suffered special damage can sue in respect of it. It
may, for instance, be the occupier of adjacent property and it may be
a user of the highway.186
180
The damages will have to be divided according to the relative interests of reversioner and
occupier: [1997] A.C. at 707.
181
Jones v Llanrwst UDC [1911] 1 Ch. 393 at 404 per Parker J.
182
Jesser v Gifford (1767) 4 Burr. 2141.
183
Colwell v St Pancras BC [1904] Ch. 707.
184
Kidgill v Moor (1850) 9 C.B. 364.
185
Simpson v Savage (1856) 1 C.B.(N.S.) 347; Cooper v Crabtree (1882) 20 Ch.D. 589.
186
e.g. Holling v Yorkshire Traction Co Ltd [1948] 2 All E.R. 662; Dollman v Hillman Ltd
[1941] 1 All E.R. 355; Hilder v Associated Portland Cement Manufacturers [1961] 1
W.L.R. 1434.
187
[2000] Q.B. 1.
188
[2000] Q.B. at 23.
Who can be Sued 735
In other cases it has been assumed that the creator of the nuisance is
liable even though he has no interest in any relevant land.193
B. Occupier
The occupier of the premises where the nuisance exists is in 14–18
general liable during the period of his occupancy.194 This is simple
enough where he himself created the nuisance, but further questions
arise where it originated: (1) with someone else lawfully on the
189
In Hussain at 24 significance is attached to the fact that in Page Motors Ltd v Epsom and
Ewell BC (1982) 80 L.G.R. 337 the wrongdoers had been ‘‘occupying’’ the council’s land
for some years.
190
See para.4–38, above. This was not in force at the time of Hussain.
191
See Evans L.J. in Lippiatt v South Gloucestershire Council [2000] Q.B. 51 at 61. For a
similar issue under the Housing Act 1996 see Enfield LBC v B [2000] 1 W.L.R. 1141.
192
L.E. Jones (Insurance Brokers) Ltd v Portsmouth CC [2002] EWCA Civ 1723; [2003] 1
W.L.R. 427. It is true that Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C.
1 is replete with statements like, ‘‘interference by one occupier of land with the right in or
enjoyment of land by another occupier of land’’ (at [9]) but (a) this is the position in the
vast majority of cases and (b) nothing turned on the defendant’s status since it plainly was
an occupier.
193
Fennell v Robson Excavations Pty Ltd [1977] 2 N.S.W.L.R. 486 is most directly in point
and reviews the authorities. See also Southport Corp v Esso Petroleum Ltd [1954] 2 Q.B.
182 at 204; [1956] A.C. 218 at 225; Thompson v Gibson (1841) 7 M. & W. 456; Rosewell
v Prior (1701) 12 Mod. 635 at 639.
194
Sedleigh-Denfield v O’Callaghan [1940] A.C. 880; Rigby v Sun Alliance & London
Insurance Ltd [1980] 1 Lloyd’s Rep. 359 (relationship between insurance policies cover-
ing liability as ‘‘owner’’ and as ‘‘occupier’’).
736 Nuisance
‘‘The basis of the occupier’s liability lies not in the use of his
land; in the absence of ‘adoption’ there is no such use; but in the
neglect of action in the face of something which may damage his
neighbour.’’214
‘‘The law must take account of the fact that the occupier on whom
the duty is cast has, ex hypothesi, had this hazard thrust upon him
through no seeking or fault of his own. His interest, and his
resources, whether physical or material, may be of a very modest
character either in relation to the magnitude of the hazard, or as
compared with those of his threatened neighbour. A rule which
required of him in such unsought circumstances in his neigh-
bour’s interest a physical effort of which he is not capable, or an
excessive expenditure of money, would be unenforceable or
unjust. One may say in general terms that the existence of a duty
must be based upon knowledge of the hazard, ability to foresee
the consequences of not checking or removing it, and the ability
to abate it . . . The standard ought to be to require of the occupier
what is reasonable to expect of him in his individual
circumstances.’’215
213
As a result of this principle the rule that the owner of a servient tenement subject to an
easement of support owes no duty to incur expenditure has been outflanked: Holbeck Hall
Hotel Ltd v Scarborough BC [2000] Q.B. 836 at 856; Rees v Skerrett [2001] EWCA Civ
760; [2001] 1 W.L.R. 1541.
214
[1967] 1 A.C. 645 at 661.
215
[1967] 1 A.C. 645 at 663.
216
See para.5–75, above; but in applying this test, ‘‘I do not think that, except perhaps in a
most unusual case, there would be any question of discovery as to means of the plaintiff
or the defendant, or evidence as to their respective resources. The question of reasonable-
ness . . . would fall to be decided on a broad basis, in which on some occasions, there
might be included an element of obvious discrepancy of financial resources’’: Leakey v
National Trust, above, fn.211, at 527 per Megaw L.J.
740 Nuisance
where the defendant was not himself responsible for the creation of
the source of danger.217 In these cases it is immaterial whether the
cause of action is termed ‘‘nuisance’’ or ‘‘negligence’’: the duty of
the defendant is a general duty of care to his neighbours and the
standard imposed on him is the same.218
The magnitude of the hazards which may be involved in cases of
this type is illustrated by Holbeck Hall Hotel Ltd v Scarborough
Borough Council.219 The lower part of the South Cliff at Scarbor-
ough was vested in the council and the cliff became unstable,
leading to the collapse of the claimants’ hotel at the top. The Court
of Appeal held that Leakey’s case was in principle applicable220 but
although the problem had been apparent in a general way for years
and there had been progressive landslides, which might continue
and foreseeably affect the grounds of the hotel, on the facts it was
found that the council did not have reason to be aware of the
likelihood of a comparatively sudden, catastrophic collapse such as
took place and it was held not liable. Despite the general rule that
when a defendant could foresee some injury to the claimant he was
liable for all damage of that type,221 it would not be fair, just and
reasonable to impose such an onerous requirement in respect of the
‘‘measured duty of care’’ which arose in these cases. This approach
rendered it unnecessary to consider other issues which may arise in
future, similar cases. For example, what are the implications of the
fact that the defect in the soil may be present in both the upper and
lower properties?222 Or that the claimant has considerably more at
stake than the defendant, even though the latter may have the greater
resources?223 Should they not at least share the burden? But if that
is the law the basis of the allocation is far from clear.224 Fur-
thermore, if the problem is caused not by an isolated event like a
lightning strike, why should the defendant (whose own property
may also be under threat) owe any duty to put his hand in his pocket
217
It seems that this where there is a public nuisance the ordinary, objective standard applies:
Wandsworth LBC v Railtrack Plc [2001] EWCA Civ 1236; The Times, August 2, 2001,
applying Att Gen v Tod Heatley [1897] 1 Ch. 560.
218
See para.14–13, above. Quaere how this fits in with the inability to sue for personal injuries
in private nuisance.
219
[2000] Q.B. 836.
220
Leakey was a case of the collapse of the upper property on to the lower. Holbeck involved
the collapse of the lower property damaging the upper.
221
See para.6–31, above.
222
Counsel for the hotel argued that if both did nothing each would be liable in full for
damage to the other’s land. Stuart Smith L.J. was inclined to the view that neither would
be liable: at 863.
223
As was the case in Holbeck.
224
In Holbeck the trial judge (who had come to a different conclusion on liability) would have
awarded damages subject to a deduction for what the hotel would have contributed to the
cost of remedial works.
Who can be Sued 741
iii. Predecessor in title. Where the nuisance existed before the 14–23
occupier acquired the property he will be liable if it can be proved
that he knew, or ought reasonably to have known, of its existence
225
Parts of the east coast of England are subject to rapid and continuous erosion. Suppose D
has a field half a mile wide on the edge of the sea and this is eaten away by the waves,
which then begin to erode C’s land. It seems bizarre to suggest that D can be under any
liability to C.
226
[2000] Q.B. at 863.
227
[2003] UKHL 66; [2004] 2 A.C. 42.
228
Between the trial and the decision of the HL, remedial work was done to the claimant’s
property and nine other houses at a cost of £731,000. The estimated cost of remedial work
for the defendants’ whole area, without taking account of new house building, was £1
billion: at [23].
229
Cf. Andrews v Reading BC [2005] EWHC 256 (QB).
742 Nuisance
C. Landlord
14–24 Since the basic liability for nuisance rests upon the occupier of the
land it might be thought that a landlord’s liability ceased upon
letting the land, except where he created the nuisance by some
positive act. However, the law has gone a long way towards displac-
ing this general rule, without of course affecting the liability of the
tenant as occupier.
The tenant, of course, is also liable, indeed if the tenant is not liable
because his actions are not a nuisance then neither is the landlord
liable.236 A local authority which let a house to a ‘‘problem’’ family
was not liable to be enjoined in respect of nuisance created by the
family even though the authority could have terminated the lease for
breaches of covenant237: the authority had not expressly authorised
the nuisance and it was caused solely by the acts of the tenants, not
by any condition of the premises themselves.238 A person does not
authorise another to do an act merely because he has furnished him
with the means of doing it or because he has sufficient control to
stop him.239
236
Southwark London Borough Council v Mills [2001] 1 A.C. 1.
237
‘‘Social landlords’’ (e.g. local authorities) have extensive powers against anti-social behav-
iour causing nuisance or annoyance, including application for an injunction, under Pt 2 of
the Anti-Social Behaviour Act 2003.
238
Smith v Scott [1973] Ch. 314; Hussain v Lancaster CC [2000] Q.B. 1. Article 8 of the
European Convention on Human Rights was unsuccessfully relied on in this context in
Mowan v Wandsworth LBC [2001] L.G.R. 228, CA, albeit on facts before the Human
Rights Act 1998 came into force.
239
See C.B.S. Songs Ltd v Amstrad Consumer Electronics Plc [1988] A.C. 1013 (not a
nuisance case).
240
Gandy v Jubber (1865) 5 B. & S. 485 9 B & S. 15; St Anne’s Well Brewery Co v Roberts
(1929) 140 L.T. 1; Wilchick v Marks [1934] 2 K.B. 56 at 67–68; Brew Bros Ltd v Snax
(Ross) Ltd [1970] 1 Q.B. 612 at 638, 644; Mistry v Thakor [2005] EWCA Civ 953. ‘‘There
appears to be no authority on the case where an owner, who is responsible for property
which is in a dangerous condition, has in effect delegated his management of the property
to an apparently competent surveyor as an independent contractor, but who in the
particular case discharges his duty incompetently and in breach of his duty to his client’’:
Mistry at [44].
241
Pretty v Bickmore (1873) L.R. 8 C.P. 401.
242
[1970] 1 Q.B. 612.
243
[1970] 1 Q.B. 612 at 638–639.
244
Montana Hotels v Fasson Pty (1986) 69 A.L.R. 258.
744 Nuisance
14–27 iii. Where the landlord has covenanted to repair or has the
right to enter and repair. Liability in this situation extends to
nuisances which arise after the tenancy has commenced. The first
point to make is that the landlord will be liable to persons outside
the premises as well as to visitors on them if he is in breach of s.4
of the Defective Premises Act 1972, which has already been con-
sidered in connection with occupiers’ liability.246 The duty under
that section is owed to, ‘‘all persons who might reasonably be
expected to be affected by defects in the state of the premises’’ and
is a duty to:
caused by the defects. Though this largely covers the liability which
already existed at common law, the latter continues to exist con-
currently. It was extended from the case where the landlord had
covenanted to do repairs247 to that where he had reserved a right to
enter and repair (without any obligation to do so) and then to the
situation where the right was implied, as it would be, for example,
in the case of a weekly tenancy.248 The Landlord and Tenant Act
1985 provides that in any lease of a dwelling house for a term of less
than seven years or any lease which is terminable by the lessor in
less than seven years, there is an implied covenant by the lessor to
keep in repair the structure and exterior and certain installations.249
Any provision seeking to place these liabilities on the tenant is
ineffective.
If the landlord has undertaken to repair or has the right to enter
and repair his liability does not affect that of the tenant, who is liable
as occupier.250 Where the landlord has covenanted to repair the
tenant will, of course, be able to obtain an indemnity if sued.
245
Except in the unlikely event that the Contracts (Rights of third Parties) Act 1999 applies.
The covenant may, of course, entitle the landlord to be indemnified if sued.
246
See para.9–40, above.
247
Payne v Rogers (1794) 2 H.Bl. 350.
248
Mint v Good [1951] 1 K.B. 517.
249
Section 11, as extended by the Housing Act 1988 s.116.
250
St Anne’s Well Brewery Co v Roberts (1929) 140 L.T. 1; Heap v Ind Coope & Allsopp Ltd
[1940] 2 K.B. 476 at 482; but the tenant may not be sued, as in Heap’s case and Mint v
Good, perhaps because he is uninsured and a man of straw, which is the rationale for
imposing liability on the landlord.
Damage 745
7. DAMAGE
If the nuisance is a public one, it has long been settled that the 14–28
claimant must prove damage.251 In the case of a private nuisance,
however, although it is said that damage must be proved, the law
will often presume it. In Fay v Prentice252 a cornice of the defen-
dant’s house projected over the claimant’s garden so that rainwater
dripped from it on the garden, and it was held that the law would
infer injury to the claimant without proof of it. This inference
appears to apply to any nuisance where the damage is so likely to
occur that it would be superfluous to demand evidence that it has
occurred. The inference cannot be made if the discomfort is purely
personal, for personal sensitivity to smells, smoke and the like
varies considerably and it is only fair that evidence of substantial
annoyance should be required. However, such evidence will suffice
and it is not necessary that the claimant should show any loss of
trade or diminution in the capital value of the property.253 Where no
damage has yet occurred but it is imminent, a quia timet injunction
may be granted.254
No present damage need be proved where the nuisance is to an
easement or profit a prendre, at any rate where the claim is for
damages as distinct from a mandatory injunction.255 As a series of
such acts or the continuation of one particular act is evidence of
acquiescence by the claimant in the annoyance, if no remedy were
available in these circumstances for merely presumed damage the
claimant would be barred by prescription after 20 years from suing
at all.256 If damage were not presumed, it might be difficult to
establish that any one act had caused it. In these cases, however,
although no present damage need be proved, probability that sub-
stantial damage will ensue must be shown otherwise the law would
be redressing merely fanciful claims.257 In Nicholls v Ely Beet Sugar
Factory Ltd,258 large quantities of refuse and effluent were alleged to
have been discharged from the defendants’ beet sugar factory into
the river in which the claimant owned two several and exclusive
251
See para.14–3, above.
252
(1845) 1 C.B. 828.
253
See Hunter v Canary Wharf Ltd, para.14–15, above. As to what constitutes damage where
the property is physically affected by the activity, see para.5–39, above.
254
See para.22–52, below.
255
There substantial damage must be proved, at any rate in infringement of light: Colls v
Home and Colonial Stores [1904] A.C. 179. The decision might, however, be interpreted
rather as defining the limits of the right of light than as laying down any rule with respect
to the necessity of proving damage. It is arguable that what the HL actually decided was
that the right exists only with respect to a particular amount of light.
256
Cf. Kelly C.B. in Harrop v Hirst (1868) L.R. 4 Ex. 43 at 45, 46–47; Lord Wright M.R. in
Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch. 343 at 349–350.
257
Kensit v GE Ry (1884) 27 Ch.D. 122.
258
[1936] Ch. 343. See also Pride of Derby and Derby Angling Association Ltd v British
Celanese Ltd [1953] Ch. 149.
746 Nuisance
fisheries. The Court of Appeal held that there was no need for him
to prove pecuniary loss, the injury being one actionable per se,
although he lost his action on the ground that he had failed to show
that the defendant had caused the injury.259
8. DEFENCES
265
[1913] 1 Ch. 269.
266
Dennis v MoD [2003] EWHC 793 (QB); [2003] Env L.R. 34.
267
Thorpe v Brumfitt (1873) L.R. 8 Ch.App. 650 at 656; Lambton v Mellish [1894] 3 Ch.
163.
268
Prosser & Keeton, Torts, 5th edn, p.354.
269
The right to commit a private nuisance may be acquired by prescription as an easement in
cases where such right is capable of being an easement, e.g. a right to discharge rainwater
from your eaves on to your neighbour’s land. To acquire a right by prescription there must
be certainty and uniformity, ‘‘for the measurement and determination of the user by which
the extent of the prescriptive rights is acquired’’: per Eve J. in Hulley v Silversprings
Bleaching Co [1922] 2 Ch. 281. There are dicta that a right may be acquired by
prescription to annoy your neighbour by smoke, smells and noise, although the quantity of
the inconvenience is constantly changing. There is no reported case when such a right has
arisen by prescription: Waterfield v Goodwin (1957) 105 L.J. 332; Khyatt v Morgan [1961]
N.Z.L.R. 1020 at 1024; Dennis v MoD [2003] EWHC 793 (QB); [2003] Env L.R. 34.
748 Nuisance
E. Jus Tertii
14–33 In Nicholls v Ely Beet Sugar Factory,273 Farwell J. held that the
defendant to an action for pollution of a private fishery could not
plead jus tertii as a defence, i.e. that some third party had a better
title to the land than the claimant, but the learned judge left it open
whether this applied to nuisance in general. It is true that at common
law jus tertii might be pleaded in certain actions for conversion of
goods but it was irrelevant where the action was based upon posses-
sion, for example trespass.274 Now that it is established that posses-
sion or occupation of the land is necessary to entitle the claimant to
sue for nuisance it is clear that jus tertii does not afford a
defence.275
270
Liverpool Corp v Coghill & Son Ltd [1918] 1 Ch. 307.
271
(1879) 11 Ch.D. 852 at 863: ‘‘Acts which are neither preventable nor actionable cannot be
relied on to found an easement’’
272
See Bliss v Hall, above, fn.260.
273
[1931] 2 Ch. 84.
274
The position has now been substantially altered by the Torts (Interference with Goods) Act
1977 (para.17–18, below) but this has no application to land.
275
Hunter v Canary Wharf Ltd [1997] A.C. 655 at 688, 703.
276
As to planning permission, see para.14–7, above.
277
For a modern (and comprehensive) example, see the Railways Act 1993 s.122.
Defences 749
278
The cases draw no clear distinction between liability in nuisance and liability under
Rylands v Fletcher: but in the light of the Cambridge Water case (para.15–3, below) this
may be justifiable.
279
e.g. careless driving of a lorry on the way to the construction site or an industrial accident
at the site.
280
See the speech of Lord Diplock in Home Office v Dorset Yacht Co Ltd [1970] A.C. 1004
at 1064–1071.
281
A major general compensation provision is that for ‘‘injurious affection’’ in s.10 of the
Compulsory Purchase Act 1965, which is the successor of Victorian legislation dating back
to the construction of railways. It is reviewed in Wildtree Hotels Ltd v Harrow LBC [2001]
2 A.C. 1. It covers damage which is (a) caused by the construction of the works (b) caused
by the lawful exercise of the statutory power and (c) is such as would have been actionable
at common law in the absence of statutory authority. Work carried on without reasonable
regard for people living in the area will be outside the scope of the statutory power and
therefore in such a case the claimant must rely on the law of nuisance.
282
Manchester Corp v Farnworth [1930] A.C. 171. In Allen v Gulf Oil Refining Ltd [1981]
A.C. 1001 at 1017, Lord Edmund Davies said this issue was to be determined without
regard to expense.
283
e.g. ‘‘Nothing in this Act shall exonerate the undertakers from any indictment, action, or
other proceedings for nuisance in the event of any nuisance being caused by them.’’
284
See the summary in Dept of Transport v NW Water Authority [1983] 3 W.L.R. 105 and in
the HL [1984] A.C. 336. It might be argued that even without a nuisance clause the
granting of merely permissive powers showed an intention not to take away any private
rights, particularly since we are here commonly dealing with private Acts, to which the
contra proferentem approach may fairly be applied, but this would be inconsistent with the
authorities. Similarly, the absence of a provision for compensation in the Act is no more
than a weak indication of an intention to preserve private rights: Allen v Gulf Oil Refining
Ltd [1981] A.C. 1001 at 1016.
750 Nuisance
14–35 All of the above must now be read subject to the European
Convention on Human Rights and the Human Rights Act 1998.
Article 8 of the Convention requires respect for private and family
life and the home and breach of that requirement by a public
authority is, under the 1998 Act, directly actionable in damages.
Although under the common law the protection of private rights was
a value that influenced the court in the interpretation of statutory
authority, that was subsidiary to the meaning of the words. However,
s.3 of the Human Rights Act 1998 requires legislation to be read and
given effect in a way which is compatible with the Convention
rights ‘‘so far as it is possible to do so’’, which goes beyond merely
relying on the rights to resolve an ambiguity in the statute.289 If the
words of the statute are clear by this standard the court may not
strike it down but may make a declaration of incompatibility. How-
ever, the right of appeal to the Court in Strasbourg remains after the
285
Manchester Corp v Farnworth [1930] A.C. 171. Allen v Gulf Oil Refining Ltd [1981] A.C.
1001.
286
Metropolitan Asylum District v Hill (1881) 6 App.Cas. 193; but if Parliament had specified
the site there would have been no liability: Allen v Gulf Oil Refining Ltd, above, fn.285,
at 1014.
287
Marriage v East Norfolk Rivers Catchment Board [1950] 1 K.B. 284 at 308 per Jenkins
L.J.
288
See also Buley v British Railways Board [1975] C.L.Y. 2458. Jenkins L.J. in Marriage’s
case, above, speaks of liability in nuisance remaining (1) where the board’s exercise of its
discretion is capricious (2) where an act of negligence in the course of carrying out the
work produces some unintended consequence. Note that in Marriage’s case the statute
contained provision for compensation for persons suffering damage by the exercise of the
statutory powers.
289
R v A (No.2) [2001] UKHL 25; [2002] 1 A.C. 45 at [44]. For a tort example, see Cachia
v Faluyi [2001] EWCA Civ 998; [2002] 1 All E.R. 192.
Defences 751
1998 Act and that body is not hampered by any vestiges of Parlia-
mentary supremacy, as illustrated by Hatton v UK.290 Section 76(1)
of the Civil Aviation Act 1982 provides that no action shall lie for
nuisance:
provided the relevant regulations made under the Act have been
observed. The applicants were residents in the vicinity of Heathrow
who complained of night flights and the majority of the European
Court of Human Rights held that the 1993 Scheme produced by the
Minister for the restriction of such flights failed to give adequate
protection to the applicants’ rights under art.8. Subsequently the
Grand Chamber overturned this decision by a majority of 12 votes
to 5291 on the ground that in preparing the Scheme the Government
had not exceeded the margin of appreciation allowed it by the
Convention. That decision turned on the particular facts and it does
not follow that another claim for aircraft noise would necessarily
fail. The claim was not of course an action for nuisance against the
airlines or the airport and any such claim would have been doomed
to failure by the 1982 Act but that is not determinative where art.8
is in issue. The underlying question was one of the proper balance
between the rights of enjoyment of property and the economic well-
being of the country (including the role of Heathrow as a major
European entry point). That has traditionally been regarded as a
political issue, but it has now become also a legal one (at least in the
sense that it may be decided by a court).292
G. Other Defences
Other valid defences are: consent of the claimant,293 and contribu- 14–36
tory negligence subject to the provisions of the Law Reform (Con-
tributory Negligence) Act 1945.294 Even where it is said that
liability does not depend upon negligence, the act of a stranger, act
of God and the ‘‘secret unobservable process of nature’’ are accepted
as defences.295
290
(2003) 37 E.H.R.R. 28.
291
There was an infringement of art.13 on the basis of the narrow scope of the English law
of judicial review at the time but no damages were awarded.
292
See the dissenting judgment of Sir Brian Kerr in the initial proceedings in Hatton.
293
Kiddle v City Business Properties Ltd [1942] 1 K.B. 269, para.15–13, below.
294
Trevett v Lee [1955] 1 W.L.R. 113 at 122; Gilson v Kerrier RDC [1976] 1 W.L.R. 904.
295
See para.14–40, below.
752 Nuisance
9. HIGHWAYS296
296
Encyclopedia of Highway Law and Practice. Navigable waters are analogous to highways
on land. As to ferries see Gravesham BC v British Rail [1978] Ch. 379.
297
Jacobs v LCC [1950] A.C. 361 at 375 per Lord Simonds.
298
‘‘Traffic on the highways, whether by land or sea, cannot be conducted without exposing
those whose persons or property are near to it to some inevitable risk, and . . . those who
go on the highway or have their property adjacent to it, may well be held to do so subject
to their taking on themselves the risk of injury from that inevitable danger.’’ Fletcher v
Rylands (1866) L.R. 1 Ex. 265 at 286 per Blackburn J. See also the comments of the same
judge in River Wear Commissioners v Adamson (1877) 2 App.Cas. 743 at 767.
299
Harper v Haden & Sons Ltd [1933] Ch. 298 at 304.
300
Att Gen v Wilcox [1938] Ch. 934.
Highways 753
‘‘It is well established that a duty rests on all users of the highway
to exercise due care for the safety of other users and, in regard to
highway accidents arising out of the user of the highway and
giving rise to claims for injury to persons or to chattels, the law
of negligence is sufficient, and any liability, which can be legit-
imately founded on nuisance, can be equally well, and I think
more conveniently, based on negligence. The breach, by act or
301
It is important to distinguish between one who deliberately parks a vehicle and one who
stops temporarily, e.g. to deal with an emergency: Dymond v Pearce [1972] 1 Q.B. 496 at
504 per Edmund Davies L.J. Thus if the driver, on finding his lights are out, stops the
vehicle, this is not of itself a nuisance, though it may be so if he leaves it on the highway
for an unreasonable time or without giving warning of its presence there or if the vehicle
became unlit because of some fault on his part: Maitland v Raisbeck [1944] K.B. 689,
explaining and distinguishing Ware v Garston Haulage Co Ltd [1944] K.B. 30.
302
This is not to say that it makes no difference that the liability is founded on nuisance, for,
a ‘‘nuisance situation’’ being shown, it may be that the burden of proof of lack of fault is
on the defendant: Southport Corp v Esso Petroleum Co Ltd [1954] 2 Q.B. 182 at 197 per
Denning L.J. It has been held that the statutory obligations in relation to the lighting of
vehicles do not give rise to civil liability: Clarke v Brims [1947] K.B. 497.
303
Dymond v Pearce [1972] 1 Q.B. 496; but see the contrary view of Edmund Davies L.J. at
503, and Mitchell v Tsiros (No.2) [1982] V.R. 301.
304
‘‘The Boundaries of Nuisance’’ (1949) 65 L.Q.R. 480 at p.485. See also Pritchard,
‘‘Trespass, Case, and the Rule in Williams v Holland’’ [1964] C.L.J. 234, 237.
305
In fact, many cases involving a dangerous obstruction of the highway are not pleaded in
nuisance at all: e.g. Tart v G.W. Chitty & Co Ltd [1933] 2 K.B. 453; Baker v E. Longhurst
& Sons Ltd [1933] 2 K.B. 461 (though horse and cart were moving); Tidy v Battman [1934]
1 K.B. 319; Henley v Cameron (1949) 118 L.J.K.B. 989; Hill-Venning v Beszant [1950] 2
All E.R. 1151; Moore v Maxwells of Emsworth Ltd [1968] 1 W.L.R. 1077.
306
[1952] N.Z.L.R. 298 at 300; Mitchell v Tsiros (No.2) [1982] V.R. 801.
754 Nuisance
316
See para.18–42, below.
317
Messenger Newspapers Group Ltd v N.G.A. (1982) [1984] I.R.L.R. 397; News Group
Newspapers Ltd v S.O.G.A.T. ’82 [1986] I.R.L.R. 337; Animal Liberation (Vic) Inc v
Gasser [1991] 1 V.R. 51; but cf. the view in Hussain v Lancaster CC, para.14–17, above,
that there can be no private nuisance unless the defendant is making use of his land.
318
Mersey Dock & Harbour Co v Verrinder [1982] I.R.L.R. 152; Hubbard v Pitt [1976] Q.B.
142. See also Church of Jesus Christ of Latter Day Saints v Price [2004] EWHC 3245
(QB) (‘‘witnessing’’ by loud preaching outside church).
319
See para.4–38, above.
320
Lyons, Sons & Co v Gulliver [1914] 1 Ch. 631.
321
Dwyer v Mansfield [1946] K.B. 437.
322
Fabri v Morris [1947] 1 All E.R. 315. See also Chartered Trust Plc v Davies [1997] 2
E.G.L.R. 83, which did not involve the highway but where the trader’s method of doing
business caused inconvenience to others.
323
Noble v Harrison [1926] 2 K.B. 332 at 337.
756 Nuisance
324
[1926] 2 K.B. 332 at 340 and Lemmon v Webb [1895] A.C. 1; but the context of these
statements concerns the right of the neighbour to abate the nuisance by lopping the
branches. There is less reason to think that the occupier is liable in damages for a collapse
unless he has knowledge or means of knowledge of the defect. As to liability for
encroachment by tree roots, see para.14–14, above and for trespass by oversailing struc-
tures, see para.13–7, above.
325
Above, fn.323; Caminer v London and Northern Investment Trust Ltd [1951] A.C. 99;
Cunliffe v Bankes [1945] 1 All E.R. 459; Shirvell v Hackwood Estates Co Ltd [1938] 2
K.B. 577; British Road Services v Slater [1964] 1 W.L.R. 498.
326
Cf. Quinn v Scott [1965] 1 W.L.R. 1004 (means of knowledge of disease).
327
Blackburn J. in Tarry v Ashton (1876) 1 Q.B.D. 314; Wright J. in Noble v Harrison [1926]
2 K.B. 332 at 343–344.
328
[1940] 1 K.B. 229.
329
[1940] 1 K.B. 229 at 233.
Highways 757
‘‘It can hardly be imagined that any damage caused neither by the
act of a third person nor by a latent defect could be due to
anything but knowledge or negligence of the occupier.’’330
‘‘The authority who are for the time being the highway authority
for a highway maintainable at the public expense335 are under a
duty . . . to maintain the highway’’.336
1. the character of the highway, and the traffic which was reason-
ably to be expected to use it;
2. the standard of maintenance appropriate for a highway of that
character and used by such traffic;
3. the state of repair in which a reasonable person would have
expected to find the highway;
4. whether the highway authority knew, or could reasonably have
been expected to know, that the condition of the part of the
highway to which the action relates was likely to cause danger
to users of the highway;
5. where the highway authority could not reasonably have been
expected to repair that part of the highway before the cause of
334
A majority of the High Court of Australia rejected the immunity rule in Brodie v Singleton
SC [2001] HCA 29; (2001) 180 A.L.R. 145 but in most states the rule has come back in
part by statute unless the highway authority is actually aware of the risk. See. e.g. Civil
Liability Act 2002 (NSW) s.45.
335
See Gulliksen v Pembrokeshire CC [2002] EWCA Civ 968; [2003] 1 Q.B. 123.
336
This provision does not cover a complaint of failure to improve the highway, e.g. by
painting or erecting traffic signs or removing obstructions in the line of sight, nor will there
be any such liability at common law: Gorringe v Calderdale MBC [2004] UKHL 15;
[2004] 1 W.L.R. 1057; Stovin v Wise [1996] A.C. 923, para.5–47, above. Cf. Bird v Pearce
[1979] R.T.R. 369 (obliterating existing markings; see the remarks on this case in
Gorringe).
Highways 759
It was held that the duty under the Act was to keep the fabric of
the highway in suitable condition for ordinary traffic at all seasons
of the year but that it did not extend to a duty to remove ice or snow,
because that would not have fallen within the duty of the inhabitants
at large, enforceable by indictment, before the 1961 Act.342 This was
despite the fact that s.58 would allow the authority, in a particular
case, to show that it had taken reasonable steps to remove the
hazard, so that although the basic duty may be ‘‘absolute’’ the
337
Highways Act 1980 s.58.
338
A claim under the Act may involve concurrent issues against other undertakers, e.g.
tramway operators: Roe v Sheffield CC [2003] EWCA Civ 1; [2004] Q.B. 653.
339
Wentworth v Wilts CC [1993] Q.B. 654.
340
Beldam L.J. at 673 suggests that there might be cases where non-repair might create a
liability for public nuisance but it is difficult to see how this could be so since the common
law gave complete immunity for non-feasance and that immunity is only abolished so far
as the statute provides.
341
[1992] 1 P.I.Q.R. P291 at 292.
342
Goodes v E Sussex CC [2000] 1 W.L.R. 1356. Despite this case the Act does cover failure
to keep drains clear: Mitchell v Dept for Transport [2006] EWCA Civ 1089; [2006] 1
W.L.R. 3356.
760 Nuisance
liability is not in fact so. However, s.41(1A) of the Act now provides
that the highway authority is under a duty to ensure, so far as is
reasonably practicable, that safe passage is not endangered by snow
or ice.343
14–44 With regard to the condition of the highway, there is an inevitable
risk in travelling along the highway of unevenness in the pavement,
and a highway is not to be criticised by the standards of a bowling
green.344 In Littler v Liverpool Corp345 Cumming-Bruce L.J. stated
that the criterion to be applied in assessing whether any particular
length of pavement is dangerous is that of reasonable foreseeability
of danger:
been said that proof that the accident would have happened even if
due care had been taken would not be a defence.349
A frontager must take reasonable care to keep safe gratings or
flagstones covering a cellar under the street.350
349
Griffiths v Liverpool Corp [1967] 1 Q.B. 374 at 391, 395. However, Diplock L.J. said at
391 that it: ‘‘may be that if the highway authority could show that no amount of reasonable
care on its part could have prevented the danger the common law defence of inevitable
accident would be available to it.’’
350
See Scott v Green & Sons [1969] 1 W.L.R. 301, relying on what is now the Highways Act
1980 s.180(6).
CHAPTER 15
HAVING considered the tort of nuisance, we now turn to the rule in 15–1
Rylands v Fletcher. This had its origins in nuisance but for most of
the 20th century was probably regarded by the majority of lawyers
as having developed into a distinct principle. Now it seems to have
returned to what are regarded as its roots: it is a ‘‘sub-species of
nuisance’’1; but on balance it still merits some separate treatment.
Liability under the rule is strict in the sense that it relieves the
claimant of the burden of showing fault; however, it is far from
absolute since there are a number of wide-ranging defences.
763
764 Strict Liability: Rule in Rylands v Fletcher
course of the work the contractors came upon some old shafts and
passages on B’s land. They communicated with the mines of A, a
neighbour of B, although no one suspected this, for the shafts
appeared to be filled with earth. The contractors did not block them
up, and when the reservoir was filled the water from it burst through
the old shafts and flooded A’s mines. It was found as a fact that B
had not been negligent, although the contractors had been. A sued B
and the House of Lords held B liable.
The decision of the House affirmed that of the Court of Exchequer
Chamber, the judgment of which, delivered by Blackburn J., has
become a classical exposition of doctrine.3
‘‘We think that the true rule of law is, that the person who for his
own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his
peril, and, if he does not do so, is prima facie answerable for all
the damage which is the natural consequence of its escape.’’
‘‘He can excuse himself by showing that the escape was owing to
the plaintiff’s default or perhaps that the escape was the con-
sequence of vis major, or the act of God but as nothing of this sort
exists here, it is unnecessary to inquire what excuse would be
sufficient. The general rule, as above stated, seems on principle
just. The person whose grass or corn is eaten down by the
escaping cattle of his neighbour, or whose mine is flooded by the
water from his neighbour’s reservoir, or whose cellar is invaded
by the filth of his neighbour’s privy, or whose habitation is made
unhealthy by the fumes and noisome vapours of his neighbour’s
alkali works, is damnified without any fault of his own and it
seems but reasonable and just that the neighbour, who has brought
something on his own property which was not naturally there,
harmless to others so long as it is confined to his own property,
but which he knows to be mischievous if it gets on his neigh-
bour’s, should be obliged to make good the damage which ensues
if he does not succeed in confining it to his own property. But for
his act in bringing it there no mischief could have accrued, and it
seems but just that he should at his peril keep it there so that no
mischief may accrue, or answer for the natural and anticipated
consequences. And upon authority, this we think is established to
be the law whether the things so brought be beasts, or water, or
filth, or stenches.’’
3
(1866) L.R. 1 Ex. 265 at 279–280.
The Rule in Rylands v Fletcher 765
In the House of Lords Lord Cairns L.C. rested his decision on the
ground that the defendant had made a ‘‘non-natural use’’ of his land,
though he regarded the judgment of Blackburn J. as reaching the
same result and said he entirely concurred in it.4 Though Blackburn
J. did not use this expression in his statement of the law, he had
clearly intended the rule to apply only to things collected by the
defendant as opposed to things naturally on the land and it may be
that Lord Cairns meant nothing more by non-natural use. However,
the subsequent case law has given a rather different interpretation to
it and it has been regarded as additional to the requirements set out
by Blackburn J.5 In other words, the rule in Rylands v Fletcher must
be sought in the judgments of both the Exchequer Chamber and the
House of Lords.
4
(1868) L.R. 3 H.L. 330 at 338–340.
5
See para.15–10, below. Cf. the view in Porter (J.P.) & Co Ltd v Bell [1955] 1 D.L.R. 62
at 66, that there are two ‘‘rules in Rylands v Fletcher’’.
6
Read v J. Lyons & Co [1947] A.C. 156 per Lord Simonds.
7
See Restatement 3d §20 (Tentative Draft No.1, 2001).
8
‘‘The Boundaries of Nuisance’’ (1949) 65 L.Q.R. 480.
766 Strict Liability: Rule in Rylands v Fletcher
9
Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1 at [27] per Lord
Hoffmann.
10
[1947] A.C. 156.
11
Transco Plc v Stockport MBC, above, fn.9, at [9].
12
[1994] 2 A.C. 264. For the facts, see para.14–13, above.
13
Cf. Oliphant, ‘‘Rylands v Fletcher and the Emergence of Enterprise Liability in the
Common Law’’ in Koziol and Steininger (eds), European Tort Law 2004, 81, who supports
the view that the case was more than a special application of the law of nuisance and points
out that the modern position whereby fault liability is the norm and strict liability the
exception would not have been so familiar to mid-nineteenth-century eyes. See also Lord
Hobhouse in Transco at [57] and the views expressed in Union of India v Kumar [2008]
INSC 802; [2009] 2 L.R.C. 13.
14
[1994] 2 A.C. at 306.
15
See Law Com. No.32 (1970), p.7.
16
Att Gen v Geothermal Products (NZ) Ltd [1987] 2 N.Z.L.R. 348 at 354 per Cooke J.
17
Transco Plc v Stockport MBC, above, fn.9, at [39] per Lord Hoffmann. However, the
assertion, that no claimant had successfully relied on Rylands v Fletcher since the Second
World War is incorrect: see L.M.S. International Ltd v Styrene Packaging Ltd [2005]
EWHC 2065 (TCC) at [26].
The Rule in Rylands v Fletcher 767
This has been largely because of the defences of act of a third party
and statutory authority and, above all, the very restrictive attitude
taken by many twentieth century cases to the concept of non-natural
use. The tendency was to say that common large scale activities,
especially services such as the supply of gas or water, do not
constitute a non-natural use of land even though their potential for
causing damage is very great. Moreover, in determining whether
there is a non-natural use, the courts had regard to the benefit
accruing to the public from the activity and this was an important
element in the rejection of the rule in some of the leading cases.18
The Cambridge Water case was, strictly, concerned only with the
issue of whether the risk presented by the defendant’s activity must
be a foreseeable one to attract the rule but the case went beyond this
and gives some indication of the likely future role of Rylands v
Fletcher in the law. It is indicated that non-natural use should
perhaps be given a rather broader meaning than had been the case,19
and this may guard the rule against further atrophy. However, while
the rule is an example of strict liability for abnormal risk, it does not
now represent a general rule of strict liability for ultra-hazardous
activities and the House of Lords declined to convert it to that
purpose. It is a rule applicable between adjoining landowners, it
requires an escape from one property into another and, even where
that has taken place, it is inapplicable to personal injuries. The last
point looks odd to the modern way of thinking which tends to place
bodily integrity at the top of the tree of protected interests; but it
makes sense on the assumption that the rule is an offshoot of the law
of private nuisance, which was (and still is) concerned only with the
protection of the enjoyment of land. The English common law
contains a good deal less in the way of strict liability for physical
damage than most other European legal systems,20 though the most
prominent examples—the very widespread strict liability for traffic
accidents and the French liability for damage done by things ‘‘in
one’s charge’’21 proceed on an entirely different basis. It would be
hard to explain either of those examples on the basis of exceptional
risk: the former is a scheme of collective insurance for the inevitable
risks of a commonplace activity operated through the machinery of
18
Read v Lyons, above, fn.6; Dunne v NW Gas Board [1964] 2 Q.B. 806.
19
See para.15–10, below.
20
See van Gerven, Lever and Larouche, Tort Law, Common Law of Europe Casebooks
(2000), Ch.7; Koziol and Koch (eds), Unification of Tort Law: Strict Liability (2002). See
also Reid, ‘‘Liability for Dangerous Activities: A Comparative Analysis’’ (1999) 48
I.C.L.Q. 731.
21
Developed by imaginative interpretation of art.1384 of the Code Civil. It is almost
impossible for the common lawyer to adapt himself to the way of thinking behind this: if
D falls on C and injures him that requires fault under art.1382; but if at the time D is
carrying a stick and that injures C, art.1384 applies: Cour de cassation, assemblée plenière,
May 9, 1984, affaire Gabillet.
768 Strict Liability: Rule in Rylands v Fletcher
For Lord Hobhouse, on the other hand, this is to put the cart before
the horse:
In the Cambridge Water case the House of Lords did not disagree
with the proposition that strict liability might be economically or
morally or socially justifiable but it inclined to the view that:
28
Water Industry Act 1991 s.209, replacing the Water Act 1981 s.6.
29
Cmnd. 7054 (1978), Vol.1, Ch.31.
30
The majority of High Court of Australia in Burnie Port Authority v General Jones Pty Ltd
(1994) 120 A.L.R. 42, cast Rylands v Fletcher out from the Australian common law on the
ground that adequate protection was afforded by the ‘‘non-delegable duty’’ under devel-
oped negligence law (para.20–21, below), but the rule still exists in New Zealand:
Hamilton v Papakura DC [2000] 1 N.Z.L.R. 265.
31
See, e.g. industrial safety legislation (Ch.8) and the current waste pollution legislation
(para.15–26, below).
32
See paras 15–24 and 15–25, below.
770 Strict Liability: Rule in Rylands v Fletcher
15–5 Given the various shifts in the fortunes of Rylands v Fletcher over
the years earlier cases must be approached with more than usual
caution, but with this in mind, we may attempt to state the present
law as follows.
A. Dangerous Things
15–6 Rylands v Fletcher has been applied (or said to apply, because the
cases sometimes turned on other points) to a remarkable variety of
33
It might be argued that American experience has not borne this out, but American courts
seemed to have practised a self-denying ordinance over strict liability for dangerous
activities.
34
As to which see Ch.8, above.
35
Health and Safety at Work etc. Act 1974 s.1.
36
Health and Safety at Work etc. Act 1974 s.47.
37
See Ch.8.
38
Thus reg.4 of the Manufacture and Storage of Explosives Regulations SI 2005/1082
requires the manufacturer to, ‘‘take appropriate measures (a) to prevent fire or explosion;
(b) to limit the extent of fire or explosion including measures to prevent the spreading of
fires and the communication of explosions from one location to another; and (c) to protect
persons from the effects of fire or explosion.’’ If the appropriate measures are taken but
turn out not to be effective there is no breach.
The Present Law 771
39
See para.15–20, below.
40
Batchellor v Tunbridge Wells Gas Co (1901) 84 L.T. 765.
41
Miles v Forest Rock Co (1918) 34 T.L.R. 500; Rainham Chemical Works Ltd v Belvedere
Fish Guano Co Ltd [1921] 2 A.C. 465.
42
National Telephone Co v Baker [1893] 2 Ch. 186; Eastern and South African Telegraph Co
Ltd v Cape Town Tramways Companies Ltd [1902] A.C. 381; Hillier v Air Ministry [1962]
C.L.Y. 2084 (cows electrocuted by an escape of electricity from high-voltage cables laid
under claimant’s field).
43
Smith v GW Ry (1926) 135 L.T. 112; Colour Quest Ltd v Total Downstream UK Plc [2009]
EWHC 540 (Comm); [2009] 1 Lloyds Rep 1.
44
West v Bristol Tramways Co [1908] 2 K.B. 14 (in so far as the case applied the rule to a
risk which was not foreseeable it cannot stand with the Cambridge Water case).
45
Att Gen v Cory Bros Ltd [1921] 1 A.C. 521.
46
Firth v Bowling Iron Co (1878) 3 C.P.D. 254
47
Hoare & Co v McAlpine [1923] 1 Ch. 167; cf. Dodd Properties Ltd v Canterbury CC
[1979] 2 All E.R. 118 at 122.
48
Crowhurst v Amersham Burial Board (1878) 4 Ex. D. 5; Ponting v Noakes [1894] 2 Q.B.
281.
49
Shiffman v Order of St John [1936] 1 All E.R. 557 (obiter, it was decided on the ground
of negligence).
50
Hale v Jennings Bros [1938] 1 All E.R. 579.
51
Att Gen v Corke [1933] Ch. 89 but cf. Smith v Scott [1973] Ch. 314, where it is suggested
that this case could at least equally well have been decided on the basis that the landowner
was in possession of the property and was himself liable for nuisances created by his
licensees. A New Zealand court refused to follow Corke’s case in Matheson v Board of
Governors of Northcote College [1975] 2 N.Z.L.R. 106 but accepted that the occupier
could be liable for creating a nuisance. Liability in nuisance was imposed in similar
circumstances in Lippiatt v South Gloucestershire Council [2000] Q.B. 51.
52
Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1 at [10], [103].
53
[1994] 2 A.C. 264.
54
See para.14–13, above.
55
As, for example, was for long the position in the case of asbestos.
772 Strict Liability: Rule in Rylands v Fletcher
B. Escape
15–7 The requirement of escape, which demonstrates the connexion of
the rule with nuisance, was firmly set in the law by the House of
Lords’ decision in Read v J. Lyons & Co Ltd.59 The claimant was
employed by the Ministry of Supply as an inspector of munitions in
the defendants’ munitions factory and, in the course of her employ-
ment there, was injured by the explosion of a shell that was being
manufactured. It was admitted that high explosive shells were dan-
gerous. The defendants were held not liable. There was no allegation
of negligence on their part and Rylands v Fletcher was inapplicable
because there had been no ‘‘escape’’ of the thing that inflicted the
injury. ‘‘Escape’’ was defined as, ‘‘escape from a place where the
defendant has occupation or control over land to a place which is
56
[1994] 2 A.C. at 302.
57
For the facts, see para.14–13, above.
58
See also Dempsey v Waterford Corp [2008] IEHC 55.
59
[1947] A.C. 156; Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1 at [9],
[34], [77].
The Present Law 773
C. Land
The rule is not confined to the case where the defendant is the 15–8
freeholder of the land on which the dangerous thing is accumulated:
the defendant in Rylands v Fletcher itself appears to have had only
a licence from the landowner to construct the reservoir. Similarly,
the rule has been applied in cases where the defendant has a
franchise or statutory right, for example to lay pipes to carry gas63
or cables for electricity.64 Indeed, there are statements to the effect
that anyone who collects the dangerous thing and has control of it at
the time of the escape would be liable,65 even when it is being
carried on the highway and escapes therefrom.66 A landowner who
is not in occupation of the land when the thing escapes is probably
liable if he has authorised the accumulation.67 As to the status of the
claimant, the position is governed by the fact that the rule is an
offshoot or variety of private nuisance and in Hunter v Canary
60
Viscount Simon [1947] A.C. 156 at 168 and at 177 per Lord Porter: ‘‘Escape from the
place in which the dangerous object has been maintained by the defendant to some place
not subject to his control’’.
61
[1947] A.C. 167 at 173 per Lord Macmillan, ‘‘Escape . . . and non-natural use of the land,
whatever precisely that may mean.’’
62
Rigby v CC Northamptonshire [1985] 1 W.L.R. 1242 (firing of CS gas canister). Doubted,
unless the thing is aimed at the claimant, in Crown River Cruises v Kimbolton Fireworks
[1996] 2 Lloyd’s Rep. 533. See also Smeaton v Ilford Corp [1954] Ch. 450 at 462.
63
Northwestern Utilities Ltd v London Guarantee Ltd [1936] A.C. 108 at 118. Cf. Read v
Lyons [1947] A.C. 156 at 183.
64
Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 K.B. 772; but if C
has an easement to have e.g. a gas main in D’s land and there is an escape from one part
of D’s land to the part where the easement is located there is no ‘‘escape’’ for the purposes
of the rule: Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1 at [80] (only
Lord Scott decided the case on this basis).
65
Rainham Chemical Works v Belvedere Fish Guano Co [1921] 2 A.C. 465 at 479.
66
Powell v Fall (1880) 5 Q.B.D. 597; Rigby v CC Northamptonshire [1985] 1 Q.L.R. 1242.
See also Crown River Cruises v Kimbolton Fireworks [1995] 2 Lloyd’s Rep. 533. But as
to whether under the general law of nuisance the defendant needs to be the occupier of land
from which the invasion comes see para.14–17, above.
67
See Rainham Chemical Works case, above, fn.65, at 476, 489. The point actually at issue
was whether the defendants had sufficiently divested themselves of occupation of the
premises so as to substitute sole occupation of a company.
774 Strict Liability: Rule in Rylands v Fletcher
D. Personal Injury
15–9 Cases which have held71 or assumed72 that Rylands v Fletcher is
applicable to personal injuries may have ignored the requirement of
landholding status, but it is possible that an adjoining occupier
might suffer personal injury,73 in which case the question of the
applicability of the rule to personal injuries has to be directly
addressed. Again the relationship with nuisance is decisive and the
strong indications in Hunter v Canary Wharf that such losses fall
outside the scope of that tort74 indicated that the same result would
be reached under Rylands v Fletcher,75 a proposition decisively
accepted by the House of Lords in the Transco case.76 However,
there are cases which are regarded as falling under Rylands v
Fletcher (or at least some cognate principle) where the liability is
‘‘strict’’ only in the sense that the defendant is liable for the fault of
a wider range of persons than his servants in the course of his
employment (liability for fire is an example77). Such cases are
probably unaffected by Hunter and Transco,78 though the fact that
the issue has to be raised shows how imprecise are our concepts.
68
[1997] A.C. 655, para.14–15, above.
69
McKenna v British Aluminium Ltd [2002] Env L.R. 30.
70
e.g. Shiffman v Order of St John [1936] 1 All E.R. 557; Miles v Forest Rock Granite Co
Ltd (1918) 34 T.L.R. 500. Some of them might, however, be regarded as cases of public
nuisance. In Weller v Foot and Mouth Disease Research Institute [1966] 1 Q.B. 569,
Widgery J. held that the claimants, cattle auctioneers who suffered loss when sales of cattle
were stopped during an outbreak of foot and mouth, could not sue under the rule because
they had no interest in any land to which the virus escaped. However, it would have been
sufficient to arrive at this result to apply the general principle that A cannot sue for
financial loss which arises because of physical damage to the property of B.
71
See previous note.
72
Perry v Kendricks Transport [1956] 1 W.L.R. 85.
73
As happened in Hale v Jennings Bros [1938] 1 All E.R. 579 (tenant of fairground stall) and
Benning v Wong (1969) 122 C.L.R. 249.
74
See para.14–15, above.
75
However, the relationship also calls into question Lord Goff’s doubts in Hunter as to
whether nuisance covers damage to the property as opposed to interference with enjoy-
ment of it ([1997] A.C. at 692). If that is the law of nuisance and Rylands v Fletcher
follows the same principle, the rule in the case would in effect disappear.
76
[2003] UKHL 61; [2004] 2 A.C. 1 at [9], [35], [52]; but this makes it difficult to accept
the assertion in Transco that the background to Rylands v Fletcher was public concern
about disasters causing widespread loss of life such as the Bradfield reservoir burst in
1864: at [28].
77
See para.15–20, below.
78
See Ribee v Norrie [2001] P.I.Q.R. P128, though the point was not raised.
The Present Law 775
E. Non-natural User79
We have already noted that Blackburn J. in the Court of Excheq- 15–10
uer Chamber made no mention of this requirement. He did, how-
ever, make it plain that the principle he stated applied only to things
which the defendant collected for his own purposes. Hence he
cannot be liable under the rule merely for permitting a spontaneous
accumulation (for example, of water, vegetation or birds) on his
land,80 or even for inducing a spontaneous accumulation as an
undesired byproduct of the normal working of the land.81 However,
as a practical matter these principles have been much reduced in
importance by the recognition that an occupier may owe a duty of
care to abate a nuisance arising naturally on his land.82
It may well be that Lord Cairns in the House of Lords in Rylands
v Fletcher did not intend to add anything to Blackburn J.’s require-
ment that the defendant should have accumulated the dangerous
thing by positive action but it is recognised in Cambridge Water Co
v Eastern Counties Leather Plc83 that the law has developed so as to
give the expression a meaning which excludes from the rule deliber-
ate accumulations which are brought about by ‘‘ordinary’’ uses of
the land. The most frequently quoted ‘‘definition’’ is that given by
Lord Moulton, speaking for the Privy Council in Rickards v
Lothian.84
It would be hopeless to contend that all of the case law on this issue
is reconcilable and the Cambridge Water case may require that we
reconsider some of the earlier cases. However, the following propo-
sitions seem to represent the present state of the law.
1. Lord Porter said in Read v Lyons85 that in deciding the ques- 15–11
tion of non-natural user:
79
Williams, ‘‘Non-Natural Use of Land’’ [1973] C.L.J. 310.
80
Giles v Walker (1890) 24 Q.B.D. 656 (thistledown); Pontardawe RDC v Moore-Gwyn
[1929] 1 Ch. 656 (falls of rocks); Sparkes v Osborne (1906) 7 C.L.R. 51; Seligman v
Docker [1949] Ch. 53.
81
Wilson v Waddell (1876) 2 App. Cas. 95; Smith v Kenrick (1849) 7 C.B. 515. Giles v
Walker, above, fn.80, is in fact such a case, since the thistle crop had been produced for
unexplained reasons by the defendant’s ploughing of some forest land.
82
However, they remain relevant where there is a sudden disaster against which the occupier
cannot take steps: Ellison v MoD (1997) 81 B.L.R. 101 (flood produced by works at
airfield).
83
[1994] 2 A.C. at 308.
84
[1913] A.C. 263 at 279–280. See Read v Lyons [1947] A.C. 156 at 169; Cambridge Water
Co v Eastern Counties Leather Plc [1994] 2 A.C. at 308.
85
[1947] A.C. at 176.
776 Strict Liability: Rule in Rylands v Fletcher
98
Rylands v Fletcher itself. Cf. Transco, above, fn.89.
99
Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 K.B. 772; North-
western Utilities v London Guarantee and Accident Co [1936] A.C. 108.
100
Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 A.C. 264.
101
Mason v Levy Auto Parts of England Ltd [1967] 2 Q.B. 530; Hobbs (Farms) Ltd v
Baxenden Chemical Co Ltd [1992] 1 Lloyd’s Rep. 54; L.M.S. International Ltd v Styrene
Packaging and Insulation Ltd [2005] EWHC 2065 (TCC); Colour Quest Ltd v Total
Downstream UK Plc [2009] EWHC 540 (Comm), [2009] 1 Lloyds Rep 1. At 542 in Mason
McKenna J. saw a close similarity between the way in which the concept of non-natural
use is generally applied by the courts and the idea of unreasonable risk in negligence. Cf.
the view of the Munich Court of Appeal in 1861 that, ‘‘running a railway using locomo-
tives is necessarily and inevitably fault’’: Seuffert’s Archiv 14 (1861) n.208, p.354.
102
Smeaton v Ilford Corp [1954] 1 Ch. 459 at 469, 472.
103
In Dunne v NW Gas Board [1964] 2 Q.B. 806 the CA was reluctant to hold a nationalised
industry liable in the absence of fault and see the differing views on local authorities
expressed by Lord Evershed M.R. and Denning L.J. in Pride of Derby and Derby Angling
Association Ltd v British Celanese Ltd [1953] Ch. 149. In Tock v St John’s Area Metro
Board (1989) 64 D.L.R. (4th) 620 the Supreme Court of Canada declined to apply Rylands
v Fletcher to a municipal drainage system.
104
British Celanese Ltd v A. H. Hunt Ltd [1969] 1 W.L.R. 959 at 963–964: ‘‘The manufactur-
ing of electrical and electronic components in the year 1964 . . . cannot be adjudged to be
a special use . . . The metal foil was there for use in the manufacture of goods of a common
type which at all material times were needed for the general benefit of the community.’’
105
[1921] 2 A.C. 465.
106
[1947] A.C. at 169, 174
107
Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1 at [105].
778 Strict Liability: Rule in Rylands v Fletcher
B. Common Benefit
Where the source of the danger is maintained for the common 15–14
benefit of the claimant and the defendant, the defendant is not liable
for its escape. This is akin to the defence of consent of the claimant,
and Bramwell B. in Carstairs v Taylor113 treated it as the same
thing. In Peters v Prince of Wales Theatre (Birmingham) Ltd,114 the
Court of Appeal regarded ‘‘common benefit’’ as no more than an
element (although an important element) in showing consent. In
other judicial dicta the exception has been regarded as an independ-
ent one.115 One passage in the Cambridge Water case116 suggests
that the rule may be inapplicable to the provision of services to a
defined area such as a business park or an industrial estate, but this
statement is made in the context of non-natural use. The view that
there is a defence of common benefit among consumers of a gen-
erally supplied service like gas or electricity seems inconsistent with
that case.117 On balance, common benefit seems redundant (and
indeed misleading) as an independent defence.
C. Act of Stranger
If the escape was caused by the unforeseeable act of a stranger, 15–15
the rule does not apply. In Box v Jubb118 the defendant’s reservoir
overflowed partly because of the acts of a neighbouring reservoir
owner and the defendant escaped liability. The claimant also failed
in his claim in Rickards v Lothian119 where some third person
deliberately blocked up the waste pipe of a lavatory basin in the
defendant’s premises, thereby flooding the claimant’s premises.120 It
112
Prosser v Levy [1955] 1 W.L.R. 1224 at 1233, CA; Colour Quest Ltd v Total Downstream
UK Plc [2009] EWHC 540 (Comm); [2009] 1 Lloyds Rep 1 (reviewing previous cases and
taking the view that where there is negligence the Rylands v Fletcher claim remains and
is not simply merged into the tort of negligence).
113
(1871) L.R. 6 Ex. 217. So too, Northwestern Utilities Ltd v London Guarantee Co Ltd
[1936] A.C. 108 at 120 and Gilson v Kerrier RDC [1976] 1 W.L.R. 904.
114
[1943] 1 K.B. 73 at 78.
115
Gill v Edouin (1894) 72 L.T. 579; Anderson v Oppenheimer (1880) L.R. 5 Q.B.D. 602.
116
[1994] 2 A.C. at 308.
117
Cf. Dunne v NW Gas Board [1964] Q.B. 806 at 832.
118
(1879) 4 Ex.D. 76
119
[1913] A.C. 263.
120
Also Perry v Kendricks Transport Ltd [1956] 1 W.L.R. 85 (child threw a match into an
empty petrol tank which exploded and injured the claimant—defendants not liable); but as
to personal injury, see, para.15–9, above.
780 Strict Liability: Rule in Rylands v Fletcher
121
Perry v Kendricks Transport Ltd, above, fn.120, at 87 per Singleton L.J. Similarly in
Prosser v Levy [1955] 1 W.L.R. 1224 by the same judge.
122
Above, fn.120, at 90. Similarly per Parker L.J. in Smith v Great Western Ry (1926) 42
T.L.R. 391 the negligent act of a third party (failing to ascertain a defect in an oil tank) was
held to be a good defence, but this case was not brought to the attention of the court in
Prosser v Levy.
123
[1936] A.C. 108.
124
Mandraj v Texaco Trinidad Inc (1969) 15 W.I.R. 251.
125
Balfour v Barty-King [1957] 1 Q.B. 496 at 505–506 CA per Lord Goddard C.J. (the
defendant has control of his independent contractor in that he chooses him, invites him to
his premises to do work, can order him to leave at any moment, although it is left to the
contractor how the work is to be done).
126
See para.20–28, below.
127
See para.15–20, below.
Defences to the Rule 781
D. Statutory Authority
The rule in Rylands v Fletcher may be excluded by statute. 15–16
Whether it is so or not is a question of construction of the particular
statute concerned. In Green v Chelsea Waterworks Co,131 for
instance, a main belonging to a waterworks company, which was
authorised by Parliament to lay the main, burst without any negli-
gence on the part of the company and the claimant’s premises were
flooded; the company was held not liable. On the other hand, in
Charing Cross Electricity Co v Hydraulic Power Co132 where the
128
Indeed, from Goldman v Hargrave [1967] 1 A.C. 465 and associated cases: para.14–21,
above.
129
See also Whitmores Ltd v Stanford [1909] 1 Ch. 427 at 438.
130
The new statutory liability is similarly strict, para.16–8, below.
131
(1894) 70 L.T. 547 applied by the House of Lords in Longhurst v Metropolitan Water
Board [1948] 2 All E.R. 834. Note, however, that since April 1, 1982 statutory water
undertakers are strictly liable for damage (including personal injury) caused by an escape
of water from a communication pipe or main under what is now the Water Industry Act
1991 s.209. This strict liability does not avail other statutory undertakers such as gas and
electricity suppliers or highway authorities.
132
[1914] 3 K.B. 772. Where there is negligence of the sort occurring in Northwestern
Utilities Ltd v London Guarantee Co Ltd [1936] A.C. 108, statutory authority will be no
defence.
782 Strict Liability: Rule in Rylands v Fletcher
133
Smeaton v Ilford Corp [1954] Ch. 450 at 475–477. ‘‘Negligence’’ in this connection is not
a very appropriate word for it means, ‘‘adopting a method which in fact results in damage
to a third person, except in a case where there is no other way of performing the statutory
duty’’: per Farwell J. in Provender Millers (Winchester) Ltd v Southampton CC [1940] Ch.
131 at 140.
134
Department of Transport v NW Water Authority [1984] A.C. 336.
135
Dunne v North Western Gas Board [1964] 2 Q.B. 806 at 833–837.
136
Section 28, Sch.2. However, things may not now be so simple. The wording is, ‘‘Where
damage or injury is caused by the escape of water from a reservoir constructed . . . under
statutory powers . . . the fact that the reservoir was so constructed shall not exonerate the
persons for the time being having the management and control of the reservoir from any
indictment, action or other proceedings to which they would otherwise have been liable.’’
In other words, the question seems to turn on what their liability is at common law. At the
time of the legislation it would have been widely thought that Rylands v Fletcher covered
personal injuries, but now this is not so: para.15–9, above.
Defences to the Rule 783
majority of the High Court of Australia137 held that the burden lies
upon the claimant to prove lack of such care but the contrary
arguments of the minority seem more convincing in principle and
allow for the grave difficulties facing a claimant with the task of
proving negligence against the supplier of a public utility such as
gas or electricity.
The potential effect of the European Convention on Human
Rights on statutory authority to commit nuisance has been con-
sidered.138 Similar questions could arise in relation to Rylands v
Fletcher, but with the difference that we are now concerned with
damage arising from an event rather than (as is normally the case in
nuisance) restraining injurious activity. The answer depends on the
position from which one starts: compensation for damage or com-
pensation for damage caused by fault? The wider scope for strict
liability in other European legal systems may be a significant factor
here.
E. Act of God
Where the escape is caused directly by natural causes without 15–17
human intervention in, ‘‘circumstances which no human foresight
can provide against and of which human prudence is not bound to
recognise the possibility’’,139 the defence of act of God applies. This
was recognised by Blackburn J. in Rylands v Fletcher140 itself and
was applied in Nichols v Marsland.141 In this case the defendant for
many years had been in possession of some artificial ornamental
lakes formed by damming up a natural stream. An extraordinary
rainfall, ‘‘greater and more violent than any within the memory of
witnesses’’ broke down the artificial embankments and the rush of
escaping water carried away four bridges in respect of which dam-
age the claimant sued. Judgment was given for the defendant; the
jury had found that she was not negligent and the court held that she
ought not to be liable for an extraordinary act of nature which she
could not reasonably anticipate.
Whether a particular occurrence amounts to an act of God is a
question of fact, but the tendency of the courts nowadays is to
restrict the ambit of the defence, not because strict liability is
thought to be desirable but because increased knowledge limits the
unpredictable. In Greenock Corp v Caledonian Ry,142 the House of
137
Benning v Wong (1969) 122 C.L.R. 249.
138
See para.14–35, above.
139
Tennent v Earl of Glasgow (1864) 2 M. (HL) 22 at 26–27 per Lord Westbury, approved by
the House of Lords in Greenock Corp v Caledonian Ry [1917] A.C. 556.
140
(1866) L.R. 1 Ex. 265 at 280.
141
(1876) 2 Ex.D. 1.
142
[1917] A.C. 556.
784 Strict Liability: Rule in Rylands v Fletcher
151
(1919) 35 T.L.R. 570 at 574 (fall of refuse in Rhondda Valley probably caused by the
saturation of its inferior strata by an extraordinary rainfall). Also Dixon v Metropolitan
Board of Works (1881) 7 Q.B.D. 418 per Lord Coleridge C.J.
152
See Buxton, ‘‘The Negligent Nuisance’’ (1966) 8 U. Malaya L.R. 7: the decision in Nichols
v Marsland, ‘‘leaves very few cases where a defendant could be held liable who had not
in fact been negligent’’. ‘‘Unless one can visualise the accumulation in circumstances
which do not constitute an ordinary user of the land of something likely to do mischief if
it escapes, and which does escape from the defendant’s land neither by act of God nor of
third party, everything that is within Rylands v Fletcher could also be negligence’’: Street
(1965) I.C.L.Q. 862, 870. See also the Transco case [2003] UKHL 61; [2004] 2 A.C. 1 at
[39].
153
(1868) L.R. 3 H.L. 330 at 340. If the rule applies to a deliberate discharge of the thing
(which is unlikely) necessity is as much a defence as in trespass: Rigby v CC North-
amptonshire [1985] 1 W.L.R. 1242.
154
Lomax v Stott (1870) 39 L.J. Ch. 834; Dunn v Birmingham Canal Co (1872) L.R. 7 Q.B.
244.
155
[1894] 2 Q.B. 281. Cf. Cheater v Cater [1918] 1 K.B. 247.
156
Townsend v Wathen (1808) 9 East 277.
786 Strict Liability: Rule in Rylands v Fletcher
4. REMOTENESS OF DAMAGE
157
[1902] A.C. 381 at 393; Western Silver Fox Ranch Ltd v Ross and Cromarty CC 1940 S.C.
601 at 604–606 (breeding silver foxes not a non-natural use of land).
158
[1923] 1 Ch. 167.
159
[1961] A.C. 388 at 427.
160
See para.14–13, above.
161
See para.6–18, above. The Wagon Mound (No.2) [1967] 1 A.C. 617 seems to support this
view.
Remoteness of Damage 787
5. FIRE
A. Common Law
Winfield traced the history of the earlier forms of action available 15–20
as remedies for damage caused by the spread of fire.165 The usual
remedy was the special action of trespass on the case for negligently
allowing one’s fire to escape in contravention of the general custom
of the realm which we first hear of in Beaulieu v Finglam.166 The
allegation in the action for fire that the defendant tam negligenter ac
improvide ‘‘kept his fire that it escaped’’, referred to negligence in its
older sense—one mode of committing a tort. Centuries later reme-
dies became available under the rule in Rylands v Fletcher167 in
162
See para.6–20, above.
163
Cattle v Stockton Waterworks Co (1875) L.R. 10 Q.B. 453 at 457; Pride v Institute for
Animal Health [2009] EWHC 685 (QB).
164
See para.5–40, above and Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180 at
[151].
165
Winfield (1926) 42 L.Q.R. 46–50, or Select Essays, pp.25–28 and (1931) 4 C.L.J. 203–206
Newark (1945) 6 N.I.L.Q. 134–141 Ogus, ‘‘Vagaries in Liability for the Escape of Fire’’
[1969] C.L.J. 104.
166
(1401) Y.B. Pashc. 2 Hen. 4, f. 18, pl. 6, translated in Fifoot, History and Sources of the
Common Law, p.166.
167
Jones v Festiniog Ry (1866) L.R. 1 Ex. 265, fire included in ‘‘things likely to do mischief
if they escape’’ and thus within Rylands v Fletcher; Powell v Fall (1880) 5 Q.B.D. 597;
Musgrove v Pandelis [1919] 2 K.B. 43; Job Edwards Ltd v Birmingham Navigations
[1924] 1 K.B. 341 at 351–352; Collingwood v Home and Colonial Stores Ltd [1936] 3 All
E.R. 200 at 205; Balfour v Barty-King [1957] 1 Q.B. 496 at 505, CA (Lord Goddard C.J.
deals with the history of the action on the case from its origin to modern times).
788 Strict Liability: Rule in Rylands v Fletcher
168
Spicer v Smee [1946] 1 All E.R. 489.
169
Bankes L.J. in Musgrove v Pandelis [1919] 2 K.B. 43 at 46 per Scrutton L.J.; Job Edwards
Ltd v Birmingham Navigations [1924] 1 K.B. 341 at 361.
170
Winfield (1926) 42 L.Q.R. 46–50 or Select Essays, pp.26–29
171
If the damage is intentional it is a trespass or assault, e.g. deliberately throwing a lighted
match on a haystack or a lighted firework in a person’s face.
172
Mason v Levy Auto Parts of England Ltd [1967] 2 Q.B. 530 at 542 per MacKenna J. If the
damage is to persons or goods on the property on which the fire starts the only liability is
for negligence: Johnson v B.J.W. Property Developments Ltd [2002] EWHC 1131 (TCC);
[2002] 3 All E.R. 574 at [32].
173
Balfour v Barty-King [1957] 1 Q.B. 496 at 504; Tuberville v Stamp (1697) 1 Ld. Raym.
264; H.N. Emanuel Ltd v GLC [1971] 2 All E.R. 835
174
Unless the occupier has knowledge of the fire and fails to take steps to extinguish it within
a reasonable time.
175
A servant acting outside the course of his employment is a stranger: McKenzie v McLeod
(1834) 10 Bing. 385.
176
Crogate v Morris (1617) 1 Brownl. 197; Iverson v Purser (1990) 73 D.L.R. (4th) 33.
177
Ribee v Norrie [2001] P.I.Q.R. P128; Boulcott Golf Club Inc v Engelbrecht [1945]
N.Z.L.R. 553; Erikson v Clifton [1963] NZLR 705.
178
Balfour v Barty-King [1957] 1 Q.B. 496 (defendant was held liable for a fire caused by an
independent contractor whom he employed to thaw frozen pipes in an attic which
contained large quantities of combustible material. Contractor used blowlamp and caused
a fire which spread and destroyed plaintiff’s adjoining house); H.N. Emanuel Ltd v GLC
[1971] 2 All E.R. 835; Johnson v B.J.W. Property Developments Ltd [2002] EWHC 1131
(TCC); [2002] 3 All E.R. 574; Spicer v Smee [1946] 1 All E.R. 489 (as explained in
Johnson).
Fire 789
B. Statutes
We saw, when considering nuisance, how that branch of the com- 15–23
mon law has been supplemented (indeed, in some respects almost
obliterated) by detailed statutory provisions governing pollution of
the environment. Most of this legislation is of a ‘‘regulatory’’ nature
and does not give rise to liability in damages.194 The reader should
be aware, however, that recent years have seen the enactment of a
number of important statutory forms of liability in particular areas of
exceptional risk which go a long way towards avoiding the like-
lihood of protracted litigation inherent in the ill-defined nature of the
rules of strict liability at common law. Full accounts of these Acts
must be sought elsewhere but the following is a summary of the
civil liability aspects of some of the more important of them.195
A. Nuclear Incidents196
The major factors requiring the enactment of legislation on liabil- 15–24
ity for nuclear incidents were the risk of widespread damage, possi-
bly involving losses of millions of pounds, from a single emission of
ionising radiations and the possible injustice in the Limitation Acts
owing to the long periods which might elapse between the impact of
ionising radiations on the claimant and his suffering ascertainable
damage.197
By the Nuclear Installations Act 1965 no person other than the
UK Atomic Energy Authority shall use any site for the operation of
nuclear plant unless a licence to do so has been granted in respect of
that site by the Minister. Liability arises only when there is a nuclear
incident which occurs at or in connection with certain nuclear
installations, or in the course of transport of nuclear substances, and
it can arise only in connection with licensed nuclear sites.198 Section
7(1) enacts:
194
See para.14–1, above.
195
See also the Gas Act 1965 s.14, which imposes virtually absolute liability for damage
caused by gas in underground storage and the Water Industry Act 1991 s.209, imposing
strict liability for burst mains (para.15–3, above). The strict liability of an aircraft operator
for ground damage is considered para.13–7, above.
196
Street and Frame, Law Relating to Nuclear Energy; Tromans and Fitzgerald, The Law of
Nuclear Installations and Radioactive Substances.
197
Street and Frame, op. cit., p.38. However, after the first Nuclear Installations Act in 1959,
the Limitation Act 1963 to some extent mitigated this problem in all personal injury cases
and this has been carried further by the Limitation Act 1980: Ch.26.
198
Section 12.
792 Strict Liability: Rule in Rylands v Fletcher
199
Radiation injury can present acute problems of proof of causation. A multi-party suit
alleging causation of leukaemia failed for this reason in 1993.
200
Not merely worry, falling short of a psychiatric condition, about the risk of injury:
Magnohard Ltd v UKAEA [2003] CSOH 362; 2003 S.L.T. 1083.
201
It was held in Merlin v B.N.F.L. [1990] 2 Q.B. 557 that this does not cover radioactive
contamination which devalues the property because of a perceived risk of personal injury.
Cf. Magnohard Ltd v UKAEA, above, fn.200. However, it is wrong to say that the Act, in
the field of property damage, applies only to livestock and crops, given the enormous dose
that would be required to produce a change in inanimate property. There is ‘‘damage’’ if
soil is contaminated and has to be removed: Blue Circle Industries Plc v MoD [1999] Ch.
289.
202
Sections 12, 16.
203
Section 17(3). i.e. two or more licensees, since only a licensee can be liable under the
Act.
204
Thus most acts of terrorism will not fall within this defence.
Strict Liability under Modern Legislation 793
‘‘[B]ut only if, and to the extent that, the causing of that injury or
damage is attributable to the act of [the claimant] committed with
the intention of causing harm to his person or property or with
reckless disregard for the consequences of his act.’’206
on a particular site, the date of the last event in the course of that
occurrence or succession of occurrences is the relevant one. The
period runs from the defendant’s act, not from the infliction of
damage. However, the licensee’s liability is in fact limited to a
period of 10 years.212 He is required to make such provision (either
by insurance or some other means) as the Minister may, with the
consent of the Treasury, approve for sufficient funds to be available,
currently up to a total of £140 million, to cover compensation during
this period. In other cases (where the claim exceeds the statutory
limit or after the expiry of 10 years) claims are to be directed to the
Government, which satisfies them out of moneys provided by
Parliament.213
The Act applies in certain circumstances to occurrences outside
the UK.214
B. Oil Pollution
15–25 Chapter III of Pt VI of the Merchant Shipping Act 1995 imposes
civil liability for oil pollution damage by ships and gives effect to
the 1969 Convention on the subject and the Protocols thereto.
Section 153 imposes liability on tanker owners215 for damage
caused by contamination resulting from the discharge or escape of
oil, for the cost of reasonable preventative or clean up measures and
for any damage caused by those measures.216 ‘‘Damage’’ includes
‘‘loss’’217 but it is specifically provided that liability for:
218
Section 156(3).
219
Landcatch Ltd v International Oil Pollution Compensation Fund [1999] 2 Lloyd’s Rep.
316, but the statute does not extend to more remote sufferers, like persons who buy and
sell on the fisherman’s catch: R.J. Tilbury & Sons (Devon) Ltd v Alegrete Shipping Co Inc
[2003] EWCA Civ 65; [2003] 1 Lloyd’s Rep. 327.
220
Section 155.
221
Cf. ‘‘act of God’’, para.15–17, above.
222
Thus the negligent act of a third party provides no defence.
223
Section 153. This abolition extends to the liability of servants or agents of the owner and
of salvors, but such persons may be liable for acts done with intent to cause damage or
done recklessly in the knowledge that damage would probably result: s.153(1)(ii). Any
existing common law liability would, of course, continue to apply to the owner or master
of another ship colliding with the oil carrier.
224
Section 163. Persons suffering damages who are unable to claim under the Act or who are
affected by limitation of liability may receive compensation from the International Fund
for Compensation for Oil Pollution Damage under the Act Pt VI Ch.IV. Where the damage
exceeds both the shipowner’s and the Fund’s liability there may now be further recourse
to a Supplementary Fund: see the Merchant Shipping (Pollution) Act 2006 and the
Merchant Shipping (Oil Pollution) (Supplementary Fund Protocol) Order SI 2006/1265.
There have also been various voluntary compensation schemes, known by the endearing
acronyms of CRISTAL, PLATO and TOVALOP (considered by the House of Lords in
Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] A.C. 643).
225
Section 157. The right to limit is lost if the damage, ‘‘resulted from anything done or
omitted to be done by the owner with intent to cause any such damage . . . or recklessly
and in the knowledge that any such damage . . . would probably result’’. This is along the
lines of the general maritime limitation provision in the 1995 Act Sch.7. Cf. the old
limitation-breaking formula of ‘‘actual fault or privity’’.
796 Strict Liability: Rule in Rylands v Fletcher
C. Waste Pollution227
15–26 A significant and controversial aspect of environmental damage is
that caused by waste disposal, which has been governed by special
legislation in this country since the Deposit of Poisonous Waste Act
1972.228 The current legislation is Pt II of the Environmental Protec-
tion Act 1990. This is a large and complex body of regulatory and
criminal law and reference should be made directly to the Act229 but
our concern here is that it imposes a measure of civil liability. Where
any damage is caused by waste deposited on land, any person who
deposited it, or knowingly caused or permitted it to be deposited is
liable for that damage provided that the deposit constituted an
offence under the Act.230 Essentially, an offence will be committed
where waste is, (1) deposited otherwise than in accordance with a
waste management licence, or (2) kept, treated or disposed of
otherwise than in accordance with such a licence, or (3) even if there
is no contravention of any licence, the waste is treated, kept, or
disposed of ‘‘in a manner likely to cause the pollution of the
environment or harm to human health’’.231 Waste is defined as a
substance or object set out in Sch.2B232 to the Act which the holder
discards or intends or is required to discard.233 The definition is wide
enough to include almost anything that might be included within the
ordinary meaning of that term and there is no requirement that it be
known to represent a hazard when disposed of.234 For the purpose of
civil liability, recoverable damage is defined according to the usual
standard formula as including personal injury and there can be no
doubt that it also includes physical damage to property. Only one
step further and no doubt still within the scope of actionable damage
is some ongoing condition such as a foul smell, which might be the
basis of an action for common law nuisance.235 However, dumping
226
Sections 153(8), 154(4). See Ch.6, above.
227
See also the EC White Paper on Environmental Liability, para.14–1, above.
228
Accumulation of waste might also be a statutory nuisance under the former Public Health
Act, now the Environmental Protection Act 1990 Pt III.
229
See annotations by Tromans in Current Law Statutes.
230
Primarily under s.33(1).
231
These concepts are defined in s.29. Since harm to human health includes ‘‘offence to any
of [the] senses’’ this covers situations which would amount to a common law nuisance.
232
Inserted by the Environment Act 1995, to comply with EC requirements.
233
See the 1990 Act s.75(2), as amended by the 1995 Act. There are further requirements
governing the disposal of ‘‘special waste’’ in regulations made under the 1990 Act s.62.
234
See, however, the defences, below.
235
Even an action for damages: Bone v Seale [1975] 1 All E.R. 787.
Strict Liability under Modern Legislation 797
236
See para.15–24, above.
237
Section 33(7). Under s.33(7)(b) a servant acting under the instructions of his employer and
who has no reason to believe an offence is being committed has a defence.
238
This is because the ‘‘reasonable care and due diligence’’ defence goes to the commission
of an offence, not the causing of damage.
CHAPTER 16
ANIMALS1
There are many possible ways in which one may incur tortious 16–2
liability through the instrumentality of an animal under one’s con-
trol, but the fact that the agent happens to be animate rather than
inanimate is immaterial, for while the common law, like other legal
1
The common law on this topic is covered by the exhaustive monograph of Glanville
Williams, Liability for Animals. There are believed to be about 10 million dogs and one
million horses in the UK.
2
This expression is properly confined to liability for animals which do not belong to a
dangerous species, but is commonly used in the wider sense used here.
3
The Act came into force on October 1, 1971. The leading study of the modern law is North,
The Modern Law of Animals. See too Law Commission, Civil Liability for Animals, Law
Com. No.13 (1967). The Pearson Commission recommended no change in the law: Cmnd.
7054, Vol. 1, Ch.30.
4
For the previous law, see the 8th edn of this work, Ch.17, and Law Com. No.13
(1967).
799
800 Animals
5
Pitcher v Martin [1937] 3 All E.R. 918 illustrates negligence and nuisance committed
through the agency of a dog; Farrer v Nelson (1885) 15 Q.B.D. 258 nuisance through the
agency of pheasants (distinguished in Seligman v Docker [1949] 1 Ch. 53).
6
Cunningham v Whelan (1917) 52 Ir.L.T. 67.
7
Aldred’s Case (1610) 9 Co. 57b; Wheeler v J.J. Saunders Ltd [1996] Ch. 19.
8
Leeman v Montagu [1936] 2 All E.R. 1677. In Clarkson v Bransford (1987, Huddersfield
County Court) the claimant recovered damages for nervous shock in nuisance and negli-
gence in respect of the escape of the defendant’s non-dangerous snakes from his house into
hers. The defendant kept 24 snakes in the attic (Kemp & Kemp, Quantum of Damages,
June 1987 issue).
9
Brady v Warren [1900] 2 Ir. 636 (rabbits); Seligman v Docker [1949] 1 Ch. 53 (wild
pheasant increasing in numbers owing to favourable weather conditions).
10
Farrer v Nelson (1885) 15 Q.B.D. 258 at 260 (nuisance by unreasonable number of
pheasants brought onto the land); Peech v Best [1931] 1 K.B. 1 at 14; Seligman v Docker
[1949] 1 Ch. 53 at 61–63.
11
Wandsworth LBC v Railtrack Plc [2001] EWCA Civ 1236.
12
Roberts v CC Kent [2008] EWCA Civ 1588 (where the action was justified under s.3 of
the Criminal Law Act 1967).
13
(1878) 4 Q.B.D. 9; League against Cruel Sports v Scott [1986] Q.B. 240.
Ordinary Liability in Tort 801
‘‘Quite apart from the liability imposed upon the owner of ani-
mals or the person having control of them by reason of knowledge
of their propensities, there is the ordinary duty of a person to take
care either that his animal or his chattel is not put to such a use as
is likely to injure his neighbour—the ordinary duty to take care in
the cases put upon negligence.’’14
In an action based upon the breach of such a duty to take care, the
ordinary rules in an action of negligence apply. The action for
negligence for harm done through animals was quite distinct from
both the cattle trespass rule and the scienter rule at common law15
and now is distinct from the various forms of strict liability imposed
by the Animals Act 1971.16 In one respect, however, the common
law failed to extend the principles of negligence to cases involving
animals. It was the rule for centuries that if animals (or at least,
ordinary tame animals) strayed from adjacent land on to the high-
way neither the owner of the animals nor the occupier of the land
was liable for any ensuing damage even though it could have been
prevented by controlling the animal or by fencing.17 This immunity
was abolished by the Animals Act 1971,18 so that where damage is
caused by animals straying on the highway the question of liability
is to be decided in accordance with the ordinary principles of
negligence. It is provided, however, that if a person has a right to
place animals on unfenced land, he is not to be regarded as in breach
of a duty of care by reason only of his placing them there, so long
as the land is in an area where fencing is not customary or is
common land or a town or village green.19 It is important to note
14
Fardon v Harcourt-Rivington (1932) 146 L.T. 391 at 392 per Lord Atkin; Searle v
Wallbank [1947] A.C. 341 at 359–360.
15
See Draper v Hodder [1972] 2 Q.B. 556 (where a claim based upon scienter failed at the
trial); Smith v Prendergast, The Times, October 18, 1984. Similarly, a claim might in some
cases be founded upon the statutory variant of negligence created by the Occupier’s
Liability Act 1957. See North, Modern Law of Animals, p.176.
16
Jones v Whippey [2009] EWCA Civ 452.
17
Searle v Wallbank [1947] A.C. 341. The immunity had no application where the animal
was brought on to the highway and then got out of control: Gomberg v Smith [1963] 1 Q.B.
25.
18
Section 8, which Lord Hailsham L.C. referred to as, ‘‘the only [section] which it is really
worth enacting’’: Hansard, HL, Vol. 312, cols 887–888.
19
Section 8(2). Like many ‘‘by reason only’’ exceptions, this subsection is a fertile source of
difficulties. Even without it, the owner would not be liable by reason only of placing his
animals there, for there would have to be sufficient traffic to create a serious danger. For
various problems of interpretation, see North, Modern Law of Animals pp.157–160. The
subsection was applied in Davies v Davies [1975] Q.B. 172 but the case turned largely on
the right of a commoner to license others to graze animals.
802 Animals
that the Act does not require all landowners to fence against the
highway: in moorland areas of Wales and the north of England this
would be an intolerable burden and in such areas a motorist must be
expected to be on the look out for straying livestock.20 That is not
to say that the burden imposed by s.8 is trivial: the Court of Appeal
has held that the duty of care of the farmer extends to guarding
against the carelessness of hikers lawfully on his land, and may
require the provision of stiles, so enabling a stock gate to be
secured.21 Furthermore, there are situations in which the escape of
animals attracts strict liability under s.2(2).22
16–3 At common law the keeper of an animal was strictly liable, inde-
pendently of negligence, for damage done by the animal if (1) the
animal was ferae naturae (i.e. belonged to a dangerous species) or
(2) the animal was mansuetae naturae (i.e. did not belong to a
dangerous species) and he knew of its vicious characteristics. These
forms of strict liability have been retained by the Animals Act 1971
and, though they have been subjected to considerable modification,
some of the old learning may continue to be relevant. It is, however,
important to remember that the only source of the law is now the
words of the Act and these must always prevail.
26
Murphy v Zoological Society of London [1962] C.L.Y. 68.
27
Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1.
28
Hale 1 P.C. 101. Cf. Brooke v Cooke (1961) 105 S.J. 684. As to other animals see
Williams, Liability for Animals, pp.292–294. Bees are not ferae naturae at common law:
Stormer v Ingram (1978) 21 S.A.S.R. 93. The Dangerous Wild Animals Act 1976 provides
for a system of licensing of keepers of dangerous wild animals. Such animals are those
listed in the Schedule to the Act and it is thought that such listing would be almost
conclusive on the issue of whether the animal belonged to a dangerous species under the
1971 Act (none of the listed animals appears to be commonly domesticated here).
Omission from the list should not, however, be particularly persuasive that the animal is
not dangerous under the 1971 Act. Species such as the buffalo and hippopotamus were
omitted because it was not thought likely that any attempt would be made to keep them
privately (HL Vol. 371 col.1180) and the same presumably applied to the elephant and the
camel. Under the 1976 Act the local authority must specify, as a condition of the grant of
a licence, that the keeper maintains a liability insurance policy: s.6(a)(iv), (v). There is also
compulsory insurance under the Riding Establishments Acts 1964 and 1970.
29
The definition of ‘‘damage’’ in s.11 is not exhaustive, but does, it is submitted, include
damage to property: see Law Com. No.13 (1967), para.15(iii).
30
Thus a camel is dangerous under the Act, though not ferae naturae at common law: Tutin
v Chipperfield Promotions Ltd (1980) 130 N.L.J. 807, not following McQuaker v Goddard
[1940] 1 K.B. 687 (which probably applied the wrong test at common law, anyway).
31
Behrens v Bertram Mills Circus Ltd, above, fn.27, at 14. However, it is not clear to what
extent the common law was prepared to distinguish among sub-species and the same
problem will arise under the Act: see para.16–5, below.
804 Animals
B. Other Animals
16–5 Section 2(2) provides:
32
Section 6(3). It is provided, however, by s.6(4) that where an animal is taken into and kept
in possession for the purpose of preventing it from causing damage or of restoring it to its
owner, a person is not a keeper of it by virtue only of that possession.
33
One keeper may be liable to another keeper: Flack v Hudson [2001] Q.B. 698 (owner
liable to bailee/rider of horse who did not know of its characteristics).
Liability for Dangerous Animals 805
34
The old scienter rule might be regarded as a primitive form of negligence under which the
defendant was regarded, subject to certain defences, as being irrebutably presumed to be
negligent in keeping the animal after he discovered its character. There is now liability for
negligence under the general law but there is no doubt that the defendant may be liable
under s.2(2) even if he is not negligent (in the modern sense) on the occasion in question:
Curtis v Betts [1990] 1 W.L.R. 459.
35
Mirvahedy v Henley [2003] UKHL 16; [2003] 2 A.C. 491 at [9].
36
Curtis v Betts, above, fn.34, at 462. A contrary contention was not pursued at the trial.
37
Section 11. For the common law, see North, Modern Law of Animals, pp.36–38.
38
Hunt v Wallis, The Times, May 10, 1991. Indeed, this was in effect the approach to the
same issue of the CA in Curtis v Betts, above, fn.34.
39
Presumably, however, the test of whether a breed is commonly domesticated here would
not be satisfied by showing that there were a tiny number here all kept as pets.
40
If it be the case that there is a species (or sub-species or variety) which (a) normally and
in all circumstances has dangerous characteristics and (b) is commonly domesticated here
there would seem to be an illogical gap in the legislation since such animals fall under
neither subsection.
41
Curtis v Betts, above, fn.34, at 469.
806 Animals
52
Above, fn.45.
53
At [71] per Lord Hobhouse.
808 Animals
54
At [117] per Lord Scott.
55
See para.16–8, below. Nelms v CC Avon & Somerset, February 9, 1993, CA.
56
Cet animal est méchant. Si on l’attaque, il se defend. See Lord Scott’s example at [115]
in Mirvahedy of the police horse attacked by a demonstrator and the horse’s defensive kick
connecting with someone other than the attacker.
57
The ‘‘reasonable animal’’?
58
Welsh v Stokes [2007] EWCA Civ 796; [2008] 1 W.L.R. 1224; cf. Freeman v Higher Park
Farm [2008] EWCA Civ 1185; [2009] P.I.Q.R. P6.
59
Such is French law: art.1385, Code Civil; but German law, while imposing strict liability
for pets does not apply this to ‘‘working’’ animals.
60
Chauhan v Paul [1998] C.L.Y. 3990, CA. There is nothing in the Act to support the view
that he must know, at the time of the incident, of the circumstances which bring the
characteristic into play. The damage must be attributable to the characteristics referred to
in paragraph (b): if the keeper knows that the animal becomes aggressive in certain
conditions he is liable if a bite is inflicted in those conditions, but not for an unexpected
attack in quite different conditions: Curtis v Betts, above, fn.34, but if a dog is prone to
attack other dogs but not humans there may still be a likelihood of injury to a human being,
namely the owner of the other dog: Smith v Ainger, above, fn.44.
Liability for Dangerous Animals 809
61
Welsh v Stokes [2007] EWCA Civ 796; [2008] 1 W.L.R. 1224.
62
McKenny v Foster [2008] EWCA Civ 173 (cow so distressed at being separated from her
weaned calf that she was able to leap a six bar gate and a 12-foot cattle grid).
63
As in Gladman v Johnson (1867) 36 L.J.C.P. 153.
64
Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1; Fitzgerald v A.D. and E.H. Cooke
Bourne Farms Ltd [1964] 1 Q.B. 249 at 270; Williams, Liability for Animals, p.341.
65
Wallace v Newton [1982] 1 W.L.R. 375. Cf. Smith v Ainger, above, fn.44 (no abnormal
characteristic).
66
The requirement of knowledge means that in practice there is not much risk of liability for
the spread of foot and mouth disease.
67
McKenny v Foster [2008] EWCA Civ 173 (though the claim failed for want of knowledge
of the relevant characteristic). Compare Jaundrill v Gillett, The Times, January 30, 1996
and Mirvahedy v Henley at [162]. There is an obvious tension with s.8 (para.16–2, above),
which is based on negligence.
68
If you fall into the path of a car because an innocuous dog barks at you the damage has
been caused not by the animal but by your excessive reaction: Wall J. in Chauhan v Paul,
above, fn.60.
69
i.e. the owner or the person in possession. See the appeal in Hole v Ross-Skinner [2003]
EWCA Civ 774, which seems to have been pursued solely to absolve the possessor from
negligence and allow him to seek contribution against the owner.
810 Animals
have the same characteristics. The first does not impose civil liabil-
ity.70 The second is silent on the point. No doubt certain contra-
ventions of either Act would be almost conclusive evidence of
negligence.71
C. Defences
16–8 The Act provides that it is a defence to an action brought under
s.2 that the damage was wholly due to the fault of the person
suffering it72 or that he voluntarily assumed the risk thereof73
(though a person employed as a servant by a keeper of the animal is
not to be treated as accepting voluntarily risks incidental to his
employment74). Contributory negligence, is, of course, a partial
defence.75
There is special provision for injury to trespassers by dangerous
animals. Section 5(3) provides that a person is not liable under s.2
for any damage by an animal kept on any premises or structure76 to
a person trespassing there, if it is proved either (a) that animal was
not kept there for the protection77 of persons or property or (b) (if
the animal was kept there for the protection of persons or property)
that keeping it there for that purpose was not unreasonable. It would
seem unreasonable to protect your premises with a lion or a cobra,
but not, perhaps, with a fierce dog.78 This subsection does not, of
course, affect any liability for negligence which the defendant may
incur qua occupier of the premises or keeper of the animal, but it is
70
Section 5(2)(a).
71
e.g. the condition of muzzling in s.1(2)(d) of the 1991 Act.
72
Section 5(1). Nelms v CC Avon & Somerset February 9, 1993, CA, where the claimant
kicked the dog. A person who ignores police warnings to come out and who is then bitten
by a police dog brings his injury upon himself: Dhesi v CC West Midlands, The Times, May
9, 2000, CA.
73
Section 5(2). The Unfair Contract Terms Act 1977 does not apply to the strict liability
under the 1971 Act. Although the subsection no doubt reflects the common law defence of
volenti non fit injuria, it is to be interpreted according to the ordinary meaning of the
words: Freeman v Higher Park Farm [2008] EWCA Civ 1185.
74
Section 6(5). See North, Modern Law of Animals pp.73–76. So if the lion tamer is eaten
by the lion, his dependants can sue. Cf. Canterbury CC v Howletts & Port Lympne [1997]
I.C.R. 925.
75
Section 10.
76
Not necessarily animals owned by or kept by the occupier.
77
This probably does not have to be a dominant purpose. Thus the old lady who keeps a dog
partly for companionship and partly for protection would fail on (a), though her conduct
would certainly be reasonable under (b).
78
So held in Cummings v Grainger [1977] Q.B. 397, ‘‘True it was a fierce dog. But why not?
A gentle dog would be no good. The thieves would soon make friends with him’’: at 405
per Lord Denning M.R. Since 1975 it is an offence to have a guard dog roaming about the
premises unless under the control of a handler: Guard Dogs Act 1975. It has been
suggested that contravention might make the keeping unreasonable under the 1971 Act:
Cummings v Grainger, above.
Liability for Dangerous Animals 811
thought that the keeping of guard dogs is consistent with the occu-
pier’s duty to trespassers,79 provided at least some warning of their
presence is given.
79
See para.9–25, above.
80
‘‘Cattle’’ or avers was a class virtually identical with livestock under the Act: see fn.83,
below.
81
See Williams, Liability for Animals, 2 and 3.
82
Law Com. No.13 (1967), paras 62–63.
83
Defined in s.11 as, ‘‘cattle, horses, asses, mules, hinnies, sheep, pigs, goats and poultry
[which is further defined as the domestic varieties of fowls, turkeys, geese, ducks, guinea-
fowls, pigeons, peacocks and quails] and also deer not in the wild state’’.
84
By s.4(2) livestock belongs to the person in whose possession it is. Finance companies
owning herds under hire-purchase agreements may therefore rest easy in their corporate
beds.
85
The marginal note to s.4 refers to ‘‘trespassing’’, but the enacting words do not. ‘‘Stray’’
is probably wide enough to cover the facts of Ellis v Loftus Iron Co [1874] L.R. 10 C.P.
10: Wiseman v Booker (1878) 3 C.P.D. 184.
86
Notwithstanding the general definition of ‘‘damage’’ in s.11, it is submitted that the words
of this paragraph make it clear beyond argument that damages are not recoverable for
personal injuries under this section and Wormald v Cole [1954] 1 Q.B. 614 is no longer
law.
87
The range of potential claimants and their claimable losses is, with regard to property,
rather wider than at common law: see North, Modern Law of Animals, pp.94–96.
88
A local authority operating a pound for animals straying on its land may properly impose
a standard charge: Morris v Blaenau Gwent DC (1982) 80 L.G.R. 793.
812 Animals
89
See para.16–11, below.
90
Section 5(1).
91
Section 10.
92
Section 5(6). The law relating to the obligation to fence is notoriously complex and the
Law Commission thought it inappropriate to deal with it other than by providing a
relatively simple rule: Law Com. No.13 (1967), fn.98. It should be noted that there is no
requirement under s.5(6) that the duty in question be owed to the defendant. For a detailed
comparison of s.5(6) with the common law position, see North, Modern Law of Animals,
Ch.4.
93
Hence the defence is inapplicable if the animals had been allowed to stray on to the
highway: Matthews v Wicks, The Times, May 25, 1987.
94
Section 5(5). This does not, of course, remove any liability for negligence in such a case:
Gayler and Pope Ltd v Davies & Son Ltd [1924] 2 K.B. 75.
95
(1882) 10 Q.B.D. 17.
Liability for Straying Livestock 813
open, and the ox had pushed its way through, or had gone through
a plate-glass window.96
96
Gayler and Pope Ltd v Davies & Son Ltd [1924] 2 K.B. 75. The driver of beasts which
stray without his fault into property adjoining the highway is entitled to enter the property
in order to get them out, and for that purpose he must be allowed such time as is reasonable
in the circumstances: Goodwin v Cheveley (1895) 28 L.J. Ex. 298.
97
See Williams, op. cit., Pt I.
98
The right is therefore abolished for all animals and the new remedy applies only to
livestock, for the definition of which see fn.83, above. The right of distress damage feasant
remains in respect of other property: para.17–10, below.
99
The word ‘‘strayed’’ may not be wide enough to encompass livestock which have been
driven on to the land, though the condition that the animals must not be under the control
of any person (see fn.100, below) suggests that the draftsman meant to include such a
case.
100
This was also a condition of the exercise of the common law right and is designed to
prevent breaches of the peace.
101
As to the person to whom livestock belongs, see fn.84, above.
102
In the absence of a request for the return of the livestock, however, the detainer will not
necessarily be liable for conversion.
103
i.e. under s.4.
814 Animals
104
Presumably, if the net proceeds are not sufficient to meet the claim the detainer may sue
for the excess. Further, the section makes no provision for the case where a detainer with
no claim for damages or expenses exercises the power of sale which the section undoubt-
edly confers on him: the only sensible solution is to make him hold the proceeds on trust
for the owner. These solutions, however, involve a fairly robust interpretation of the Act:
North, Modern Law of Animals, pp.119–120.
105
See Williams, Liability for Animals, p.301. If, however, the animal committed a ‘‘direct’’
wrong of the type to be expected, the keeper was probably liable for other losses stemming
from that injury, e.g. a disease caught from the bite of a vicious dog: Williams, p.320.
106
Wormald v Cole [1954] 1 Q.B. 614.
107
See para.15–19, above.
Remoteness of Damage and Strict Liability 815
108
See para.16–5, above.
109
Tutin v Chipperfield Promotions Ltd (1980) 130 N.L.J. 807.
110
See fn.86, above.
111
‘‘Livestock’’ for this purpose is slightly wider than under s.4, including pheasants, par-
tridges and grouse in captivity: s.11.
112
‘‘Keeper’’ has the same meaning as in s.2: see para.16–4, above.
113
Section 3. See North, Modern Law of Animals, Ch.7.
114
Section 5(1).
115
Section 5(4).
116
Section 10.
117
[1948] 1 K.B. 241.
118
The rule in Cresswell v Sirl continues to govern in the case of animals other than dogs, e.g.
pigeons damaging crops, as in Hamps v Darby [1948] 2 K.B. 311. See the 8th edn of this
work, pp.761–762.
816 Animals
119
Not the only defence. A defendant who fails to make out the statutory defence (e.g.
because he has not informed the police) may presumably fall back on the common law.
120
For this purpose an animal belongs to a person if he owns it or has it in his possession and
land belongs to the occupier thereof: s.9(5).
121
If the livestock have strayed on to the land of another, there is no right under this section
to shoot a dog which is lawfully on that land: s.9(2)(b).
122
The two following conditions are satisfied by reasonable belief on the defendant’s part:
s.9(4).
123
This right to take punitive action in respect of an attack which is over the major difference
between s.9 and Cresswell v Sirl.
CHAPTER 17
817
818 Interference with Goods
3
An alternative form of action for unlawful taking was replevin. This was originally a
tenant’s remedy for wrongful distress by his lord. By the 15th century it had become
available for other forms of unlawful taking (Y.B. 19 Henry 6, 65 (Pasch. 5)) but in
practice has tended to be used only for unlawful distress.
4
Detinue was thus based upon the right to possession and its connection with bailment gave
it a strong contractual flavour. However, ‘‘the medieval writ lay across the categories of
modern analysis, and to force it into one or other of them is to be guilty of anachronism’’:
Fifoot, History and Sources of the Common Law, p.25.
5
Pollock and Maitland, History of English Law, ii, pp.181–182. The attitude of the law
seems to have been based partly on the fact that medieval movables were often so
perishable that the court could not undertake the responsibility of enforcing their restora-
tion and partly on the view that all things had a legal ‘‘price’’: Maitland, Forms of Action,
p.48.
6
See para.17–29, below.
7
Another deficiency of detinue was that if the chattel had been damaged in the bailee’s
hands he could satisfy the judgment by opting to return the damaged chattel. This was met,
however, by allowing an action on the case, the ancestor of the modern ‘‘bailee’s liability’’.
Accidental damage or destruction was never absorbed into trover.
8
See Douglas, ‘‘The Nature of Conversion’’ (2009) 68 C.L.J. 198.
9
Holdsworth, History of English Law, iii, pp.285–287, 350–351, 450, 581–584 vii,
pp.403–513 viii, pp.466–468 ix, p.42; Milsom, ‘‘Not Doing is no Trespass’’ [1954] C.L.J.
105, 114; Simpson, ‘‘The Introduction of The Action on the Case for Conversion’’ (1959)
75 L.Q.R. 364.
10
This seems to have been borrowed from the earlier form of detinue sur trover which, unlike
detinue sur bailment, ‘‘had no ancestry in debt, and no trace of contract’’: Milsom,
Historical Foundations of the Common Law, p.327.
11
Rastell, Entries (1596) 4b–5a.
Interference with Goods 819
and finding were soon treated as pure fictions and the defendant was
not allowed to deny them.12 The new remedy rapidly encroached
upon the spheres of trespass and replevin, though the law never went
quite so far as to say that touching or damaging or moving goods
was conversion.
The difficulty in extending trover to cases covered by detinue was 17–2
that conversion could only be committed by a positive act—misfea-
sance as opposed to nonfeasance. Detinue lay where a person was in
possession of another’s goods and refused to give them up but could
it be said that such a mere refusal was a positive act? The line
between misfeasance and nonfeasance is apt to be a fine one and the
courts after some hesitation took advantage of this and held mere
refusal to redeliver to be conversion.13 Detinue, with its procedural
disadvantages, wilted considerably under this treatment though it
retained a place in the law because inability to redeliver as a result
of loss or destruction of the goods was not regarded as
conversion.14
Nineteenth-century legislation swept away the fictions upon
which trover was based and it became the modern action for conver-
sion, though no change was made in the substance of the law. The
abolition of the wager of law in 1833 caused some revival in detinue
but in view of the expansion of conversion, detinue only really
remained necessary where the defendant was unable to redeliver the
goods. The process of simplification was carried a stage further by
s.2 of the Torts (Interference with Goods) Act 1977 which abolished
detinue and provided that conversion also covered the only case that
was probably formerly the exclusive province of detinue—i.e. ina-
bility to redeliver goods as a result of their loss or destruction.15 It
may be questioned whether this change achieves very much of a
practical nature since, (1) one still needs to look back at the common
law of detinue to determine what constitutes the new form of
conversion, and (2) there still survive two torts of interference with
property which have a considerable overlap with conversion, i.e.
trespass to goods and replevin.16
12
Gumbleton v Grafton (1600) Cro. Eliz. 781 (losing); Isaack v Clark (1614) 2 Bulstrode
306 (finding).
13
Holdsworth, History of English Law, vii, pp.405–415.
14
Owen v Lewyn (1673) 1 Ventris 223.
15
See para.17–14, below.
16
The Law Reform recommended a new, all-embracing tort of ‘‘wrongful interference with
chattels’’ (Cmnd. 4774 (1971)). The Act does use this terminology (see s.1) but only as a
convenient label for the various reforms made by it on ancillary matters; it certainly does
not merge the three torts of conversion, trespass and replevin. Cf. the assertion in HSBC
Rail (UK) Ltd v Network Rail Infrastructure Ltd [2005] EWCA Civ 1437; [2006] 1 W.L.R.
643 at [1] that there is a tort of wrongful interference with goods and that trespass and
conversion are ‘‘now old-fashioned terms’’.
820 Interference with Goods
1. TRESPASS TO GOODS
17
As to matters like unauthorised Internet access to computers (which may involve minute
alterations to hard disk configuration) see Clerk & Lindsell, Torts, 19th edn,
para.17–126.
18
Alderson B. in Fouldes v Willoughby (1841) 8 M. & W. 538 at 549.
19
G.W.K. Ltd v Dunlop Rubber Co Ltd (1926) 42 T.L.R. 376 at 593.
20
Wilson v Lombank Ltd [1963] 1 W.L.R. 1294.
21
Slater v Swann (1730) 2 Stra. 872.
22
Sheldrick v Abery (1793) 1 Esp. 55.
23
As opposed to forcing it down its throat.
24
Clerk and Lindsell, Torts, 19th edn, para.17–123. The American Restatement 2d s.217,
Comment, while abandoning the distinction between direct and indirect harm, appears to
accept that it represents the common law. Earlier editions of this work took the contrary
view but it is doubtful if the authorities cited (some of them on the different tort of cattle
trespass) really carry the point. This is not, however, to say that the rule now stated in the
text is a more desirable one: see the comment of the Law Reform Committee in its 18th
Report (fn.16, above) para.21. Chasing animals seems to be a borderline case: on the one
hand, there is no physical contact; on the other hand, chasing humans has always been
accepted as assault, a variety of trespass. The better view is that chasing animals probably
is trespass, and this gains some support from Farmer v Hunt (1610) 1 Brownl. 220 and
Durant v Childe (1611) 1 Brownl. 221.
25
Everitt v Martin [1953] N.Z.L.R. 29; Slater v Swann (1730) 2 Stra. 872.
26
Clerk and Lindsell, Torts, 19th edn, para.17–123. See also Leitch & Co Ltd v Leydon
[1931] A.C. 90 at 106 per Lord Blanesburgh.
27
Perhaps even an intentional touching is not actionable if it is the sort of trivial interference
to which people do not object, like moving a coat on a stand to get at one’s own: see White
v Withers LLP [2009] EWCA Civ 1122. Cf. Collins v Wilcock [1984] 1 W.L.R. 1172.
28
Letang v Cooper [1965] 1 Q.B. 232 at 244–245, para.4–33, above.
Trespass to Goods 821
A. Possession Essential
As trespass is an interference with possession, it follows that if 17–4
the claimant were not in possession at the date of the alleged
meddling, he cannot sue for trespass. He may be able to sue for
conversion, but that is a different matter.
29
National Coal Board v Evans [1951] 2 K.B. 861.
30
See generally para.25–27, below.
31
[1959] 1 Q.B. 426, para.4–33, above.
32
In Letang v Cooper, above, fn.28, Lord Denning at 240 went so far as to say that
negligence is the only cause of action for unintended injury to the person and presumably
his Lordship would have said the same for unintended damage to goods. Though there are
clear authorities the other way on trespass to goods (e.g. Br. Abr. Trespass, 63 (A.D. 1373);
Covell v Laming (1808) 1 Camp. 497) his Lordship was not hampered by equally clear
authorities in relation to trespass to the person. In truth, once it is conceded that the burden
of proof of negligence lies on the claimant (a point on which the court in Letang v Cooper
was unanimous) the traditional distinction between trespass and negligence loses almost
all its significance and a classification like Lord Denning’s, directed at the defendant’s
state of mind, is more satisfactory. However, some support for the view that there may still
be an unintentional trespass to goods is found in the Torts (Interference with Goods) Act
1977. Section 1(1)(b) refers to ‘‘trespass to goods’’ but s.11(1), dealing with contributory
negligence, refers only to ‘‘intentional trespass to goods’’.
33
As in the case of excessive execution. Proof of malice is unnecessary: Moore v Lambeth
County Court Registrar (No.2) [1970] 1 Q.B. 560.
34
[1963] 1 W.L.R. 1294; Colwell v Reeves (1811) 2 Camp. 575.
35
See para.17–19, below, as to the possible effect of the Torts (Interference with Goods) Act
1977 on this case.
822 Interference with Goods
17–5 It is said that there are exceptions to this rule and that the
following persons can sue for trespass although they had not
possession:
36
Lord Kenyon C.J. in Ward v Macauley (1791) 4 T.R. 489 at 490; but in this case the
claimant was a person who had let a furnished property to a tenant and had therefore
surrendered even the right to possession. It has been said that it does not follow that D is
not liable for trespass to C where X wrongfully takes C’s goods and then passes them to
D: White v Withers LLP [2009] EWCA Civ 1122 at [48]. Cf. Penfolds Wines Pty Ltd v
Elliott (1946) 74 C.L.R. 204, where X in handing the goods to D was merely in breach of
the terms of his bailment. If the goods are damaged or destroyed the owner out of
possession will have an action formerly classified as case: Mears v London & South
Western Ry (1862) 11 C.B. (N.S.) 850; East West Corp v DKBS AF 1912 A/S [2003]
EWCA Civ 83; [2003] Q.B. 1509; HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd
[2005] EWCA Civ 1437; [2006] 1 W.L.R. 643 (where, however, the claim failed, the
owner having been indemnified under contract by the bailee). See Tettenborn, ‘‘Rever-
sionary Damage to Chattels’’ [1994] C.L.J. 326.
37
White v Morris (1852) 11 C.B. 1015; Barker v Furlong [1891] 2 Ch. 172, a case of
conversion, but Romer J. approved White v Morris.
38
Tharpe v Stallwood (1843) 5 M. & G. 760 at 770; Pollock & Wright, Possession,
pp.146–147.
39
Bailiffs of Dunwich v Sterry (1831) 1 B. & Ad. 831 (franchise of wreck; cask taken before
franchisee could get it).
Trespass to Goods 823
2. CONVERSION
Conversion at common law may be committed in so many different 17–6
ways that any comprehensive definition is probably impossible43 but
the wrong is committed by dealing with the goods of a person which
deprives him of the use or possession of them (though to ‘‘deprive’’
the owner does not necessarily require that the defendant should
himself take the goods from him44). Thus it may be committed by
wrongfully taking possession of goods, by wrongfully disposing of
them, by wrongfully misusing them, by wrongfully destroying them
or simply by wrongfully refusing to give them up when demanded.
At common law there must be some deliberate act45 depriving the
claimant of his rights: if this element was lacking there was no
conversion. Thus if a bailee negligently allowed goods in his charge
to be destroyed the claimant’s loss is just the same as if the bailee
had wrongfully sold them to a third party but there was no conver-
sion. Such conduct is now conversion by statute but this is merely
for the draftsman’s terminological convenience and has no effect on
the concept of conversion at common law: for this reason, it must be
kept separate in our analysis.
has paid them to another they become currency and the payee and
subsequent recipients cannot be sued for conversion by the original
owner. There can be no conversion of a chose in action, so when
invalidly appointed receivers dealt with a company’s contracts they
did not commit this tort.48 Although the true value of cheques and
other negotiable instruments or share certificates lies in their charac-
ter as evidence of non-corporeal rights,49 the owner may sue in
conversion for their face value,50 though not where a cheque has
been materially altered, for then it ceases to be valid and becomes a
worthless piece of paper.51 There have been a number of cases about
corpses and body parts, though generally in contexts other than
conversion but where rights of ownership have been in issue. There
is no property in a corpse52 (as opposed to e.g. a preserved speci-
men53 or skeleton prepared for anatomical purposes) but in suitable
circumstances a person may have ownership of parts of or products
obtained from his body. Hence a tort claim may lie in respect of the
destruction of sperm stored for potential future use or of a body part
severed in an accident which had been capable of being
reattached.54
55
(1841) 8 M. & W. 540.
56
Price v Helyer (1828) 4 Bing. 597.
57
Cf. The Playa Larga [1983] 2 Lloyd’s Rep. 171 (diversion of goods by seller at behest of
third party conversion). In 384238 Ontario Ltd v R. (1984) 8 D.L.R. (4th) 676 a temporary
taking for three days without use was held not to be conversion. To be conversion the
conduct must be, ‘‘so extensive an encroachment on the rights of the owner as to exclude
him from use and possession of the goods’’: Kuwait Airways Corp v Iraqi Airways Co (Nos
4 and 5) [2002] UKHL 19; [2002] 2 A.C. 883 at [39]
58
Tear v Freebody (1858) C.B. (N.S.) 228. Unlawful wheelclamping is plainly trespass (Vine
v Waltham Forest LBC [2000] 1 W.L.R. 2383) is it also conversion? In Arthur v Anker
[1997] Q.B. 504 the cause of action was described as ‘‘tortious interference’’ with the
car.
59
e.g. ‘‘joyriding’’: Rolle Abr. tit. Action Sur Case, p.5 (equine variety); Aitken v Richardson
[1967] 2 N.Z.L.R. 15. Cf. Schemmell v Pomeroy (1989) 50 S.A.S.R. 450.
60
Hollins v Fowler (1875) L.R. 7 H.L. 757 at 766, 782, 787, 790, 792; Oakley v Lister [1931]
1 K.B. 148 at 156.
61
Lancashire and Yorkshire Ry v MacNicholl (1919) 88 L.J.K.B. 601 at 605; Oakley v Lister,
fn.60, at 153.
62
Is taking a document to read it and copy it conversion? See White v Withers LLP [2009]
EWCA Civ 1122 at [53].
63
Of course in another sense conversion is wider than trespass. I can commit conversion of
goods without touching them or even seeing them, as where I sell them.
826 Interference with Goods
for that would be to treat him like a bailee. However, both problems
can be solved without taking an artificial approach to what amounts
to conversion. Where there is a temporary deprivation and the goods
are returned to the claimant there is no doubt that this goes in
reduction of the damages. If the claimant should refuse to take the
goods back then the court has power to stay the action before
judgment, if they are tendered undamaged.64 As to the second
situation, since the law imposes the liability of an insurer upon a
person who came lawfully into the possession of another’s goods
but who deviates from the terms of his permission65 it must inevita-
bly do the same to a defendant who takes the goods wrongfully.66
Where A, without lawful authority, transfers B’s goods to C, the
mere voluntary receipt of them by C is in general conversion,
however innocent C may be. This is abundantly supported by
decisions with respect to receipt of goods by a buyer67 and a receipt
of a cheque by a banker.68
Some qualifications of this where the defendant acts bona fide are
discussed below.70 It was once held that receipt of goods by way of
pledge did not amount to conversion even though the same receipt
by way of purchase would have.71 Whether or not this decision was
64
Fisher v Prince (1762) 3 Burr. 1363; Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and
5) [2001] 3 W.L.R. 1117 at 1235; on appeal [2002] UKHL 19; [2002] 2 A.C. 883.
65
See, e.g. Roberts v McDougall (1887) 3 T.L.R. 666 and the well-known deviation cases
about carriers and warehousemen. Mitchell v Ealing LBC [1979] Q.B.1; Toor v Bassi
[1999] E.G.C.S. 9.
66
This seems more satisfactory than making the act conversion because the goods are
destroyed. Cf. Schemmell v Pomeroy, above, fn.59.
67
Wilkinson v King (1809) 2 Camp. 335; Farrant v Thompson (1822) 5 B. & Ald. 826; Dyer
v Pearson (1824) 3 B. & C. 38; Hilbery v Hatton (1864) 2 H. & C. 822; Johnson Matthey
(Aust) Ltd v Dascorp Pty Ltd [2003] VSC 291, 9 V.R. 171.
68
Fine Art Society v Union Bank of London (1886) 17 Q.B.D. 705; Gordon v London City
and Midland Bank [1902] 1 K.B. 242 at 265; Morison v London County & Westminster
Bank [1914] 3 K.B. 356 at 364; Reckitt v Barnett [1928] 2 K.B. 244 at 263; [1929] A.C.
726; Lloyds Bank v Chartered Bank [1929] 1 K.B. 40 at 69; Orbit Mining & Trading Co
Ltd v Westminster Bank Ltd [1963] 1 Q.B. 794. Under the Cheques Act 1957 s.4,
re-enacting and extending the Bills of Exchange Act 1882 s.82, the banker has a defence
if he has acted in good faith and without negligence. Middle Temple v Lloyd’s Bank Plc
[1999] 1 All E.R. (Comm) 193 (effect of Cheques Act 1992); Architects of Wine Ltd v
Barclays Bank Plc [2007] EWCA Civ 239; [2007] 2 Lloyd’s Rep 471.
69
Lord Ellenborough C.J. in McCombie v Davies (1805) 6 East 538
70
See para.17–22, below.
71
Spackman v Foster (1883) 11 Q.B.D. 99.
Conversion 827
ever good law it was reversed by the Torts (Interference with Goods)
Act 1977.72
Involuntary reception of goods is not conversion.73 Such is the 17–9
case of an innocent person into whose pocket a thief, in order to
escape detection, inserts a purse which he has stolen from a third
person. Even where the receiver knows that the thing belongs to
someone else,74 he incurs no liability by having it thrust upon him.
Indeed, by legislation, where unsolicited goods are sent to a person
with a view to his acquiring them he may be able to treat them as a
gift to him.75
The recipient cannot, without his consent, be made a bailee in the
strict sense of that term and mere negligence on his part with respect
to the safe custody of the thing will not make him liable. So, in
Howard v Harris,76 where a playwright sent the manuscript of a play
to a theatrical producer who had never asked for it and who lost it,
the producer was held not liable. Similarly, the involuntary bailee
does no wrong if he acts reasonably in trying to return the goods. In
Elvin and Powell Ltd v Plummer Roddis Ltd,77 X, a swindler,
directed the claimants to supply the defendants with £350-worth of
coats. X then forged a telegram to the defendants: ‘‘Goods dis-
patched to your branch in error.—Sending van to collect. Elvin and
Powell.’’ Then a confederate of X called on the defendants, who
delivered the coats to him under the impression that he was the
claimants’ agent. The confederate disappeared. The claimants sued
the defendants for (1) negligence as bailees and (2) conversion. The
jury negatived negligence and found that there was contributory
negligence on the claimants’ part, and Hawke J. held that there was
no conversion, for the defendants had acted reasonably.78
72
Section 11(2). One must look to the substance of the transaction. If A deposits goods with
B for B to sell and the contract provides that B has a lien and a residual right to sell to
recover unpaid charges that is not a pledge: Marcq v Christie Manson & Woods Ltd [2003]
EWCA Civ 731; [2004] Q.B. 286.
73
See Burnett, ‘‘Conversion by an Involuntary Bailee’’ (1960) 76 L.Q.R. 364; Palmer,
Bailment, 3rd edn, Ch.13.
74
It seems that where one receives goods one should ensure that they do not belong to
someone else before scrapping them: A.V.X. v E.G.M. Solders, The Times, July 7, 1982.
According to the CA in Marcq v Christie Manson & Woods Ltd, above, fn.72, one cannot
be a bailee without some knowledge of the existence of one’s bailor but if one mistakenly
destroys goods which are self-evidently someone else’s one that is negligent whether or
not there is a bailment. Where one finds goods in property which one has acquired the
nature of them will determine what inquiries one should make before concluding that they
have been abandoned: Robot Arenas Ltd v Waterfield [2010] EWHC 115 (QB).
75
Consumer Protection (Distance Selling) Regulations, SI 2000/2344, replacing in this
regard the Unsolicited Goods and Services Act 1971.
76
(1884) Cababe & Ellis 253; Lethbridge v Phillips (1819) 2 Starkie 544. Compare the view
of Palmer, Bailment, 3rd edn, para.13–013.
77
(1933) 50 T.L.R. 158.
78
So, too, Batistoni v Dance (1908) 52 S.J. 202.
828 Interference with Goods
79
(1874) L.R. 9 Ex. 86. Note that the defendant was not, strictly, a bailee since he never had
actual possession of the barley.
80
‘‘I am not bound to warehouse it, nor am I entitled to turn it into the street’’: Bramwell B.,
obiter, in Hiort v Bott (1874) L.R. 9 Ex. 86 at 90.
81
The position is rather different when the goods came into the defendant’s hands by reason
of a genuine, voluntary bailment for then the bailee has a statutory power of sale of the
goods if the bailor fails to collect them. See the Torts (Interference with Goods) Act 1977
ss.12, 13, replacing the narrower provisions of the Disposal of Uncollected Goods Act
1952. At common law there was no power of disposal except in cases of real necessity:
Sachs v Miklos [1948] 2 K.B. 23; Anderson v Earlanger [1980] C.L.Y. 133. The 1977 Act
does not define ‘‘bailment’’ but it is thought that the provisions on sale would not extend
to the ‘‘involuntary bailment’’.
82
Arthur v Anker [1997] Q.B. 564.
83
[1997] Q.B. 564. Cf. Jamieson’s Tow and Salvage v Murray [1984] 2 N.Z.L.R. 144. The
landowner may remove the car, but that may involve him in other trouble: Lloyd v DPP
[1992] 1 All E.R. 982.
Conversion 829
prominent notice warning of clamping may mean that the car owner
consents to the risk.84
84
Arthur v Anker, above, fn.82; Vine v Waltham Forest LBC [2000] 1 W.L.R. 2383. It seems
from the latter case that it is not necessarily enough that the notices are sufficiently
prominent to bring the matter to the attention of a reasonably alert entrant. There is now
extensive control via licensing and the criminal law of those engaging in wheel clamping
under the Private Security Industry Act 2001.
85
Hollins v Fowler (1875) L.R. 7 H.L. 757.
86
Parker v Godin (1728) 2 Stra. 813.
87
Motis Exports Ltd v Dampskibsselskabet AF 1912 A/S [2000] 1 Lloyd’s Rep. 211.
88
Moorgate Mercantile Co Ltd v Finch [1962] 1 Q.B. 701. The Court of Appeal held that it
was at least the probable result of such use of the car that the car would be forfeited and
therefore that the defendant must be taken to have intended this result even though, no
doubt, he hoped that it would not happen. Cf. BMW Financial Services (GB) Ltd v
Bhagwanani [2007] EWCA Civ 1230. Did the smuggler convert the airliner in Customs
and Excise v Air Canada [1991] 2 Q.B. 446?
89
Palmer, Bailment, 3rd edn, para.21–07.
90
Ashby v Tolhurst [1937] 2 K.B. 242; Tinsley v Dudley [1951] 2 K.B. 18. Both cases of theft
of claimant’s vehicle from defendant’s car park. The decisions would, of course, have been
different if the defendants had actually handed the vehicles over under a mistaken belief:
Hollins v J. Davy Ltd [1963] 1 Q.B. 844 (where, however, a contractual clause protected
the defendants).
91
It is important to note that there is no bailment where a vehicle is placed in an ordinary car
park: Chappell v National Car Parks, The Times, May 22, 1987. The cases do not seem
to have been affected by the Occupier’s Liability act 1957: para.9–24, above; but cf.
Fairline Shipping Corp v Adamson [1975] Q.B. 180.
92
See para.17–14, below. Thus a carrier who negligently allows goods to be stolen may now
be liable for conversion of the goods as well as negligent breach of bailment.
830 Interference with Goods
other hand, is not a conversion: the act is void and does not change
the property or the possession.93 However, in those cases where a
person in possession of goods to which he has no title may confer a
good title on someone else by selling, pledging, or otherwise dispos-
ing of the goods,94 then, since the true owner is deprived of his title
to the goods, such a disposition constitutes conversion whether or
not the goods are actually delivered.95
The destruction of goods amounts to conversion and so does the
alteration of their nature. If I make an omelette of your eggs or a
statue out of your block of marble, that is conversion.96 However,
the owner of the original material may wish to assert ownership in
the product and that is a different question from that whether the
process wrongfully applied to the material constituted conversion. If
the materials can still be identified in the new product, which is
wholly or substantially composed of them97 (leather turned into
shoes,98 skins turned into a fur coat99) the owner of the materials is
owner of the product. Where the property of A is wrongfully mixed
with that of B which is of substantially the same nature and quality
and they cannot practicably be separated (grain in a bin, oil in a
tank) the mixture is owned in common in proportion to the quantity
contributed by each100; and it has been held that the same is true
where the components are of different grades, so as to produce a
commercially different mixture.101
17–12 iii. Demand and refusal. Merely keeping someone else’s goods,
while it may be a breach of contract,102 is not a conversion of them
for it does not necessarily show an intention to exclude the rights of
the owner. In practice, proof of a demand by the claimant for the
return of the goods met by a refusal of the defendant is the way in
93
Lancashire Waggon Co v Fitzhugh (1861) 6 H. & N. 502.
94
i.e. the exceptions to the rule nemo dat quod non habet.
95
Though most of the exceptions require a delivery.
96
The bottling of wine entrusted to a person in cask may be evidence of conversion even if
none of the wine is drunk, but much will depend on the circumstances of the bottling. If
done to preserve the wine from deterioration it is not conversion. See Philpott v Kelley
(1835) 3 A. & E. 106.
97
Glencore International A.G. v Metro Trading International Inc [2001] 1 Lloyd’s Rep. 284
at 328.
98
Case of Leather Y.B. 5 Hen.VII fol.15.
99
Jones v de Marchant (1916) 28 D.L.R. 561, approved by Lord Millett in Foskett v
McKeown [2001] 1 A.C. 102 at 132.
100
Indian Oil Corp Ltd v Greenstone Shipping SA [1988] Q.B. 345. In Jones v de Marchant
above, fn.99, four of the 22 skins of which the coat was made belonged to the defendant,
but this was a case where separation was not possible.
101
Glencore International A.G. v Metro Trading International Inc, above, fn.97.
102
A bailee is not, in the absence of special contract, obliged to return the chattel to his bailor,
he must merely allow the bailor to collect it: Capital Finance Co Ltd v Bray [1964] 1
W.L.R. 323.
Conversion 831
103
Which would also have been detinue at common law: see Schwarzchild v Harrods Ltd
[2008] EWHC 521 (QB) (limitation).
104
[2002] UKHL 19; [2002] 2 A.C. 883.
105
The initial seizure by the State of Iraq was not actionable in tort because of sovereign
immunity (para.24–6, below). Under the law at the time of the events the usurpation by the
defendants was actionable in an English court only if (a) it was a tort in English law and
(b) civilly actionable under Iraqi law (see now the Private International Law (Miscella-
neous Provisions Act 1995)). The expropriatory decree of the Iraqi Government vesting
the aircraft in the defendants was not recognised because it was a gross breach of
international law.
106
Green v Dunn (1811) 3 Camp. 215n.; Alexander v Southey (1821) 5 B. & Ald. 247;
Clayton v Le Roy [1911] 2 K.B. 1031.
107
e.g. Borroughes v Bayne (1860) 5 H. & N. 296, where the court was not unanimous.
108
[1980] 1 W.L.R. 1875.
109
Hiort v Bott (1874) L.R. 9 Ex. 86 (distinguished in Kitano v The Commonwealth (1974)
129 C.L.R. 151); Van Oppen v Tredegars (1921) 37 T.L.R. 504; Douglas Valley Finance
Co Ltd v S. Hughes (Hirers) Ltd [1969] 1 Q.B. 738; see also Ernest Scragg & Sons Ltd v
Perseverance Banking and Trust Co Ltd [1973] 2 Lloyd’s Rep. 101.
832 Interference with Goods
117
Section 2(1).
118
See para.17–2, above. The Law Reform Committee went so far to say that, ‘‘conversion
will lie in every case in which detinue would lie, save only that detinue lies, but conversion
does not lie, against a bailee of goods who in breach of his duty has allowed them to be
lost or destroyed’’: Cmnd. 4774 (1971), para.8. Megarry V.C. (who had been a member of
the Law Reform Committee) seems to have agreed in Howard E. Perry & Co Ltd v BRB
[1980] 1 W.L.R. 1375, though it is not clear what attitude the learned judge would have
taken to a long but not indefinite detention. Compare Palmer in (1981) 44 M.L.R. 87 ‘‘Title
to Goods and Occupation of Land: A Conflict of Interests’’ (1980) 9 Anglo-American L.R.
279 and in ‘‘The Abolition of Detinue’’ [1981] Conv 62.
119
See para.17–2, above. In cases where before the Act there was a concurrent liability in
conversion and detinue the claimant might claim in detinue because this might enable him
to get specific restitution. See now, s.3 of the Act.
120
Section 2(2).
121
Not, therefore, in a situation like that in Ashby v Tolhurst, para.17–11, above.
122
The claimant must, therefore, show a right to immediate possession since this was
necessary for detinue at common law. As to the jus tertii, see, para.17–18, below.
123
The same rules apply to trespass.
124
The position is different where co-ownership arises because the parties are buyers of
portions of goods in bulk (e.g. oil in a tank) who have paid in full or in part. If there is
delivery in full to one and then there is a shortfall as to the rest, the others are deemed to
have authorised the first delivery, though they retain their contractual rights against the
seller: Sale of Goods Act 1979 s.20B.
834 Interference with Goods
E. Title of Claimant
17–16 What kind of right to the goods must the claimant have in order
that interference with it may amount to conversion? The answer is
that he can maintain the action if at the time of the defendant’s act
he had: (1) ownership and possession of the goods; or (2) possession
of them; or (3) an immediate right to possess them, but without
either ownership or actual possession.130 Some of the older cases
speak in terms that the claimant must have, ‘‘a right of property in
the thing and a right of possession’’ and that unless both these rights
concur the action will not lie131 but the Court of Appeal has stated
that an immediate right of possession, even if based on contract, is
sufficient.132 The fact that ownership is not necessary is demon-
strated by the fact that it has never been doubted that a bailee (who
has possession but not ownership) can sue.133
125
This does not, presumably, cover acts of the normal user which change the form of the
property as in Fennings v Grenville (1808) 1 Taunt. 241 (cutting up and boiling down a
whale).
126
e.g. not a valid pledge under the Factors Act 1889, s.2, since that does not transfer the
‘‘entire property’’.
127
Adventure Films Ltd v Tully, The Times, October 14, 1982 (detention of television film).
128
On which see particularly Baker v Barclays Bank Ltd [1955] 1 W.L.R. 822.
129
The common law rule was regarded as no longer sustainable in New Zealand in Coleman
v Harvey [1989] 1 N.Z.L.R. 723. In Nyberg v Handelaar [1892] 2 Q.B. 202 A and B were
co-owners of a gold enamel box under an agreement that A was to have possession until
it was sold. A entrusted it to B for a limited purpose but B pledged it to C. In A’s
successful action against C, Lopes L.J. gave his opinion that A could have maintained
conversion against B because of the agreement, but B’s pledge would not now purport to
dispose of the entire property.
130
Rogers v Kennay (1846) 9 Q.B. 594 at 596: ‘‘Any person having a right to the possession
of goods may bring trover in respect of the conversion of them, and allege them to be his
property: and lien, as an immediate right of possession, was held to constitute such a
property’’: per Patteson J.
131
Gordon v Harper (1796) 7 T.R. 9 at 12; Bloxam v Sanders (1825) 9 B. & C. 941 at 950;
Owen v Knight (1837) 4 Bing. N.C. 54 at 57; Bradley v Copley (1845) 1 C.B. 685.
132
Iran v Barakat Galleries Ltd [2007] EWCA Civ 1374; [2009] Q.B. 22, explaining Jarvis
v Williams [1955] 1 W.L.R. 71.
133
Burton v Hughes (1842) 2 Bing. 173 at 175.
Conversion 835
134
Gordon v Harper (1796) 7 T.R. 9.
135
See Holmes, The Common Law, pp.227–228; Pollock and Wright, Possession in the
Common Law, pp.58–60.
136
Manders v Williams (1849) 4 Ex. 339 (brewers could maintain trover against a sheriff in
respect of empty barrels in charge of publican). Distinguish Bradley v Copley (1845) 1
C.B. 685, where, upon the construction of a bill of sale, demand was held to be necessary
to confer the immediate right to possess.
137
Belvoir Finance Co Ltd v Stapleton [1971] 1 Q.B. 210 (claimant finance company buys car
from dealer and lets it on HP to defendant’s employer. Contracts of sale and HP both
illegal. Defendant ‘‘sells’’ car on behalf of employer. Liable for conversion).
138
Jelks v Hayward [1905] 2 K.B. 460, applied in North General Wagon and Finance Co Ltd
v Graham [1950] 2 K.B. 7, CA; Alexander v Ry Executive [1951] 2 K.B. 882; distin-
guished in Reliance Car Facilities Ltd v Roding Motors [1952] 2 Q.B. 844, CA (hiring
terminable on notice, but no notice given).
139
Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All E.R. 385. It may be
necessary to identify the point in time when the conversion takes place since the right to
possession must exist then. In Smith v Bridgend CBC [2001] UKHL 58; [2002] 1 A.C. 336
D’s power of sale of C’s plant was void as an unregistered floating charge. D contracted
836 Interference with Goods
F. Jus Tertii
Once a system of law accepts possession as a sufficient founda- 17–18
tion for a claim for recovery of personal property it is faced with the
question of how far the defendant should be allowed to raise the
issue that a third party has a better right to the property than the
claimant—the jus tertii. There are arguments either way. On the one
hand, refusal to admit the jus tertii allows recovery by a claimant
who may have himself wrongfully dispossessed the true owner and
also exposes the wrongdoer to the risk of multiple liability. On the
other hand, it may be argued that a person who has dispossessed
another should have no right to raise such issues concerning the
relationship between the dispossessed and some other party having
a claim over the goods, for there is a serious risk of abuse and of the
interminable prolongation of actions. The common law compro-
mised: if the claimant was in possession at the time of the conver-
sion, the defendant could not set up the jus tertii,149 unless he was
acting under the authority of the true owner.150 Where, however, the
claimant was not in possession at the time of the conversion but
relied on his right to possession, jus tertii could be pleaded by the
defendant.151 To this rule there was an exception where the defen-
dant was the claimant’s bailee, for the defendant was regarded as
being estopped from denying the claimant’s title unless evicted by
title paramount or defending the action on behalf of the true
owner.152
These rules were fundamentally changed by the Torts (Inter-
ference with Goods) Act 1977. Since then, in an action for ‘‘wrong-
ful interference with goods’’153 the defendant is entitled to show, in
149
Assumed rather than decided in the famous case of Armory v Delamirie (1721) 1 Stra. 505
where a chimney-sweep’s boy who had found a jewel recovered in conversion against a
goldsmith who took it for valuation and refused to return it. The rule was the same for
trespass where, of course, the claimant’s possession was a pre-condition to his right to
sue.
150
See further the 10th edn of this work, pp.424–425. However, the fact that he had returned
the property to the owner was not of itself a defence: Wilson v Lombank Ltd [1963] 1
W.L.R. 1294.
151
Leake v Loveday (1842) 4 M. & G. 972. Cf. Atiyah (1955) 18 M.L.R. 97 and Jolly’s reply,
(1955) 18 M.L.R. 371. The reason seems to be that conversion was regarded as a ‘‘denial
of title’’ and the defendant should therefore be allowed to attack the thing upon which the
claimant based his claim. Where, however, the claimant was in possession at the time of
the conversion the defendant’s act was also a trespass. Trespass contained a penal element
of deterrence against breach of the peace, which was no doubt why the jus tertii was not
pleadable. It was natural that the trespass rule should ‘‘infect’’ conversion based on
possession.
152
See Clerk and Lindsell, Torts, 19th edn, para.17–77 and Anderson Group Pty Ltd v Tynan
Motors Pty Ltd [2006] NSWCA 22; 65 N.S.W.L.R. 400 (loss of goods by bailee; hire-
purchase agreement under which bailor held them had been terminated for breach). A
bailee subjected to competing claims by the bailor and a third party could escape the
quandary by interpleader proceedings enabling him to drop out of the litigation and leave
the other two to fight it out between themselves.
153
Defined in s.1 as conversion, trespass, negligence so far as it results in damage to goods
or to an interest in goods and ‘‘any other tort so far as it results in damage to goods or to
838 Interference with Goods
an interest in goods’’. The last phrase clearly includes rescous, pound breach and replevin.
Quaere as to injurious falsehood? How far can the change in the law on jus tertii be evaded
by framing the claim as breach of bailment or in contract? The courts may be able to block
the former (cf. American Express Co v British Airways Board [1983] 1 W.L.R. 701) but the
latter will be more difficult to deal with. See further Palmer, ‘‘The Application of the Torts
(Interference with Goods) Act 1977 to Actions in Bailment’’ (1978) 41 M.L.R. 629.
154
CPR 19.5A.
155
Section 8(1). This provision applies even though the third party has disposed of the alleged
interest before proceedings are begun: De Franco v MPC, The Times, May 8, 1987.
156
See also s.9, which provides machinery to deal with concurrent claims in different
courts.
157
Section 7(2).
158
As between finder and true owner, the interest of the finder would presumably be nil.
159
Or at least reduce the claimant’s damages to the value of his interest.
160
The Winkfield [1902] P. 42 (a strong case since the bailee claimant would have been under
no liability to the owners for loss of the goods); Swire v Leach (1865) 18 C.B.(N.S.) 479;
Chabbra Corp Pte Ltd v Jag Shakti (owners) [1986] A.C. 337. This was certainly the
intention of the Law Reform Committee: Cmnd. 4774 (1971), para.75 and was the view
taken in Costello v CC Derbyshire [2001] EWCA Civ 381; [2001] 1 W.L.R. 1437 at [15].
Some cases, e.g. The Winkfield, are claims for negligence but the position is the same.
Conversion 839
and by s.7(4):
Thus if A loses his goods, which are found by C and then converted
by D, both C and A might bring successive claims against D. If C
accounts to A under s.7(3), A must then reimburse D. If C does not
so account, C is liable to reimburse D. A ‘‘double liability’’ would,
however, still exist if both A and C were insolvent.162 A central
difficulty in construing the provisions of the 1977 Act on jus tertii is
the position where there is a bailment, which is presumably far and
away the commonest source of a ‘‘possessory title’’. The position at
common law may be summarised as follows:
1. As we have seen, the bailee could recover the full value of the
goods on the basis of his possession. If he did so, he had to
account to the bailor for the amount by which the damages
exceeded his (the bailee’s) interest.163
2. In such a case the wrongdoer, having paid full damages to the
bailee, had a complete answer to any action by the bailor.164
3. Contrariwise, if the bailor sued first and recovered full
value,165 the bailee was equally barred.166
161
As to the bailee, see below.
162
What is the effect of the Act upon Wilson v Lombank Ltd [1963] 1 W.L.R. 1294? C
purchased a car from a person who had no title, the car in fact belonging to M.C. Co. While
the car was at a garage after undergoing repairs, D’s agents passed by and, mistakenly
thinking it belonged to D, took it away. D discovered the truth and returned the car to M.C.
Co. C sued D for trespass to goods and recovered the full value of the car (£470) because,
in Hinchcliffe J.’s opinion, D could not set up the title of M.C. Co against C’s possessory
title. Since it is inconceivable that M.C. Co could have sued D for anything other than
nominal damages it seems somewhat strained to talk of a ‘‘double liability’’ under s.7. Cf.
Clerk and Lindsell, Torts, 19th edn, para.17–82. Could this be a case where s.8(1) is to be
taken at its face value?
163
Among the many statements to this effect see The Winkfield [1902] P. 42 at 55; Eastern
Construction Co Ltd v National Trust [1914] A.C. 197 at 210; Hepburn v A. Tomlinson
(Hauliers) Ltd [1966] A.C. 451 at 467–468, 480.
164
Nicolls v Bastard (1835) 2 C.M. & R. 659 at 660; The Winkfield [1902] P. 42 at 61.
165
It was held in Chabbra Corp Pte Ltd v Jag Shakti (Owners) [1986] A.C. 337 that a person
with a mere right to possession might recover full value but this is controversial: Palmer,
Bailment, 3rd edn, para.4–138
166
Nicolls v Bastard, above, fn.164, at 660; O’Sullivan v Williams [1992] 3 All E.R. 385,
where there was a non-contractual bailment at will and the bailee therefore had no right to
look to the bailor. Complications which might arise from the fact that the bailee might
840 Interference with Goods
17–20 These principles might cast some doubt upon the reality of the
risk of double liability which lies at the root of ss.7 and 8 of the 1977
Act but the Act might still provide a useful means of enabling the
court to apportion the full range of loss which might arise from the
conversion or destruction of goods and to avoid the risk that, say, the
bailor might have difficulties in getting the bailee to account for part
of the judgment sum.167 Curiously, the common law principles have
been applied in a modern case in which the Act is not even men-
tioned168 and it is to be hoped that certain statements in the case will
not present obstacles to the application of the Act’s machinery.169
It has been seen above that where the true owner of goods cannot
be involved in the proceedings the common law rule that a mere
possessory interest entitles the claimant to recover the full value of
the goods against a wrongdoer still applies. Does this mean that if
there is clear evidence that the goods were stolen by C from X (who
has since disappeared) C may nevertheless recover from D, who
converted them by taking them from C? In Costello v CC Derby-
shire170 the police seized a car in C’s possession and refused to
return it when their investigations were complete. The trial judge
found that the car was stolen (though not by C) and that C was aware
of that, though the person from whom it had been stolen remained
unidentified. The Court of Appeal held that to refuse to return the
car to C was conversion of it: his prior possession gave him a better
suffer loss of use damages which were not comprehended within the bailor’s claim do not
seem to have been fully explored in the cases: Palmer, Bailment, para.4–099.
167
See, e.g. Palmer, Bailment para.4–138: ‘‘It is submitted that s.7(2) should be construed
expansively to enable the court, in all cases where two or more claimants are parties, to
divide the damages according to the value of their respective interests, whether this is
strictly necessary to save the wrongdoer from a [double liability] or not.’’
168
O’Sullivan v Williams [1992] 3 All E.R. 385. Perhaps this was because the claim arose
from a (very unusual) vehicle collision and these were not then subject to the Rules made
under the Act: RSC Ord.15, r.10(A).
169
e.g. ‘‘There cannot be separate claims by the bailor and the bailee arising from loss or
damage to the chattel’’ (at p.379) and the reference at p.388 to the rule in Brunsden v
Humphrey. Though there is not much in the way of case law it is thought that if either the
bailee or the bailor recovered only in respect of the value of his interest the other should
have a claim for the balance (see Palmer, Bailment, para.4–118). The bailee’s claim in
O’Sullivan v Williams was for ‘‘inconvenience’’ in not having the use of the bailor’s
vehicle, but the bailor had recovered damages for loss of use from the date of the damage
and the bailee’s ‘‘claim’’ was presumably subsumed in that. The reference at p.388 to the
bailee’s claim being ‘‘purely for economic loss’’ is curious since it has always been
accepted that economic loss arising from damage to a chattel in one’s possession is
recoverable: para.5–40, above.
170
[2001] EWCA Civ 381; [2001] 1 W.L.R. 1437. See also Webb v CC Merseyside [2000]
Q.B. 427 (even if it could be established on a balance of probabilities that money seized
from claimant was the product of drug trafficking, that provided no basis for refusing to
return it); Gough v CC West Midlands [2004] EWCA Civ 206; and Jaroo v Att Gen of
Trinidad and Tobago [2002] UKPC 5; [2002] 1 A.C. 871 (where the claim was brought
under a Constitutional guarantee of the right to enjoyment of property; cf. the First
Protocol to the European Convention on Human Rights).
Conversion 841
G. Finding174
The popular saying that ‘‘finding is keeping’’ is a dangerous half- 17–21
truth, which needs a good deal of expansion and qualification to
make it square with the law.
A finder of a chattel has such a title as will enable him to keep it
against everyone,175 with two exceptions:
1. The rightful owner. Far from getting any title against him, the
finder, if he appropriates the chattel, not only commits the tort
of conversion,176 but is also guilty of the crime of theft unless
he appropriates the chattel in the belief that the owner cannot
be discovered by taking reasonable steps.177
2. The occupier178 of the land on which the chattel179 is found
may in some cases have a title superior to that of the finder.
The Court of Appeal in Parker v British Airways Board180 took
171
There are powers under the Police and Criminal Evidence Act 1984 to retain property for
the purposes of investigation or as evidence but the conditions for the exercise of these
were not satisfied in these cases. The Police Property Act 1897 gives magistrates power to
make orders for the disposition of property in the hands of the police but that does not
override civil rights under the general law.
172
See Tinsley v Milligan [1994] 1 A.C. 340 and the general discussion of illegality at
para.25–18, below.
173
Various bodies (see the Serious Crime Act 2007) may take civil proceedings for the
recovery by the State (on a civil standard of proof and involving assumptions against the
defendant if he has a ‘‘criminal lifestyle’’) of the proceeds of criminal activity.
174
Palmer, Bailment, 3rd edn, Ch.26.
175
Like the person in possession of stolen goods, the finder’s claim is based upon his
possession alone.
176
Moffatt v Kazana [1969] 2 Q.B. 152.
177
Theft Act 1968 ss.1, 2(1)(c).
178
Not a non-occupying owner: Hannah v Peel [1945] K.B. 509. For property found on local
authority land and handed in, see the Local Government Miscellaneous Provisions Act
1982 s.41.
179
Different rules apply where the property is ‘‘treasure’’, as to which, see the Treasure Act
1996, replacing the common law of treasure trove. The Crown’s rights in treasure override
those of the finder and the landowner, with a discretion in the Secretary of State to
compensate either or both of them up to the value of the goods found. Treasure under the
Act is a good deal wider than at common law.
180
[1982] Q.B. 1004.
842 Interference with Goods
The burden of proof of this rests upon the occupier, though in some
cases the matter speaks for itself:
181
It is assumed that the finder is not employed by the possessor of the land, for a servant (and
perhaps agent) who finds in the course of his employment must account to his
employer.
182
Where the finder is not a trespasser but dishonestly intends to retain the property even
against the true owner, the finder, ‘‘probably has some title, albeit a frail one, because of
the need to avoid a free-for-all’’: [1982] Q.B. 1004 at 1010.
183
[1996] Q.B. 334. See also South Staffs Water Co v Sharman [1896] 2 Q.B. 44. The case
can also be explained on the ground that the finders were employed by the claimants:
[1982] Q.B. 1004 at 1013.
184
[1982] Q.B. 1004 at 1018 per Donaldson L.J.
185
[1982] Q.B. 1004 at 1019.
Conversion 843
The first thing to be said, is that mistake does not usually provide a 17–22
defence,188 for liability in conversion is strict:
obvious, particularly when in the typical case the claimant will have
handed his goods over to a rogue on some flimsy excuse while the
defendant has acquired the goods not only in good faith but from
some reputable dealer who has himself been deceived. One solution
which has been suggested would be to apportion the loss between
claimant and defendant in such a case193 but this was rejected as
impracticable by the Law Reform Committee.194 An alternative
approach would have been to apply the ‘‘ready-made’’ system of
apportionment in the Law Reform (Contributory Negligence) Act
1945 to liability in conversion.195 There was some authority for this
but the matter is now governed by s.11(1) of the Torts (Interference
with Goods) Act 1977 which firmly states that contributory negli-
gence is no defence in proceedings founded on conversion, or on
intentional trespass to goods.196
There are, however, exceptions to the rule that innocent mistake
is no defence. The first group consists of what is sometimes known
as the exceptions to the rule nemo dat quod non habet, whereby a
bona fide purchaser of goods from A commits no conversion but
actually obtains a good title to them even though the goods really
belonged to B and B never intended to allow A to sell them. B’s
remedy is against A alone. In such cases the law has sought to strike
a compromise between the competing principles that ownership of
property must be protected and that speedy commerce in goods
should be facilitated. Details of this very large topic must be sought
elsewhere197 but the principal exceptions are briefly as follows:
193
By Devlin L.J. in Ingram v Little [1961] 1 Q.B. 31 at 73–74.
194
Twelfth Report, Transfer of Title to Chattels Cmnd. 2958 (1966). The Committee’s
principal reasons were that a scheme of apportionment would introduce a wide judicial
discretion just where predictability is particularly important and that there would be grave
practical difficulties in ‘‘chain’’ transactions.
195
This would not have gone so far as Devlin L.J.’s proposal since the claimant’s damages
could only have been reduced if he was at fault. Devlin L.J. had proposed that as between
a completely innocent claimant and a completely innocent defendant the loss should be
apportioned equally.
196
However, under s.47 of the Banking Act 1979 a ‘‘defence of contributory negligence’’ is
available to a banker converting a cheque if the circumstances are such that he would be
protected by s.4 of the Cheques Act 1957 if he were not negligent. This presumably means
that the 1945 Act is to apply and effectively restores the decision in Lumsden v London
Trustee Savings Bank [1971] 1 Lloyd’s Rep. 114.
197
Benjamin, Sale of Goods and other works on sale. For an exception in the context of
insolvency to the rule that mistake is no defence, see the Insolvency Act 1986 s.234.
198
Such a plea is extremely difficult to establish, no doubt because it would soon eat up all
the other exceptions. Carelessness in allowing goods to be stolen or putting the goods in
the hands of a third party will not found the estoppel. See Moorgate Mercantile Co Ltd v
Twitchings [1977] A.C. 890.
199
e.g. Lewis v Avery [1972] 1 Q.B. 198.
Strict Liability and Conversion 845
‘‘ . . . [O]ne who deals with goods at the request of the person who
has the actual custody of them, in the bona fide belief that the
custodian is the true owner, should be excused for what he does
if the act is of such a nature as would be excused if done by the
authority of the person in possession, if he was a finder of the
goods or entrusted with their custody . . . A warehouseman with
whom goods have been deposited is guilty of no conversion by
keeping them, or restoring them to the person who deposited them
with him, though that person turns out to have had no authority
from the true owner.’’204
206
See (1875) L.R. 7 H.L. 757 at 767; but in Wilson v New Brighton Panelbeaters Ltd [1989]
1 N.Z.L.R. 74 D was held liable for conversion where he was tricked by X into towing
away C’s car and delivering it to X. A rather different approach was taken in Maynegrain
Pty Ltd v Compafina Bank (1984) 58 A.L.J.R. 389. The defendants were bailees of barley
belonging to X which had been pledged to the Y Bank by means of warehouse receipts.
Unknown to the defendants Y Bank was acting as agent for Z Bank, the claimant. On X’s
order and with Y’s tacit consent the defendants dispatched some of the barley to Kuwait.
This was done without Z’s authority. Z’s action for conversion failed: Y Bank was agent
for an undisclosed principal, Z Bank, and the defendants were entitled to act on Y’s
consent. Though consent is undeniably a defence to an action for conversion, there are
difficulties in reconciling this result, sensible as it may seem, with general principles of
agency, for since Y’s act was unauthorised it could only be effective if done within an
ostensible authority—but that doctrine is inapplicable to undisclosed agency: see Palmer
[1986] L.M.& C.L.Q. at p.224. Cf. The Pioneer Container [1994] 2 A.C. 324 (bailee
‘‘assumes responsibility’’ only to person of whose interest he is aware).
207
Sorrell v Paget [1950] 1 K.B. 252.
208
In Hollins v Fowler, Blackburn J. speaks of the delivery as merely ‘‘changing the custody’’
but it is hard to see why, as he suggests, it would be ‘‘very difficult, if not impossible’’ to
fix the carrier with knowledge that the goods had been sold to the consignee. Yet to impose
liability on the carrier who had such knowledge would seem to be a wholly unreasonable
burden. See Samuel (No.2), Re, below, fn.209.
209
Samuel (No.2), Re [1945] Ch. 408. ‘‘To involve conversion the act, looked at in isolation,
must have the effect of depriving the true owner of his property’’ at 411 per Lord Greene
M.R. If A lends B’s plough to C without authority and C uses it thinking it is A’s, such
a use is not a conversion by C: Warren, Trover and Conversion, p.101.
210
See para.25–33, below.
Remedies for Interference with Goods 847
A. Retaking of Goods
Retaking of goods is a species of self-help. It may now be an 17–25
oversimplification to say that if A’s goods are wrongfully in B’s
possession there is no need for A to go to the expense of litigation
to recover them.211 No doubt there are still simple cases where this
is so, as where A catches B immediately after he has seized A’s
property and retakes it.212 It would be a hard rule (and an unrealistic
one) which said that a citizen who seized a bag snatcher had to sue
to recover his bag and committed an assault if he laid hands on the
thief. In such a case there may anyway be the further justification of
preventing crime or effecting an arrest. Beyond that simple case it is
not easy to state the law with certainty. Perhaps there is also a right
to retake the goods wherever the holder came into possession of
them wrongfully (even by an innocent purchase from a thief confer-
ring no title) but there is authority both ways on the situation where
the taker initially consented to the possession of the holder but then
withdrew it.213 English criminal cases arising out of wheel clamping
have shown a hostile attitude to self-help by the vehicle owner,
though on the facts the vehicles were not lawfully on the property
where the clamp was applied.214 Even where the owner is justified
in using force it must be no more than is reasonably necessary and
that varies with the facts of each case and the view of the court or
jury after the event, so self-help is likely to be just as dangerous a
remedy here as elsewhere in the law.215 Moreover, there are other
qualifications of A’s right to retake goods.216
Further difficulty arises over the circumstances in which a person 17–26
can enter premises to retrieve his goods without committing a
trespass. There is no doubt that the person entitled to goods may
enter and take them from the land of the first taker if the taker
himself wrongfully put them there217; but it is by no means certain
211
Delay may mean destruction or carrying away of the goods by B, who may be quite
incapable of paying damages: Blackstone, Comm., iii, 4.
212
See, e.g. Whatford v Carty, The Times, October 29, 1960.
213
The matter is reviewed at length in Toyota Finance Australia Ltd v Dennis [2002] NSWCA
605, but the court was divided, the majority holding that the right was confined to cases
of wrongful appropriation. The case concerned a hire-purchase repossession and s.90 of
the Consumer Credit Act 1974 certainly assumes that there is in some circumstances a
right to retake the bailed goods.
214
Lloyd v DPP [1992] 1 All E.R. 982 (‘‘no reasonable alternative’’); R. v Mitchell [2003]
EWCA Crim 2188. See also Arthur v Anker [1996] 1 W.L.R. 602.
215
Maiming or wounding are unlikely to be justifiable for simple recaption of property, but
they may become justifiable for another reason—self-defence. This may occur when B, in
endeavouring wrongfully to resist A’s attempt to recapture his goods, commits an assault
upon A and so justifies A in using reasonably necessary violence to protect himself.
216
There are certain important statutory restrictions upon the retaking of goods, the best
known of which are in the Consumer Credit Act 1974.
217
Patrick v Colerick (1838) 3 M. & W. 483.
848 Interference with Goods
what the law is when the goods are on the premises of one who was
not responsible for bringing them there and who has committed no
tort with respect to them.218 The only case of any real assistance is
Anthony v Haney,219 and even there the dicta are obiter and,
although of considerable weight, do not probe the question of
recaption very deeply. Tindal C.J. in that case gave as examples of
permissible retaking by A from the land of an innocent person, C:
(1) where the goods have come there by accident; (2) where they
have been feloniously taken by B and A follows them to C’s land;
(3) where C refuses to deliver up the goods or to make any answer
to A’s demand for them.
As to (1) accident, the Chief Justice’s examples were A’s fruit
falling upon C’s land, or A’s tree falling upon it by decay or being
blown upon it by the wind. By ‘‘accident’’ it seems clear that
‘‘inevitable accident’’ was meant. Negligent or intentional placing of
goods on the land of another is (technically at least) a tort, for
example where a cricket ball is hit by any ordinary stroke out of the
ground into another person’s premises. The occupier of the prem-
ises, far from being put under any obligation to allow the owner of
the goods to enter and retake them, is entitled to distrain them
damage feasant until the owner of the goods pays for such damage
as they have done. Where, however, the entry of the goods was
inevitable, not only is there no liability for trespass on the part of
their owner, but the view that he can retake them seems to be right,
even if there is no direct decision to that effect.
As to (2), the rule that if A’s goods are feloniously taken by B, the
distinction between felonies and misdemeanours no longer exists220
but there seems no reason why the rule, if it is a rule at all, should
not apply wherever B’s taking is criminal.221
As to (3), Tindal C.J. thought that where C refused to deliver up
the goods or to answer A’s demand:
though there are cases suggesting that mere refusal to allow collec-
tion would not be conversion.223 As a matter of policy it may be
argued on the one hand that where the owner of goods was under no
tortious liability for their appearance on the occupier’s land, he
ought to be able to retake them in any event, provided he does no
injury to the premises or gives adequate security for making good
any unavoidable injury. On the other hand, it may be urged that self-
help ought to be strictly limited even against a wrongdoer and
forbidden altogether against one who is not a wrongdoer, except that
retaking might be permitted in circumstances of inevitable accident
or of necessity (for example where the goods are perishable or are
doing considerable damage to the land and it is impossible to
communicate speedily enough with the occupier or his agent). It has
been held that the owner of a swarm of bees has no right to follow
it onto another person’s land,224 but this is of no general assistance
for, once the bees get onto that land they become again ferae
naturae225 and the property of no one.
Tindal C.J. did not profess to make an exhaustive list of the cases
in which recaption is permissible, but be the extent of this justifica-
tion of trespass and conversion what it may, one thing is clear. The
retaker, before he attempts to retake, must, if required to do so,
explain to the occupier of the land or the person in possession of the
goods the facts upon which his proposed action is based. A mere
allegation that the goods are his, without any attempt to show how
they came on the premises, will not do, for:
B. Judicial Remedies
It may be surprising in view of the proprietary nature of the tort, 17–27
but in practice damages are, as in the case of other torts, the primary
223
British Economical Lamp Co Ltd v Empire Mile End Ltd (1913) 29 T.L.R. 386. Maule J.
in Wilde v Waters (1855) 24 L.J.C.P 193 at 195 thought that if a former tenant of a house
left a picture on a wall and the new tenant refused to admit him and merely said ‘‘I don’t
want your chattel, but I shall not give myself any trouble about it’’, that would not be
conversion. This seems to be a sort of permanent legal stand-off, though since the former
tenant undoubtedly remains the owner of the picture he must surely be able to obtain an
order allowing collection. See also Moffatt v Kazana [1969] 2 Q.B. 152 at 156–157 and
Palmer, ‘‘Title to Goods and Occupation of Land: A Conflict of Interests’’ (1980) 9 Anglo-
American L.R. 279.
224
Kearry v Pattinson [1939] 1 K.B. 471.
225
In the property law sense, not the sense of animals belonging to a dangerous species:
para.16–3 above.
226
Tindal C.J. in Anthony v Haney at (1832) 8 Bing. 191–192.
850 Interference with Goods
board’s damages were not the value of the eggs but the difference
between what it would have made by selling them and what it would
have had to pay the farmers.235
Where the goods (or an exact equivalent) are returned, one plainly
cannot ignore the value of what the claimant receives. In B.B.M.B.
Finance (Hong Kong) Ltd v Eda Holdings Ltd236 D converted C’s
share certificates by selling the shares for $HK5.75 each. D later
replaced these with equivalent shares at $HK2.40 each. On the basis
that both these figures represented the market value of the shares at
the relevant time, the Privy Council held that C was entitled to the
value of the shares sold at the time of conversion, less the value of
the replacements, though it has been suggested that in such cases the
damages are ‘‘gain-based’’.237
The recovery of consequential losses is illustrated in a very
simple way by Bodley v Reynolds,238 where a carpenter’s tools were
converted and he was thereby prevented from working: £10 above
the value of the tools was awarded as special damage. Such loss may
include personal inconvenience, such as loss of a hobby.239 On a
rather grander scale, when a fleet of airliners was converted during
the Gulf War damages for consequential losses such as repairs,
chartering substitutes and lost operating profits ran into hundreds of
millions of US dollars.240 Generally, however, loss incurred as a
result of the claimant’s inability to deliver the goods under a lucra-
tive contract of sale is too remote unless the defendant is aware of
the contract.241
242
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5), above, fn.237, at [82] per Lord
Nicholls.
243
Above, fn.237.
244
See para.17–12, above.
245
See [2001] 3 W.L.R. 1251 at [606]. Suppose that a week after the conversion of an aircraft
a design defect in the type was discovered and all such aircraft had to be scrapped. Is the
defendant to be liable for their full market value at the date of the conversion?
Remedies for Interference with Goods 853
—was the loss the ‘‘direct and natural consequence’’ of the conver-
sion?246 Yet, where the conversion is innocent, although liability
may be strict, the defendant is liable only for consequences which
would be foreseeable on the basis of knowledge that the goods had
been misappropriated.247 On the facts, on any view the cost of hiring
substitute aircraft and loss of business were to be expected; but
when the claimants went into the market to buy replacement aircraft
they did more than seek the most equivalent substitutes, they made
significant changes in the structure of their fleet and although this
was a commercially reasonable decision they were unable to recover
the finance costs associated with it.248
1. an order for the delivery of the goods, and for payment of any
consequential damages,253 or
246
See para.11–14, above.
247
[2002] UKHL 19; [2002] 2 A.C. 883 at [100]–[104].
248
See also Sandeman Coprimar SA v Transitos y Transportes Integrales SL [2003] EWCA
Civ 113; [2003] Q.B. 1270 (loss of cartons; carrier unaware of consequent liability of
consignor for customs duty).
249
See the full discussion by Diplock L.J. in General and Finance Facilities Ltd v Cook Cars
(Romford) Ltd [1963] 1 W.L.R. 644 at 650–651. There were in fact three forms: (1) for the
value of the chattel and damages for detention (2) for the return of the chattel or recovery
of its value as assessed and damages for detention (3) for the return of the chattel and
damages for detention.
250
Except perhaps in the case of a ‘‘one man company’’, a director is not ‘‘in possession or
control’’ of goods in the possession or control of the company: Thunder Air Ltd v
Hilmarsson [2008] EWHC 355 (Ch); Joiner v George [2002] EWHC 90 (Ch). See also
Burnett v Randwick City Council [2006] NSWCA 196, where the issue was title to sue.
251
I.B.L. Ltd v Coussens [1991] 2 All E.R. 133 at 141. The section applies if the defendant
ceases to be in possession between issue of proceedings and judgment: Hillesden Securi-
ties Ltd v Ryjack Ltd [1983] 1 W.L.R. 959.
252
Section 3(2).
253
See Brandeis Goldschmidt Ltd v Western Transport Ltd [1981] Q.B. 864, a case of detinue
before the Act.
854 Interference with Goods
Relief under 1. is at the discretion of the court, but the claimant may
choose between 2. and 3.257 If the claimant chooses 3., the defendant
cannot satisfy the judgment by returning the goods.258
It has traditionally been said (though there is nothing in s.3 to
compel a court to take this line) that option 1., specific restitution, is
apt only for rare articles or articles having a special value to the
claimant and not for ‘‘ordinary articles of commerce’’.259 Option 2.
is said to be the commonest order in practice260 but the value of the
goods may have changed between wrong and the judgment and the
statute contains no guidance as to the time at which the goods
should be valued for the purpose of quantifying the damages which
the defendant may choose to pay.261 It was held in I.B.L. Ltd v
Coussens (which concerned cars which appreciated in value up to
the time of trial) that it is inappropriate to lay down any hard and fast
rule on this point and the value should be calculated by reference to
such date as will fairly compensate the claimant for his loss if the
254
At common law the form of judgment for detinue was that the claimant ‘‘do have delivery
up’’ of the goods and while the defendant might have to facilitate their collection (Metals
& Ropes Co Ltd v Tattersall [1966] 1 W.L.R. 1500) it was up to the claimant to go and get
his goods. Quaere whether the rule is the same under the Act. Manchester (1977) 127
N.L.J. 1219 suggests that the court could order an actual redelivery by virtue of its power
to impose conditions (s.3(6)) and it seems to be implied in Howard E. Perry & Co Ltd v
British Railways Board [1980] 1 W.L.R. 1375, that a delivery could be ordered. Nonethe-
less, the wording of s.3(6) seems more apt for the imposition of conditions on the
claimant.
255
In Tanks and Vessels Industries Ltd v Devon Cider Co Ltd [2009] EWHC 1360 (Ch)
consequential loss of use damages were only allowed if the defendant returned the goods,
only interest being awarded if he chose to pay their value.
256
i.e. assessed by reference to the value and the consequential loss. There is no reason to
think the Act has changed the common law on consequential loss: Trafigura Beheer BV v
Mediterranean Shipping Co SA [2007] EWCA Civ 794; [2007] 2 Lloyd’s Rep 622 at
[41].
257
Section 3(3)(b).
258
Section 3(5). Where there has been no fall in value it is thought that the court would still
stay the action before judgment upon return of the goods: Fisher v Prince (1762) 3 Burr.
1363.
259
See Tanks and Vessels Industries Ltd v Devon Cider Co Ltd [2009] EWHC 1360 (Ch); Blue
Sky One Ltd v Mahan Air [2009] EWHC 3314 (Comm).
260
If the defendant is in financial difficulties a judgment for damages alone is obviously
unattractive to the claimant but this form of order if made for a specific date protects him:
Blue Sky One above, fn.259, at [323].
261
At common law it was said that in conversion the value was taken at the time of the
conversion, in detinue at the time of the judgment.
Remedies for Interference with Goods 855
E. Improvement of Goods
The problem of a converter improving goods is illustrated by 17–30
Munro v Willmott.268 The claimant was given a temporary licence to
leave her car in the defendant’s yard. After the car had been there for
some years the defendant wished to convert the yard into a garage
but was unable to communicate with the claimant. Accordingly, he
‘‘did up’’ the car (then worth £20) at a cost of £85 and then sold it
for £100. In proceedings for conversion Lynskey J. felt obliged to
assess the value of the car at the date of judgment (£120) but he gave
credit for the sum expended by the defendant, leaving £35 as the
damages recoverable by the claimant.269 The matter is now gov-
erned by s.6 of the Torts (Interference with Goods) Act 1977 which
provides that if the improver acted in the mistaken but honest belief
that he had a good title, an allowance is to be made for the extent to
which the value of the goods, at the time at which it falls to be
262
[1991] 2 All E.R. 133; Trafigura Beheer BV v Mediterranean Shipping Co SA [2007]
EWHC 944 (Comm); [2007] 2 All E.R. (Com) 149 (affirmed on this point [2007] EWCA
Civ 794; [2007] 2 Lloyd’s Rep 622).
263
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 A.C.
883 at [67]; B.B.M.B. Finance (Hong Kong) v Eda Holdings [1990] 1 W.L.R. 409.
264
In Irving v Keen, Unreported, March 3, 1995, CA, P was ‘‘incredibly lackadaisical’’ about
getting his classic car back from D, a repairer, and settling the bill. D detained it for some
years, during which it increased in value, but finally sold major parts of it and returned the
remainder as scrap. Since there was no conversion until the sale of the parts, that was the
earliest point at which damages could be set. Cf. Sachs v Micklos [1948] 2 K.B. 23.
265
Cf. Radford v De Froberville [1977] 1 W.L.R. 1262, another example of a general drift
away from a general ‘‘breach date’’ rule.
266
If the claimant replaces the goods and goes for damages only he takes a risk in respect of
the defendant’s solvency when the matter comes to trial.
267
In I.B.L. Ltd v Coussens the issue was remitted to the master.
268
[1949] 1 K.B. 295; Reid v Fairbanks (1853) 13 C.B. 692.
269
It is submitted that the correct approach on the conversion count (there was an alternative
count for detinue) would have been to assess the value at the date of conversion. On the
basis of Greenwood v Bennett [1973] Q.B. 195 it seems that the defendant committed two
acts of conversion (beginning work on the car and selling it) and that the claimant could
rely on either. It has been held at first instance that where a series of acts of conversion
constitute a continuous course of conduct the claimant can only claim the value at the
beginning: Highland Leasing v Paul Field [1986] 2 C.L. 276; but cf. The Saetta [1994] 1
All E.R. 851 at 859.
856 Interference with Goods
F. Effect of Judgment
17–31 Where damages for wrongful interference are assessed on the
basis that the claimant is being compensated for the whole of his
interest in the goods272 (including a case where judgment is subject
to a reduction for contributory negligence273) payment of the dam-
ages or of any settlement274 in full extinguishes the claimant’s title
to that interest in the goods.275 Until payment of the damages,
however, the claimant retains his property in the goods and may
exercise all his rights as owner even after judgment has been given
in his favour. In Ellis v John Stenning & Son276 A sold land to B,
reserving to himself the right to cut and sell the uncut timber on the
land. He then sold the timber to E. B wrongfully removed some of
the timber and E obtained judgment against him for conversion but
took no steps to enforce his judgment, because B was insolvent. B
sold the timber to S. E then sued S for conversion of the timber. It
was held that S was liable because, the judgment against B not
having been satisfied, title to the timber remained with E.277
270
Section 6(1). Under the Copyright Act 1956 a victim of copyright infringement was the
notional owner of an infringing article and could sue for conversion damages based on the
value of the article without deduction of the cost of production: Infrabrics Ltd v Jaytex Ltd
[1982] A.C. 1. However, the Copyright, Designs and Patents Act 1988 abolished conver-
sion damages for breach of copyright.
271
See, however, Palmer, Bailment, 3rd edn, para.4–156, arguing that s.6 is in addition to
rather than a replacement of the common law. It must also be pointed out that under s.12
of the 1977 Act the defendant in Munro v Willmott might now have a lawful power of sale
though this does not help with the cost of improvement. The Act also provides for an
allowance in favour of a defendant who is a bona fide purchaser of the car from the
improver (who in this instance need not act bona fide), since though not an improver he
will normally have paid a price reflecting the improved value (s.6(2)). See also s.6(3)
(allowance in action for recovery of purchase price on total failure of consideration).
272
e.g. where the defendant’s trespass or negligence has destroyed them or where they have
been wrongfully disposed of. A judgment in respect of mere damage has no effect upon
title.
273
As where the defendant has negligently destroyed the goods. Contributory negligence is no
defence to conversion or intentional trespass: para.17–22, above.
274
See s.5(2). Where a claimant settles with one of two or more defendants the onus is upon
him to establish that the settlement was not one which compensated him for the whole of
his interest in the goods: Macaulay v Screenkarn Ltd [1987] F.S.R. 257.
275
Section 5. This provision has no application, however, where the damages paid are limited
to some lesser amount by virtue of any enactment or rule of law (e.g. under the Merchant
Shipping Act 1995 or under the Carriage by Air Act 1961). The claimant’s title is,
therefore, presumably extinguished where there is a valid limitation of liability clause in
a contract not governed by such statutory codes.
276
[1932] 2 Ch. 81.
277
E could not then enforce the judgment in full against both B and S: Clerk and Lindsell,
Torts, 19th edn, para.17–120.
Other Causes of Action for Wrongful Interference 857
A. Replevin
As we have seen,278 replevin is an ancient cause of action which 17–32
is theoretically applicable to any trespassory taking279 of goods but
in practice is limited to taking by wrongful distress. The modern
procedure in the action is for the claimant to apply to the county
court, which will see that the goods alleged to have been wrongfully
taken are restored to the claimant on his giving security to prosecute
an action of replevin in the county court or in the High Court. The
claimant thus recovers his goods without having to await the out-
come of the action while the defendant is protected by the security
given by the claimant.
Replevin is therefore now a form of interim relief. Section 4 of
the Torts (Interference with Goods) Act 1977 added a new and more
important form of interim relief, available in the county court and
High Court, whereby goods the subject of present or future proceed-
ings for wrongful interference may be ordered to be delivered up to
the claimant, or a person appointed by the court, on such terms and
conditions as may be specified. The procedure is particularly apt if
there is a risk that the goods may be destroyed or disposed of before
trial of the action but it is not confined to such situations. An order
was made under it in Howard E. Perry & Co Ltd v British Railways
Board280 even though the goods were in no danger and the defen-
dants recognised the claimants’ title: the shortage of stock caused by
industrial action was acute and damages would not adequately
compensate the claimants for the injury to their business.
17–34 All of this old learning (and much else) will be replaced when Pt
3 of the Tribunals, Courts and Enforcement Act 2007 comes into
force. The common law power to distrain for rent will be abolished
(though there will still be a limited form of non-court enforcement
for commercial leases) and the various ‘‘writs of execution’’ such as
fi. fa. will be renamed ‘‘warrants of control’’. Sch.12 will initiate a
new code of procedure to be followed by enforcement agents
(known to most people as bailiffs) and this will replace replevin
among other things. The reader is referred to the Act and the
regulations when made.
CHAPTER 18
IN this chapter we are concerned with a group of torts the function 18–1
of which is to protect some of a person’s intangible interests—those
which may loosely be called his business interests—from unlawful
interference. As we have already seen, the law has been less ready
to protect these interests from negligently inflicted harm than it has
been to protect persons and tangible property,2 but we are now in the
main3 concerned only with liability for intended harm.4 It is not
1
Carty, An Analysis of the Economic Torts (2000); Weir, The Economic Torts, (1997);
Heydon, Economic Torts, 2nd edn; Clerk and Lindsell, Torts, 19th edn, Ch.25.
2
See the discussion of ‘‘economic loss’’, para.5–39, above.
3
Except in the case of passing off, though here, too, the harm is usually intended.
4
The criminal law has now entered the arena in connection with acts interfering with
contractual relationships so as to harm animal research organisations: Serious Organised
Crime and Police Act 2005 s.145.
859
860 Interference with Contract or Business
13
Still, a wife had no claim in respect of injury to her husband.
14
e.g. a master’s cause of action for loss of services of his servant was restricted to servants
living as part of his household: Inland Revenue Commissioners v Hambrook [1956] 2 Q.B.
641.
15
Law Reform (Miscellaneous Provisions) Act 1970 ss.4, 5, abolishing most claims for loss
of services of children and for ‘‘enticement’’ and ‘‘harbouring’’ of wives and for damages
for adultery. See the 11th edition of this work.
16
Section 2:
‘‘No person shall be liable in tort . . .
(a) to a husband on the ground only of his having deprived him of the services or
society of his wife;
(b) to a parent (or person standing in the place of a parent) on the ground only of his
having deprived him of the services of a child or
(c) on the ground only—
(i) of having deprived another of the services of his menial servant;
(ii) of having deprived another of the services of his female servant by raping or
seducing her or
(iii) of enticement of a servant or harbouring a servant.’’
17
The only cause of action of much significance in modern times was the husband’s for loss
of his wife’s services, for though archaic in form, its function in enabling the recovery of
the cost of substitute domestic help was perfectly reasonable. However it became virtually
redundant when the courts held that the wife could recover such losses in her own claim:
Daly v General Steam Navigation Ltd [1981] 1 W.L.R. 120.
18
Scots common law has never had the actions based on loss of services and the House of
Lords in Robertson v Turnbull, 1982 S.L.T. 96 refused to allow a relative’s claim for
financial loss based on breach of duty to the relative. See also Propaczy v Truitt (1990) 73
D.L.R. (4th) 712, rejecting a claim by a child for loss of parental guidance where the parent
was injured (cf. such claims in death cases, para.23–12, below).
19
See para.23–9, below.
20
[1991] Fam. 69.
Interference with Contract or Business 863
21
See para.5–52, above.
22
This was so even though the principle of Lumley v Gye considered in the next section goes
beyond contractual rights. Whether the parent’s legal claims in relation to the child are
properly described as ‘‘rights’’ at all is a difficult question (the current legislation talks in
terms of parental responsibilities). They are certainly not rights like property or contractual
rights, but Ralph Gibson L.J. was not prepared to say that they were unprotected by tort
law merely because they yield in all cases to the child’s welfare.
23
Or in certain circumstances for breach of contract: Hamilton-Jones v David & Snape
[2003] EWHC 3147; [2004] 1 W.L.R. 924.
24
See T.P. v UK (2002) 34 E.H.R.R. 2; Hinds v Liverpool County Court [2008] EWHC 665
(QB) at [20].
25
(1853) 2 Bl. & Bl. 216.
26
Students of contract will be familiar with Lumley v Wagner (1852) 1 De G.M. & G. 604,
in which the claimant obtained an injunction against Miss Wagner.
27
Lumley eventually lost, the trial jury finding that Gye believed that Wagner’s contract was
not binding: Waddams, ‘‘Johanna Wagner and the Rival Opera Houses’’ (2001) 117 L.Q.R.
431.
864 Interference with Contract or Business
the action for enticement could be extended beyond the strict rela-
tion of master and servant to embrace other contracts for personal
services, but support was also given in varying degrees to a broader
view that a claimant might sue for the knowing violation of any
contractual right.
In Bowen v Hall,28 on rather similar facts, the Court of Appeal
accepted the broader proposition and doubted whether Lumley v Gye
could in fact be based upon the narrower ground of enticement. The
rule that inducing or procuring another to break his contract could be
actionable at the suit of the other contracting party who suffered
damage thereby was only accepted in the face of strong dissent
because it appeared to outflank privity of contract.29 While it was
argued in Lumley v Gye that the claimant ought to be satisfied with
his action for breach of contract against the party induced, Cromp-
ton J. said that the latter might be incapable of paying all the
damages.30 Of course, every contractor accepts the risk of insol-
vency in his co-contractor, but at least in the case of a contract for
services he does not accept it in combination with the procurement
of a breach by a third party. It has sometimes been said to rest on a
property analogy31 and commercial contractual relations had
become valuable rights which could be regarded as entitled to at
least some of the protection given by the law to property, but the
requirements of knowledge and intent make this tort considerably
more restrictive than conversion or trespass. However this may be,
the current view is that it is a form of ‘‘accessory’’ liability, that is
to say the person who induces the breach incurs an additional
liability in tort for the effects of the ‘‘primary’’ breach of
contract.32
A. A Breach of Contract
18–3 Since this is a form of accessory liability it is necessary for D to
be liable that there must have been a breach of contract by A against
C.33 One, ‘‘cannot be liable for inducing a breach unless there has
28
(1881) 6 Q.B.D. 333.
29
By Coleridge J. in Lumley v Gye, above, fn.25, and Lord Coleridge C.J. in Bowen v Hall,
above, fn.28.
30
At 230; OBG Ltd v Allan [2007] UKHL 21; [2008] 1 A.C.1 at [32]. Erle J. (at 234) also
refers to the fact that the contractual damages may be limited by factors which ought not
to avail the wilful interferer.
31
See Bagshaw (1998) O.J.L.S. 729 and the discussion in Zhu v Treasurer of NSW [2004]
HCA 56; 218 C.L.R.530 beginning at [123].
32
OBG Ltd v Allan [2007] UKHL 21; [2008] 1 A.C. 1 at [3], [172], [320]. In the CA ([2005]
Q.B. 762 at [42]) it was said that the procurer ‘‘makes himself as it were directly privy to
the breach’’.
33
The claimant may, of course, obtain a quia timet injunction to restrain a threatened
inducement.
Inducing or Procuring a Breach of Contract 865
34
OBG Ltd v Allan, fn.32, at [44].
35
[1898] A.C. 1. The last case in which the judges were summoned to give their advice to
the House of Lords in its judicial capacity.
36
Nor was there any unlawful means (see the next section) by a threat of breach of contract
by the boilermakers since they, too, were employed by the day. In any event, the Trade
Disputes Act 1906 (para.18–36, below) later made threats of breaches of contract in such
cases non-actionable.
37
See, e.g. Lord Denning M.R. in Torquay Hotel Co Ltd v Cousins [1969] 2 Ch. 106 at
138.
38
See, e.g. Lord Nicholls at [2007] UKHL 21; [2008] 1 A.C. 1 [185].
39
In the Torquay Hotel case, which arose from the ‘‘blacking’’ by unions of fuel supplies to
the hotel, there was a force majeure clause in Esso’s contract with the hotel. As Lord
Nicholls points out in OBG, if a contracting party chooses to succumb to persuasion not
to perform, such a clause will not be applicable and there will be a breach. Consider,
however, a case where A’s contract excuses performance for inability to obtain supplies
and D, in order to strike at C, corners the market and refuses to supply A. There is no
breach of contract induced nor any unlawful means for the purposes of the tort in the next
section.
40
See Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 Q.B. 275.
41
De Francesco v Barnum (1890) 45 Ch.D. 430; Joe Lee Ltd v Dalmeny [1927] 1 Ch. 300;
Said v Butt [1920] 3 K.B. 497; Associated British Ports Ltd v TGWU [1989] 3 All E.R. 796
at 816.
866 Interference with Contract or Business
‘‘Even if [the union officials] did not know the actual terms of the
contract, but had the means of knowledge—which they deliber-
ately disregarded—that would be enough. Like the man who turns
a blind eye. So here, if the officers deliberately sought to get this
contract terminated, heedless of its terms, regardless whether it
was terminated by breach or not, they would do wrong. For it is
unlawful for a third person to procure a breach of contract
knowingly, or recklessly, indifferent whether it is a breach or
not.’’
42
So assumed in Greig v Insole [1978] 1 W.L.R. 302.
43
Proform Sports Management Ltd v Proactive Sports Management Ltd [2006] EWHC
22903 (Ch); [2007] 1 All E.R. 542.
44
See para.5–39, above.
45
[1966] 1 WLR 691 at 700; Greig v Insole [1978] 1 W.L.R. 302.
46
OBG Ltd v Allan at [41]; Kallang Shipping SA Panama v Axa Assurances Senegal [2008]
EWHC 2761 (Comm); [2009] 1 Lloyd’s Rep 124.
47
Leitch & Co v Leydon [1931] A.C. 90.
48
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 A.L.R. 275; Unique Pub Properties
Ltd v Beer Barrels and Minerals (Wales) Ltd [2004] EWCA Civ 586; [2005] 1 All E.R.
(Comm.) 181.
Inducing or Procuring a Breach of Contract 867
‘‘It is not enough that you know that you are procuring an act
which, as a matter of law or construction of the contract, is a
breach. You must actually realize that it will have this effect. Nor
does it matter that you ought reasonably to have done so.’’52
49
[2007] UKHL 21; [2008] 1 A.C. 1.
50
The claimants were not allowed to raise at a late stage the alternative argument that the
defendant had induced A and B to be in breach of their obligations to give their full time
to the claimants’ service.
51
See e.g. Solihull MBC v National Union of Teachers [1985] I.R.L.R. 211.
52
[2007] UKHL 21; [2008] 1 A.C. 1 at [39] per Lord Hoffmann. See also Lord Nicholls at
[202]. Meretz Investments NV v ACP Ltd [2007] EWCA Civ 1303; [2008] Ch. 244.
53
[1905] AC 239.
54
OBG Ltd v Allan, fn.32, at [8] per Lord Hoffmann.
55
See para.18–13, below.
56
Persuasion directed at a third party lawfully to decline to deal with A does not give rise
to liability to C where this foreseeably brings about a breach of A’s contract with C:
Middlebrook Mushrooms Ltd v TGWU [1993] I.C.R. 612 (leafletting and picketing of
supermarkets, persuasion directed at customers, exhorting them not to buy C’s mushrooms
sold in supermarket).
868 Interference with Contract or Business
C. The Inducement
18–5 There must be persuasion directed at58 a party to the contract.
Doing something which has the inevitable consequence of causing
that party to be in breach is not this tort, though it may lead to
liability if unlawful means are used.59 A distinction may be taken
between persuasion and mere advice, and advice in the sense of, ‘‘a
mere statement of, or drawing of the attention of the party
addressed, to the state of facts as they were’’,60 is not actionable.61
However, it has been said that advice which is intended to have
persuasive effect is not distinguishable from inducement.62
Further:
57
‘‘Mr Gye would very likely have preferred to be able to obtain Miss Wagner’s services
without her having to break her contract. But that did not matter’’: OBG Ltd v Allan, fn.32,
at [42] per Lord Hoffmann.
58
There need be no individual contact between A and B: Greig v Insole [1978] 1 W.L.R. 302
(resolutions and press statement by cricket governing body).
59
Meretz Investments NV v ACP Ltd [2007] EWCA Civ 1303; [2008] Ch 244.
60
D.C. Thomson & Co Ltd v Deakin [1952] Ch. 646 at 686.
61
A direction to do something which may be done lawfully or unlawfully cannot be said to
induce wrongs committed by those who respond unlawfully, even if the person giving it
harbours a secret desire that it be done unlawfully: Sanders v Snell (1998) 157 A.L.R. 491;
and see C.B.S. Songs Ltd v Amstrad Consumer Electronics Plc [1988] A.C. 1013 (provi-
sion of machines capable of being used for breach of copyright).
62
Camden Nominees Ltd v Forcey [1940] Ch. 352 at 366; D.C. Thomson & Co Ltd v Deakin,
above, fn.60, at 686. Cf. the difficult case of Stocznia Gdanska SA v Latvian Shipping Co
[2002] EWCA Civ 889; [2002] 2 Lloyd’s Rep. 436, where the passage at [107] might be
thought to question whether persuasion (as opposed to instruction) is sufficient. However,
the case is best regarded as turning on the fact that the claim had been pleaded as one of
instruction.
63
J. T. Stratford & Co Ltd v Lindley [1965] A.C. 269 at 333 per Lord Pearce; Greig v Insole
[1978] 1 W.L.R. 302.
64
The relative positions of the persons involved and the degree of anxiety to achieve his ends
shown by the alleged inducer are both factors to be taken into account: Square Grip
Reinforcement Co Ltd v Macdonald 1968 S.L.T. 65.
Inducing or Procuring a Breach of Contract 869
65
The defence of justification (para.18–7, below) might be relevant in a case of disinterested
advice. Where members of a union have already expressed willingness to take industrial
action and instruct a union official to determine what form it shall take the official has
‘‘procured’’ what follows: Ansett v Australian Federation of Airline Pilots (1989) 95
A.L.R. 211, applying S Wales Miners’ Federation v Glamorgan Coal Co Ltd, above,
fn.53.
66
[1949] Ch. 556.
67
D.C. Thomson & Co Ltd v Deakin [1952] Ch. 646 at 694; Law Debenture Trust Ltd v Ural
Caspian Oil Corp Ltd [1993] 1 W.L.R. 138 at 151.
68
Batts Combe Quarry Ltd v Ford [1943] Ch. 51 and Carty, fn.1, above, p.56.
69
That is to say, unless D was a bona fide purchaser for value without notice.
70
See Pritchard v Briggs [1980] Ch. 338, though on the facts the majority of the court
rejected a claim for damages.
71
[1920] 3 K.B. 497 at 506.
870 Interference with Contract or Business
D. Defence of Justification
18–7 It is certain that justification is capable of being a defence to this
tort, but what constitutes justification is incapable of exact defini-
tion.74 It has been said that regard must be had to the nature of the
contract broken, the position of the parties to the contract,
the grounds for the breach, the means employed to procure it, the
relation of the person procuring it to the person who breaks the
contract, and the object of the person procuring the breach.75
The advancement of one’s own interests will not suffice, nor will
that of the interests of one’s own group76 and the defendant cannot
escape by showing that his motives are impersonal, disinterested
and altruistic.77 However, in Brimelow v Casson,78 persuasion of
theatre proprietors by a theatrical performers’ protection society to
72
Approved by Greer L.J. in Scammell Ltd v Hurley [1929] 1 K.B. 419 at 443. Cf. Scrutton
and Sankey L.JJ. at 436, 449. This principle will protect company directors who vote to
cause a breach of contract: Crystalens Ltd v White, July 7, 2006, QBD; O’Brien v Dawson
(1942) 66 C.L.R. 18. See also Welsh Development Agency v Export Finance Co Ltd [1992]
BCLC 148, CA (receivers). Cf. Ansett v Australian Federation of Air Pilots (1989) 95
A.L.R. 211—union official not alter ego of all his members.
73
D.C. Thomson & Co Ltd v Deakin [1952] Ch. 646 at 681 per Evershed M.R.: ‘‘The
difficulty is avoided if the act which the servant is procured to do is not an act in
accordance with or under his contract, but is in breach or violation of it.’’.
74
Cf. the more definite privileges in defamation.
75
Glamorgan Coal Co Ltd v S Wales Miners’ Federation [1903] 2 K.B. 545 at 574–575 per
Romer L.J.
76
S Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] A.C. 239; Camden
Nominees Ltd v Forcey [1940] Ch. 352; Greig v Insole [1978] 1 W.L.R. 302. The broader
view taken in New Zealand in Pete’s Towing Services Ltd v N.I.U.W. [1970] N.Z.L.R. 32
was rejected in Australia in B.W.I.U. v Odco Pty Ltd (1991) 99 A.L.R. 735, but the
protection of health and safety is arguably of a different order from raising wages: Ranger
Uranium Mines v F.M.W.U.A. (1987) 54 N.T.R. 6.
77
Greig v Insole, above, fn.76; Posluns v Toronto Stock Exchange (1964) 46 D.L.R. (2d) 210
at 270 (affirmed (1968) 67 D.L.R. (2d) 165) (where, however, justification arose from the
claimant’s implied submission to the discipline of the Exchange); Slade & Stewart Ltd v
Haynes (1969) 5 D.L.R. (3d) 736.
78
[1924] 1 Ch. 302.
Inducing or Procuring a Breach of Contract 871
79
Cf. Stott v Gamble [1916] 2 K.B. 504 (banning of film under statutory powers).
80
Pritchard v Briggs [1980] Ch. 338 at 416 per Goff L.J.
81
Camden Nominees Ltd v Forcey [1940] Ch. 352 at 366 per Simmonds J.; Pritchard v
Briggs [1980] Ch. 338 at 416 per Goff L.J.; Timeplan Education Group v NUT [1996]
I.R.L.R. 457 at 460 and see Zhu v Treasurer of NSW [2004] HCA 56; 218 C.L.R. 530.
82
e.g. South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] A.C. 239 at 245,
246, 249, 255; Crofter Hand-Woven Harris Tweed Co v Veitch [1942] A.C. 435 at 443,
where the example is given of a man inducing his daughter not to marry a ‘‘scoundrel’’ (but
engagement is no longer a contract).
83
It is assumed that the advice is ‘‘persuasive’’ in the sense explained in para.18–5,
above.
84
Might not this give the patient lawful justification for withdrawing from the contract?
85
The Restatement 2d., ss.770 and 772 treat as justification (1) unrequested advice from a
person charged with responsibility for the welfare of the other and (2) all other honest
advice if requested.
86
Smithies v National Association of Operative Plasterers [1909] 1 K.B. 310 at 337.
87
[1989] 1 W.L.R. 225.
88
It appears that the claimant had succeeded in an action against A for breach of contract:
(1984) 272 E.G. 63 at 179. It was common ground that if the claimants had appointed a
receiver or sold the property a new architect could have been appointed.
872 Interference with Contract or Business
89
Suggesting that in the example above drawn from the Smithies case of two sales, it is real
property that is referred to and the first contract would give rise to an equitable interest.
90
Zhu v Treasurer of NSW [2004] HCA 56; 218 C.L.R. 530. That leaves an apparent
conundrum. If A makes two inconsistent contracts, one with D and then one with C (C not
being then aware of D’s) it cannot be that D commits a tort against C in persuading A to
perform in his favour and C commits a tort against D in persuading A to perform in his
favour. The court suggested at [151] that such action might simply not be regarded as an
inducement, but is this not simply putting two cross-justification defences in different
words?
91
‘‘A violation of a legal right committed knowingly is a cause of action, and . . . it is a
violation of a legal right to interfere with contractual relations recognised by law if there
be no sufficient justification for the interference’’: Quinn v Leathem [1901] A.C. 495 at 510
per Lord Macnaghten; F. v Wirral Metropolitan Council [1991] Fam. 69 at 107.
92
C.B.S. Songs Ltd v Amstrad Consumer Electronics Plc [1988] A.C. 1013 at 1058; cf.
Belegging, etc. B.V. v Witten Industrial Diamonds Ltd [1979] F.S.R. 59 at 66.
93
Meade v Haringey London Borough [1979] 1 W.L.R. 637; Associated British Ports v
TGWU [1989] 3 All E.R. 822 (reversed on other grounds, at 822). See Ch.7, above.
94
Wilson v Housing Corp [1997] I.R.L.R. 345 (no tort of inducing unfair dismissal).
95
Metall und Rohstoff A.G. v Donaldson Lufkin & Jenrette Inc [1990] 1 Q.B. 391 (where it
was sought to found the claim on tort in order to get service outside the jurisdiction).
However, liability for ‘‘knowing assistance’’ in a breach of trust (as opposed to receipt of
trust property) requires dishonesty: Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2
A.C. 164; Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC
37; [2006] 1 W.L.R. 1476.
96
See Clerk and Lindsell, Torts, 19th edn, para.25–41.
Inducing or Procuring a Breach of Contract 873
This tort was the source of much confusion in the 20th century but 18–9
its nature and its relationship with inducing breach of contract have
been considerably clarified by OBG Ltd v Allan, at least in the case
where it is deployed in a ‘‘three party situation’’. D commits a tort
against C where, intending to cause loss to C, he uses unlawful
means against A which affect A’s liberty to deal with C. It is a good
deal older than the liability under Lumley v Gye and an early
example is to be found in Tarleton v M’Gawley.98 D, master of the
Othello, was trading on the coast of West Africa and when people
(A) put off from the shore to trade with another vessel, the Bannis-
ter, belonging to C, D fired his guns at them, driving them away. C’s
action against D succeeded. The very short judgment is largely
taken up with refuting the argument that C should fail because he
had no licence from the local ruler but looked at in the light of OBG
Ltd v Allan the wrongful act (assault or battery) directed at A and
driving A away made D’s conduct tortious against C even though C
had no subsisting contract with A. In any event even if there had
been a contract between A and C, A’s retreat under artillery fire
could hardly have been a breach of that contract: it was rather as if
Johanna Wagner had been kidnapped by Gye rather than enticed
away. This is a tort based on the primary liability of D for his
wrongdoing and is in no sense, unlike Lumley v Gye, accessory to a
liability of A. Both torts, it is true, have the common characteristic
that they involve D’s striking at C through acts directed at a third
party, A,99 but that does not make them the same. Of course the two
torts may overlap: if A had had a contract with C and D’s threats to
A had not been serious enough to justify his non-performance then
D would no doubt have committed the Lumley v Gye tort and this
one.
In earlier cases the relationship between the two torts became
very confused. In GWK Ltd v Dunlop Rubber Co Ltd100 C made
tyres and had a contract with A, motor manufacturers, that all new
cars would be fitted with tyres of C’s manufacture and displayed
with them at shows. D, a rival tyre company, surreptitiously
97
[2007] UKHL 21; [2008] 1 A.C. 1 at [189].
98
(1793) 1 Peake NPC 270. See also Garret v Taylor (1620) Cro Jac 567.
99
Baroness Hale at [2007] UKHL 21; [2008] 1 A.C. 1 [306].
100
(1926) 42 T.L.R. 376.
874 Interference with Contract or Business
removed the C tyres at the Glasgow motor show and substituted its
own. D was held liable to C but on the basis that D had interfered
without justification with the contractual relationship between A and
C, thereby making it at least an offshoot, though not a direct
application, of Lumley v Gye. In fact of course it was a simple case
falling under the Tarleton v M’Gawley principle: D committed
trespass to A’s goods when it removed the tyres and used that as a
means to inflict damage on C. Lord Hoffmann in OBG Ltd v Allan
suggests that one reason for the confusion is that situations like
Tarleton had been labelled ‘‘intimidation’’ because they commonly
involved threats and this label did not easily fit the case where the
unlawful means had been fully implemented.101 If in Tarleton D had
warned A that he would sink him if he approached C that would
have been ‘‘intimidation’’; if he had simply sunk A with his broad-
side before A could become aware of any threat it is inconceivable
that the result of the case would have been different or even that it
would have been a different tort against C. It is an irresistible
inference from the existence of liability for intimidation that there is
liability on the same basis where the threat is carried out.102 In the
latter part of the 20th century we saw a process103 whereby the
Lumley v Gye tort was regarded as extending beyond simple induce-
ment to (a) ‘‘prevention’’ (the GWK situation), (b) ‘‘indirect’’ pro-
curement of a breach (as where D persuaded X to break his contract
with A so that A could not perform his contract with C104) or even
(c) interference short of breach, though all these situations were
generally regarded as requiring some independently unlawful
means. Now, it seems, after OBG Ltd v Allan, we can dispense with
these complexities: the Lumley v Gye tort is confined to the simple
situation where D persuades A to break his contract with C and all
the others fall into the ‘‘unlawful means’’ tort we are now consider-
ing. It is true that even before OBG Ltd v Allan it was recognised
that some varieties of ‘‘interference with contract’’, where unlawful
means were involved could be regarded as species of a wider
‘‘genus’’ tort of interference with business by unlawful means105 but
this recognition was befogged by the insistence on classifying the
categories described above as offshoots or variants of the Lumley v
Gye tort, even though it was impossible to bring that tort within the
genus: it might be possible to describe persuading A to break his
contract with C as an ‘‘unlawful act’’ but there was certainly no
requirement of independently unlawful means. The persuasion:
101
[2007] UKHL 21; [2008] 1 A.C. 1 at [25].
102
See Rookes v Barnard [1964] A.C. 1129 at 1168.
103
The leading authority was D.C. Thomson & Co Ltd v Deakin [1952] Ch 646.
104
Exemplified by J.T. Stratford & Son Ltd v Lindley [1965] A.C. 269.
105
Merkur Island Shipping Corp v Laughton [1983] 2 A.C. 581 at 610; J.T. Stratford & Son
Ltd v Lindley above, fn.104, at 324, 329.
Intentionally Causing Loss by Unlawful Means 875
‘‘[W]as only wrongful because the court in Lumley v Gye said that
inducing a breach of contract was tortious. It is circular then to
say that it was tortious because it involved a wrongful act.’’106
A. Unlawful Means
The restructuring of the law in OBG Ltd v Allan means that we 18–10
now have two torts where before we had at least five: direct induce-
ment of breach and causing loss by unlawful means (as we shall see
below, we still need to treat conspiracy separately). Unlawful means
are necessary for the second of these but not the first and the case
has brought some measure of clarity into the meaning of this
concept. We are now concerned with the situation where, in our
customary notation, D directs the unlawful means against A in order
to strike at C.
One view has been that unlawful means embraces anything, ‘‘a
defendant is not permitted to do, whether by the civil law or the
criminal law’’ and this is supported by Lord Nicholls in OBG Ltd v
Allan107 but the majority view is narrower: it covers only acts or
threats108 of acts which are or would be civilly wrongful against and
actionable by A (or would be actionable by him if he suffered
loss109).110 It does not therefore include criminal breaches of statu-
tory duty which do not give rise to a civil action111 nor does it cover
common law crimes, though many of them will be torts in their own
right and ‘‘unlawful’’ under that head. However, even those who
would extend the law beyond matters actionable in their own right
would not go so far as to include all incidental infringements of the
criminal law. The example often given is of a pizza delivery busi-
ness which manages to gain a larger share of the market by constant
infringement of the traffic regulations. For Lord Nicholls that would
not amount to a tort actionable by its competitor because it would
not be an, ‘‘offence committed against the rival company in any
106
OBG Ltd v Allan [2007] UKHL 21; [2008] 1 A.C. 1 at [18] per Lord Hoffmann.
107
At [162].
108
i.e. the form of this wrong traditionally known as intimidation. Threats of unlawful means
are probably commoner in practice than their actual implementation.
109
National Phonograph Co Ltd v Edison-Bell Consolidated Phonograph Co Ltd [1908] 1 Ch
335 and Lonrho Plc v Fayed [1992] 1 A.C. 448 seem to be examples of this situation
(fraudulently inducing A to act to C’s detriment).
110
Lord Walker (with some hesitation), Baroness Hale and Lord Brown agreed with Lord
Hoffmann in this respect.
111
See Ch.7, above. Lord Hoffmann, at [57], supporting this aspect of Lonrho Ltd v Shell
Petroleum Co Ltd (No.2) [1982] A.C. 173 (breach of sanctions order in Southern Rho-
desian rebellion). Lord Walker in Revenue and Customs Commisioners v Total Network SL
[2008] UKHL 19; [2008] A.C. 1174 at [95] is critical of the reasoning even though he
concurred with Lord Hoffmann in OBG. However, Revenue and Customs involves the
different tort of conspiracy.
876 Interference with Contract or Business
The second approach does more than answer the privity of con-
tract objection: it refutes its basic premise. The point is:
‘‘[T]hat the ‘weapon’, i.e. the means, which the defendant used to
inflict loss on the claimant, may be unlawful because it involves
conduct wrongful towards a third party.122 There is no reason in
principle why such wrongful conduct should include torts and not
breaches of contract. One might argue about whether it is expe-
dient for the law to forbid the use of such acts as a means of
causing loss, but the privity doctrine is a red herring.’’123
If one asks why the law should draw the line at threats of breach
of contract and not include within the tort some threats against B
even though the acts threatened are not strictly unlawful, the answer
can lie only in the structure of the law which has been accepted since
120
[1964] A.C. 1129 at 1187–1188, 1208–1209. However, there may be cases where C suffers
loss intended by D even though it cannot be said that A acts in response to any implied
threat by D, as where D simply fails, in breach of contract, to deliver goods to A which
he knows A has sold on to C (see Wedderburn (1964) 27 M.L.R. 257, 265). Such conduct
would certainly not then have been actionable as intimidation but, provided the requisite
intention to harm C by this means can be shown, it would seem to fall within the current
broad tort of intentionally causing loss by unlawful means.
121
Rookes v Barnard [1964] A.C. 1129 at 1168 per Lord Reid. See also Lord Pearce at
1234–1235.
122
‘‘The wrong done to others reaches him’’: Lord Lindley in Quinn v Leathem [1901] A.C.
495 at 535.
123
Hoffmann, ‘‘Rookes v Barnard’’ (1965) 81 L.Q.R. 116 at p.125.
878 Interference with Contract or Business
B. Intention
18–13 This tort requires that D strikes intentionally at C through A. So
if Gye had kidnapped Johanna Wagner in order to damage Lumley’s
theatre she would no doubt have had a defence to any action for
124
[1898] A.C. 1.
125
The word is Lord Herschell’s: Allen v Flood [1898] A.C. 1 at 121.
126
See para.18–9, above.
127
See Mennell v Stock [2006] EWHC 2514 (QB).
128
See [1964] A.C. at 1187, 1200, 1208. As to cases where D acts directly against C, see
para.18–15, below.
129
Lord Walker is, however, rather equivocal in his approval: Lord Hoffmann’s, ‘‘test . . . of
whether the defendant’s wrong interferes with the freedom of a third party to deal with the
claimant, if taken out of context, might be regarded as so flexible as to be of limited utility.
But in practice it does not lack context. The authorities demonstrate its application in
relation to a wide variety of economic relationships. I would favour a fairly cautious
incremental approach to its extension to any category not found in the existing authorities’’
(at [270]).
130
Oren v Red Box Toy Factory Ltd [1999] FSR 785. See also RCA Corporation v Pollard
[1983] Ch 135.
131
[2007] UKHL 21; [2008] 1 A.C. 1 at [157].
Intentionally Causing Loss by Unlawful Means 879
132
See para.5–40, above.
133
[1994] E.M.L.R. 44.
134
[2007] UKHL 21; [2008] 1 A.C. 1 at [166] per Lord Nicholls. Similarly Lord Hoffmann
thought that she did not intend to procure a breach of that contract for the purpose of the
first tort: see at [43]; but it is difficult to see how one could bring her conduct within the
first tort anyway. See also Barretts & Baird (Wholesale) Ltd v Institution of Professional
Civil Servants [1987] IRLR 3.
135
Lord Hoffmann at [63].
880 Interference with Contract or Business
C. Trade or Business
18–14 It has long been customary to call this tort interference with
business (or trade) by unlawful means and OBG Ltd v Allan is
replete with references to that or a similar formula.138 This may
simply be because the overwhelming majority of cases are likely to
arise in a business context, but it is hard to see why the tort should
be so confined.139 If it is actionable to use unlawful means to drive
away C’s prospective customers140 why should it not equally be
actionable to use such means against a person who proposes to buy
his house but has not yet signed a contract to do so?141
136
OBG v Allan at [167]; Sorrell v Smith [1900] A.C. 700 at 742.
137
Meretz Investments NV v ACP Ltd [2007] EWCA Civ 1303; [2008] Ch 244. The proposi-
tion is made in the context of a claim for unlawful means conspiracy but it must equally
apply to the unlawful means tort which may be committed by an individual.
138
e.g. [2007] UKHL 21; [2008] 1 A.C. 1 at [139], [141], [180], [247], [261].
139
Lord Walker in Revenue and Customs Commissioners v Total Network SL [2008] UKHL
19; [2008] 1 A.C. 1174 at [100] seems to be of the view that it is so confined but
conspiracy (see para.18–27, below) is not.
140
Tarleton v M’Gawley (1793) Peake N.P. 270, para.18–9, above.
141
Cf. Deakin and Randall, ‘‘Rethinking the Economic Torts’’ (2009) 72 M.L.R. 519. Most
cases of inducing a breach of contract will also occur in a business context, but it seems
to be assumed that the tort could apply to a non-commercial property transaction (Smith
v Morrison [1974] 1 W.L.R. 659) though the result may be affected by the statutory
provisions on registration of land charges.
Intentionally Causing Loss by Unlawful Means 881
142
A reasonable inference from the facts of Lonrho Plc v Fayed [1992] 1 A.C. 448, approved
in OBG Ltd v Allan.
143
See [2007] UKHL 21; [2008] 1 A.C. 1 at [61].
144
Godwin v Uzoigwe [1993] Fam. Law 65. See also News Group Newspapers Ltd v
S.O.G.A.T. ’82 [1986] I.R.L.R. 337 at 347, with reference to the seventh claimant.
145
[1965] A.C. 269 at 325.
146
The unlawful acts are not very explicitly classified in Godwin v Uzoigwe, above, fn.144,
but they included acts which were torts and crimes and may have been breaches of
contract.
147
Hoffmann, (1965) 81 L.Q.R. 116 at pp.127–128.
882 Interference with Contract or Business
sue for damages. In fact, the balance of advantage would seem to lie
in holding that where D threatens C with a breach of his contract
with C, C should be restricted to his contractual remedies. The law
should not encourage B to yield to the threat but should seek to
persuade him to resist it.148 In some cases he may be able to obtain
an injunction to restrain the breach and in any case he will be
adequately compensated by his remedy in damages for breach of
contract as his damage can scarcely be other than financial. If C is
threatened with a tort it is, of course, equally true that he may bring
an action for damages if the tort is committed or bring an action for
a quia timet injunction first, but, especially where the threat is of
violence, it is perhaps less realistic to say that these legal remedies
afford him adequate protection against the consequences of resis-
tance.149 From the point of view of policy, therefore, there is much
to be said for the view that no independent tort is committed when
all that is threatened, in the two-party situation, is a breach of
contract.
18–17 Secondly, since threatened breaches of contract were brought
within the fold of unlawful means in Rookes v Barnard there has
been considerable development in the contractual context of the
doctrine of ‘‘economic duress’’, and in this context it is clear that
although a threat to break a contract is ‘‘illegitimate’’ it will not
amount to duress unless it goes beyond commercial pressure and
amounts to ‘‘coercion of the will’’.150 In Pao On v Lau Yiu151 D
threatened that unless C agreed to vary an existing contract between
them by giving D a guarantee against loss, D would not fulfil his
side of the agreement. D’s action on the guarantee succeeded
because, although C had acceded to the demand because of fears of
delay in litigation and loss of public confidence, the pressure fell
short of coercion. Though intimidation was not discussed in the case
it cannot be that C could have avoided the binding nature of the
contract by the simple device of counter-claiming for damages for
intimidation and it seems therefore that for the purposes of intimida-
tion the claimant should be required to show unlawful coercion at
least of such a degree as would enable him to avoid a contract.152 If
there are any cases in which the victim of unfair pressure may avoid
148
See the example given by Hoffmann, (1965) 81 L.Q.R. 116.
149
A point demonstrated clearly by Godwin v Uzoigwe, above, fn.144.
150
There is, however, some controversy about the theoretical basis of duress: see Dimskal
Shipping Co SA v I.T.W.F. [1992] 2 A.C. 152 at 166 per Lord Goff.
151
[1980] A.C. 614.
152
Another problem is that the right to avoid a contract for economic duress may be lost by
affirmation: North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] Q.B.
705. It is not easy to see on what basis the right to sue for intimidation could be similarly
lost: cf. Neibuhr v Gage (1906) 108 N.W. 884.
Intentionally Causing Loss by Unlawful Means 883
153
Some of the cases on ‘‘unconscionable bargains’’ might be regarded as at least akin to
duress.
154
In Universe Tankships Inc of Monrovia v I.T.W.F. [1983] A.C. 366 at 400, Lord Scarman,
dissenting (but on another point) said: ‘‘It is, I think, already established law that economic
pressure can in law amount to duress and that duress, if proved, not only renders voidable
a transaction into which a person has entered under its compulsion but is actionable as a
tort, if it causes damage or loss’’. Cf. Lord Diplock, at 385: ‘‘The use of economic duress
to induce another person to part with property or money is not a tort per se ; the form that
the duress takes may, or may not, be tortious’’.
155
The remedy of requiring the defendant to account for his profits from the breach to the
claimant is very restricted and this is no accident: Att Gen v Blake [2001] 1 A.C. 268.
Exemplary damages for profit-motivated torts go wider (para.22–10, below). The fact that
it would suit the claimant to dress up his claim as tort rather than contract is not necessarily
a reason for allowing him to do so.
156
See para.1–8, above.
157
[2008] UKHL 19; [2008] A.C. 1174
158
See para.18–15, above.
159
See at [43], [99], [124] and [223].
884 Interference with Contract or Business
3. CONSPIRACY
18–21 Though our early law knew a writ of conspiracy, this was restricted
to abuse of legal procedure and the action on the case in the nature
of conspiracy, which came into fashion in the reign of Elizabeth I,
developed into the modern tort of malicious prosecution. Con-
spiracy as a crime was developed by the Star Chamber during the
17th century and, when taken over by the common law courts, came
to be regarded by them as not only a crime but also as capable of
giving rise to civil liability provided damage resulted to the claim-
ant. As a tort, however, it was little developed until the second half
of the 19th century161 and the law remained obscure until the
decision of the House of Lords in Crofter Hand-Woven Harris
Tweed Co Ltd v Veitch.162 Conspiracy remains a crime as well as a
tort, but the scope of the crime has been curtailed by statute163 so
that, broadly speaking, the only conspiracies which are now indict-
able are those to commit a substantive criminal offence, to defraud
or to corrupt public morals or outrage public decency.164 The Act,
however, has no effect on civil liability. In fact, even aside from the
Act the tort and the crime have cut loose from whatever common
origin they had.165
The tort takes two forms according to whether or not unlawful
means are used.
for the cloth was hand-spun from wool by the crofters of Lewis and
was wholly produced in the Isle. By 1930, hand-spinning of wool
had become commercially impracticable and thenceforth many
weavers in Lewis imported yarn from the mainland. Five mill
owners in Lewis nevertheless spun yarn woven by the crofters.
These mill owners alleged that cloth woven on Lewis from mainland
yarn could be sold much more cheaply than cloth made from yarn
spun in Lewis. It was therefore in their interest to get a minimum
price fixed for the cloth. Of the workers in their mills 90 per cent
belonged to the TGWU and the Lewis dockers were also members
of it. The union, with the object of getting all mill workers to be
members and of increasing wages, approached the mill owners, who
replied that they could not raise the wages because of the competi-
tion of the crofters who wove imported yarn. The union officials
then put an embargo on the importation of yarn by ordering Lewis
dockers not to handle such yarn. They obeyed (without breaking any
contract) and thus injured the trade of seven small producers of
tweed who used imported yarn and who sued the officials for
conspiracy.167
It must be stressed at the outset, lest the importance of this form
of liability be exaggerated, that the claimants lost their case because
the predominant purpose of the embargo was to promote the inter-
ests of the union members rather than to injure the claimants,168 but
their Lordships made it clear that if the predominant purpose of a
combination is to injure another in his trade or business169 or in his
other legitimate interests170 then, if damage results, the tort of
conspiracy exists. The Crofter principle was applied by the Court of
Appeal in Gulf Oil (Great Britain) Ltd v Page171 in granting an
interlocutory injunction against a combination to publish a state-
ment defamatory of the claimants even though the statement was
admitted to be true and there would, therefore, have been an abso-
lute defence to an action for libel; but this is confined to cases where
the claimant suffers actual pecuniary loss: if the claim is for general
loss of reputation or injured feelings the law of defamation cannot
be sidestepped in this way.172
167
Now by the Harris Tweed Act 1993 (c. xi) s.7, it means a tweed, ‘‘which has been
handwoven by the islanders at their homes in the Outer Hebrides, finished in the Outer
Hebrides, and made from pure virgin wool dyed and spun in the Outer Hebrides’’.
168
See also Mogul S.S. Co Ltd v McGregor Gow [1892] A.C. 25; Sorrell v Smith [1925] A.C.
700.
169
This, so their Lordships held, had really been settled in Quinn v Leathem [1901] A.C. 495,
notwithstanding earlier doubts about the meaning of that case.
170
[1942] A.C. 435 at 446-447, 451, 462, 478.
171
[1988] Ch. 327.
172
Lonrho Plc v Fayed (No.5) [1993] 1 W.L.R. 1489. See also Oyston v Blaker [1996] 1
W.L.R. 1326.
886 Interference with Contract or Business
173
[1942] A.C. 435 at 445 per Viscount Simon L.C.
174
[1942] A.C. 435 at 450, 463, 469–471.
175
‘‘I cannot see how the pursuit of a legitimate practical object can be vitiated by glee at the
adversary’s expected discomfiture’’: per Lord Wright.
176
As may be expected from this, successful actions for conspiracy are rare.
177
See para.18–13, above.
178
Mogul S.S. Co Ltd v McGregor Gow & Co [1892] A.C. 25.
179
See para.18–1, above.
180
Lord Wright, at 478, implies that a combination of parishioners to withhold subscriptions
from the incumbent is not unlawful if the object is the promotion of the religious interests
of the parish. Cf. Bear v Reformed Mennonite Church 341 A. (2d) 105 (1975).
181
[1958] 1 W.L.R. 1057.
182
See now the Race Relations Act 1976.
Conspiracy 887
183
[1957] 1 W.L.R. 321; Hutchinson v Aitchison (1970) 9 K.I.R. 69.
184
[1957] 1 W.L.R. 321 at 341 per Harman L.J. Such a case was foreshadowed by Lord
Wright in the Crofter case, above, fn.166, at 445. The position was not perhaps so clear in
Quinn v Leathem [1901] A.C. 495 but according to Lord Sumner in Sorrell v Smith [1925]
A.C. 700 at 736 that case is to be explained on the basis that there was evidence from
which the jury could find that the defendants’, ‘‘real object was to punish Leathem for his
conduct in harbouring non-unionists and was not simply to advance their own interests in
the future by bringing those non-unionists into their fold’’. Cf. Lord Lindley in Quinn v
Leathem at 536.
185
[1942] A.C. at 471 per Lord Wright.
186
Thus in the Crofter case the interests of the mill owners and the trade unionists were by
no means identical.
187
[1942] A.C. at 495.
188
Though it may cast doubt upon the defendants’ bona fides.
189
Crofter case at [1942] A.C. 447.
888 Interference with Contract or Business
190
[1942] A.C. at 445; see also at 469.
191
Mogul S.S. Co case above, fn.178.
192
The Crofter case itself. In Giblan v National Amalgamated Labourers’ Union [1903] 2
K.B. 600, long before Crofter and perhaps dubious for that reason, a combination to obtain
payment of a debt to the union was held actionable. Certainly the law provides machinery
for recovery but this had been tried and had proved ineffective.
193
Ware and de Freville Ltd v Motor Trade Association [1921] 3 K.B. 40.
194
[2008] UKHL 19; [2008] 1 A.C. 1174.
195
See at [226].
Conspiracy 889
to prove some actual pecuniary loss, once that is done damages are
not limited to the amount so proved.205
205
Lonrho Plc v Fayed (No.5), above, fn.204. When actual pecuniary loss has been proved,
damages are said to be at large, but not to the extent of allowing damages for loss of
reputation. Loss of orders or loss of trade is actionable but not, ‘‘airy-fairy general
reputation in the business or commercial community’’, nor a decline in the share value of
a corporate claimant: Lonrho Plc v Fayed (No.5), fn.204, at 1496.
206
Said to be ‘‘common ground’’ between the parties in Revenue and Customs Commissioners
v Total Network SL [2008] UKHL 19; [2008] 1 A.C. 1174 at [213] per Lord Neuberger.
207
The knowledge of an ‘‘accessory’’ conspirator may not be the same as that of the principal
actor and it may be necessary to analyse the extent to which the accessory shared a
common objective with the primary actor and the extent to which the achievement of that
objective was to his knowledge to be achieved by unlawful means intended to injure the
claimant, his liability being limited to that common extent: Bank of Tokyo-Mitsubishi UJF
Ltd v Baskan Gida Sanayive Pazarlama AS [2008] EWHC 659 (Ch) at [847]; IS Innovative
Software Ltd v Howes [2004] EWCA Civ 275; cf. Kuwait Oil Tanker Co SAK v Al Bader
[2000] 2 All E.R. Comm. 271.
208
[1982] A.C. 173.
209
[1992] 1 A.C. 448, overruling Metall und Rohstoff v Donaldson Lufkin & Jenrette Inc
[1990] 1 Q.B. 391 and explaining Lonrho Ltd v Shell Petroleum Ltd (No.2) [1982] A.C.
173.
210
[2008] UKHL 19; [2008] 1 A.C. 1174. See, e.g. at [40], [56], [82], [115], [213].
Conspiracy 891
211
‘‘It is . . . a sub-species of the tort of conspiracy to injure, in which the ordinary require-
ment that such intent be predominant in the mind of the defendant is replaced by the
requirement to show that unlawful conduct has been the means of the intentional infliction
of harm to the claimant’’: Bank of Tokyo-Mitsubishi UJF Ltd above, fn.207, at [825].
212
There may be a third party. If D threatens A that he will break his contract with A unless
A ceases to trade with C that is inflicting harm on C by unlawful means. So also is it if D1
and D2 combine so to threaten A, but this time it is also unlawful means conspiracy.
213
[1982] A.C. 173.
214
See para.18–29, below,
215
As far as can be judged from the CA transcript in Lonrho, that is not the way the points
of claim in the arbitration were framed.
216
Kuwait Oil Tanker Co SAK v Al Bader [2000] 2 All E.R. Comm. 271. Indeed, as has been
seen above, Lord Neuberger in the Revenue and Customs Commissioners case regarded
that as a predominant purpose to injure.
217
The best discussion of the state of the law in the pre-OBG/Revenue and Customs
Commissioners period is the judgment of Davis J. Mbasogo v Logo Ltd [2005] EWHC
2035 (QB).
892 Interference with Contract or Business
acy, . . . but is inconsistent also with the historic role of the action
on the case.’’225
All this, however, does not explain why a conclusion which seems
obvious in the context of conspiracy is rejected in the context of
causing loss by unlawful means. One reason may be that if we
confine unlawful means to civilly actionable conduct the tort of
unlawful means conspiracy almost disappears because the con-
spirators will generally be joint tortfeasors anyway.226 If D1 and D2
conspire to defraud C by making fraudulent misrepresentations to
him they jointly commit deceit. The same result may be reached if
the means used are not tortious but, say, a breach of contract, the
joint tort this time being intentionally causing loss by unlawful
means.227 The clear message of Revenue and Customs Commis-
sioners is that unlawful means conspiracy is not merely a form of
secondary liability, joint tortfeasance dressed up in other clothes.
The point has been made above that although the Revenue and 18–30
Customs Commissioners case was presented only as one of unlawful
means conspiracy, some members of the House of Lords had doubts
whether it might not better have been regarded as a straightforward
conspiracy to injure.228 If it was not, that, for Lord Neuberger, was
strong reason for including criminality within the scope of unlawful
means.
225
At [56]. Earlier in the paragraph he had said: ‘‘We were taught at law school that the action
on the case was the means whereby our judicial forbears allowed tortious remedies in
damages where harm had been caused in circumstances where the conduct of the authors
of the harm had been sufficiently reprehensible to require the conclusion that they ought
to be held responsible for the harm.’’
226
Counsel for the claimants contended that on the defendants’ argument unlawful means
conspiracy would become a ‘‘barren iteration of joint tortfeasance’’: at [66]; but even
where the unlawful means involve a tort actionable directly by the claimant there is no
doctrine that the conspiracy is ‘‘merged’’ in the substantive tort and it has been said that
the conspiracy claim may express ‘‘the true nature and gravamen of the case’’: Kuwait Oil
Tanker Co SAK v Al Bader [2000] 2 All E.R. Comm. 271 at [119] (where the conspiracy
claim was significant for the then-applicable conflict of laws rules).
227
Nonetheless, the reader may think twice before accepting that if D1 and D2 have a joint
contract with C their decision to break it may be the tort of conspiracy.
228
See para.18–24, above.
229
[2008] UKHL 19; [2008] 1 A.C. 1174 at [221].
894 Interference with Contract or Business
18–31 It is not, however, in every case that the use of criminal means
gives rise to unlawful means conspiracy. It is not enough that there
is a crime somewhere in the story. We have already seen in the
context of intentionally inflicting harm by unlawful means how even
the minority who would have included crimes as unlawful means
would not go so far as to say that the tort is committed by the
infringement of road traffic rules by a pizza delivery company eager
to take trade from its rivals because the crime is not directed at the
rivals and is not in a real sense the instrumentality of the harm.230
The same is true if the claim is framed as a conspiracy.231 In the
Revenue and Customs Commissioners case, in contrast, the claim-
ants were the direct target of the offence of cheating and the offence
existed, ‘‘in its very nature to protect the Revenue’’.232 We have seen
that the commission of a crime which is not a common law tort in
its own right does not give rise to civil liability unless an intention
to accord a civil action can be found in the legislation creating the
offence.233 That has been used a reason for rejecting crime as
unlawful means in the tort of intentionally causing harm by unlaw-
ful means.234 It is unclear exactly how this principle stands in the
context of unlawful means conspiracy, Lord Walker in Revenue and
Customs Commissioners being content to say that:
4. TRADE DISPUTES
A general textbook on the law of tort is not the place for an extended 18–33
discussion of the specialised law relating to trade disputes. Never-
theless these disputes have provided much of the ‘‘raw material’’ for
the development of the law of economic torts and some of the
leading cases can only be fully understood against the background
of the legislative intervention since 1906, so some account is neces-
sary. Unfortunately it cannot be as brief as one might like.
238
[1942] A.C. 435 at 448.
239
[1942] A.C. 435 at 443. See also Lord Diplock’s rather less colourful example of the
street-corner grocers and a chain of supermarkets in single ownership in the Lonrho case:
[1982] A.C. 173 at 189.
240
Conspiracy to commit a substantive offence has great practical significance in the criminal
law because it allows the police to ‘‘nip crime in the bud’’.
241
Cf. Bradford Corp v Pickles [1895] A.C. 151 with Tuttle v Buck (1909) 119 N.W. 946. See
art.826 of the German Civil Code, discussed in Weir, Economic Torts, Ch.3: ‘‘A person is
liable in damages if he deliberately causes harm to another in a manner repugnant to good
morals’’.
896 Interference with Contract or Business
A. History
18–34 The Trade Disputes Act 1906, passed as a result of the Taff Vale
case,242 made trade unions immune from actions in tort and con-
ferred protection on individuals, such as union officials, against
liability for conspiracy to injure and inducing breach of contract
where the acts were done in contemplation or furtherance of a trade
dispute. The Trade Disputes Act 1965 extended this immunity to the
tort of intimidation after Rookes v Barnard. After a brief and
unsuccessful experiment by the Conservative Government of
1970–1974 with a new, statutory regime of civil remedies in trade
disputes the Trade Union and Labour Relations Act 1974 restored
the former position. After 1979 another Conservative Government
passed a series of Acts which imposed liability on unions as well as
individuals,243 required ballots as a preliminary to industrial action
and withdrew the immunity of unions and individuals in respect of
action taken for certain purposes or directed at ‘‘secondary targets’’.
The law is now consolidated in Pts II and V of the Trade Union and
Labour Relations (Consolidation) Act 1992 (hereafter ‘‘the 1992
Act’’) as amended.
18–35 i. Trade unions. A trade union is not a body corporate245 but the
1992 Act gives it certain attributes of a body corporate. It can make
contracts and sue and be sued in its own name and, indeed, be
prosecuted. Though the Act does not say so in so many words, it
seems that where the claim does not concern a trade dispute the
union’s liability in tort is exactly the same as that of a natural person
or corporate body246 and its liability for the acts of individuals is to
be determined by the general law of master and servant and agency.
Where, however, the claim relates to one of the economic torts
likely to be involved in a trade dispute247 a different test of vicarious
liability applies. The act of an individual or group is taken to have
been done by the union if it is authorised or endorsed by it and it is
taken to have done so if the act was done or was authorised or
242
Taff Vale Ry Co v Amalgamated Society of Ry Servants [1901] A.C. 426.
243
In fact the Trade Union and Labour Relations Act 1974 imposed liability on unions (where
there was no trade dispute) for certain torts causing personal injury or breaches of duty
connected with the union’s property.
244
See Clerk and Lindsell, Torts, 19th edn, Ch.26, Pt 6.
245
Trade Union and Labour Relations (Consolidation) Act 1992 s.10(1). A consequence of
this is that a trade union does not have sufficient personality to maintain an action for
defamation: E.E.T.P.U. v Times Newspapers Ltd [1980] Q.B. 585.
246
There are restrictions on enforcement of judgments against certain property, no matter
what the source of the claim: s.23.
247
For the full statutory formula see s.20(1).
Trade Disputes 897
248
Section 20(2). An act is taken to have been done, authorised or endorsed by an official if
it was done, etc., ‘‘by, or by any member of, any group of persons of which he was at the
material time a member, the purposes of which included organising or co-ordinating
industrial action’’: s.20(3)(b). Read literally this would mean that the union was responsi-
ble where a works committee of which a shop steward was a member had been established
to co-ordinate a ‘‘work to rule’’ but the committee had decided, against the vote of the shop
steward, to call a strike.
249
Section 20(4).
250
The present law derives from the Employment Act 1990. Under the Employment Act 1982
the union was responsible only for the acts of employed officials and shop stewards were
hardly ever union employees. Furthermore, action was not taken to have been authorised
or endorsed if it was forbidden by union rules. See Unofficial Action and the Law (Cm.
821). The rules in the 1992 Act apply to a union’s responsibility for contempt by
disobedience to an injunction as well as to the initial liability in tort.
251
Section 20(5). See Express and Star Newspapers v NGA (1982) [1985] I.R.L.R. 455
(‘‘nods, winks, turning of blind eyes and similar clandestine methods of approval’’).
252
In particular, if the union repudiates the action it is ‘‘unofficial’’ and by s.237 the employer
may dismiss any persons taking part in it. Of course, the basic rule of the common law is
that a strike is a fundamental breach of contract justifying dismissal but under the 1992 Act
as enacted where the action was official the employer could not dismiss ‘‘selectively’’.
Now even non-selective dismissal is restricted where the action was supported by the
requisite ballot: s.238A, inserted by the Employment Relations Act 1999. For a full
account see Clerk and Lindsell, Torts, 19th edn, para.25–159.
253
See para.18–36, below.
254
See para.18–41, below.
898 Interference with Contract or Business
18–36 ii. Protection from liability in trade disputes. If the matter were
left to the common law it would be virtually impossible to call a
strike because the persons doing so would commit one or more of
the torts of inducing breach of contract, intentional infliction of
harm by unlawful means and conspiracy. Since 1906, therefore,
Parliament has granted a degree of protection (commonly called
‘‘immunity’’) to those engaged in trade disputes. The present law is
contained in s.219(1) and (2) of the 1992 Act, which reads as
follows:
255
There was, of course, nothing to prevent the union indemnifying its officials. Under s.15
of the 1992 Act it is unlawful for a union to indemnify an individual against penalties for
a crime or a contempt, but this has no application to civil damages. No doubt unions
generally conducted and paid the costs of actions brought against individuals.
256
This is a great deal less in real terms than the £23,000 awarded in the Taff Vale case.
257
When liability was imposed only on individuals the only effective sanction for breach of
an injunction was often imprisonment, which, as the events of 1971 showed, was likely to
create martyrs.
258
The last seems an unlikely contingency.
259
The restrictions on execution against certain types of property apply to all awards of
damages.
Trade Disputes 899
(a) Trade disputes. In order to gain the protection of s.219, the act 18–37
done by the defendant must be, ‘‘in contemplation or furtherance of
a trade dispute’’. This concept, the so-called ‘‘golden formula’’, is
defined in great detail in s.244 but essentially it means a dispute262
between workers263 and their employer264 and which relates wholly
or mainly265 to matters about the employment266 of workers, such as
terms and conditions of employment, engagement and dismissal,
allocation of work, discipline, union membership or machinery for
negotiation.267 The central difficulty is to determine when the dis-
pute ‘‘relates’’ to the relevant matters. To be protected the dispute
260
See Metrobus Ltd v UNITE [2009] EWCA Civ 829; [2009] I.R.L.R. 851 at [118].
261
See para.18–35, above.
262
But by s.219(4) pressure which is so effective that the employer succumbs immediately to
it is deemed to have been exerted in contemplation or furtherance of a dispute.
263
Including former workers whose employment was terminated in connection with the
dispute or whose dismissal was one of the circumstances giving rise to the dispute:
s.244(5).
264
An inter-union dispute is not, as such, within the protection but such a dispute is likely to
involve an employer.
265
Before 1982 the dispute had merely to be ‘‘connected with’’ the relevant matters and older
cases should be read with this in mind. Since the Government has extensive statutory
powers to alter and approve conditions of employment in various areas, it is provided in
s.244(2) that a dispute between workers and a Minister of the Crown is to be treated for
the purposes of protection as a dispute between the workers and their employer. For an
example see Wandsworth London Borough v NASMUWT, [1994] I.C.R. 81.
266
‘‘Employment’’ in this context has a wider meaning than the technical one of master and
servant because it includes, ‘‘any relationship whereby one person personally does work or
performs services for another’’: s.219(5). Note also s.245, which deems Crown servants to
have a contract of employment even though under the general law their relationship with
the Crown may not be contractual at all.
267
For more detail see the Act.
900 Interference with Contract or Business
268
UCL Hospitals NHS Trust v UNISON [1999] I.C.R. 204. Some degree of protection for
transferred workers is provided by the Transfer of Undertakings (Protection of Employ-
ment) Regulations 2006 (SI 2006/246), replacing earlier legislation.
269
P v NASMUWT [2003] UKHL 8; [2003] 2 A.C. 663 at [28].
270
[1977] 1 W.L.R. 1004.
271
This was approved by Lord Diplock in N.W.L. Ltd v Woods [1979] 1 W.L.R. 1294.
272
Lord Cross in Universe Tankships Inc of Monrovia v I.T.W.F. [1983] 1 A.C. 366 at 392.
However, that was an economic duress case in which there was no dispute between
employer and workers and the union was an ‘‘interloper’’ waging a campaign against
‘‘flags of convenience’’.
Trade Disputes 901
‘‘Our members believe that the methods proposed are bad meth-
ods and we believe we would be in breach of our professional
duty to safeguard the welfare of children if we operated
them.’’275
277
See para.18–3, above.
278
[1983] 1 A.C. 191.
279
[1983] 1 A.C. 191.
280
See para.18–13, above.
281
Nor was there any trade disputes issue in Iqbal v Prison Officers Association [2009]
EWCA Civ 1310, though the claim for false imprisonment caused by the action failed on
the facts: para.4–22, above.
Trade Disputes 903
282
The protection is really unnecessary: if the defendants are acting in contemplation or
furtherance of a trade dispute they have a ‘‘legitimate purpose’’ at common law and they
do not ‘‘intend to injure’’ the claimant: Hadmor Productions Ltd v Hamilton [1983] 1 A.C.
191 at 228.
283
The point is of hardly any practical importance since collective agreements between
employers and unions are rarely contracts.
284
See para.18–38, above.
285
See s.222.
286
So there would again be liability on the facts of Rookes v Barnard [1964] A.C. 1129, even
though the Trade Disputes Act 1965 brought intimidation within the protection of the trade
disputes immunity.
904 Interference with Contract or Business
287
Re-enacting the Employment Act 1990 s.4.
288
It would seem that the protection is withdrawn whether the claimant is A or B. This was
the case under the 1980 Act: Merkur Island Shipping Corp v Laughton [1983] 2 A.C. 570
at 609.
289
Dimbleby & Sons Ltd v NUJ [1984] 1 W.L.R. 427.
290
Section 224(4). The somewhat mysterious s.224(5) provides that: ‘‘primary action in
relation to [one trade] dispute may not be relied on as secondary action in relation to
another trade dispute.’’ This seems to contemplate two trade disputes at employer A and
employer B where, say, inducing breaches of contracts at A has the effect of interfering
with the employment contracts at B, in which case B cannot complain of unlawful
secondary action. This is the only purpose for which primary action is defined and it means
action such as is described in s.224(2) directed against A. This seems to ignore the fact that
the action against A might be something other than interference with A’s contracts of
employment.
291
Given a somewhat extended meaning: see fn.266, above.
Trade Disputes 905
299
Or, where he is a union official, at or near the place of work of a member of the union
whom he is accompanying and whom he represents. Where a person’s employment was
terminated because of a trade dispute or the termination is a cause of the trade dispute then
he may attend his former place of work. Cf. J.&R. Kenny Cleaning Services v TGWU, The
Times, June 15, 1989 (business transferred by former employer, no trade dispute).
300
Section 219(3).
301
In modern times this function of picketing has probably been more important than
preventing ‘‘blackleg’’ labour.
302
Section 224(1), (3).
303
Formerly ex parte.
304
[1975] A.C. 396. See further para.22–50, below.
Trade Disputes 907
305
For a detailed account see Clerk and Lindsell, Torts, 19th edn, para.25–188. See also
Wedderburn, ‘‘The Injunction and the Sovereignty of Parliament’’ in Employment Rights
in Britain and Europe (1991).
306
Dimbleby & Sons Ltd v NUJ [1984] 1 W.L.R. 427 at 431–432.
307
Barretts & Baird (Wholesale) Ltd v I.P.C.S. [1987] I.R.L.R. 3 at 11 per Henry J. However,
on the facts, (1) the judge thought there was little likelihood of the action going to trial and,
(2) the claimants failed to establish a serious question to be tried.
308
Duport Steels Ltd v Sirs [1980] 1 W.L.R. 142; Associated British Ports v TGWU [1989]
3 All E.R. 796 (reversed on appeal on other grounds [1989] 3 All E.R. 822).
908 Interference with Contract or Business
5. PASSING OFF315
18–44 The tort of passing off is part of a much wider canvas of legal
remedies controlling unfair competitive practices and we have
already said that ‘‘unfair competition’’ would be beyond the scope of
this book, so that such matters as copyrights, trade marks and
patents must be sought elsewhere. However, a brief account of
passing off may be justified since it is, (1) a tort, (2) is based entirely
on the common law, and (3) may in some respects be capable of
development.316 The importance of the law of passing off was
reduced by the Trade Marks Act 1994, particularly in so far as the
Act allowed a trade mark to be registered in respect of a container
309
The term is not defined, but clearly excludes a corporation. There are said to have been
instances of apparently private suits financed by pressure groups or parties to the
dispute.
310
The responsibility of the union under these provisions is in accord with s.20, see
para.18–35, above.
311
i.e. one which is actionable in tort.
312
See s.235A of the 1992 Act as inserted by s.22 of the 1993 Act.
313
See s.235A(3).
314
This seems to be the effect of s.235A(4).
315
See Carty, An Analysis of the Economic Torts (2000), Ch.8; Wadlow, Passing Off, 3rd
edn.
316
The other matters mentioned above depend almost entirely on statute. Other common law
torts which may be relevant in this area include deceit and malicious falsehood. In United
Biscuits (UK) Ltd v Asda Stores Ltd [1997] R.P.C. 513 there was jocular press comment
about seven days in the High Court being devoted to a contest between the ‘‘Penguin’’ and
‘‘Puffin’’ biscuit brands, but as the judge pointed out, the claimants’ annual sales of the
Penguin brand exceeded £30 million a year and their advertising expenditure was in excess
of £4 million a year.
Passing Off 909
317
In United Biscuits, above, fn.316, some of the marks relied on were revoked on the ground
of non-use.
318
A trade mark is not to be registered in so far as its use is liable to be prevented by the law
of passing off: Trade Marks Act 1994, s.5(4)(a). Similarly, passing off claims may be
brought in parallel to claims for infringement of copyright. The gist of passing off is
deceptive resemblance; but in the case of copyright, although there typically is resem-
blance, the gist of the complaint is that the defendant’s work is derived from the
claimant’s: Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] 1 W.L.R.
2416.
319
Perry v Truefitt (1842) 6 Beav 66 at 73 per Lord Langdale M.R.; Spalding & Bros v A.W.
Gamage Ltd (1915) 84 L.J. Ch. 449 at 450 per Lord Parker. If the defendant does so he
is appropriating the effort of the claimant. In French law the equivalent liability is known
as ‘‘concurrence déloyale et parasitaire’’ (emphasis added): Kirkbi AG v Ritvik Holdings
[2005] SCC 65 at [55].
320
Erwen Warnink B.V. v J. Townend & Sons (Hull) Ltd [1979] A.C. 731 at 742 per Lord
Diplock. This formulation is quoted without criticism by Lord Jauncey in Reckitt &
Colman Products Ltd v Borden Inc [1990] 1 W.L.R. 491 at 511. Lord Oliver at 499 states
three elements: (1) a goodwill or reputation attached to and recognised by the public as
distinctive of the claimant’s goods or services; (2) a misrepresentation by the defendant
leading the public to believe that his goods or services are those of the claimant; (3)
damage or likely damage. Nourse L.J. in Consorzio del Prosciutto di Parma v Marks &
Spencer Plc [1991] R.P.C. 351 at 368–369, expressed a preference for Lord Oliver’s
formulation. In any event, it is clear that although there are certain differences between the
requirements stated by Lords Diplock and Fraser in the Erwen Warnink case, they are not
to be treated as cumulative sets of requirements.
910 Interference with Contract or Business
321
See BBC v Talksport Ltd [2001] F.S.R. 6 (false claims that broadcasts were live; no
interference with claimants’ goodwill); Schulke & Mayr UK Ltd v Alkapharm UK Ltd
[1999] F.S.R.161. Under the Control of Misleading Advertisement Regulations 1998 (SI
1988/915) as amended by the Control of Misleading Advertisements (Amendment) Reg-
ulations 2000 (SI 2000/914) there is a mechanism for administrative complaint to the
Director of Fair Trading in respect of unfair comparative advertising.
322
Arsenal Football Club Plc v Reed [2001] R.P.C. 46. There were further proceedings in this
case before the European Court of Justice and an appeal to the CA, but these concerned
trade marks. At the end of his judgment ([2003] EWCA Civ 696; [2003] R.P.C. 39 at [70])
Aldous L.J. said that he was not convinced that the reasoning below on passing off had
been correct. However, the cases referred to did involve confusion as to provenance,
though not in the sense that the goods were claimed to be the defendant’s. See Mars UK
Ltd v Burgess Group Plc [2004] EWHC 1912.
323
Where there is no misrepresentation by the defendant it is not enough that, ‘‘people make
assumptions, jump to unjustified conclusions, and put two and two together to make five’’:
HFC Bank Plc v Midland Bank Plc [2000] F.S.R. 176. On the position of the producer of
a new product in a market where there is a de facto monopoly see British Sky Broadcasting
Group Plc v Sky Home Services Ltd [2006] EWHC 3165 (Ch); [2007] 3 All E.R. 1066.
324
In Perkins v Shone [2004] EWHC 2249 (Ch) C owned the goodwill in the ‘‘Pentathlon’’
name for darts flights as successor to X and these had formerly been supplied exclusively
to X by D. D ceased to supply Pentathlon flights to C and supplied them to Y and Z. C’s
claim for passing off failed. A customer getting Pentathlon flight darts from Y would be
getting exactly what he ordered and would not be misled into thinking he was getting darts
with flights originating with C or ‘‘quality-assured’’ by C. Had the Pentathlon mark been
registered by C the result under the trade mark legislation would have been different
because a trade mark is much closer to a monopoly right.
325
The customer need not know or care about the identity of the manufacturer, provided the
customer knows there is such a person and cares that the goods he buys are made by that
person: United Biscuits (UK) Ltd v Asda Stores Ltd [1997] R.P.C. 513.
326
British Telecommunications Plc v One in a Million Ltd [1999] 1 W.L.R. 903.
327
[1990] 1 W.L.R. 491.
Passing Off 911
328
In this as in other cases differences between package designs which are obvious when they
are laid side by side are not apparent when only one line of the article of the type in
question is on sale.
329
[1990] 1 W.L.R. at 508. See also R. Johnston & Co v Archibald Orr Ewing & Co (1882)
7 App. Cas. 219 and White Hudson & Co Ltd v Asian Organisation Ltd [1964] 1 W.L.R.
1466 (‘‘red paper cough sweets’’) in both of which the parties were trading in the Far East
where customers might have a limited command of English and hence the effect of
different labels or names might be limited. In the case of magazines, the modern practice
of selling from a rack has made general appearance more important than names: Advance
Magazine Publishing v Redmond Publishing [1997] F.S.R. 449. Actual confusion on the
part of a member of the purchasing public need not be proved as a matter of law (Lee Kar
Choo v Lee Lian Choon [1967] 1 A.C. 602) but proof that it has occurred will obviously
assist the claimant’s case, especially if substantial damages are claimed and not merely an
injunction.
330
There was nothing to prevent the defendants selling lemon juice in bottles (as, indeed they
were doing) or in plastic carrots, but as a matter of marketing reality if not bottles it was
lemons or nothing.
331
William Edge & Sons Ltd v William Niccolls & Sons Ltd [1911] A.C. 693 (dye in cloth
bags fitted with a stick which could be used for stirring); and see Lord Jauncey’s example
in Reckitt & Colman at 519.
332
This is allowed on a limited and temporary basis by the Registered Designs Act 1949 and
the Copyright Designs and Patents Act 1988 s.213.
333
See Lord Bridge’s remarks in his reluctant concurrence.
912 Interference with Contract or Business
342
Cf. Habib Bank Ltd v Habib Bank A.G. Zurich [1981] 1 W.L.R. 1265.
343
Parker-Knoll, above, fn.341, at 278–279, 285, 289–290.
344
Reed Executive Plc v Reed Business Information Ltd [2004] EWCA Civ 159; [2004]
R.P.C. 40 at [110]: ‘‘the English law of passing off abounds with cases where people have
been prevented from using their own name.’’
345
See James L.J.’s example, in Massam v Thorley (1880) 14 Ch. D. 748 at 757, of somebody
finding a man named Bass and setting up a brewery at Burton as Bass & Co.
346
Brinsmead & Son Ltd v Brinsmead, above, fn.340, at 507 per Buckley L.J.; Parker-Knoll,
above, fn.341, at 290 per Lord Devlin.
347
Short’s Ltd v Short (1914) 31 R.P.C. 294; Parker & Son (Reading) Ltd v Parker [1965]
R.P.C. 323.
348
Or the acquisition of a similar telephone number: Law Society v Griffiths [1995] P.C.R.
16.
349
(1878) 10 Ch.D. 294.
914 Interference with Contract or Business
350
Liability was also denied, but this time in a business context, in Street v Union Bank of
Spain and England (1885) 30 Ch.D. 155.
351
Cf. National Phonograph Co v Edison Bell Consolidated Phonograph Co [1908] 1 Ch.
335 (deception as unlawful means in tort) and Lonrho Plc v Fayed, para.18–10, above.
352
IRC v Muller & Co’s Margarine Ltd [1901] A.C. 217 at 223–224 per Lord Macnaghten.
In modern conditions it may be the reputation of the carefully nurtured brand name rather
than the inherent quality of the product which is the basis of goodwill: Chocosuisse v
Cadbury Ltd [1998] R.P.C. 117 (affirmed [1999] R.P.C. 826).
353
[1979] A.C. 731. In C.I.V.C. v Whitworths Group Ltd [1991] 2 N.Z.L.R. 432 it is said that
this form of passing off, as opposed to outright counterfeiting, is characterised by,
‘‘inconspicuous attachment, and invalid sharing, or partaking, of a reputation built by
another and rightfully belonging to that person’’.
354
This is vital: to take an example of counsel for the defendants, the manufacturers of tomato
chutney could not restrain someone from marketing ‘‘tomato chutney’’ containing man-
goes simply because mangoes had not been used in tomato chutney before. ‘‘Tomato
chutney’’ is as vague as ‘‘brown bread’’.
355
Cf. Consorzio de Prosciutto di Parma v Marks & Spencer Plc [1991] R.P.C. 351 (sliced
and packaged Parma Ham still ‘‘Parma Ham’’ even though it could not be sold in that way
in Italy and might be of lesser quality).
356
[1960] Ch. 262; Vine Products Ltd v Mackenzie & Co Ltd [1969] R.P.C. 1 (sherry); John
Walker & Sons Ltd v Henry Ost & Co Ltd [1970] 1 W.L.R. 917 (Scotch whisky). Cf.
Institut national etc. v Andres Wines Ltd (1990) 71 D.L.R. (4th) 575 (‘‘Canadian cham-
pagne’’ had built up a reputation as a different product).
Passing Off 915
made it clear that the principle was not confined to goods produced
in a particular locality.357 In these cases the common law has in
effect produced something akin to the system of appellation con-
trolée protection, though care must be taken not to give protection to
merely descriptive words.358
The broad principle underlying the liability is also demonstrated
by the fact that there can be liability for what has been called
‘‘reverse (or inverse) passing off’’, that is to say a case where the
defendant shows the customer the claimant’s goods intending to fill
the resulting contract with goods of his own manufacture.359 It is
obviously unfair for the defendant to increase his trade by claiming
credit for the claimant’s achievements.
As most of the cases did involve the defendant literally passing 18–48
off his goods as the claimant’s it is not surprising that the older
decisions tended to speak in terms of a requirement for a common
field of activity between the parties. However, this is now regarded
as too narrow a view and the issue of common field of activity is a
factor relevant in deciding whether there is a misrepresentation
likely to deceive and whether damage is likely to result, rather than
an independent requirement.360 For example, in Granada Group Ltd
v Ford Motor Co Ltd361 the claimants, a major publishing and
entertainment company failed (not surprisingly on the facts) to
restrain the defendants from attaching the name ‘‘Granada’’ to a new
car; and in Fortnum & Mason Plc v Fortnam Ltd362 there was no
serious risk of confusion between the activities of the claimants (a
high class food store) and the defendants (importers and re-exporters
of cheap, plastic goods). If, however, the public might think that
there was some association between the activities of the parties the
claimant is likely to succeed if, for example, the defendant is
357
There would, of course, be nothing to prevent the defendants in Warnink from marketing
an English-made egg and spirit drink as advocaat. In the Champagne case the defendants
could only have joined the class enjoying the goodwill by setting up in Champagne as well
as using Champagne grapes and the ‘‘champenoise’’ method. In Taittinger v Allbev Ltd
[1993] F.S.R. 641 even the use of ‘‘elderflower champagne’’ was successfully prevented.
See also Matthew Gloag v Welsh Distillers [1998] F.S.R. 718. Nowadays producers may
apply for registration of a Protected Geographical Indication under EC Council Regulation
2081/92/EEC: Northern Foods Plc v DEFRA and Melton Mowbray Pork Pie Association
[2005] EWHC 2971 (Admin).
358
Chocosuisse v Cadbury Ltd [1999] R.P.C. 826 (‘‘Swiss chocolate’’).
359
Bristol Conservatories Ltd v Conservatories Custom Build Ltd [1989] R.P.C. 380.
360
Harrods Ltd v Harrodian School [1996] R.P.C. 697; Nice and Safe Attitude v Flook (t/a
Slaam! Clothing) [1997] F.S.R. 14. Even where the parties are in the same line and there
is similarity between their products the court may of course conclude that there is no real
risk of the public being deceived: Financial Times v Evening Standard [1991] F.S.R. 7 (ES
publishing business section on pink paper).
361
[1972] F.S.R. 103; Stringfellow v McCain Foods [1984] R.P.C. 501.
362
[1994] F.S.R. 438; Box TV v Haymarket (1997) 147 N.L.J. 601.
916 Interference with Contract or Business
363
See, e.g. Annabel’s (Berkeley Square) Ltd v G. Schock [1972] F.S.R. 261 (night club and
escort agency); Harrod’s Ltd v R. Harrod Ltd (1923) 41 R.P.C. 74. See also Hilton Press
v White Eagle Youth Holiday Camp (1951) 68 R.P.C. 126. Note, however, that in the
Fortnum & Mason case, above, fn.362, Harman J. remarked of the Annabel’s case that, ‘‘it
would be astonishing if there was not in the mind of the ordinary person a close connection
between the provision of girls to go out dancing with a man and a place where men may
dance with girls.’’.
364
Megarry J. in Unitex Ltd v Union Texturing Co Ltd [1973] R.P.C. 119. See also Taittinger
v Allbev Ltd [1993] F.S.R. 64 (insidious dilution of reputation of champagne); Associated
Newspapers Ltd v Express Newspapers [2003] EWHC 1322; [2003] F.S.R. 51; and Carty
(1996) 112 L.Q.R. 632.
365
[1991] 1 W.L.R. 571. Lego Systems A/S v Lego Lemelstrich [1983] F.S.R. 155 seems to
reduce the requirement of damage almost to vanishing point.
366
However, it would not be enough that people might think the claimants were providing
‘‘sponsorship’’ for the defendants: Harrods Ltd v Harrodian School [1996] R.P.C. 697. Cf.
Dawnay Day & Co Ltd v Cantor Fitzgerald International [2000] R.P.C. 669 at 705.
367
Stringfellow v McCain Foods [1984] R.P.C. 501 at 546; Associated Newspapers Plc v
Insert Media Ltd [1991] 1 W.L.R. 571.
368
Henderson v Radio Corp Pty Ltd [1960] N.S.W.R. 576 followed in Krouse v Chrysler
Canada Ltd (1971) 25 D.L.R. (3d) 49, reversed on the facts (1973) 40 D.L.R. (3d) 15.
Unauthorised use of name or likeness for advertising was one of the earliest forms of the
tort of invasion of privacy in the United States. See Frazer, ‘‘Appropriation of Personality’’
(1983) 99 L.Q.R. 281.
Passing Off 917
369
[2002] EWHC 367 (Ch); [2003] 1 W.L.R. 2355. There was no appeal on the decision of
law, though the CA clearly approved of it. It substantially increased the damages awarded:
[2003] EWCA Civ 423; [2003] 2 All E.R. 881.
370
The claimant was in a line of activity where endorsement is a standard part of his business.
It does not follow that this development would provide ammunition for the Chancellor of
the Exchequer whose image was used in various advertising campaigns nor for the Health
Minister who found herself featured in an Easter egg promotion (The Times, July 25,
1990), though it is unlikely any sensible person would have thought there was an
endorsement anyway. The advertising codes of conduct allow unlicensed use of the images
of persons with ‘‘a high degree of public exposure’’. As to whether there is a general right
to control the use of one’s image, see para.12–84, above.
371
The law of copyright may be relevant with regard to cartoon characters (see King Features
v Kleeman [1940] 1 Ch. 523—Popeye; BBC Worldwide Ltd v Pally Screen Printing Ltd
[1998] F.S.R. 665—Teletubbies).
372
Indeed, this might arise with regard to a real person. An advertiser might use the image of
an actor in a film which had some association in the public mind with the type of product
in question, but in such a way as not to imply any endorsement. Cf. Pacific Dunlop Ltd v
Hogan (1989) 87 A.L.R. 14: the defendant did not use the claimant’s image but an actor
(who bore little resemblance to the claimant) in a take-off of a role with which the claimant
was associated.
373
[1991] F.S.R. 145.
374
It was interim but the claimants’ case was regarded as more than merely arguable.
918 Interference with Contract or Business
B. Goodwill
18–50 Mere confusion in the mind of the public is not enough to
establish a case of passing off unless there is a risk of damage to the
claimant’s goodwill and it therefore follows that the tort is not
committed if that goodwill has not been established. Hence an
action failed where the claimant planned to bring out a leisure
magazine and had spent money promoting it but the defendant
launched a scheme to publish a magazine with the same name377;
and it seems that the result would have been the same even if the
defendant’s act had been a mere ‘‘spoiling’’ operation.378 Goodwill
cannot exist in a vacuum so if a business has been abandoned there
is no longer any legally protected goodwill attached to it; but a
temporary cessation of business is a different matter.379 However,
there may be damage to goodwill even though there is no evidence
of diversion of sales.380
A matter of some significance in modern conditions of trade is the
‘‘locality’’ of the goodwill. There is no doubt that an action only lies
if the claimant has goodwill here but whether or not that is so can be
a difficult question of fact or inference.381 It is not enough that the
claimant has a reputation in the sense that he is known here (for
375
Elvis Presley Trade Mark [1999] R.P.C. 567, CA.
376
BBC Worldwide Ltd v Pally Screen Printing Ltd [1998] F.S.R. 665 at 674.
377
Marcus Publishing Plc v Hutton-Wild Communications Ltd [1990] R.P.C. 576. However,
there may be cases in which pre-launch publicity suffices to establish goodwill: Labyrinth
Media Ltd v Brave World Ltd [1995] E.M.L.R. 38.
378
[1990] R.P.C. 576 at 580, 585. Cf. Bradford Corp v Pickles [1895] A.C. 587, para.3–9,
above.
379
Pink v Sharwood & Co Ltd (1913) 30 R.P.C. 725; Star Industrial Co Ltd v Yap Kwee Kor
[1976] F.S.R. 256; Ad-Lib Club Ltd v Granville [1972] R.P.C. 673; cf. Minimax GmbH &
Co KG v Chubb Fire Ltd [2008] EWHC 1960 (Pat).
380
Chelsea Man v Chelsea Girl [1987] R.P.C. 189; Phones4U Ltd v Phone4u.co.uk Internet
Ltd [2006] EWCA Civ 244; [2007] R.P.C. 5.
381
There is an exhaustive review of the law throughout the Commonwealth by Lockhart J. in
Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 106 A.L.R. 465. The fact that many
of the cases involve interlocutory proceedings in which the issue is whether the claimant’s
contention is arguable means that they are of limited value as precedents.
Passing Off 919
382
Athlete’s Foot Marketing Associates Inc v Cobra Sports Ltd [1980] R.P.C. 43; Anheuser-
Busch Inc v Budejovicky Budvar N.P. [1984] F.S.R. 413; Jian Tools for Sales v Roderick
Manhattan Group [1995] F.S.R. 924. The Canadian case of Orkin Exterminating Co Inc
v Pestco of Canada Ltd (1985) 19 D.L.R. (4th) 90 perhaps crosses the line between
reputation and goodwill since the claimants had no business in Canada and the services
could only be provided at the customer’s premises.
383
[1967] R.P.C. 581 (the claimants had in fact aimed advertising at England).
384
Thus in SA etc. Panhard et Levassor v Panhard Levassor Motor Co Ltd [1901] 2 Ch. 513
the claimants sold no cars in England but English people bought their cars in France and
imported them. This was sufficient goodwill. Presumably had the claimants in the Crazy
Horse case been able to show that a significant amount of their trade was in the form of
English tourists attracted by their advertising their case would have been stronger. See also
Tan-Ichi Co Ltd v Jancar Ltd [1990] F.S.R. 151 (claimants operated Japanese restaurants;
no establishments within the jurisdiction—Hong Kong—but goodwill in HK Japanese
residents).
385
Pace the suggestion of Aldous L.J. in Arsenal Football Club Plc v Reed [2003] EWCA Civ
696; [2003] R.P.C. 39 at [70] that unfair competition would be a better name for it.
386
[1981] 1 W.L.R. 193.
920 Interference with Contract or Business
387
Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1984) 56 A.L.R. 193; but see s.52 of the
Australian Trade Practices Act 1974. An American doctrine of unfair competition enun-
ciated in International News Services v Associated Press 248 U.S. 215, (1918) has never
gained ascendancy in the face of what are thought to be conflicting statutory rights, but
broad principles against unfair competition may exist in European countries (see, e.g. the
German Law at issue in Theodore Kohl K.B. v Ringelhaan & Rennett SA [1985] 3
C.M.L.R. 340).
388
[1988] 1 W.L.R. 509.
389
Lever Bros v Bedingfield (1896) 16 R.P.C. 3; Wortheimer v Stewart, Cooper (1906) 23
R.P.C. 48; Victoria Park Racing Co v Taylor (1937) 58 C.L.R. 479; Conan Doyle v London
Mystery Magazine Ltd (1949) 66 R.P.C. 246. The law of copyright generally protects the
form of a work, not the idea behind it, but the author of a work who does not have the
copyright may have the right to be identified as the author under the Copyright, Designs
and Patents Act 1988 s.77.
390
See Carty, An Analysis of the Economic Torts (2000), p.222.
391
British Diabetic Association v Diabetic Society Ltd [1995] 4 All E.R. 812.
392
Holy Apostolic etc. Church v Att Gen (NSW), ex rel. Elisha (1989) 18 N.S.W.L.R. 291,
approved in British Diabetic, above, fn.391.
393
Lord Byron v Johnson (1816) 2 Mer. 29; Clark v Associated Newspapers Ltd [1998] R.P.C.
261. See also Copyright, Designs and Patents Act 1988 s.84.
394
Society of Accountants and Auditors v Goodway [1907] 1 Ch. 489; Law Society v Society
of Lawyers [1996] F.S.R. 739. On goodwill and unincorporated trade associations see
Artistic Upholstery Ltd v Art Forma (Furniture) Ltd [1999] 4 All E.R. 277.
395
See Dockrell v Douglas (1899) 80 L.T. 556 at 557, 558; Walter v Ashton [1902] 2 Ch. 282
at 293.
396
Burge v Haycock [2001] EWCA Civ 900; [2002] R.P.C. 28.
Passing Off 921
D. Remedies
The injunction is an important remedy in passing off cases and an 18–52
interim injunction may well determine the final outcome since the
delay before trial may mean that the loser at the interim stage cannot
resume production.397 It may be made in qualified form, i.e. restrain-
ing the defendant from disposing of his goods without sufficiently
distinguishing them from the claimant’s.398 In addition, damages
may be granted in respect of losses to the claimant or, in the
alternative, an account of profits made by the defendant from the
passing off.399 It has been held at first instance that damages may be
recovered against an innocent defendant, though the alternative of
an account of profits is not available in such a case.400
397
See, e.g. Mirage Studios v Counter-Feat Clothing, para.18–49, above. The American
Cyanamid principles (para.22–50, below) are as applicable to passing off as to other torts:
County Sound v Ocean Sound [1991] F.S.R. 367. However, s.12 of the Human Rights Act
1998 may be relevant: Blandford Goldsmith & Co Ltd v Prime UK Properties Ltd [2003]
EWHC 3265 (Ch).
398
‘‘It has been said many times that it is no part of the function of this court to examine
imaginary cases of what the defendant could or could not do under this form of injunction.
The best guide, if he is an honest man, is his own conscience and it is certainly not the
business of this court to give him instructions or limits as to how near the wind he can
sail’’: Wright, Layman & Unney v Wright (1949) 66 R.P.C. 149 at 152 per Lord Greene
M.R.
399
There may be circumstances in which a person, e.g. a printer of labels, who facilitates a
passing off without actual knowledge, may be liable for negligence, but such a case would
be very unusual and a person who receives such orders in the ordinary course of trade is
not to be expected to institute inquiries about the lawfulness of the intended use. Paterson
Zochonis & Co Ltd v Merfarken Packaging Ltd [1986] 3 All E.R. 522.
400
Gillette UK Ltd v Eden West Ltd [1994] R.P.C. 297.
CHAPTER 19
1. MALICIOUS PROSECUTION
THE history of this tort1 can be traced back to the writ of conspiracy 19–1
which was in existence as early as Edward I’s reign. This fell into
decay in the 16th century, partly because the writ of maintenance
supplanted it. However, this was probably confined to officious
intermeddling in civil suits.2 The gap was filled by an action on the
case which appeared in Elizabeth I’s reign and eventually became
known as the action for malicious prosecution. It was put on a firm
footing in 1698 in Saville v Roberts.3
Liability for malicious prosecution has always had to steer a path
between two competing principles—on the one hand the freedom of
action that everyone should have to set the law in motion and to
bring criminals to justice and on the other hand the necessity to
check lying accusations against innocent people4 and the burden
which has to be undertaken by the claimant in a case of malicious
1
See Winfield, History of Conspiracy and Abuse of Legal Procedure and Winfield, Present
Law of Abuse of Legal Procedure.
2
Maintenance as a tort survived until 1967 but has now been abolished: para.19–15,
below.
3
1 Ld. Raym. 374.
4
Glinski v McIver [1962] A.C. 726 at 741, 753; Gregory v Portsmouth CC [2000] 1 A.C.
419 at 426.
923
924 Abuse of Legal Procedure
5
There are two schemes for compensation where a conviction is reversed or a pardon
granted on the ground of miscarriage of justice: a statutory scheme under s.133 of the
Criminal Justice Act 1988 where there is a new or newly discovered fact and an ex gratia
one. However, they operate in the same way. The process of assessment (by an independ-
ent assessor) involves substantial analogy with tort damages principles: R (Miller) v The
Independent Assessor [2009] EWCA Civ 609.
6
Still more of a magistrate remanding the claimant in custody.
7
See, para.4–32, above.
8
Westcott v Westcott [2008] EWCA Civ 818; [2009] E.M.L.R. 2. The same would apply to
a claim for malicious falsehood. Even before this case it was held that the absolute
privilege extended to preliminary statements or the preparation of reports outside court
which can fairly be said to be part of the process of investigation However, the immunity
in respect of pre-trial matters does not extend to the fabrication of evidence to be used in
court: Darker v CC West Midlands [2001] A.C. 435. In that case the claims were for
conspiracy to injure and misfeasance in a public office. The claimants alleged that the
defendants had conspired to cause them to be charged with offences which they knew or
believed to be false, but there was no claim for malicious prosecution.
9
Martin v Watson [1996] A.C. 74 at 88.
10
Elguzouli-Daf v MPC [1995] Q.B. 335, para.5–60, above.
11
B v Reading BC [2009] EWHC 998 (QB). Mackay J. thought that the decision of the CA
in these proceedings at [2001] EWCA Civ 346; [2001] 1 W.L.R. 1575 could not stand with
later developments.
12
See para.7–20, above.
Malicious Prosecution 925
13
Hill v Hamilton-Wentworth Regional Police Services Board [2007] SCC 41; [2007] 3
S.C.R. 129 at [182].
14
Martin v Watson, above, fn.9.
15
(1698) 1 Ld. Raym. 374; 5 Mod. 394.
16
Where the successful claimant is of bad character it may be proper to discount the first
element to some extent, but this may be offset by the risk of heavier punishment to which
his record exposes him if convicted: Manley v MPC [2006] EWCA Civ 879.
17
Berry v British Transport Commission [1961] 1 Q.B. 149 at 166, following Wiffen v Bailey
and Romford UDC [1915] 1 K.B. 600. This was not the original meaning intended by Holt
C.J. (Berry v British Transport Commission at 160–163 per Diplock J.) and it has been
criticised: Berry v British Transport Commission [1962] 1 Q.B. at 333 per Devlin L.J., at
335–336 per Danckwerts L.J.
18
Berry v British Transport Commission at 166 per Diplock J.
19
[1961] 1 Q.B. 149; Wiffen v Bailey and Romford UDC [1915] 1 K.B. 600.
20
Rayson v South London Transport Co [1893] 2 Q.B. 304.
926 Abuse of Legal Procedure
any, and the costs actually incurred is sufficient to ground the action
under Holt C.J.’s third head.21
Assuming there is damage as explained above, the claimant must
prove, (1) that the defendant prosecuted him, and (2) that the
prosecution ended in the claimant’s favour, and (3) that the prosecu-
tion lacked reasonable and probable cause, and (4) that the defen-
dant acted maliciously. We can take these point by point.
21
Berry v British Transport Commission [1962] 1 Q.B. 306, where Wiffen v Bailey and
Romford UDC [1915] 1 K.B. 600 was held not binding on this point. It is otherwise where
costs incurred in a civil action are concerned: Quartz Hill Consolidated Gold Mining Co
v Eyre (1883) 11 Q.B.D. 674.
22
Watters v Pacific Delivery Service Ltd (1963) 42 D.L.R. (2d) 661.
23
Fitzjohn v Mackinder (1861) 9 C.B.(N.S.) 505.
24
[1996] A.C. 74.
25
(1880) 43 L.T. 603.
26
Liability for malicious prosecution is not necessarily confined to such cases: Scott v
Ministry of Justice [2009] EWCA Civ 1215 at [38], [51].
Malicious Prosecution 927
police officer the proper view of the matter is that the prosecution
has been procured by the complainant.’’27
27
[1996] A.C. at 86.
28
[2009] EWCA Civ 1092.
29
Mahon v Rahn (No.2) [2000] 1 W.L.R. 2150.
30
See Prosecution of Offences Act 1985, Criminal Justice Act 2003.
31
Some passages in Martin v Watson may be thought to run together the issues of whether
the defendant is a prosecutor and whether he is guilty of malice. According to AH the true
position is that knowledge of the falsity of the charge is relevant on the ‘‘prosecutor’’ issue
in so far as it provides evidence of an intention that to procure a prosecution. In the view
of Moore-Bick LJ this makes the matter unsuitable to be dealt with as a preliminary
issue.
32
[2009] EWCA Civ 1092 at [47], [58], [84].
928 Abuse of Legal Procedure
33
[2009] EWCA Civ 1215.
34
Longmore L.J. remarked at [47] that the question of who is a prosecutor, ‘‘is in danger of
becoming a little over-complicated’’.
35
Parker v Langly (1713) 10 Mod. 145 and 209. This was not always the law: Winfield,
Present Law, pp.182–183. The logical result is that the limitation period runs from the time
of the acquittal, not the charge: Dunlop v Customs and Excise, The Times, March 17, 1998;
Baker v MPC, June 24, 1996, QBD.
36
Watkins v Lee (1839) 5 M. & W. 270. Under the Prosecution of Offences Act 1985 the
Director of Public Prosecutions may discontinue proceedings in the magistrates’ court
without leave. Withdrawal of the charge, even if without prejudice to the right to
recommence, has been held in Canada to be sufficient: Romegialli v Marceau (1963) 42
D.L.R. (2d) 481; Casey v Automobiles Renault Canada Ltd (1965) 54 D.L.R. (2d) 600.
37
Jones v Gwynn (1712) 10 Mod. 148 at 214.
38
Attwood v Monger (1653) Style 378. See also Goddard v Smith (1704) 1 Salk. 21 (non
suit).
39
Goddard v Smith, above, fn.38.
40
The question has been much litigated in America: Dobbs, Torts (2000) §434. See, too,
decisions of the Supreme Courts of NSW (Gilchrist v Gardner (1891) 12 N.S.W. Law Rep.
184) and of British Guiana (Khan v Singh (1960) 2 W.I.R. 441). See also Romegialli v
Marceau (1963) 42 D.L.R. 2d. 481.
41
Van Heeren v Cooper [1999] 1 N.Z.L.R. 731, N.Z.C.A.
Malicious Prosecution 929
42
However, it has been pointed out that the issues before the courts are not the same—the
issue for the civil court is whether the prosecutor had reasonable and probable cause,
which is not the same as whether the claimant was guilty: Van Heeren at 738. There is no
inconsistency in the criminal court finding that C was not guilty and then the civil court
finding that D had reasonable and probable cause for the prosecution. On the relevance of
the guilt of the claimant see below, para.19–6.
43
(1784) 1 Wils. 232.
44
Herniman v Smith [1938] A.C. 305; Berry v BTC [1962] 1 Q.B. 306; Abbott v Refuge
Assurance Co Ltd [1962] 1 Q.B. 432; Blaker v Weller [1964] Crim. L.R. 311.
45
(1867) L.R. 2 C.P. 684.
46
The general principle may be subject to exception if there is decisive fresh evidence: Smith
v Linskills [1996] 1 W.L.R. 763.
47
[1952] 2 Q.B. 198; Bynoe v Bank of England [1902] 1 K.B. 467.
930 Abuse of Legal Procedure
19–7 iii. Lack of reasonable and probable cause.52 There does not
appear to be any distinction between ‘‘reasonable’’ and ‘‘probable’’.
The conjunction of these adjectives is a heritage from the redundan-
cies in which the old pleaders delighted,53 and although it has been
said that reasonable cause is such as would operate on the mind of
a discreet man, while probable cause is such as would operate on the
mind of a reasonable man,54 this does not help us much, for it is
difficult to picture a reasonable man who is not discreet.
The principal difficulty, and it is no minor one, in stating the law
as to reasonable and probable cause arises from the division of
function between judge and jury,55 cases of malicious prosecution
being still, typically, tried by jury. It has been recognised for cen-
turies56 that once a person has been acquitted by a criminal court,
48
At common law there were no circumstances in which he might be tried again. This can
now happen where the conditions of Pt 10 of the Criminal Justice Act 2003 are
fulfilled.
49
Commonwealth Life Assurance Society Ltd v Smith (1938) 59 C.L.R. 527.
50
See para.5–60, above.
51
Van Heeren v Cooper [1999] 1 N.Z.L.R. 731, NZCA. The Restatement, 2d §657 makes
guilt a defence in all cases, with a civil standard of proof.
52
There is a valuable review of both reasonable and probable cause and malice in A v New
South Wales [2007] HCA 10; 233 A.L.R. 584.
53
Winfield, Present Law, p.192.
54
Broad v Ham (1839) 5 Bing. N.C. 72 at 725 per Tindal C.J.
55
Glinski v McIver [1962] A.C. 726 at 742 per Viscount Simonds.
56
See Pain v Rochester and Whitfield (1599) Cro. Eliz. 871, cited by Denning L.J. in Leibo
v Buckman Ltd [1952] 2 All E.R. 1057 at 1062.
Malicious Prosecution 931
juries are too ready to award him damages against his prosecutor,57
and therefore it is for the judge to decide whether the defendant had
reasonable and probable cause for launching the prosecution,58 but
it is for the jury to decide any incidental questions of fact necessary
for the judge’s determination.59 Moreover, this branch of the law is
unusual in requiring the claimant to undertake the difficult task of
proving a negative. It is for him to prove that the prosecutor did not
have reasonable and probable cause, and not for the prosecutor to
prove that he had.60
In Herniman v Smith61 the House of Lords approved and adopted 19–8
the definition of reasonable and probable cause given by Hawkins J.
in Hicks v Faulkner62 as:
‘‘[A]n honest belief in the guilt of the accused based upon a full
conviction, founded upon reasonable grounds, of the existence of
a state of circumstances, which, assuming them to be true, would
reasonably lead any ordinarily prudent and cautious man placed
in the position of the accuser, to the conclusion that the person
charged was probably guilty of the crime imputed’’.
On this basis there are two elements, one subjective and one
objective. The:
57
e.g. Abrath v North Eastern Ry (1886) 11 App. Cas. 247 at 252 per Lord Bramwell; Leibo
v Buckman Ltd, above, fn.56, at 1063 per Denning L.J.; Glinski v McIver, above, fn.55, at
741–742 per Viscount Simonds, at 777–778 per Lord Devlin. Cf. per Lord Radcliffe at
754.
58
Johnstone v Sutton (1786) 1 T.R. 510; Herniman v Smith [1938] A.C. 305; Reynolds v
Metropolitan Police Comr [1985] Q.B. 881. It is doubtful whether the question is one of
fact or law. Probably it is best regarded as a question of fact, but one which is to be treated
in the same way as if it were a question of law: Glinski v McIver, above, fn.55, at 768 per
Lord Devlin.
59
The judge need put to the jury only questions on the salient issues of fact, for otherwise
the questions would have no end: Dallison v Caffery [1965] 1 Q.B. 348 at 368 per Lord
Denning M.R.
60
Abrath v NE Ry (1883) 11 Q.B.D. 440; Stapeley v Annetts [1970] 1 W.L.R. 20. Green v De
Havilland (1968) 112 S.J. 766, to the contrary, cannot be relied on. Cf. the rule in false
imprisonment, para.4–19, above. If, when the principles of malicious prosecution were
being laid down, the courts had been acquainted with the idea, now familiar, of a judge
himself determining a disputed question of fact, the whole question of reasonable and
probable cause would have been left to the judge, but it is now too late to achieve this
result without legislation: Glinski v McIver, above, fn.55, at 778 per Lord Devlin.
61
[1938] A.C. 305 at 316 per Lord Atkin.
62
(1878) 8 Q.B.D. 167 at 171, affirmed (1882) 46 L.T. 130.
63
A v New South Wales [2007] HCA 10, 233 A.L.R. 584 at [58]. Glinski v McIver [1962]
A.C. 726 at 768 per Lord Devlin; Abbott v Refuge Assurance Co [1962] 1 Q.B. 432 at 453
per Upjohn L.J.
932 Abuse of Legal Procedure
‘‘The defendant can claim to be judged not on the real facts but on
those which he honestly, and however erroneously, believes; if he
acts honestly upon fiction, he can claim to be judged on
that.’’64
and the prosecutor himself must also honestly believe that he has
reasonable and probable cause. His belief is a matter for the jury, not
the judge, to determine, but the burden of proving lack of honest
belief is on the claimant67 and the question should only be put to the
jury:
‘‘[I]n the highly unlikely even that there is cogent positive evi-
dence that, despite the actual existence of reasonable and proba-
ble cause, the defendant himself did not believe that it
existed’’.68
In principle the fact that the prosecutor has received advice should
be regarded as no more than one of the facts to be taken into
account, for if the prosecutor did not himself have an honest belief
in the case he put forward it is irrelevant that he received advice
64
Glinski v McIver [1962] A.C. 726 at 776 per Lord Devlin.
65
[1962] A.C. 726 at 768 per Lord Devlin; Abbott v Refuge Assurance Co [1962] 1 Q.B. 432
at 453 per Upjohn L.J.
66
Haddrick v Heslop (1848) 12 Q.B. 268 at 274 per Lord Denman C.J.; Broad v Ham (1839)
8 Scott 40 at 50 per Erskine J.
67
On requests for further information (formerly further and better particulars or interrogato-
ries) see Stapley v Annetts [1970] 1 W.L.R. 20 and Gibbs v Rea [1998] A.C. 786 at
794.
68
Dallison v Caffery [1965] 1 Q.B. 348 at 372 per Diplock L.J., at 368 per Lord Denning
M.R.; Glinski v McIver [1962] A.C. 726 at 743–744 per Viscount Simonds, at 745 per Lord
Radcliffe, at 768 per Lord Devlin. For a disagreement as to the inference to be drawn in
a case where the defendant elected to call no evidence see Gibbs v Rea [1998] A.C. 768
(maliciously procuring a search warrant).
Malicious Prosecution 933
19–11 iv. Malice. Judicial attempts to define malice have not been
completely successful. ‘‘Some other motive than a desire to bring to
justice a person whom he [the accuser] honestly believes to be
guilty’’78 seems to overlook the fact that motives are often mixed.
Moreover, anger is not malice, indeed it is one of the motives on
which the law relies in order to secure the prosecution of crimi-
nals,79 and yet anger is much more akin to revenge than to any
desire to uphold the law. Perhaps we are nearer the mark if we
suggest that malice exists where the predominant purpose of the
accuser is something other than the vindication of the law.80 The
subjective assessment of whether or not the accused is guilty would, in some circum-
stances, be tantamount to replacing these open, impartial, and community-based processes
with the unexplained, unreviewable decisions of prosecutorial officials who have no direct
accountability to the public.’’
75
Miazga v Kvello [2009] SCC 51; [2009] 3 S.C.R. 339.
76
Reed v Taylor (1812) 4 Taunt. 616; cf. Johnstone v Sutton (1786) 1 T.R. 510.
77
Leibo v Buckman Ltd [1952] 2 All E.R. 1057 at 1071 per Jenkins L.J., at 1073 per Hodson
L.J. Cf. the dissenting judgment of Denning L.J. at 1066–1067.
78
Cave J. in Brown v Hawkes [1891] 2 Q.B. 718 at 723; Glinski v McIver [1962] A.C. 726
at 766 per Lord Devlin.
79
[1891] 2 Q.B. 722, but if the prosecutor’s anger is aroused, not by his belief in the
claimant’s guilt but by some extraneous conduct of the claimant, then there may be
evidence of malice: Glinski v McIver [1962] A.C. 726 (claimant gave evidence for X on
a criminal charge which the defendant, a police officer, believed to be perjured, and X was
acquitted. If this was the reason for the claimant’s prosecution on a charge of fraud, the
prosecutor would have been malicious). See too Heath v Heape (1856) 1 H. & N. 478.
80
Stevens v Midland Counties Ry (1854) 10 Ex. 352 at 356 per Alderson B. ‘‘Not only spite
or ill-will but also improper motive’’: Gibbs v Rea [1998] A.C. at 797. A rare example of
such an improper purpose in the case of a professional prosecutor is Proulx v Québec
(Attorney General) 2001 SCC 66; [2001] 3 S.C.R. 9.
Malicious Prosecution 935
question of its existence is one for the jury81 and the burden of
proving it is on the claimant.82
At one time malice was not always kept distinct from lack of
reasonable and probable cause,83 but a cogent reason for separating
them is that, however spiteful an accusation may be, the personal
feelings of the accuser are really irrelevant to its probable truth. The
probability or improbability of X having stolen my purse remains
the same however much I dislike X, and it has long been law that
malice and lack of reasonable and probable cause must be separately
proved. Want of reasonable and probable cause may be evidence of
malice in cases where it is such that the jury may come to the
conclusion that there was no honest belief in the accusation made.84
If there was such an honest belief, the claimant must establish
malice by some independent evidence, for malicious motives may
co-exist with a genuine belief in the guilt of the accused.85 For the
reasons explained above, however, it seems again necessary to draw
a distinction between private and professional prosecutors, the ques-
tion of ‘‘honest belief’’ being arguably irrelevant to the latter. If it is
correct that lack of reasonable cause can only be established against
the latter by showing that there were no objective grounds for the
proceedings then to allow malice to be inferred from lack of cause
would entail the risk that it would be established by proof of
negligence.86 In all cases, however, if want of reasonable and proba-
ble cause is not proved by the claimant, the defect is not supplied by
evidence of malice.87 ‘‘From the most express malice, the want of
probable cause cannot be implied.’’88
2. MALICIOUS PROCESS
19–13 Historically, there was no reason why the old action upon the case
for conspiracy should not be extended to malicious civil proceedings
as well as to malicious criminal proceedings,94 and it was in fact
held to apply (inter alia) to malicious procurement of excommunica-
tion by an ecclesiastical court,95 to bringing a second writ of fi. fa.
90
It matters not that the arrest was procured in the course of civil rather than criminal
proceedings, though arrest on civil process is now exceptional. See, e.g. Daniels v Fielding
(1846) 16 M. & W. 200; Melia v Neate (1863) 3 F. & F. 757. The point decided by the
House of Lords in Roy v Prior, above, fn.89, was that the immunity from suit of a witness
in respect of his evidence does not protect him from an action for maliciously procuring
the issue of a warrant of arrest. The claimant is not suing on or in respect of the evidence.
He is suing because he alleges that the defendant procured his arrest by means of judicial
process which the defendant instituted both maliciously and without reasonable and
probable cause: [1971] A.C. 470 at 477 per Lord Morris. See also Surzur Overseas Ltd v
Koros [1999] 2 Lloyd’s Rep. 611 (freezing injunction).
91
Gibbs v Rea [1998] A.C. 786; Reynolds v MPC [1985] Q.B. 881; Keegan v CC Merseyside
[2003] EWCA Civ 936; [2003] 1 WLR 2187.
92
Keegan v UK Application No.28867/03 (2007) 44 E.H.R.R. 83.
93
Cf. Hill v Hamilton-Wentworth Regional Police Services Board [2007] SCC 41; [2007] 3
S.C.R. 129, para.19–1, above.
94
Winfield, Present Law, pp.199, 202.
95
Hocking v Matthews (1670) 1 Vent. 86; Gray v Dight (1677) 2 Show. 144.
Malicious Civil Proceedings 937
against a man when one had already been obtained96 and to mali-
cious arrest of a ship.97 In more modern times it has been laid down
that it is available whenever the civil proceedings attack a person’s
credit in scandalous fashion, for example, malicious bankruptcy
proceedings against him, or malicious winding-up proceedings
against a company.98 The same requisites must be satisfied as for
malicious prosecution.99
However, does the law go still farther and make the malicious
institution of any civil proceedings100 actionable? The matter has
never formally been decided but the general opinion has been that it
does not, and this has gained considerable strength by being
repeated in the House of Lords in Gregory v Portsmouth CC.101 No
doubt this stance has something to do with a wish to have finality in
litigation but a reason commonly given has been the absence of legal
damage in the great majority of cases. As Bowen L.J. put it in
Quartz Hill Gold Mining Co v Eyre102:
Now this is, of course, simply untrue, for the assessed costs may not
amount to the total costs of the defence,103 and it is noteworthy that
any deficiency in costs awarded to the accused in a criminal case
96
Waterer v Freeman (1617) Hob. 205 at 266.
97
The Walter D. Wallet [1893] P. 202.
98
Quartz Hill Gold Mining Co v Eyre (1883) 11 Q.B.D. 674 at 683, 689; Brown v Chapman
(1762) 1 W.Bl. 427. For a modern example, where, however, the claimant failed, see
Beechey v William Hill [1956] C.L.Y. 5442. See also Little v The Law Institute [1990] V.R.
257 (proceedings to stop a solicitor practising).
99
Thus in a claim for malicious bankruptcy there is no cause of action (and hence time does
not run) until the adjudication is annulled: Radivojevic v L.R. Industries Ltd, Unreported,
May 14, 1982, CA; Tibbs v Islington BC [2002] EWCA Civ 1682; [2003] B.P.I.R. 743.
100
i.e. beyond the limited range of situations outlined above.
101
[2000] 1 A.C. 419. See also Metall und Rohstoff A.G. v Donaldson Lufkin & Jenrette Inc
[1990] 1 Q.B. 391; Johnson v Emerson (1871) L.R. 6 Ex. 329 at 372; Quartz Hill Gold
Mining Co v Eyre (1883) 11 Q.B.D. 674 at 684.
102
(1883) 11 Q.B.D. 674 at 690.
103
That ‘‘taxed’’ costs (the former expression) will equal actual costs is recognised as a fiction
by Devlin L.J. in Berry v BTC [1962] 1 Q.B. 306 at 323 and by Clarke J.A. in Hanrahan
v Ainsworth (1990) 22 N.S.W.L.R. 73 at 113. There is no reason to believe that the position
is any different under the CPR. No doubt the fact that the proceedings are brought
maliciously would be a ground for awarding costs on an indemnity basis but in the suit
itself the successful claimant may have limited opportunity to prove this. In the United
States the provision for recovery of costs in civil litigation is generally a good deal more
restricted and this is a major reason for the more extensive liability for malicious civil
proceedings there. See Restatement 2d, §§674–675; but a substantial minority of courts
require some ‘‘special harm’’ going beyond the costs and reputational harm from the suit:
see Dobbs, Torts (2000) §437.
938 Abuse of Legal Procedure
4. ABUSE OF PROCESS
19–14 Aside from liability for malicious civil proceedings the law also
recognises a related tort sometimes called ‘‘abuse of process’’. This
lies where a legal process, not itself without foundation, is used for
an improper, collateral purpose, for example as an instrument of
extortion in a matter not connected with the suit.112 It is then:
104
Berry v BTC [1962] 1 Q.B. 306.
105
Quartz Hill Gold Mining Co v Eyre, above, fn.101 per Bowen L.J. It might be argued that
the position of the civil defendant is rather like that of the criminal defendant in the heyday
of the private prosecution when the law of malicious prosecution was formed, whereas
now the control of the prosecution process by the state provides at least some degree of
check on false accusations.
106
[2000] 1 A.C. at 432; Surzur Overseas Ltd v Koros [1999] 2 Lloyd’s Rep. 611. Para.12–41,
above.
107
See Darker v CC West Midlands [2001] A.C. 435.
108
Formerly known as the Supreme Court Act. The legislation, which originated in the
Vexatious Actions Act 1896, was needed, for in Chaffers, Re (1897) 45 W.R. 365 a person
had within five years brought 48 civil actions against the Speaker of the House of
Commons, the Archbishop of Canterbury, the Lord Chancellor and others; 47 of them were
unsuccessful. See also CPR 3.11.
109
The case concerned disciplinary action taken by a local authority against a councillor.
110
Also, in a suitable case, misfeasance in a public office.
111
Yet it is only defamation which provides damages for loss of reputation as such.
112
Grainger v Hill (1838) 4 Bing. N.C. 212; Speed Seal Products Ltd v Paddington [1985]
1 W.L.R. 1327. See Preface.
Abuse of Process 939
113
Varawa v Howard Smith Co (1911) 13 C.L.R. 35 at 91 per Isaacs J.
114
Above, fn.112.
115
Not the threat of proceedings: Pitman Training Ltd v Nominee UK [1997] F.S.R. 797. Sed
quaere, in view of the logic behind the cause of action.
116
This seems to be accepted by Clark J.A. in Hanrahan v Ainsworth (1990) 22 N.S.W.L.R.
73 at 112 (a judgment which contains an extensive review of the law in this area) and see
Q.I.W. Retailers Ltd v Felview Pty Ltd [1989] 2 Qd. R. 245. In fact, the capias in Grainger
v Hill, though technically mesne process, was the first formal step in the suit, the original
writ of debt having disappeared from the process before 1829: see the account by Priestley
J.A. in Spautz v Gibbs (1990) 21 N.S.W.L.R. 230 at 271–275.
117
Not to a civil action by his opponent in respect of the perjury: Hargreaves v Bretherton
[1959] 1 Q.B. 45. Cf. United Telecasters Sydney Ltd v Hardy (1991) 23 N.S.W.L.R.
323.
118
The example given by the majority of the HCA in Williams v Spautz (1992) 174 C.L.R.
509.
940 Abuse of Legal Procedure
119
Just as a blackmailer threatens what he has a perfect ‘‘right’’ to do, namely expose his
victim; but Fleming, Torts, 9th edn, p.688 points out that there can hardly be an abuse of
process when the holder of a valid claim uses it to gain a settlement on terms more
advantageous than a judgment could impose. Note that in Grainger v Hill the defendant
had something to be said on his side: he had heard rumours that the claimant was a
smuggler and was no doubt afraid of losing his security.
120
See also Rajski v Bainton (1990) 22 N.S.W.L.R. 125 at 131.
121
‘‘No one shall be allowed to allege of a still depending suit that it is unjust’’: Gilding v Eyre
(1861) 10 C.B.N.S. 592 at 604.
122
Hanrahan v Ainsworth, above, fn.116, at 120 per Clark J.A; but cf. Dobbs, Torts (2000)
§438. The point is likely to be of significance in practice on the issue of whether the
pleading states a cause of action.
123
See Goldsmith v Sperrings [1977] 1 W.L.R. 478; Lonrho Plc v Fayed (No.5) [1993] 1
W.L.R. 1489; Broxton v McLelland [1995] E.M.L.R. 485; Williams v Spautz (1992) 174
C.L.R. 509.
124
It was exercised in Williams v Spautz, above, fn.123, against a party who had commenced
over 30 sets of proceedings in 11 years arising out of one issue.
125
See para.12–5, above.
Maintenance and Champerty 941
126
For the history and former law, see Winfield, History of Conspiracy and Abuse of Legal
Procedure, pp.131–160, Present Law, pp.1–116 ; Bodkin, Maintenance and Champerty,
and the 8th edn of this work, pp.585–592.
127
Trepca Mines Ltd (No.2), Re [1963] Ch. 199 at 219 per Lord Denning M.R.
128
Criminal Law Act 1967 ss.13(1)(a), 14(1).
129
Criminal Law Act 1967 s.14(2). As to assignment of tort claims, see para.26–27, below.
Not all arrangements for payment out of the proceeds of litigation are champertous: Giles
v Thompson [1994] 1 A.C. 142.
130
Lonrho Plc v Fayed (No.5) [1993] 1 W.L.R. 1489; Hamilton v Fayed, July 13, 2001,
QBD.
131
Lonrho Plc v Fayed (No.5), above, fn.130. It would not, however, be true to say that costs
can never be recovered as damages: e.g. a buyer of goods may recover against the seller
unrecovered costs in litigation with a sub-buyer.
132
Awwad v Geraghty & Co [2001] Q.B. 570, disapproving Thai Trading Co v Taylor [1998]
Q.B. 781.
CHAPTER 20
VICARIOUS LIABILITY1
1
Atiyah, Vicarious Liability in the Law of Torts.
2
We have tended to regard this as obvious, if somewhat theoretical. However, it is not so
in the case of Federal employees in the United States, nor can the employer recover an
indemnity (as to which, see para.20–18 below) from the Federal servant. In France the
Cour de cassation has held, following the rule of public law, that an employee does not
incur personal liability for negligence committed within the limits of the task which has
been assigned to him: A.P., 25.02.2000, J.C.P. 2000, II, 10295.
3
Standard Chartered Bank v Pakistan National Shipping Corp [2002] UKHL 43; [2003] 1
A.C. 949, para.24–23, below; but statute may provide differently. Thus in New South
Wales only the Crown and not the individual officer, is liable for torts by the police: Law
Reform (Vicarious Liability) Act 1983 (NSW) s. 9B(2).
4
See Merrett v Babb [2001] Q.B. 1174 (where the employer was insolvent) and Shapland
v Palmer [1999] 1 W.L.R. 2068.
943
944 Vicarious Liability
5
One finds occasional traces of an alternative theory, that the employer is in breach of his
own duty via the act of the servant: Twine v Bean’s Express (1946) 175 L.T. 131; Broom
v Morgan [1953] 1 Q.B. 597; but this approach has now been ‘‘firmly discarded’’:
Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34; [2007] 1 A.C. 224 at
[15]. There are, however, echoes of the ‘‘employer’s tort’’ theory in the reasoning of Lord
Hobhouse in Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 A.C. 215 in the context
of employers who enter into a voluntary relationship with others (for example schools and
pupils, occupiers and visitors). The general view requires that the servant be personally
liable to the claimant. Hence in Commonwealth v Griffiths [2007] NSWCA 370 the
servant’s witness immunity availed the employer.
6
Atiyah, Vicarious Liability in the Law of Torts, pp.99–115. See also para.20–19, below.
7
Majrowski v Guy’s and St Thomas’s NHS Trust, above, fn.5 (Protection from Harassment
Act 1997), but had there not been a clear indication in the Scots provisions that there was
to be vicarious liability (and the law could hardly be different north and south of the
border) a number of members of the HL would have inclined to the view that the particular
statutory context impliedly excluded it.
8
Mahmud v B.C.C.I. [1998] A.C. 20 at 45.
9
‘‘Employer’’ and ‘‘worker’’ are the most commonly used terms in employment
legislation.
10
Except where the historical context justified it and, of course, in quotations.
The Nature and Basis of Vicarious Liability 945
11
e.g. in contracts. ‘‘Servant or agent’’ is a time-honoured apposition.
12
See para.8–9, above. For examples outside this area see Nahhas v Pier House Management
(Cheyne Walk) Ltd (1984) 270 E.G. 328 (failure to inquire into background of porter)
though there was also a true vicarious liability on the facts; Hartwell v Att Gen [2004]
UKPC 12; [2004] 1 W.L.R. 1273 (personal fault but no vicarious liability); Colour Quest
Ltd v Total Downstream UK Plc [2009] EWHC 540 (Comm); [2009] 1 Lloyds Rep 1
(failure to design safe system as well as vicarious liability); Maga v Birmingham Arch-
diocese [2010] EWCA Civ 256 (also a true vicarious liability). As Maga shows, the
‘‘personal’’ breach of duty by D to C may arise from D’s vicarious liability for the failure
of X, another employee of D, to carry out his duties.
13
Maga, above, fn.12, at [74].
14
In NSW v Lepore [2003] HCA 4; 212 C.L.R. 511. Gummow and Hayne JJ. at [257]
describe it as a ‘‘species of vicarious liability’’; and see Leichhardt Municipal Council v
Montgomery [2007] HCA 6; 233 A.L.R. 200 at [155]. Now by statute it is equated with
vicarious liability in a number of Australian states, see, e.g. Civil Liability Act 2002 s.5Q
(NSW).
946 Vicarious Liability
15
It is true that the vicarious liability of D generally requires that the claimant show that A,
the actor, would be personally liable to him and this is not necessarily so where D’s
personal duty is in issue. Thus there may be cases in which the claimant can establish a
breach of D’s duty by showing that although the actual wrongdoer cannot be identified,
someone in D’s organisation must have blundered (see para.8–9, above), but where the
identity of the wrongdoer is known, there still seems no practical difference between the
non-delegable duty and the vicarious liability.
16
e.g. at common law in the case of provision of a package holiday it may be a very difficult
question how far the tour operator is responsible for defaults of hoteliers and carriers. For
an example of a case where it was held at common law that the tour operator was
undertaking to supply services rather than merely acting as agent to effect contracts with
others, see Wong v Kwan Kin Travel Services [1996] 1 W.L.R. 39. However, under the
Package Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992/3288)
(implementing EC Directive 90/314) the ‘‘organiser’’ of the package is, subject to certain
exceptions, liable to the customer for, ‘‘the proper performance of the obligations under the
contract, irrespective of whether such obligations are to be performed by [the organiser] or
by other suppliers of services’’: but the question will still remain of what are the
‘‘obligations under the contract’’ and it is an oversimplification to say that the regulations
necessarily impose a ‘‘strict liability’’ upon the organiser: see Hone v Going Places Leisure
Travel Ltd [2001] EWCA Civ 947.
17
See Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1988] 3 W.L.R. 730 at 759 per Lord
Jauncey. Cf. Rogers v Night Riders [1983] R.T.R. 324 (approved in Wong v Kwan Kin
Travel, above, fn.16) and Aiken v Stewart Wrightson Members Agency Ltd [1995] 1 W.L.R.
1281. See para.20–21, below.
18
See para.21–2, below.
19
Reedie v London and North Western Ry (1849) 4 Exch. 244.
The Nature and Basis of Vicarious Liability 947
same time the phrase ‘‘implied authority’’ which had been the
cornerstone of the master’s primary liability gives way gradually to
the modern ‘‘scope of employment’’, though the former phrase
survives in the context of misrepresentation.
Vicarious liability is a frequent feature of legal systems and those
which do not have in its ‘‘pure’’ form, but which in theory require
some fault in the employer, have tended to go to considerable
lengths to create a liability without fault in practice.20 Nevertheless,
given the fact that most of tort law is formally based on fault, it
requires some explanation or justification. The traditional phrases
respondeat superior and qui facit per alium facit per se have been
criticised, the former because it, ‘‘merely states the rule baldly in
two words, and the latter merely gives a fictional explanation of
it.’’21 However, even if they are not explanations, they probably do
represent the expression of a rather deep-seated and intuitive idea
that someone who, generally for his own benefit, sets a force in
motion should have responsibility for the consequences even if he
chooses others to carry out the task. Of course this logically leads on
to a full-blown theory of enterprise liability under which an activity
should bear its own costs.22 This is not the law now because there
must be some tort and that generally involves fault, but the present
position is a compromise, perhaps because pure enterprise liability
removes incentives from the victim to take care to avoid accidents.
At any rate, if there were no vicarious liability, the employer’s
incentive to minimise the risks created by his activity would be
reduced. Many years ago it was observed that the employer has the
deeper pocket23 and if there were no vicarious liability much of tort
law would be stultified, for it would be impracticable (and wasteful)
for many employees to insure themselves against liability incurred
in employment. A variant of this, though in a more sophisticated
form, is that of ‘‘loss distribution’’. An ‘‘employer’’ today is nor-
mally not an individual but a substantial enterprise or undertaking,
and, by placing liability on the enterprise, what is in fact achieved is
the distribution of losses caused in the conduct of its business over
all the customers to whom it sells its services or products. Knowing
of its potential liability for the torts of its servants, the enterprise
insures against this liability and the cost of this insurance is reflected
in the price it charges to its customers. In the result, therefore, losses
caused by the torts of the enterprise’s servants are borne in small and
20
See for example German law, where §831 B.G.B. makes the employer liable unless he
shows that he exercised due care in choosing and supervising the servant. No such
exculpation is possible in contract under §278 B.G.B. Hence the courts have tended to
extend contractual liability.
21
Staveley Iron and Chemical Co Ltd v Jones [1956] A.C. 627 at 643 per Lord Reid.
22
See Keating, ‘‘The Idea of Fairness in the Law of Enterprise Liability’’ (1997) 95 Mich.
L.R. 1266.
23
Limpus v L.G.O. Co (1862) 1 H. & C. 526 at 539 per Willes J.
948 Vicarious Liability
27
Or in the case of state activities, privatisation: Quaquah v Group 4 Securities Ltd (No.2),
The Times, June 27, 2001.
28
See Kidner, ‘‘Vicarious Liability: For Whom Should the Employer be Liable’’ (1995) 15
L.S. 47, instancing O’Kelly v Trusthouse Forte [1984] Q.B. 90 and McKendrick, ‘‘Vicari-
ous Liability and Independent Contractors—a Re-examination’’ (1990) 53 M.L.R. 770.
29
If only because such insurance is required by law.
30
The majority of the HCA, reversing the NSWCA, held that the couriers were servants in
Hollis v Vabu Pty Ltd [2001] HCA 44; 207 C.L.R. 21. The defendant had made deductions
from fees for liability insurance, but this only covered him.
31
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 C.L.R. 161 at [33].
32
Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 W.L.R. 1213; Ready
Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2
Q.B. 497; Global Plant Ltd v Secretary of State for Social Services [1972] 1 Q.B. 139;
Davis v New England College at Arundel [1977] I.C.R. 6; Young & Woods Ltd v West
[1980] I.R.L.R. 201; Calder v H. Kitson Vickers Ltd [1988] I.C.R. 232; Johnson v
Coventry Churchill International Ltd [1992] 3 All E.R. 14; Lane v Shire Roofing Co [1995]
I.R.L.R. 493. Megaw L.J. in the Ferguson case at 1222 would have been prepared to go
further and say that the parties’ declaration ought to be wholly disregarded. There may of
course be an issue of whether the parties intended any contractual relationship at all: New
Testament Church of God v Stewart [2007] EWCA Civ 1004; [2008] I.C.R. 282.
33
This practice, known as ‘‘the lump’’, grew up mainly to avoid payment of income tax
under the PAYE system. Tax legislation now attempts to meet the point by special
provisions for the building trade.
950 Vicarious Liability
34
Ferguson v Johan Dawson, above, fn.32; cf. Lawton L.J., dissenting, at 1226: ‘‘I can see
no reason why in law a man cannot sell his labour without becoming another man’s servant
even though he is willing to accept control as to how, when and where he will work.’’ In
Massey v Crown Life Insurance Co [1978] 1 W.L.R. 676, Lawton L.J. thought that the case
was distinguishable from Ferguson because there was a written contract with detailed
terms. Lord Denning M.R. was content to say that Ferguson ‘‘turned on its facts’’.
35
Davies v Presbyterian Church [1986] 1 W.L.R. 323.
36
See, e.g. O’Kelly v Trusthouse Forte [1984] Q.B. 90; Lee v Cheung [1990] 2 A.C. 374;
Kapfunde v Abbey National [1999] I.C.R. 1.
37
For an early statement of the control test, see Yewens v Noakes (1880) 6 Q.B.D. 530 at
532–533 per Bramwell B. For its development see Atiyah, Vicarious Liability in the Law
of Tort, pp.40–44.
38
Collins v Hertfordshire CC [1947] K.B. 598 at 615 per Hilbery J.
39
Argent v Minister of Social Security [1968] 1 W.L.R. 1749 at 1759 per Roskill L.J.;
Jennings v Forestry Commission [2008] EWCA Civ 581; [2008] I.C.R. 988.
40
Although it has been said that, ‘‘what matters is lawful authority to command so far as
there is scope for it. And there must always be some room for it only in incidental or
collateral matters’’ (Zuijs v Wirth Brothers Pty Ltd (1955) 93 C.L.R. 561 at 571) if this is
pressed too far the independent contractor who works with others could hardly exist. As
the Special Commissioner said in Hall v Lorimer 1992 S.T.C. 599: ‘‘in the production of
a play you must pay attention to the stage directions and the producer’s directions. That
applies to the leading actor and actress, but they do not for that reason become
‘employees’.’’
41
Kahn-Freund, ‘‘Servants and Independent Contractors’’ (1951) 14 M.L.R. 504. On minis-
ters of religion and the distinction between employment and spiritual matters see Percy v
Church of Scotland [2005] UKHL 73; [2006] 2 A.C. 28.
The Contract of Service Relationship 951
now been recognised that the absence of such control is not con-
clusive against the existence of a contract of service42 and various
attempts to find a more suitable test have been made.
In an often cited statement43 Lord Thankerton said that there are 20–5
four indicia of a contract of service: (1) the employer’s power of
selection of his servant; (2) the payment of wages or other remuner-
ation; (3) the employer’s right to control the method of doing the
work; and (4) the employer’s right of suspension or dismissal. It is
respectfully suggested, however, that this does not carry the matter
much further: the first and last, and perhaps also the second, are
indicia rather of the existence of a contract than of the particular
kind of contract which is a contract of service,44 and some judges
have preferred to leave the question in very general terms. Somer-
vell L.J. thought that one could not get beyond the question whether
the contract was, ‘‘a contract of service within the meaning which an
ordinary person would give under those words’’.45 Nowadays it is
common to take a ‘‘composite’’ approach in which the various
elements of the relationship are considered as a whole. The Privy
Council said46 that the matter had never been better put than by
Cook J. in Market Investigations Ltd v Minister of Social
Security47:
‘‘The most that can be said is that control will no doubt always
have to be considered, although it can no longer be regarded as
the sole determining factor; and that factors which may be of
importance are such matters as whether the man performing the
services provides his own equipment, whether he hires his own
helpers, what degree of financial risk he takes,48 what degree of
responsibility for investment and management he has, and
42
Morren v Swinton and Pendelbury Borough Council [1965] 1 W.L.R. 576; Whittaker v
Minister of Pensions and National Insurance [1967] 1 Q.B. 156; Ready Mixed Concrete
(South East) Ltd v Minister of Pensions and National Insurance [1968] 2 Q.B. 497; Market
Investigations Ltd v Minister of Social Security [1969] 2 Q.B. 173. Nor is it conclusive
who has control over hours of work: compare W.H.P.T. Housing Association Ltd v
Secretary of State for Social Services [1981] I.C.R. 737 and Nethermere (St Neots) Ltd v
Taverna [1984] I.C.R. 122.
43
Short v J.&W. Henderson Ltd (1946) 62 T.L.R. 427 at 429.
44
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance
[1968] 2 Q.B. 497 at 524 per MacKenna J
45
Cassidy v Ministry of Health [1951] 2 K.B. 343 at 352–353; Argent v Minister of Social
Security [1968] 1 W.L.R. 1749 at 1760 per Roskill J.
46
Lee v Cheung [1990] 2 A.C. 374. See also 671122 Ontario Ltd v Sagaz Industries Canada
Ltd [2001] SCC 59; [2001] 2 S.C.R. 483.
47
[1969] 2 Q.B. 173 at 185. See also the judgment of MacKenna J. in Ready Mixed Concrete
(South East) Ltd v Minister of Pensions and National Insurance [1968] 2 Q.B. 497.
48
An independent contractor will commonly be paid ‘‘by the job’’ whereas a servant will
generally receive remuneration based upon time worked; but a piece-worker will still be
a servant and a building contract is a contract for services notwithstanding that it may
contain provisions for payment by time.
952 Vicarious Liability
‘‘[O]f a skilled artisan earning his living by working for more than
one employer as an employee and not as a small businessman
entering into business on his own account with all its attendant
risks.’’50
A. Hospitals
It was to a substantial extent a consequence of developments in 20–6
the liability of hospitals for the negligence of their staffs that
dissatisfaction with the test of control developed, for while it was
originally held that a hospital authority could not be liable for
negligence in matters involving the exercise of professional skills,56
this view has not been accepted since 1942. Since then it has been
held that radiographers,57 house-surgeons,58 whole time-assistant
medical officers59 and, probably, staff anaesthetists are the servants
of the authority for the purposes of vicarious liability.60 In fact, the
arrangements for the payment of damages in clinical negligence
cases operate on the basis that the net of responsibility is cast wider
than it might in fact be under the common law, covering for example
staff working for the NHS under contracts for services, locum staff
and students.61 Until 1990 the cost of paying judgments and settle-
ments in hospital cases was shared under an arrangement between
health authorities and the medical protection societies. They are now
paid entirely by the National Health Service Litigation Authority
under ‘‘NHS Indemnity’’, which operates a pooling system known
as the Clinical Negligence Scheme for Trusts and no recovery will
be sought from individuals. However, in some of the cases there has
been a tendency to treat the question of a hospital authority’s
liability not as one of vicarious liability only but also as one of the
primary liability of the authority for breach of its own duty to the
54
See Muscat v Cable & Wireless Plc [2006] EWCA Civ 220 at [27].
55
Express and Echo Publications Ltd v Tanton [1999] IRLR 367; cf. McFarlane v Glasgow
CC [2001] I.R.L.R. 7.
56
Hillyer v St Bartholomew’s Hospital [1909] 2 K.B. 820. Note that the hospital in this case
was a charitable body.
57
Gold v Essex CC [1942] 2 K.B. 293.
58
Collins v Hertfordshire CC [1947] K.B. 598; Cassidy v Ministry of Health [1951] 2 K.B.
343.
59
Cassidy v Ministry of Health, above, fn.58.
60
Roe v Minister of Health [1954] 2 Q.B. 66.
61
NHS Indemnity, Arrangements for Clinical Negligence Claims in the NHS.
954 Vicarious Liability
patient.62 However, while this may save the court the task of deter-
mining whether the negligent individual is a servant of the hospital
authority it will not relieve the claimant of the burden of showing
negligence. In most cases his complaint will be that Dr A was
negligent in his treatment and if this is so then (assuming Dr A to be
a servant) to say that the hospital authority was in breach of its duty
via him is to state a proposition the practical effect of which is the
same as saying that it is vicariously liable for his negligence. If,
however, he is not negligent (because, for example, he is given a
task which is beyond the competence of a doctor holding a post of
his seniority) then there is still a possibility that the hospital author-
ity is negligent in failing to secure adequate staffing.63 Alternatively,
if A is at fault but is not a servant it may well be the case now that,
having accepted responsibility for treatment, the hospital owes a
non-delegable duty to ensure that proper care is taken.64 However,
while this applies to treatment it does not apply to the delegation of
the testing of samples where the claimant has been referred to the
hospital by a third party.65 Modern developments in the organisation
of health care may produce more complex problems. For example,
a public health agency may send a patient into the private sector or
even abroad for treatment. Of course the actual provider of the
treatment may incur liability for any damage resulting therefrom,66
but what is the position of the Health Trust that ‘‘sends’’ the patient?
In A v Ministry of Defence67 the Ministry ceased to provide direct
hospital care for British forces in Germany and their families and
entered into an arrangement whereby an English NHS Trust was to
procure it from local hospitals. When the claimant suffered brain
damage at birth the Court of Appeal held that the Ministry was not
liable68 for the fault of the doctor in the German hospital. It was the
62
See, e.g. Gold v Essex CC, above, fn.57, at 301 per Lord Greene M.R. Cassidy v Ministry
of Health, above, fn.58, at 362–365 per Denning L.J.; but even on this basis one must
distinguish the case which may arise in the private sector where the patient makes direct
arrangements with the surgeon and the hospital merely provides facilities: Ellis v Wallsend
District Hospital (1989) 17 N.S.W.L.R. 555.
63
See Wilsher v Essex Area Health Authority [1987] Q.B. 730 where both Glidewell L.J. and
Browne-Wilkinson V.C. accepted that there might be a direct liability in the hospital
authority but differed as to the measure to be applied to the individual doctor’s conduct.
Yet a claim that staffing is inadequate may face a formidable obstacle in the court’s refusal
to interfere with the authority’s discretion over the allocation of resources: Ball v Wirral
HA (2003) 73 B.M.L.R. 31.
64
X v Bedfordshire CC [1995] 2 A.C. 633 at 740; A v MoD [2004] EWCA Civ 641; [2005]
Q.B. 183 at [63]; and see Farraj v Kings Healthcare NHS Trust [2009] EWCA Civ 1203
at [88].
65
Farraj v Kings Healthcare NHS Trust, above, fn.64.
66
Which, in the case of treatment abroad, may involve conflict of laws issues.
67
Above, fn.64.
68
The trial judge had held that the English NHS Trust was not liable and there was no appeal
on this. There was no doubt that the claimant would be able to recover against the German
hospital in the German courts and that the damages would be at least at the English
level.
The Contract of Service Relationship 955
case that the Ministry was bound to take care to ensure that proper
facilities were available in Germany but no non-delegable duty
making it liable for individual acts of negligence arose because it
was not providing treatment itself. This case is not quite on all fours
with the standard arrangement whereby a NHS Trust, having been
approached by a patient in England procures treatment abroad and
the decision is not perhaps decisive on that issue.69 The suggestion
in some cases that there may be liability for breach of statutory duty
under the National Health Service Act 1977 (duty of the Secretary
of State to secure effective health provision) must now be regarded
as incorrect.70 However, in many cases, although the patient will be
treated in a facility run by a third party, the treatment will be
administered by staff working under NHS contracts and there will
be the normal NHS liability. Furthermore, independent sector pro-
viders of treatment can now benefit, via the Primary Care Trust
which refers the patient, from the risk-pooling arrangements.71
B. Police
Until 1964 no person or body stood in the position of ‘‘master’’ to 20–7
a police officer,72 and accordingly anyone injured by the tortious
conduct of the police could have redress only against the individual
officers concerned. Now, however, it is provided by s.88 of the
Police Act 1996, replacing earlier legislation, that the chief officer of
police for any police area shall be liable for torts committed by
constables73 under his direction and control in the performance or
purported performance of their functions.74 This statutory liability is
equated with the liability of an employer for the torts of his servants
committed in the course of their employment, but the Act does not
create a relationship of employer and servant, nor one of principal
and agent.75 The chief officer of police does not, of course, have to
69
See A v MoD, above, fn.64, at [50]–[54].
70
A v MoD, above, fn.64, at [42]. Although this was one basis of the decision in M v
Calderdale and Kirklees HA [1998] 4 Lloyd’s Rep. Med. 157, the defendants appear to
have been negligent in failing to make checks on the private hospital in which they
arranged the treatment.
71
Independent Treatment Centres and CNST (2006).
72
Under the Crown Proceedings Act 1947 the Crown is only liable in respect of persons who
are paid wholly out of moneys provided by Parliament (s.2(6)) and this excludes the
police. Nor are the police servants of the police authority: Fisher v Oldham Corp [1930]
2 K.B. 364. For practical purposes a police officer is treated as an employee for the
purposes of duties owed to him by the chief constable: para.8–10, above. There is no
difficulty about applying the general law of vicarious liability to members of the armed
forces, though in practice what is regarded as the course of employment may extend
beyond matters which are strictly in the course of duty in the military sense: Radclyffe v
MoD [2009] EWCA Civ 635.
73
The police authority, not the chief constable, is vicariously liable for police cadets: s.17(3);
Wiltshire Police Authority v Wynn [1981] Q.B. 95.
74
As amended by the Police Reform Act 2002. See para.20–14, below.
75
Farah v MPC [1998] Q.B. 65.
956 Vicarious Liability
C. Lending a Servant77
20–8 D may be the general employer of A but X, by agreement with D
(whether contractual or otherwise), may be making temporary use of
A’s services.78 If A injures some third party who bears the vicarious
liability for his acts? For long it was assumed that it must be one or
the other but it could not be both.79 This proposition was probably
connected with the idea that there was an actual transfer of the
contract of employment but in reality this was never the case: an
employee cannot be transferred in this sense without his consent and
the ‘‘transfer’’ was simply a device to impose vicarious liability.80
The Court of Appeal rejected the proposition in Viasystems (Tyne-
side) Ltd v Thermal Transfer (Northern) Ltd.81 Ducting was being
fitted by sub-contractor X, who was making use of ‘‘labour-only’’
services provided by D. The negligence of A, an employee of D,
caused a flood, for which the court held that both X and D were
liable to the factory owner, with equal contribution between them-
selves under the Civil Liability (Contribution) Act 1978. It does not
follow that such dual vicarious liability will arise in every case. In
Viasystems A was part of a team consisting of his superior and
another skilled worker contracted to X: it was a situation of shared
control of the organisation of A’s work. Where, on the other hand,
A’s services are supplied to X on a long-term basis subject to the
entire control of X, that is likely to result in X alone being liable.82
Another situation is illustrated by Mersey Docks and Harbour
Board v Coggins and Griffith (Liverpool) Ltd.83 D, the harbour
authority, employed A as the driver of a mobile crane, and let the
76
The Police Act 1997 provides for vicarious liability of the Directors-General of the
National Criminal Intelligence Service and the National Crime Squad in respect of officers
under their control.
77
A company will be vicariously liable for acts of its directors within the scope of their
authority (NZ Guardian Trust Co Ltd v Brooks [1995] 1 W.L.R. 96), but where company
A nominates its employee, B, as a director of company X it is not vicariously liable for B’s
acts as director even if it allows B to carry out his duties in its time and, as a shareholder
in X, has an interest in B’s proper performance of those duties: Kuwait Asia Bank E.C. v
National Mutual Life Nominees Ltd [1991] 1 A.C. 187.
78
It is assumed that there is no dispute that a contract of service exists between A and D.
79
Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] A.C. 643 at 686.
80
Denning L.J. in Denham v Midland Employers Mutual Assurance Ltd [1955] 2 Q.B. 437
at 443. In any event, where there is vicarious liability for an agent that may arise without
any contract of employment (see para.20–19, below) and if A is employed by D but X puts
forward A as speaking on his (X’s) behalf, there is no reason why X should not be
vicariously liable even though for other purposes only D would be: MAN Nutzfahrzeuge
AG v Freightliner Ltd [2005] EWHC 2347 (Comm) at [107].
81
[2005] EWCA Civ 1151; [2005] 4 All E.R. 1181.
82
See e.g. Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18.
83
[1947] A.C. 1.
The Contract of Service Relationship 957
84
Both D and X being solvent, it was a matter of indifference to C which one was liable to
him and he took no part in the appeal.
85
[2005] EWCA Civ 1151; [2005] 4 All E.R. 1181 at [80] per Rix L.J. It is also suggested
by May L.J. at [32] that Bhoomidas v Port of Singapore [1978] 1 All E.R. 956 would also
go the same way and the stevedoring company alone would be liable.
86
See also Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GMBH [2008] EWCA
Civ 1257; [2009] Q.B. 725. Contrast Airwork (NZ) Ltd v Vertical Flight Management Ltd
[1999] 1 N.Z.L.R. 641, NZCA, where the borrower had control over a highly skilled
employee.
87
Herdman v Walker (Tooting) Ltd [1956] 1 W.L.R. 209; Spalding v Tarmac Civil Engineer-
ing Ltd [1966] 1 W.L.R. 156. Because such a contract is not determinative of the question
as against C it is not within the Unfair Contract Terms Act 1977 s.2—the allocation of
indemnity rights between D and X is not an exclusion of liability: Thompson v T. Lohan
[1987] 1 W.L.R. 649.
958 Vicarious Liability
them even though it does not in fact exist,88 but the tort must be
committed in the course of the driver’s employment (using the word
‘‘employment’’ in this fictitious sense).89
3. SCOPE OF EMPLOYMENT
20–9 Unless the wrong done falls within the scope of the servant’s
employment the employer is not liable at common law. It may be
asked: ‘‘How can any wrong be in the scope of a servant’s employ-
ment? No sane or law-abiding employer ever hires someone to tell
lies, give blows or act carelessly’’; but that is not what scope of
employment means. The focus is not so much on the wrong com-
mitted by the servant as upon the act he is doing when he commits
the wrong. Traditionally it has been said that the act will be within
the scope of the employment if it has been expressly or impliedly
authorised by the employer90 or is sufficiently connected with the
employment that it can be regarded as an unauthorised manner of
doing something which is authorised,91 or is necessarily incidental
to something which the servant is employed to do. The underlying
idea is that the injury done by the servant must involve a risk
sufficiently inherent in92 or characteristic of93 the employer’s busi-
ness that it is just to make him bear the loss. For example, no one
would think of arguing that an employer of a lorry driver should be
liable for an accident caused by the driver in his own car when on
holiday. ‘‘Scope of employment’’ and ‘‘course of employment’’ tend
to be used interchangeably, though the latter expression is often
found in legislation dealing with other matters and it is dangerous to
assume that authorities from such contexts can be automatically
transferred to that of vicarious liability.94 It may also be the case that
statute imposes a liability for the acts of others in a particular
context. Whatever form of words is used, the question under the
statute is one of construction and it may lay down some wider (or
narrower) principle than the common law.95 It is often an extremely
88
Keen v Henry [1894] 1 Q.B. 292; Bygraves v Dicker [1923] 2 K.B. 585; London Hackney
Carriages Act 1843 and (outside London) Town Police Clauses Act 1847.
89
Venables v Smith (1877) 2 Q.B.D. 279.
90
If the act authorised is inherently wrongful (e.g. trespassing on another’s land) the
employer is liable because he has procured a wrong and there is no need to rely on
vicarious liability.
91
Kirby v NCB 1958 S.C. 514 at 533.
92
Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 A.C. 215 at [65] per Lord Millett.
93
Ira S. Bushy & Sons Inc v USA 398 F. 2d 167 (1968) per Judge Friendly.
94
Lister v Hesley Hall Ltd, fn.92, at [40] per Lord Clyde.
95
Jones v Tower Boot Co Ltd [1997] 2 All E.R. 406 (Race Relations Act 1976 but from
another point of view the liability is narrower, for there is a ‘‘reasonable steps’’ defence).
See also in another context MacMillan v Wimpey Offshore Engineers & Constructors Ltd
1991 S.L.T. 515.
Scope of Employment 959
A. Carelessness of Servant
By far the commonest kind of wrong which the servant commits 20–10
is one due to unlawful carelessness, whether it be negligence of the
kind which is in itself a tort, or negligence which is a possible
96
Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 A.C. 366 at [24].
97
See Lister v Hesley Hall Ltd, above, fn.92.
98
Credit Lyonnais Bank Nederland N.V. v E.C.G.D. [2000] 1 A.C. 486.
99
Above, fn.92.
100
However, apart from Lord Steyn and Lord Hutton it is not easy to be sure of the view of
the court as a whole on the traditional test. In fact Lord Clyde seems to regard it as a
correct statement of the law, but cf. Mattis v Pollock [2003] EWCA Civ 787; [2003] 1
W.L.R. 2158 at [19]
101
The change of approach owes something to the Canadian case of Bazley v Curry [1999]
2 S.C.R. 534. However, it is said in Sickel v Gordy [2008] SKCA 100; 298 D.L.R. (4th)
151 that the court in that case had no intention to say anything about the straightforward
case where the servant is carrying out instructions. For criticism of Lister see Hardiman J.
in O’Keefe v Hickey [2008] IESC 72.
102
Dubai Aluminium Co Ltd v Salaam, fn.96, at [26] at [30]. See also HSBC Bank Plc v So
[2009] EWCA Civ 296.
960 Vicarious Liability
‘‘One must not confuse the duty to turn up for one’s work with
the concept of already being ‘on duty’ while travelling to
work.’’113
103
Gregory v Piper (1829) 9 B. & C. 591.
104
This famous phrase was coined by Parke B. in Joel v Morison (1834) 6 C. & P. 501 at
503.
105
Staton v National Coal Board [1957] 1 W.L.R. 893.
106
Harvey v R.G. O’Dell Ltd [1958] 2 Q.B. 78; Whatman v Pearson (1868) L.R. 3 C.P. 422;
cf. Higbid v Hammett (1932) 49 T.L.R. 104; Crook v Derbyshire Stone Ltd [1956] 1
W.L.R. 432; Nottingham v Aldridge [1971] 3 W.L.R. 1.
107
(1869) L.R. 4 Q.B. 476. Contrast Whatman v Pearson (1868) L.R. 3 C.P. 422.
108
Hilton v Thomas Burton (Rhodes) Ltd [1961] 1 W.L.R. 705.
109
Thus in A.&W. Hemphill Ltd v Williams 1966 S.C. (H.L.) 31, the deviation was proportion-
ately extensive but the servant was carrying passengers, some of whom had incited it. In
Angus v Glasgow Corp 1977 S.L.T. 206 it is suggested that the real test is, ‘‘has the servant
departed altogether from his master’s business’’.
110
Smith v Stages [1989] A.C. 928; but employment may commence as soon as the factory
gates are passed: Compton v McClure [1975] I.C.R. 378.
111
See Nottingham v Aldridge [1971] 2 Q.B. 739 at 747.
112
Blee v LNER Co [1938] A.C. 126; Paterson v Costain and Press (Overseas) Ltd [1979] 2
Lloyd’s Rep. 204; but as Lord Lowry admits in Smith v Stages, above, fn.110, at 956, the
concept of the ‘‘employer’s time’’ cannot be applied to salaried workers.
113
Smith v Stages, above, fn.110, at 955 per Lord Lowry.
Scope of Employment 961
B. Mistake of Servant
So far we have been dealing with the incompetent dilettante and 20–11
we now pass to the misguided enthusiast. Bayley v Manchester,
Sheffield and Lincolnshire Ry119 is an illustration. The defendant’s
114
Yet the salesman is not in the course of his employment when he books into a hotel for the
night.
115
Nancollas v Insurance Officer [1985] 1 All E.R. 833 at 838 (‘‘in driving to Aldershot [from
home] Mr Nancollas was not going to work. That was part of his work’’).
116
Above, fn.110.
117
The case arose because the driver was uninsured and the time limits in the MIB Agreement
had not been complied with.
118
[1942] A.C. 509, approving Jefferson v Derbyshire Farmers Ltd [1921] 2 K.B. 281, where
the facts were very similar, and for all practical purposes overruling Williams v Jones
(1865) 3 H. & C. 602; cf. Kirby v NCB 1958 S.L.T. 47.
119
(1873) L.R. 8 C.P. 148. See also Willes J. in (1873) L.R. 7 C.P. at 420.
962 Vicarious Liability
porter violently pulled out of a train the claimant who said his
destination was Macclesfield and who was in a train that was going
there. The porter mistakenly thought it was going elsewhere. The
defendants were held liable. The porter was doing in a blundering
way something which he was authorised to do—to see that pas-
sengers were in the right trains and to do all in his power to promote
their comfort. Another application of the same principle is an act
done in protection of the employer’s property. The servant has an
implied authority to make reasonable efforts to protect and preserve
it in an emergency which endangers it. For wrongful, because
mistaken, acts done within the scope of that authority the employer
is liable, and it is a question of degree whether there has been an
excess of the authority so great as to put the act outside the scope of
authority. A carter, who suspected on mistaken but reasonable
grounds that a boy was pilfering sugar from the wagon of the
carter’s employer, struck the boy on the back of the neck with his
hand. The boy fell and a wheel of the wagon went over his foot. The
employer was held liable because the blow given by the carter,
although somewhat excessive, was not sufficiently so to make it
outside the scope of employment.120 However, while a servant’s
authority to protect his employer’s goods against armed robbery
extends to acts done in self-defence against the robber it does not
extend to using a customer as a human shield.121 A servant has no
implied authority to arrest a person whom he suspects of attempting
to steal after the attempt has ceased, for the arrest is then made not
for the protection of the employer’s property but for the vindication
of justice.122
The existence of an emergency gives no implied authority to a
servant to delegate his duty to a stranger, so as to make his employer
liable for the defaults of the stranger,123 but it may be that the
servant himself was negligent in the course of his employment in
allowing the stranger to do his job. In Ilkiw v Samuels,124 a lorry
driver in the employment of the defendants permitted a stranger to
drive his lorry, and an accident resulted from the stranger’s negli-
gent driving. The defendants were held liable, not for the stranger’s
120
Polland v Parr & Sons [1927] 1 K.B. 236; but it may be that after Lister v Hesley Hall Ltd
[2001] UKHL 22; [2002] 1 A.C. 215 (para.20–14, below) even a grossly excessive
reaction would not take the servant outside the course of his employment.
121
Reilly v Ryan [1991] 2 I.R. 247.
122
e.g. Abrahams v Deakin [1891] 1 Q.B. 516; Hanson v Waller [1901] 1 Q.B. 390; Radley
v LCC (1913) 109 L.T. 162.
123
Houghton v Pilkington [1912] 3 K.B. 308; Gwilliam v Twist [1895] 2 Q.B. 84. On the basis
of the reasoning of Diplock L.J. in Ilkiw v Samuels [1963] 1 W.L.R. 991 at 1003–1006 it
may be that these cases would be differently decided today.
124
[1963] 1 W.L.R. 991; Ricketts v Thomas Tilling Ltd [1915] 1 K.B. 644.
Scope of Employment 963
negligence, for he was not their servant,125 but on the ground that the
driver himself had been guilty of negligence in the course of his
employment in permitting the stranger to drive without even having
inquired whether he was competent to do so.126 Equally, the
employer may sometimes be liable even though the servant has
usurped the job of another, provided that what he does is sufficiently
closely connected with his employer’s business and is not too gross
a departure from the kind of thing he is employed to do. In Kay v
I.T.W. Ltd,127 a storekeeper employed by the defendants needed to
return a forklift truck to a warehouse but found his way blocked by
a large lorry belonging to a third party. Although there was no
urgency and without first inquiring of the driver of the lorry, he
attempted to move the lorry himself, and by his negligence in doing
so caused an injury to the claimant. The Court of Appeal considered
that the case fell near the borderline, for it cannot be for every act,
however excessive, that the servant may do in an attempt to serve
his employer’s interests that the employer is liable.128 Nevertheless,
taking into account the fact that it was clearly within the terms of the
storekeeper’s employment to move certain obstacles out of the way
if they blocked the entrance to the warehouse, and since it was part
of his normal employment to drive trucks and small vans, the court
held that his act of trying to move the lorry was not so gross and
extreme as to take it outside the course of his employment.
125
[1963] 1 W.L.R. 991 at 996 per Willmer L.J.
126
See, however, the different and more complex reasoning of Diplock L.J. [1963] 1 W.L.R.
991 at 1003–1006, referred to by Lord Hobhouse in Lister v Hesley Hall Ltd [2001] UKHL
22; [2002] 1 A.C. 215 at [58].
127
[1968] 1 Q.B. 140; East v Beavis Transport Ltd [1969] 1 Lloyd’s Rep. 302. Cf. Beard v
London General Omnibus Co [1900] 2 Q.B. 530 and see the explanation of that case by
Sellers L.J.: [1968] 1 Q.B. 140 at 152.
128
[1968] 1 Q.B. 140 at 151–152 per Sellers L.J. It is, however, odd that the employer may
be vicariously liable for a fraud by the servant against the employer’s interests, but not
liable in some cases when he is seeking to forward those interests: Iqbal v London
Transport Executive (1973) 16 K.I.R. 329 at 336 per Megaw L.J.
129
Wilful horseplay may be outside the course of employment: Duffy v Thanet DC (1984) 134
N.L.J. 680; Aldred v Nacano [1987] I.R.L.R. 292; cf. Harrison v Michelin Tyre Co [1985]
1 All E.R. 918, doubted in Aldred v Nacano. As to the employer’s personal duty in such
cases, see para.8–11, above.
130
C.P.R. v Lockhart [1942] A.C. 591 at 600 per Lord Thankerton; Ilkiw v Samuels [1963] 1
W.L.R. 991 at 998 per Willmer L.J.; Stone v Taffe [1974] 1 W.L.R. 1575.
964 Vicarious Liability
131
The servant is outside the course of employment while performing acts of precisely the
character for which he is employed by the employer, if he is in fact working for someone
else at the time: Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] A.C.
462.
132
Plumb v Cobden Flour Mills Ltd [1914] A.C. 62 at 67 per Lord Dunedin; C.P.R. v
Lockhart, above, fn.130, at 599 per Lord Thankerton; LCC v Cattermoles (Garages) Ltd
[1953] 1 W.L.R. 997 at 1002 per Evershed M.R.; Ilkiw v Samuels, above, fn.130 per
Diplock L.J. at 1004; Kay v I.T.W. Ltd [1968] 1 Q.B. 140 at 158 per Sellers L.J.
133
Ilkiw v Samuels, above, fn.130, at 1004 per Diplock L.J.
134
(1862) 1 H. & C. 526.
135
‘‘The law casts upon the master a liability for the act of his servant in the course of his
employment and the law is not so futile as to allow a master, by giving secret instructions
to his servant, to discharge himself from liability’’: (1862) 1 H. & C. 526 at 539 per Willes
J.
136
[1953] 1 W.L.R. 997. Ilkiw v Samuels, above, fn.130; cf. Iqbal v London Transport
Executive (1973) 16 K.I.R. 329.
137
General Engineering Services Ltd v Kingston and St Andrew Corp [1988] 3 All E.R. 867;
but perhaps there is no duty to get there promptly at all: Capital & Counties Plc v
Hampshire CC [1997] Q.B. 1004.
Scope of Employment 965
138
One view is that this problem is now of little significance because of the compulsory
insurance provisions of the Road Traffic Act 1988 regarding passengers (para.25–10,
below): Rose v Plenty [1976] 1 W.L.R. 141 at 145 per Lord Denning M.R. However, with
respect, it is far from clear that this is the case. In the cases where the employer has been
held not liable the reason has not been any antecedent agreement or assumption of risk
within s.149 of the Act but the fact that the servant was outside the course of his
employment. In any case, similar problems could arise in situations where the Act of 1988
is inapplicable such as use of a vehicle off the road or other forms of transport.
139
(1946) 62 T.L.R. 458; Conway v George Wimpey & Co Ltd [1951] 2 K.B. 266; cf. Young
v Edward Box & Co Ltd [1951] 1 T.L.R. 789 (driver within scope of employment because
foreman gave consent; foreman’s consent unauthorised but within ostensible authority).
140
[1976] 1 W.L.R. 141.
141
A supposed ‘‘benefit’’ which he has made it very clear he does not want, presumably
because his insurers have insisted upon the prohibition.
142
See particularly Ilkiw v Samuels [1963] 1 W.L.R. 991 at 1004. Stone v Taffe [1974] 1
W.L.R. 1575 perhaps points the same way, though in that case the employer’s prohibition
related not to the original entry on to their property but to the duration of the stay.
143
[2001] UKHL 22; [2002] 1 A.C. 215 (Lords Steyn, Clyde and Millett).
144
Surely in Twine and Conway the servants were employed to drive the vehicles, in the
course of which activity they injured the claimants?
966 Vicarious Liability
145
See Asquith L.J. in Conway v Wimpey, above, fn.139, but this point in his judgment is
related to the issue of whether the claimant was a trespasser. Strictly, the issue of
knowledge was irrelevant in Rose v Plenty because of the majority decision that the
prohibition did not limit the scope of the employment but in view of the differences of
opinion one may assume that it would have been mentioned if it had been regarded as
possessing any significance.
146
Cf. Ferguson v Welsh [1987] 1 W.L.R. 1553. Perhaps this is the reason for the decision in
Stone v Taffe, above, fn.142, that the claimant could succeed in the absence of evidence of
his knowledge of the prohibition. The Court of Appeal regarded the questions whether the
claimant was a visitor and the servant was acting within the scope of his employment as
one and the same thing.
147
The servant, of course, remains personally liable to the passenger, but his liability is not
one which is required to be covered by insurance: Lees v Motor Insurers’ Bureau [1952]
2 All E.R. 511.
148
‘‘In driving his van along a proper route he was acting within the scope of his employment
when he ran into the omnibus. The other thing he was doing simultaneously was some-
thing totally outside the scope of his employment, namely, giving a lift to a person who had
no right whatsoever to be there’’: Twine v Bean’s Express Ltd [1946] 62 T.L.R. 458 at 459
per Lord Greene M.R. See also para.20–16, below.
149
Based on Barwick v English Joint Stock Bank (1867) L.R. 2 Ex. 259.
150
[1912] A.C. 716. See, too, Uxbridge Permanent, etc. Society v Pickard [1939] 2 K.B. 248;
British Ry, etc. Co Ltd v Roper (1940)) 162 L.T. 217; United Africa Co v Saka Owoade
[1955] A.C. 130; Morris v C.W. Martin & Sons Ltd [1966] 1 Q.B. 716. Cases such as
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] A.C. 509,
para.20–10 above can also be regarded as involving acts done by the servant for his own
benefit.
Scope of Employment 967
liable151: the clerk was acting as the representative of the firm and
they had invited the claimant to deal with him over her property. It
cannot be said, however, that as a result of Lloyd’s case the question
of benefit is invariably irrelevant, for it will still be found in some
cases that it is the fact that the servant intended to benefit himself
alone that prevents his tort from being in the course of his employ-
ment. This will be so, for example, in the case of a driver who takes
his employer’s vehicle ‘‘on a frolic of his own’’. It is because the
journey was made solely for the driver’s benefit that the employer is
not liable to a person injured by the negligence of the driver.
It has been in the context of wilful wrongdoing that the approach 20–14
of asking whether the servant’s acts were an improper mode of
doing what he was employed to do has been perceived as giving rise
to most difficulty. Many claims have been lodged against local
authorities and other bodies in respect of abuse suffered by the
claimants while they were children in care.152 In Lister v Hesley
Hall Ltd153 the House of Lords held that the defendant children’s
home was vicariously liable for the acts of the warden in abusing the
claimants: the home had undertaken the care of the children and
entrusted the performance of that duty to the warden and there was
therefore a sufficiently close connexion between his employment
and the acts committed by him. There is a good deal of criticism of
the ‘‘improper mode’’ approach and it is even described as ‘‘simplis-
tic’’.154 With respect this is harsh, for there seems no difficulty in
accommodating the facts within the traditional test as it has been
applied to matters like fraud or theft: just as the clerk’s making off
with Mrs Lloyd’s money was an outrageous way of performing his
duty to attend to her affairs, so also the conduct of the warden in
indecently assaulting the children was an outrageous way of carry-
ing out his duty to care for them. What is in fact surprising is the
Court of Appeal’s decision to the contrary in Lister.155 Whatever
view one takes on this issue, the fact remains that it may still be very
difficult to determine the range of persons for whom the employer is
151
Equally, the servant is personally liable for fraud even if his object is solely to benefit his
employer: Thomas Saunders Partnership v Harvey (1990) 7 Tr.L.R. 78.
152
This litigation phenomenon is not confined to England. See, e.g. Bazley v Curry [1999] 2
S.C.R. 534; NSW v Lepore [2003] HCA 4; 212 C.L.R. 511; Cane, ‘‘Vicarious Liability for
Sexual Abuse’’ (2000) 116 L.Q.R. 21; Feldthusen, ‘‘Vicarious Liability for Sexual Torts’’
in Torts Tomorrow: A Tribute to John Fleming (1998).
153
[2001] UKHL 22; [2002] 1 A.C. 215.
154
By Lord Steyn at [20].
155
Of course these cases present serious forensic problems: there seem to be thousands of
them (170 in respect of one school in Re St William’s Group Litigation, QBD, November
3, 2009), involving very large bills for local authorities and insurers; such claims tend to
be presented many years after the events, e.g. 15 years in Lister; and the substance of the
claims is for psychiatric trauma, which presents formidable problems of determining the
truth. The distinction between the vicarious liability claim and that for breach of a direct
personal duty in choosing and supervising staff had significance for limitation purposes but
that problem has been solved: see para.26–18, below.
968 Vicarious Liability
161
Dyer v Munday [1895] 1 Q.B. 742; Vasey v Surrey Free Inns [1995] C.L.Y. 3735; Fennelly
v Connex South Eastern [2001] I.R.L.R. 390.
162
Warren v Henlys Ltd [1948] 2 All E.R. 935; Petterson v Royal Oak Hotel Ltd [1948]
N.Z.L.R. 136; Daniels v Whetstone Entertainments Ltd [1962] 2 Lloyd’s Rep. 1; Keppel
Bus Co Ltd v Sa’ad bin Ahmad [1974] 1 W.L.R. 1082. See Rose ‘‘Liability for an
Employee’s Assaults’’ (1977) 40 M.L.R. 420. The victim may of course have a claim
under the Criminal Injuries Compensation scheme.
163
[2003] EWCA Civ 787; [2003] 1 W.L.R. 2158.
164
Cf. Brown v Robinson [2004] UKPC 56 (security officer; pursued unruly fan offsite to
teach him a lesson and shot him; no apparent evidence of encouragement of aggression by
employers; liable; however, the court clearly contemplated that there could still be ‘‘private
revenge’’ cases outside the scope of the rule—at [12]).
165
It was left open whether the decision the other way in Daniels v Whetstone Entertainments
Ltd, above, fn.162, where the employer had ordered the bouncer to desist, was correct.
166
[2008] EWCA Civ 689; [2008] I.C.R. 1222.
167
The court declined to speculate how facts such as those in Deatons Pty Ltd v Flew (1949)
79 C.L.R. 370 would now be decided (barmaid throwing glass at customer).
168
See para.20–7, above
169
Makanjuola v MPC, The Times, August 8, 1989.
970 Vicarious Liability
D. Theft by Servant
20–15 It was at one time the view that if a servant stole goods his
employer could not be vicariously liable to their owner on the
ground that the act of stealing necessarily took the servant outside
the course of his employment.173 This view was, however, really
inconsistent with Lloyd v Grace, Smith & Co. In Morris v C.W.
Martin & Sons Ltd,174 where some of the older cases were over-
ruled, the claimant had sent her fur coat to X to be cleaned, and X,
with her permission, sent it on to the defendants, who were specialist
cleaners.175 The defendants handed the coat to their servant, M, for
him to clean it, and M stole the coat. It was held by the Court of
Appeal that on these facts the defendants were liable. Although
reliance was placed on the duty owed to the claimant by the
defendants themselves as bailees of the coat, so that, in effect, the
theft of the coat by the servant, to whom they had delegated their
own duty of reasonable care in respect of it, constituted a breach of
that duty, yet the case has been regarded as illustrative of the general
170
Makanjuola, above, fn.169. Note (1) Henry J. regretted the result, (2) he thought that the
initial trespass by unauthorised use of the warrant card prior to the blackmail might have
been in purported performance of the officer’s functions. See also N v CC Merseyside
[2006] EWHC 3041 (QB) (off-duty officer raping intoxicated claimant after volunteering
to take her to police station).
171
Weir v CC Merseyside [2003] EWCA Civ 111; [2003] I.C.R. 708; Bernard v Att Gen
[2004] UKPC 47; [2005] I.R.L.R. 398.
172
Att Gen v Hartwell [2004] UKPC 12; [2004] 1 W.L.R. 1273 (but in view of their
knowledge of the officer’s previous behaviour the defendants were held in breach of their
personal duty). When the ‘‘employer’’ provides a police officer with a gun that creates a
risk of its misuse, but while the risk created by the employer is a relevant consideration in
determining the scope of vicarious liability, it is not a sufficient test of it: Brown v
Robinson [2004] UKPC 56 at [11].
173
See, e.g. Cheshire v Bailey [1905] 1 K.B. 237; but even the earlier cases recognised that
the employer may be primarily liable as, e.g. where the theft can be attributed to his own
negligence in employing a dishonest servant or if his own negligence led to the theft:
Williams v The Curzon Syndicate Ltd (1919) 35 T.L.R. 475; De Parell v Walker (1932) 49
T.L.R. 37; Adams (Durham) Ltd v Trust Houses Ltd [1960] 1 Lloyd’s Rep. 380.
174
[1966] 1 Q.B. 716. Mendelssohn v Normand Ltd [1970] 1 Q.B. 177; Port Swettenham
Authority v T.W. Wu & Co [1979] A.C. 580.
175
On the sub-bailment and exemption clause aspects of this case, see The Pioneer Container
[1994] 2 A.C. 324.
Scope of Employment 971
176
See Lister v Hesley Hall Ltd, above, fn.126, at [19] and [76] and Photo Productions Ltd
v Securicor Transport Ltd [1980] A.C. 827 at 846.
177
Nahhas v Pier House Management (Cheyne Walk) Ltd (1984) 270 E.G. 328; Fawcett
Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd [1991] 2 S.A.L.R. (Zimbabwe)
(theft by security guard at client’s premises).
178
See Heasman v Clarity Cleaning Co [1987] I.C.R. 949 and Lister v Hesley Hall Ltd,
above, fn.126 at [45]; cf. Brink’s Global Services Inc v Igrox Ltd [2009] EWHC 1817
(Comm).
179
Coupe Co v Maddick [1891] 2 Q.B. 413; Aitchison v Page Motors Ltd (1935) 154 L.T. 128;
Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 S.C. 796. Cf.
Sanderson v Collins [1904] 1 K.B. 628.
972 Vicarious Liability
F. Fraud of Servant
20–17 Cases of fraud raise special problems because of the special
character of fraud itself. Of its very nature, fraud involves the
persuasion of the victim, by deception, to part with his property or
in some other way to act to his own detriment and to the profit of the
person practising the fraud. Thus in Lloyd v Grace, Smith & Co,182
as we have seen, the defendants’ clerk fraudulently persuaded the
claimant to transfer her property to him, and what is significant for
the purposes of vicarious liability is that it was the position in which
he had been placed by the defendants that enabled him to do this.
His acts were within the scope of the apparent or ostensible author-
ity with which he had been clothed by the defendants and it is for
this reason that they were liable.183 In Uxbridge Permanent Benefit
Building Society v Pickard,184 as in Lloyd’s case, the clerk had full
authority to conduct the business of a solicitor’s office in the name
and on behalf of his principal. It was not within his actual authority
to commit a fraud, but it was within his ostensible authority to
180
Morris v C.W. Martin & Sons Ltd [1966] 1 Q.B. 716 at 724–725.
181
See also Photo Productions Ltd v Securicor Transport Ltd [1980] A.C. 827 (security guard
setting fire to premises).
182
[1912] A.C. 716, para.20–13, above.
183
‘‘If the agent commits the fraud purporting to act in the course of business such as he was
authorised, or held out as authorised, to transact on account of his principal, then the latter
may be held liable for it’’: [1912] A.C. 716 at 725 per Earl Loreburn (emphasis added). See
also at 738–739 per Lord Macnaghten, at 740 per Lord Shaw, but this does not mean that
‘‘scope of authority’’ is a universal substitute for ‘‘scope of employment’’ in statement
cases: HSBC Bank Plc v So [2009] EWCA Civ 296.
184
[1939] 2 K.B. 238.
Scope of Employment 973
perform acts of the kind that come within the business conducted by
a solicitor.
‘‘So long as he is acting within the scope of that class of act, his
employer is bound whether or not the clerk is acting for his own
purposes or for his employer’s purposes.’’185
However, there must be some statement or conduct by the employer
which leads to the claimant’s belief that the servant was acting in the
authorised course of business. It is not enough that the belief has
been brought about solely by reliance on the servant’s misrep-
resentation of the scope of his authority, however reasonable, from
the claimant’s point of view, it may have been to have acted upon it.
In Armagas Ltd v Mundogas SA186 M had authority to sell a vessel
belonging to the defendants on terms that it was to be chartered back
to them for 12 months. As part of a fraudulent scheme he induced
the claimants, the purchasers, to believe that the contract involved a
36-month charter back. Such a transaction was not within the usual
class of acts which an employee in his position was entitled to do
and, the claimants’ belief resting solely on M’s statement that he had
the defendants’ consent for what was being done,187 it was held that
M’s employers were not liable for his fraud. M’s employment by the
defendants to deal with the vessel gave him the opportunity to
commit the fraud but, as in the case of theft by a servant of goods
bailed to his employer that is not enough.
4. EMPLOYERS’ INDEMNITY
Vicarious liability being a form of joint liability, the provisions of 20–18
the Civil Liability (Contribution) Act 1978188 may enable the
185
[1939] 2 K.B. 238 at 254 per Sir Wilfrid Greene M.R. ‘‘In the case of a servant who goes
off on a frolic of his own, no question arises of any actual or ostensible authority upon the
faith of which some third person is going to change his position. The very essence of the
present case is that the actual authority and the ostensible authority to [the clerk] were of
a kind which in the ordinary course of an everyday transaction were going to lead third
persons, on the faith of them, to change their position’’: at 254–255.
186
[1986] A.C. 717. See also the discussion of ostensible authority in Freeman and Lockyer
(A Firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 Q.B. 480 at 502–505 and in
First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep. 194 (a
case of contract). Ostensible authority in the case of acts by officers of a company has been
affected by the fact that the company’s memorandum is a public document, but the
Companies Act 2006 s.40 provides that, ‘‘in favour of a person dealing with a company in
good faith, the power of the board of directors to bind the company, or authorise others to
do so, is deemed to be free of any limitation under the company’s constitution.’’
187
Authority was also in issue in Kooragang Investments Pty Ltd v Richardson & Wrench Ltd
[1982] A.C. 462 (a case of negligence) where the servant was ‘‘moonlighting’’ for X.
There was no actual authority to do the acts in question, the employer in no way held out
the servant as having authority and, indeed, the claimant was unaware that the servant was
in the employ of the defendants. Not liable.
188
See Ch.21, below.
974 Vicarious Liability
189
For cases in which a full indemnity was awarded to the employer under the previous
legislation, the Law Reform (Married Women and Tortfeasors) Act 1935, see Ryan v
Fildes [1938] 3 All E.R. 517; Semtex v Gladstone [1954] 1 W.L.R. 945; Harvey v O’Dell
Ltd [1958] 2 Q.B. 78.
190
[1957] A.C. 555. See also the judgment of the CA: [1956] 2 Q.B. 180.
191
Semtex v Gladstone [1954] 1 W.L.R. 945 at 953 per Finnemore J., cited with approval in
the Lister case in the CA [1956] 2 Q.B. at 213 per Romer L.J. In Harvey v O’Dell Ltd
[1958] 2 Q.B. 78, McNair J. held that a servant’s implied undertaking to exercise
reasonable care extended only to those acts which he was specifically employed to do and
that therefore the negligent driving of the servant, who was employed as a storekeeper, did
not constitute a breach of his contract of service.
192
Report published in 1959. See Gardiner (1959) 22 M.L.R. 652.
193
It has been abrogated by statute in Australia.
Employers’ Indemnity 975
202
See para.20–21, below.
203
See Morgans v Launchbury [1973] A.C. 127 at 135 per Lord Wilberforce. In Moores v
Bude-Stratton Town Council [2001] I.C.R. 271, the lay majority of the EAT held a local
authority vicariously liable for the conduct of a councillor which led to the constructive
dismissal of the applicant.
204
League Against Cruel Sports v Scott [1986] Q.B. 240 where control is emphasised. The
Supreme Court of Canada held a childcare authority not vicariously liable for abuse of its
ward by a foster parent since although the foster parents acted in pursuance of a public goal
they could not be regarded as acting on behalf of the authority: K.L.B. v British Columbia
[2003] SCC 51; [2003] 2 S.C.R. 403.
205
Winfield sought to explain the doctrine in terms of ‘‘casual delegation’’ of the use of a
chattel, but the leading case now talks in terms of agency: Morgans v Launchbury [1973]
A.C. 127.
206
Ownership as such is probably not necessary: Nottingham v Aldridge [1971] 2 Q.B. 739.
In Morgans v Launchbury the husband was held liable for the negligence of the driver and
there was no appeal against that decision. If an owner bails his vehicle to A and A gets B
to drive it, the owner is not liable for B’s negligence: Chowdhary v Gillot [1947] 2 All E.R.
541.
207
Morgans v Launchbury [1973] A.C. 127.
208
[1953] 1 W.L.R. 1120. See also Samson v Aitchison [1912] A.C. 844; Pratt v Patrick
[1924] 1 K.B. 488; Parker v Miller (1926) 42 T.L.R. 408; The Trust Co Ltd v De Silva
[1956] 1 W.L.R. 376, PC; Vandyke v Fender [1970] 2 Q.B. 292; Candler v Thomas [1998]
R.T.R. 214.
Liability for Agents: Vehicle Drivers 977
pursuing his own interest in driving A’s car. On the other hand,
liability was not imposed in Morgans v Launchbury209 where the
husband, who normally used his wife’s car to go to work, got a third
person to drive him home after visits to several public houses. In no
sense was the husband acting as his wife’s agent in using the car for
his work and still less was the third person her agent.210 It is now
clear that mere permission to drive without any interest or concern
of the owner in the driving does not make the owner vicariously
liable211 nor is there any doctrine of the ‘‘family car’’.212 Where,
however, the facts of the relationship between owner and driver are
not fully known, proof of ownership may give rise to a presumption
that the driver was acting as the owner’s agent.213
The development of a separate head of vicarious liability for 20–20
vehicle drivers was clearly been prompted by a desire to ensure a
claim-worthy defendant, but the House of Lords denied that the
courts may go on a voyage of discovery into the insurance position
in these cases and said that any alteration of the law must be left to
the legislature with its superior capacity for making decisions of
policy. However, to confine our attention in this context to instances
of vicarious liability risks giving a false impression. If there is in
force a policy of insurance covering the liability of the driver214
there will generally be no point in suing the owner. In fact, as far as
the claimant is concerned, even if the driver is not covered by the
policy, in most cases the owner’s insurer must satisfy the judgment
against the uninsured driver215 and if there is no insurance at all the
claimant may proceed under the MIB Agreement.216 The owner may
be liable to indemnify his insurer or the MIB (and that will be out
of his own pocket) but that is no concern of the claimant.
The question remains of the reach of this principle. While it has
certainly been most prominent in the context of motor accidents, it
209
[1973] A.C. 127.
210
Cf. the valiant attempt of Lord Denning M.R. and Edmund Davies L.J. in the CA to fit the
facts into a traditional agency framework: [1971] 2 Q.B. 245.
211
Morgans v Launchbury, above, fn.207; Hewitt v Bonvin [1940] 1 K.B. 188 (father
permitting son to take girlfriends home in car); cf. Carberry v Davies [1968] 1 W.L.R.
1103 (owner suggesting to driver that he take owner’s son out in car). A person who has
‘‘borrowed’’ a car, with or without the owner’s permission is not acting as his agent when
driving it back to him: Klein v Caluori [1971] 1 W.L.R. 619.
212
Cf. the view of Lord Denning M.R. in Launchbury v Morgans [1971] 2 Q.B. 245. A wife
is not her husband’s agent because she is on a family shopping expedition: Norwood v
Navan [1981] R.T.R. 457.
213
Barnard v Sully (1931) 47 T.L.R. 557; Rambarran v Gurrucharan [1970] 1 W.L.R. 556;
Morgans v Launchbury, above, fn.207, at 139 per Viscount Dilhorne.
214
e.g. under a ‘‘named driver’’ clause in the policy.
215
Road Traffic Act 1988 s.151(2)(b).
216
It should be noted that at the time of the accident in Morgans v Launchbury insurance for
passengers was not compulsory and therefore fell outside the scope of the MIB
Agreement.
978 Vicarious Liability
has been applied to a boat217 but even a special rule about ‘‘trans-
port’’ seems out of tune with the style of the common law and the
judgments in Morgans v Launchbury are couched in quite general
terms of agency. On the other hand, a general principle that the
owner of a chattel was liable for the negligence of anyone using it
at his request would have surprising consequences.218 The High
Court of Australia declined to apply it in a case where the owner of
a light aircraft requested a pilot who was not his servant to take a
son’s friend for a flight,219 though even its application to the motor
car situation in Australia is subject to some uncertainty (at least
where the owner is not in the vehicle).220
‘‘The law cast upon the defendant, when exercising this right, a
duty towards the plaintiff. I do not think that duty went so far as
to require him absolutely to provide that no damage should come
to the plaintiff’s wall from the use he thus made of it, but I think
that the duty went as far as to require him to see that reasonable
skill and care were exercised in those operations which involved
a use of the party-wall, exposing it to this risk. If such a duty was
cast upon the defendant he could not get rid of responsibility by
delegating the performance of it to a third person. He was at
liberty to employ such a third person to fulfil the duty which the
law cast on himself, and, if they so agreed together, to take an
indemnity to himself in case mischief came from that person not
fulfilling the duty which the law cast upon the defendant; but the
defendant still remained subject to that duty, and liable for the
consequences if it was not fulfilled.’’
For this purpose, care must be taken to avoid the conclusion that
because a duty owed by A to B is non-delegable, so also is a duty
owed by A to C. A building contractor may well, as a matter of
contract, be responsible to the building owner for deficiencies in the
completed building, but it does not follow that he is responsible to
224
See para.20–1, above.
225
D.&F. Estates Ltd v Church Commissioners [1989] A.C. 177 per Lord Bridge.
226
Cassidy v Ministry of Health [1951] 2 K.B. 343 at 363 per Denning L.J.
227
See Phillips v Britannia Hygienic Laundry Co [1923] 1 K.B. 539; Stennett v Hancock
[1939] 2 All E.R. 578; Salsbury v Woodland [1970] 1 Q.B. 324.
228
The Pass of Ballater [1942] P. 112 at 117 per Langton J. See also The Lady Gwendolen
[1965] P. 294, where Winn L.J. (at 350) described the duty owed by a shipowner to other
ships and to persons who might be affected by the navigation of his own ships as a duty,
‘‘that all concerned in any capacity with the navigation of those ships should exercise such
care as a reasonable person would exercise in that capacity.’’
229
(1883) 8 App. Cas. 443 at 446.
980 Vicarious Liability
third parties for damage for which they sue in tort230: as far as the
first is concerned his duty may be to provide a building according to
specifications, but to the second he owes only a duty of care.
20–22 It is a question of law whether the duty in a given case is ‘‘non-
delegable’’. The categories of instances do not appear to be closed,
but not a great deal by way of principle appears from the cases.
Indeed, it has been said that, ‘‘the doctrinal roots of non-delegable
duties are anything but deep or well established’’.231 Where there is
a contract then of course all depends upon the proper interpretation
of the contract and there would be nothing unusual in the conclusion
that the defendant had undertaken to produce a result (in which case
negligence on anyone’s part is irrelevant) or to secure that care was
taken by all concerned with the matter. The same is true where the
case depends upon implication by law, as in the case of a bail-
ment,232 but some cases are more difficult to explain. In Rogers v
Night Riders233 the defendants held themselves out as a minicab firm
and undertook to provide a car to take the claimant to Euston. The
defendants in fact relied on independent contractor drivers and were
not much more than a booking agency. The decision that the defen-
dants were liable to the claimant for an accident caused by the bad
condition of the car seems correct on the basis of what they had led
the claimant to believe about the nature of their business, in other
words, although they were not a minicab company they contracted
to provide the services of one.234 More difficult is the Court of
Appeal’s statement that it did not matter whether the case was
framed in contract or in tort. We are, of course, now familiar with
tort liability arising from an undertaking or assumption of responsi-
bility,235 but there does not seem to be any general rule that such
liability necessarily carries with it responsibility for the defaults of
an independent contractor. In Aiken v Stewart Wrightson Members
Agency Ltd,236 it was held that Lloyd’s members agents did not owe
a non-delegable duty in tort in respect of the carrying on of under-
writing business by managing agents even though they were con-
tractually liable for the conduct of the managing agents.237 The tort
duty which they did owe (to exercise reasonable care in selecting
and liaising with the managing agents) therefore fell short of their
230
D.&F. Estates Ltd v Church Commissioners [1989] A.C. 177.
231
Leichhardt Municipal Council v Montgomery [2007] HCA 6, 233 A.L.R. 200 at [155] per
Hayne J.
232
The duty of a mortgagee or receiver to obtain the best price for property sold to meet a debt
is also non-delegable so it is no answer for him to say he instructed a competent valuer:
Raja v Austin Gray [2002] EWCA Civ 1965; 13 E.G. 117.
233
[1983] R.T.R. 324.
234
See the judgment of Dunn L.J. The case is referred to without disapproval in Wong v Kwan
Kin Travel Services Ltd [1996] 1 W.L.R. 138.
235
See para.5–34, above.
236
[1995] 1 W.L.R. 1281.
237
The point was significant because of limitation.
Employer and Independent Contractor 981
fall into the highway, and an accident resulted in which the claimant
was injured. The Court of Appeal held that these facts did not bring
the case within the special category comprising cases of work done
on the highway243 and that there was no equivalent category com-
prising cases in which work is done near the highway. Accordingly
the general principle applied and the defendant was not liable for the
negligence of the independent contractor. Cases like Gray v Pullen
rest on the fact that they involve an obstruction of the highway
which is inherent in the very nature of the act the contractor is
employed to do.244
243
Widgery L.J. observed that the cases within this category would be found on analysis to
be cases where the work done was of a character which would have been a nuisance unless
authorised by statute: [1970] 1 Q.B. 324 at 338. Cf. at 348 per Sachs L.J. By statute a
highway authority is liable for the negligence of contractors to which it delegates highway
maintenance functions, see para.14–42, above. Cf. the position in Australia, where there is
no such statutory provision: Leichhardt Municipal Council v Montgomery [2007] HCA 6;
233 A.L.R. 200.
244
Rowe v Herman [1997] 1 W.L.R. 1390.
245
See Ch.15.
246
Black v Christchurch Finance Co [1894] A.C. 48; Spicer v Smee [1946] 1 All E.R. 489;
Balfour v Barty-King [1957] 1 Q.B. 496; H.N. Emanuel Ltd v GLC, The Times, March 10,
1971; Iverson v Purser (1991) 73 D.L.R. (4th) 33. Cf. Eriksen v Clifton [1963] N.Z.L.R.
705.
247
Matania v National Provincial Bank (1936) 155 L.T. 74 (nuisance by dust and noise the
inevitable consequence of extensive building operations); Att Gen v Geothermal Produce
NZ Ltd [1987] 2 N.Z.L.R. 348.
248
[1934] 1 K.B. 191.
249
At 197.
Employer and Independent Contractor 983
Whether the duty is absolute in this sense depends upon the true
construction of the statute. Some of the duties imposed by industrial
safety legislation are absolute.254 Where a statute authorises some-
thing to be done which would otherwise be illegal, the duty is
generally such that there is liability if the work is done by an
independent contractor.255 However, everything turns on the partic-
ular statute,256 so that, for example, a local authority’s duty under
250
Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GMBH [2008] EWCA Civ 1238;
[2009] Q.B. 725. Honeywill’s case was said not to be part of Australian law in Stevens v
Brodribb Sawmilling Co Pty Ltd (1986) 160 C.L.R. 16. In Burnie Port Authority v General
Jones (1994) 179 C.L.R. 520 the High Court declared that the rule in Rylands v Fletcher
no longer formed part of the law of Australia, but the defendants were held liable for the
activities of their contractors. However, the duty imposed seems more an enhanced duty
of care than a true non-delegable duty. It has been said that, ‘‘outside its proper sphere of
operation, broadly coextensive with that occupied by the former law concerning spread of
fire and Rylands v Fletcher, Burnie has not detracted from the principle decided in Stevens
v Brodribb, that there is no general doctrine in Australian law that a person has a non-
delegable duty to ensure that reasonable care is taken by an independent contractor who
is employed to engage in an extra-hazardous activity’’: Transfield Services (Australia) v
Hall [2008] NSWCA 294 at [90]. See also Northern Sandblasting v Harris (1997) 188
C.L.R. 313 (landlord’s repairing duties not non-delegable).
251
[1938] A.C. 57.
252
See para.8–17, above.
253
The Pass of Ballater [1942] P. 112 at 117, referring to Smith v Cammell Laird & Co Ltd
[1940] A.C. 242; Donaghey v Boulton and Paul Ltd [1968] A.C.1.
254
See Ch.8.
255
Hardaker v Idle DC [1896] 1 Q.B. 335 at 351; Darling v Att Gen [1950] 2 All E.R. 793
(Minister of Works having statutory power to do work on land liable for negligence of
independent contractor in leaving heap of timber on field which injured claimant’s
horse).
256
In Rivers v Cutting [1982] 1 W.L.R. 1146 the police were held not liable for the negligence
of a garage which they had procured to tow away an abandoned vehicle. The statutory
power was to ‘‘remove’’ or ‘‘arrange for the removal’’ of the vehicle and since the
policeman was exercising the latter no question of delegation arose.
984 Vicarious Liability
257
S. v Walsall MBC [1985] 1 W.L.R. 1150; cf. H v Surrey CC, The Times, January 27, 1994
(primary liability for statement).
258
Pickard v Smith (1861) 10 C.B.(N.S.) 470 at 480 per Williams J.: ‘‘If an independent
contractor is employed to do a lawful act, and in the course of the work he or his servants
commit some casual act of wrong or negligence, the employer is not answerable . . . The
rule, however, is inapplicable to cases in which the act which occasions the injury is the
one with the contractor was employed to do.’’ ‘‘It is settled law that one employing another
is not liable for his collateral negligence unless the relation of master and servant exists
between them’’: per Lord Blackburn, Dalton v Angus (1881) 6 App.Cas. 740 at 829;
Cassidy v Ministry of Health [1951] 2 K.B. 343 at 363–364 per Denning L.J.
259
See the criticism of Sachs L.J. in Salsbury v Woodland [1970] 1 Q.B. 324 at 348. Prosser,
Torts, 5th edn, p.516, suggests that the test of collateral negligence is not its character as
a minor incident or operative detail of the work to be done, but rather its dissociation from
any inherent risk created by the work itself. See also Jolowicz (1957) 9 Stanford L. Rev.
690 at pp.707–708.
260
(1912) 28 T.L.R. 494.
261
[1899] 2 Q.B. 392. Cf. Reedie v L & NW Ry (1849) 4 Ex. 244 (railway company employed
contractor to build a bridge; contractor’s workman negligently caused the death of a
person, passing beneath along the highway, by allowing a stone to drop on him; Ry
company held not liable). ‘‘I am not liable if my contractor in making a bridge happens to
drop a brick . . . but I am liable if he makes a bridge which will not open . . . The liability
of the employer depends on the existence of a duty . . . it only extends to the limit of that
duty. I owe a duty with regard to the structure of the bridge; I owe a duty to see that my
bridge will open; but I owe no duty with regard to the disposition of bricks and hammers
in the course of construction’’: Chapman, ‘‘Liability for the Negligence of Independent
Contractors’’ (1934) 50 L.Q.R. 71 at 80–81. That accords with the result of Padbury but
not of Holliday.
Employer and Independent Contractor 985
‘‘[T]he tool was not placed on the window sill in the ordinary
course of doing the work which the sub-contractor was employed
to do’’.
1
See Performance Cars Ltd v Abraham [1962] 1 Q.B. 33; Baker v Willoughby [1970] A.C.
467, para.6–7, above.
2
Though he cannot execute judgment so as to recover more than his loss: see below.
3
This is the general position in common law and European legal systems. See Rogers (ed.),
Unification of Tort Law: Multiple Tortfeasors (2004). The major exception is the United
States, where the position has been radically altered by statute in many states. See Green
in Rogers (ed.), Unification of Tort Law: Multiple Tortfeasors (2004) p.261. However,
most Australian states have now gone down a similar road of apportioning liability among
wrongdoers, though not in relation to personal injuries. See, e.g. Civil Liability Act 2002
(NSW) Pt 4. For a broader comparative overview of divisibility issues see Oliphant (ed.)
Aggregation and Divisibility of Damage (2009).
987
988 Joint and Several Tortfeasors
4
Consider for example the outcome of the Selby rail accident. A driver fell asleep on the
M62, veered off the road and caused a rail crash. The driver brought (unsuccessful)
contribution proceedings alleging defective design of the motorway bridge. Under the
present system the victims’ claim was for a simple case of driving negligence. If they had
been required to sue the designers of the bridge their case would have been much more
complicated: GNER v Hart [2003] EWHC 2450 (QB). See also Roe v Sheffield CC [2004]
EWCA Civ 329 at [34].
5
See Mortgage Express Ltd v Bowerman [1996] 2 All E.R. 836.
6
Which is in effect the position at sea where cargo on ship A is damaged by the concurrent
fault of ship A and ship B (but not where cargo on innocent ship A is damaged by the
concurrent fault of ships B and C) under the Merchant Shipping Act 1995 s.187 (replacing
the Maritime Conventions Act 1911 s.1).
7
See DTI Feasibility Investigation (1996) s.6.3 and Green, fn.3, above.
8
See previous note. There was said to be a case in logic for proportionate liability in the case
where C is at fault as well as D1 and D2 (see e.g. Fitzgerald v Lane [1989] A.C. 328)
though in practice a change would tend to favour defendants: see the Feasibility Study at
s.4.14.
Multiple Tortfeasors, Causation and Proof 989
conclusion that the present law was preferable to the various forms
of proportionate liability.9
The question of the scope of joint and several liability is a difficult 21–2
one and there appears to have been some narrowing of the approach
in the recent case law, so that although from a medical point of view
there is only one injury, there may be a greater willingness to hold
that the causative contribution of each defendant can be identified
and his liability confined to that. The simplest case of joint and
several liability is that of two virtually simultaneous acts of negli-
gence, as where two drivers behave negligently and collide, injuring
a passenger in one of the cars or a pedestrian,10 but there is no
requirement that the acts be simultaneous. Thus if D1 driving too
fast in icy conditions causes his lorry to ‘‘jack-knife’’ across the
motorway and D2, also driving too fast, later comes along and,
trying to avoid the obstruction, runs down C, assisting at the scene,
both D1 and D2 may be liable for C’s injuries.11 Of course it may
be on the facts the act of D1 is held to have lost its causative effect.12
The acts of the two defendants may be separated by a substantial
period of time and yet contribute to one, indivisible injury for this
purpose, as where D1 manufactures a dangerous product and D2
uses it without due care years later. In all these case there is no
logical or sensible basis for dividing up the causative origin of the
claimant’s injury between the defendants. If, for example, he is
killed in the accident one cannot say that he was half killed by D1
and half killed by D2—he was killed by the effect of the conduct of
both of them. However, where an injury is a progressive one it
seems a different attitude may be taken. Some of these cases are
concerned with the different factual situation where there is only one
tortfeasor and the other contributory cause is a natural event or
something for which the defendant is not responsible, but the issue
is fundamentally the same as that where there are two tortfeasors. In
Holtby v Brigham & Cowan (Hull) Ltd13 the claimant had been
exposed to asbestos during employment with several employers and
9
For another approach, see the Professional Standards Act 1994 (NSW) allowing pro-
fessions to draw up schemes of limited liability for professional activities. The Limited
Liability Partnership Act 2000 (para.24–24, below) reduces the risk of personal ruin to
those practising in partnerships.
10
‘‘Commonplace’’: Ellis v Environment Agency [2008] EWCA Civ 1117; [2009] P.I.Q.R.
P5 at [1].
11
Based on Rouse v Squires [1973] Q.B. 889. See also Lloyds Bank v Budd [1982] R.T.R.
80. If, however, C’s car had been damaged by a collision with D1’s lorry before the arrival
of D2 on the scene then D1 alone would be responsible for that loss.
12
This was the issue in Rouse v Squires, above, fn.11.
13
[2000] 3 All E.R. 421. Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] Q.B.
405; Allen v B.R.E.L. Ltd [2001] EWCA Civ 242; [2001] I.C.R. 942; Horsley v Cascade
Insulation Services Ltd [2009] EWHC 2945 (QB). In Brookes v South Yorkshire Passenger
Executive [2005] EWCA Civ 452 the claimant was exposed by the defendant to conditions
causative of vibration white finger from 1982 but the defendant was only at fault in relation
to this risk from 1987. The CA declined to reduce the damages because although all
990 Joint and Several Tortfeasors
exposure made some contribution to the final result, the claimant had a low susceptibility
and would probably never have developed symptoms had the defendant taken proper steps
in 1987. The objective of an award of damages is not to compensate the claimant for the
amount of the damage suffered but for the effects of the damage on him: at [26].
14
Cf. Luke v Kingsley Smith & Co [2003] EWHC 1559; [2004] P.N.L.R. 12 (lawyer D1 by
dilatoriness makes C’s claim vulnerable to striking out; lawyer D2 then negotiates a
settlement for a fraction of C’s loss; one single, indivisible loss in respect of which there
can be contribution between D1 and D2).
15
[1956] A.C. 613.
16
[1956] A.C. 613 at 622.
Multiple Tortfeasors, Causation and Proof 991
17
[2002] UKHL 22; [2003] 1 A.C. 32, para.6–9, above.
18
See para.6–10, above (mesothelioma cases only).
19
See also Wright v Stoddard International Plc [2007] CSOH 138.
20
Ellis v Environment Agency [2008] EWCA Civ 1117; [2009] P.I.Q.R. P5 at [39]. This is
not a multiple tortfeasor case but the point of principle is the same. C’s injury was the
product of the combined effect of a fall for which D was responsible and another fall for
which he was not. There was no ‘‘discount’’ for the contribution of the second fall.
However, matters which are not causative may be relevant to damages. In the case C had
a pre-existing spinal condition which would have at a later stage have caused disability
without the falls and the damages were discounted for this.
21
See the rather remarkable way in which the expert evidence in Rahman v Arearose Ltd
[2001] Q.B. 351 attributed different aspects of the claimant’s psychiatric trauma to
different events. Criticised by Weir [2001] C.L.J. 237. See also Hatton v Sutherland [2002]
EWCA Civ 76; [2002] I.C.R. 613 at [41] and O’Neil v van Horne (2002) 212 D.L.R. (4th)
458. Cf. Rees v Dewhirst Plc [2002] EWCA Civ 871.
992 Joint and Several Tortfeasors
The burden of proof rests on the claimant to show that the defendant
was responsible for the whole or a quantifiable part of his injury, but
in practice once it has been shown that what the defendant did make
a material contribution he is at risk of being held liable for the whole
unless he produces evidence of the contribution of other factors.22
So, in Brook v Bool,25 where two men searching for a gas leak each
applied a naked light to a gas pipe in turn and one of them caused
an explosion, they were held to be joint tortfeasors26; but where two
ships collided because of the independent acts of negligence of each
of them, and one of them, without further negligence, collided with
a third, it was held that they were several tortfeasors, whose acts
combined to produce a single harm, because there was no commu-
nity of design.27 A seemingly anomalous exception to the require-
ment of community of design is that where an employer is liable
vicariously for his servant’s tort, employer and servant are joint
22
Holtby’s case, above, fn.13.
23
‘‘Several or concurrent tortfeasors’’ is the terminology used by Auld L.J. in Jameson v
C.E.G.B. [1997] 3 W.L.R. 151 at 156. However, ‘‘concurrent tortfeasors’’ is a convenient
phrase to describe both.
24
The Koursk [1924] P. 140, at 151 per Bankes L.J., at 159–160 per Sargant L.J. For the
liability of company directors, see para.24–23, below.
25
[1928] 2 K.B. 578. See too Arneil v Patterson [1931] A.C. 560; cf. Cook v Lewis [1952]
1 D.L.R. 1.
26
Hence liable in respect of the damage. Note that the act of only one defendant was the
physical cause of the damage. See also Monsanto Plc v Tilly [2000] Env L.R. 313
(reconnoitring site and being present at scene explaining matters to press sufficient to make
D joint tortfeasor in relation to damage to crops); Shah v Gale [2005] EWHC 1087
(QB).
27
The Koursk, above, fn.24. See also Sadler v GW Ry [1896] A.C. 450; Thompson v LCC
[1899] 1 Q.B. 840. For the position where a number of persons are responsible for
publication of a libel and only some of them are malicious, see para.12–65, above.
Distinction between Joint and Several Tortfeasors 993
28
However, on the basis that joint tortfeasors are liable for the same tort, whereas several
concurrent tortfeasors are liable for the same damage (Gleeson C.J. and Callinan J. in
Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 C.L.R. 635) perhaps it is not
anomalous.
29
See Bebee v Sales (1916) 32 T.L.R. 413; Newton v Edgerley [1959] 1 W.L.R. 1031.
30
Credit Lyonnais Bank Nederland N.V. v E.C.G.D. [2001] 1 A.C. 486. See also C.B.S. Songs
Ltd v Amstrad Consumer Electronics Plc [1988] A.C. 1018 at 1058. D1 is attacking C. D2,
a malicious bystander, throws a knife to D1, with which D1 stabs C. It seems extraordinary
to suggest that D2 is not civilly liable for C’s injury. Yet it is difficult to say that there is
any procurement, common design or conspiracy.
31
Brinsmead v Harrison (1872) L.R. 7 C.P. 547; Duck v Mayeu [1892] 2 Q.B. 511; Cutler
v McPhail [1962] 2 Q.B. 292. Cf. X.L. Petroleum v Caltex Oil (1985) 155 C.L.R. 448.
32
Civil Liability (Contribution) Act 1978 s.3, replacing the Law Reform (Married Women
and Tortfeasors) Act 1935 s.6(1)(a).
33
Steyn L.J. in Watts v Aldington, The Times, December 16, 1993. Or even destroyed it:
Robinson v Tait [2002] 2 N.Z.L.R. 30 at [9].
34
See Watts v Aldington, above, fn.33; Gardiner v Moore [1969] 1 Q.B. 55; Apley Estates Ltd
v De Bernales [1947] Ch. 217.
35
Clark v Urquhart [1930] A.C. 28 at 66; Tang Man Sit v Capacious Investments Ltd [1996]
A.C. 514 at 522; Mason v Grogan [2009] EWCA Civ 283.
994 Joint and Several Tortfeasors
same is true wherever the settlement with the first defendant is made
in full satisfaction of the claim even if the sum is less than the
claimant would have received if the case had been pursued to
judgment.36 The settlement with one tortfeasor, even though other
tortfeasors are not party to it, is to be taken as conclusively estab-
lishing that the sum which has been agreed represents full value for
the claim,37 despite the fact that the settlement makes no mention of
the position of other tortfeasors and the sum recovered from the
settlor will in practice be discounted to reflect any weaknesses in the
claim. Of course the terms of the settlement may show, expressly or
by implication, that it is not in full satisfaction and that the claimant
is reserving his rights against other defendants.38 So, where C
dismissed D1, its managing director, for gross misconduct amount-
ing to fraud and he compromised their action by surrendering his
shareholding, it was held in proceedings by C against D2, their
auditors, for failing to detect D1’s wrongdoing,39 that it was quite
unrealistic to say that C was giving up its right to bring further
proceedings.40 Even where the claimant may bring successive pro-
ceedings, it is obviously desirable that a claimant should, if he
reasonably can, sue in the same proceedings all the tortfeasors who
are liable to him for the same damage. It is therefore provided that
the claimant may not recover costs in any but the first action in
respect of the damage unless the court is of the opinion that there
was reasonable ground for bringing the further proceedings.41
36
Jameson v C.E.G.B. [2000] 1 A.C. 455. This difficult case was a rather unsuitable vehicle
on which to restate the law in this type of case, because the general rule that sums actually
received would reduce the liability of other tortfeasors pro tanto did not apply. J recovered
£80,000 in settlement from his employer, Babcock, shortly before his death from mesothe-
lioma. After his death his widow commenced proceedings under the Fatal Accidents Act
1976 against C.E.G.B. Although the settlement sum from Babcock passed to the widow,
it is provided in s.4 of the 1976 Act that benefits accruing to the claimant (the widow) from
the estate of the deceased are not to be brought into account in assessing the damages:
para.23–16, below.
37
[2000] 1 A.C. 455 at 474.
38
Where C settles with D1 in circumstances where it remains open to him to go against D2
and he does so, D1 is exposed to contribution proceedings by D2 (below). D1 can protect
himself by obtaining from C an undertaking not to go against D1 or to indemnify him.
39
In which D2 sought contribution or indemnity from D1: one defendant cannot resist
contribution proceedings by the other by saying that he has settled with C: Civil Liability
(Contribution) Act 1978 s.1(3).
40
Cape & Dalgleish v Fitzgerald [2002] UKHL 16, applying Heaton v Axa Equity & Law
[2002] UKHL 15; [2002] 2 A.C. 329.
41
Civil Liability (Contribution) Act 1978 s.4. A similar provision appeared in the Law
Reform (Married Women and Tortfeasors) Act 1935 s.6(1)(b), but that act went further in
providing that the sums recoverable in later actions should not in the aggregate exceed the
amount awarded by the judgment first given. The Law Commission (Report on Contribu-
tion, Law Com. No.79 (1977)) thought the ‘‘damages sanction’’ an unnecessary complica-
tion and potentially unjust, e.g. if P suffered loss at the hands of D1 and D2 he might have
a good practical reason for suing D1 first but might be bound by a valid contractual
provision for limitation of damages against D1.
Contribution between Tortfeasors 995
At common law the general rule was that one concurrent tortfeasor, 21–4
even if he had satisfied the claimant’s judgment in full, could not
recover indemnity nor contribution towards his liability from any
other tortfeasor liable. The rule was laid down with regard to joint
tortfeasors in Merryweather v Nixan42 and was later extended to
several concurrent tortfeasors.43 The harshness of this rule was
modified to a limited extent and it does not apply where the tort was
not clearly illegal in itself, and the person claiming contribution or
indemnity acted in the belief that his conduct was lawful44; nor does
it apply where even though the tort was clearly illegal in itself, one
of the parties has been vicariously liable for another’s wrong to
which he gave neither his authority nor assent and of which he had
no knowledge.45
42
(1799) 8 T.R. 186. The rule was regarded as resting on the maxim ex turpi causa non oritur
actio: see para.25–18, below.
43
Horwell v L.G.O. Co (1877) 2 Ex.D. 365 at 379 per Kelly C.B.; The Koursk [1924] P. 140
at 158 per Scrutton L.J.
44
See Adamson v Jarvis (1827) 4 Bing. 66 (auctioneer innocently selling X’s goods at the
behest of the defendant, who represented himself as owner). This exception may hold good
even where the joint enterprise proves to be criminal: Burrows v Rhodes [1899] 1 Q.B.
816.
45
Romford Ice and Cold Storage Co v Lister [1956] 2 Q.B. 180, affirmed [1957] A.C. 555,
para.20–18, above.
46
See Cmd. 4637 (1934). Two statutory exceptions to the rule antedated the 1935 Act:
Maritime Conventions Act 1911 s.3, and Companies Act 1908 s.84. Contribution in
personal injury cases at sea is now governed by the Merchant Shipping Act 1995 s.189, to
the same effect as the 1911 Act.
47
Report on Contribution, Law Com. No.79 (1977). The Act came into force on January 1,
1979.
996 Joint and Several Tortfeasors
and for this purpose a person is ‘‘liable’’ whatever the legal basis of
his liability, ‘‘whether tort, breach of contract, breach of trust or
otherwise’’.48 So if D1 advises C on the purchase of a computer
system and as a result C buys a system from D2 which does not
perform the required task satisfactorily and D1 settles C’s claim, D1
may be able to seek contribution from D2, even though D2’s only
liability is in contract, whereas D1’s sounds in contract and in tort.49
However, in order that D1 and D2 are liable in respect of the ‘‘same
damage’’ one must generally50 be able to say that if either of them
makes a payment to C on account of his liability that will go to
reduce the liability of the other to C.51 Hence where D1 overvalued
a property on the security of which C lent money to D2 and, D2
having defaulted on the loan, D1 settled C’s claim for negligence for
£400,000, D1 was unable to claim contribution from D2.52 In such
a case D1’s liability to C is reduced by the value of D2’s covenant
to repay53 but D2’s liability (which is not a liability for damage or
in damages at all) is not reduced by the value of the claim against
the valuer. If C did recover in full from D2, no doubt it would hold
£400,000 on trust for D1. Further, D1 would be subrogated to the
extent of £400,000 to C’s claim against D2.54 Considerable uncer-
tainty has developed over the question whether, and if so how far,
the Act applies where one party is liable in tort and the other liable
48
Civil Liability (Contribution) Act 1978 s.6(1). ‘‘Liability’’ means a liability which has
been or could be established in a court in England and Wales: s.1(6). It includes a
judgment, even though given on a false assumption: BRB (Residuary) Ltd v Connex South
Eastern Ltd [2008] EWHC 1172 (QB); [2008] 1 W.L.R. 2867.
49
Based on Brownton Ltd v Edward Moore Inbucon Ltd [1985] 3 All E.R. 499, a pre-1978
Act case. So also where an architect fails to supervise a builder both he and the builder are
liable for the same damage, that is to say the owner being left with a defective building.
But an architect whose negligent certification hampers the building owner in a claim
against the builder for late completion is not liable for the same damage as the builder
(Royal Brompton Hospital NHS Trust v Watkins Gray International (UK) [2002] UKHL
14; [2002] 1 W.L.R. 1397); nor is a builder who is exempt from liability under his contract
for fire damage but required to restore the works under an insurance policy liable for the
same damage as persons who also caused the fire but have no such exemption (C.R.S.
Retail Services Ltd v Taylor Young Partnership [2002] UKHL 17; [2002] 1 W.L.R. 1419);
nor is a solicitor who allows a limitation period to expire liable for the same damage as the
tortfeasor: Wallace v Litwiniuk (2001) 92 Alta. L.R. (3d) 249. See also Bovis Construction
Ltd v Commercial Union Assurance Co Plc [2001] 1 Lloyd’s Rep. 416 but cf. Greene
Wood & McClean LLP v Templeton Insurance Ltd [2009] EWCA Civ 65; [2009] 1 W.L.R.
2013.
50
In the Royal Brompton case, above, fn.49, at [28] Lord Steyn pointed out that in the last
resort it is the statutory wording which governs and that this ‘‘test’’ might lead to undue
complexity in some cases.
51
Howkins & Harrison v Tyler [2001] Lloyd’s Rep. P.N. 1, CA.
52
[2001] Lloyd’s Rep. P.N. 1, CA: doubting Friends’ Provident Life Office v Hillier Parker
& Rowden [1997] Q.B. 85.
53
Eagle Star Insurance Co v Gale & Power (1955) 166 E.G. 37.
54
That had not been pleaded in Howkins. A claim by one co-surety against another does not
fall within the 1978 Act: Hampton v Minns [2001] 1 W.L.R. 1.
Contribution between Tortfeasors 997
55
Lord Steyn in Royal Brompton Hospital NHS Trust v Watkins Gray International (UK)
[2002] UKHL 14; [2002] 1 W.L.R. 1397 at [33].
56
See Charter Plc v City Index Ltd [2007] EWCA Civ 1382; [2009] Ch. 313.
57
Birse Construction v Haiste Ltd [1996] 1 W.L.R. 675.
58
Eastgate Group Ltd v Lindsey Morden Group Inc [2001] EWCA Civ 1446. That does not,
of course, necessarily mean that it is just and equitable that the vendor should recover
contribution from the valuer.
59
Claims for contribution are brought under Pt 20 of the Civil Procedure Rules. The parties
are known as Pt 20 claimants and defendants.
60
Section 2(1). The statutory right to contribution is not in the nature of a claim in tort. It has
been said to resemble a quasi-contractual claim by a person who has been constrained to
discharge another’s liability: Ronex Properties Ltd v John Laing Construction Ltd [1983]
Q.B. 398, but in another context the right was said to be ‘‘founded on tort’’: FFSB Ltd v
Seward & Kissel LLP [2007] UKPC 16.
61
See para.6–53, above. Where C, D1 and D2 are all to blame both the 1945 and 1978 Acts
are applicable. The correct approach is to consider the claimant’s fault against the totality
of the defendants’ conduct. That will give a figure for which the claimant recovers
judgment against all defendants and in respect of which they may seek contribution inter
se: Fitzgerald v Lane [1989] A.C. 328.
62
Causation of the damage is what is in issue. Hence where a collision is the fault of D1 and
D2 but D1 carried C in dangerous conditions which led to the injury, D1 may carry a
greater share of the responsibility than D2: Madden v Quirke [1989] 1 W.L.R. 702.
998 Joint and Several Tortfeasors
at the case where he is nevertheless under a liability to the claimant. Cf. the curious result
in Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18. D1 had suffered a default
judgment. D2 was held liable after a trial. D2’s contribution claim was dismissed because
D1’s minor negligence was insufficiently causally connected with C’s loss. In other words,
D1 was not in law liable to C but the court declined to set aside the default judgment
because timely application had not been made.
72
As in Semtex Ltd v Gladstone [1954] 1 W.L.R. 945, and K.D. v CC Hampshire [2005]
EWHC 2550 (QB), where the first defendant’s liability was only vicarious and in Wong v
Kwan Kin Travel Services [1996] 1 W.L.R. 39 under the HK Ordinance. Cf. Jones v
Manchester Corp [1952] 2 Q.B. 852.
73
K v P [1993] Ch. 141.
74
Counsel’s example in K v P, fn.73.
75
See Downs v Chappell [1997] 1 W.L.R. 426, where, however, some weight is placed upon
the fact that it was D1’s negligence rather than D2’s fraud which was the direct induce-
ment to buy and where D1’s conduct was ‘‘reckless’’. Note, however, that the fraudulent
defendant cannot raise contributory negligence against the claimant.
76
See Civil Liability (Contribution) Act 1978 s.2(3). Where an offer of amends under the
Defamation Act 1996 has been made and accepted and the person who has made the offer
is sued for contribution by another defendant, he cannot be required to pay by way of
contribution a greater amount than the amount payable in pursuance of the offer:
s.3(9)(b).
1000 Joint and Several Tortfeasors
that the correct approach is that the starting point is the total loss less
the reduction for contributory negligence, i.e. £10 million, even
though D2’s liability to the claimant is for the full £15 million. As
between D1 and D2 the £10 million would be shared in the respec-
tive sums of £2.5 million and £7.5 million. Hence since D1 has paid
£5 million he is entitled to £2.5 million from D2.77
21–7 It often happens that one tortfeasor may be able to recover an
indemnity, or damages amounting to an indemnity or contribution,
from another person by virtue of a contract between them. Nothing
in the 1978 Act affects the enforceability of such an indemnity78 and
it is irrelevant to this contractual claim that the extent of a tortfea-
sor’s liability has been determined as between himself and another
tortfeasor in proceedings for contribution. In Sims v Foster Wheeler
Ltd79 the claimant’s husband was killed when defective staging
collapsed, and both his employers and the constructors of the stag-
ing were liable in tort. As between these two tortfeasors it was held
that the employers were 25 per cent to blame and should bear that
proportion of the damages. They were, however, entitled to recover
this amount from their sub-contractors by way of damages for
breach of an implied warranty that the staging should be properly
constructed for safe use as scaffolding. On the other hand, the Act
does not render enforceable any agreement for indemnity which
would not have been enforceable had it not been passed.80 This
appears to refer to cases where the party seeking indemnity knew or
may be presumed to have known that he was committing an unlaw-
ful act. In W.H. Smith & Son v Clinton81 the defendants had con-
tracted to indemnify the claimants, a printing and publishing firm,
against any claims made against them for libels appearing in the
defendants’ paper Vanity Fair. This indemnity was held to be irre-
coverable because the claimants well knew that the matter published
was libellous. If the claimants had been innocent they could have
recovered under the indemnity clause.82 Although they could still
77
Nationwide Building Society v Dunlop Haywards (DHL) Ltd [2009] EWHC 254 (Comm);
[2010] 1 W.L.R. 258. Of course it may be that the fraudulent D2 is not claim-worthy, as
was probably so in the case.
78
Section 7(3) saves, (1) an express contractual right to contribution, (2) an express or
implied contractual right to indemnity, (3) an express contractual provision ‘‘regulating or
excluding contribution’’. The Act does not affect any right to recover an indemnity
otherwise than by contract. This is an obscure area: see Lambert v Lewis [1982] A.C. 225;
The Kapetan Georgis [1988] 1 Lloyd’s Rep. 352; Fletcher v National Mutual Life
Nominee Ltd [1990] 1 N.Z.L.R. 97.
79
[1966] 1 W.L.R. 156; Wright v Tyne Improvement Commissioners [1968] 1 W.L.R. 336.
Cf. Lambert v Lewis [1982] A.C. 225, where the person seeking indemnity was held to be
the sole cause of his own loss.
80
Section 7(3).
81
(1908) 99 L.T. 841.
82
Daily Mirror Newspapers Ltd v Exclusive News Agency (1937) 81 S.J. 924.
Contribution between Tortfeasors 1001
83
Section 11 of the Defamation Act 1952 provides that agreements for indemnity against
civil liability shall not be unlawful unless at the time of the publication the person claiming
to be indemnified knows the matter is defamatory and does not reasonably believe there
to be a good defence to any action brought upon it.
84
The printer who is unaware he is publishing a libel and takes reasonable care now escapes
liability altogether: para.12–23, above.
85
Williams, Joint Torts and Contributory Negligence, pp.139–145. Cf. Gatley, Libel and
Slander, 11th edn, para.29–32.
86
The judgment against the defendant will, of course, extinguish the claimant’s right of
action against him by merger.
87
Section 1(2).
88
Limitation Act 1980 s.10.
89
e.g. by a settlement with the claimant: Logan v Uttlesford DC (1986) 136 N.L.J. 541;
Jameson v C.E.G.B. [1998] Q.B. 323 (this point not on appeal [2000] 1 A.C. 455).
90
Section 1(3).
91
See para.26–16, below.
92
It is assumed that there is no question of the period being extended under the Limitation
Act 1980: para.26–20, below.
93
There is an exception where the conversion amounts to theft: para.26–16, below.
1002 Joint and Several Tortfeasors
C. Settlements
21–9 The vast majority of tort actions are settled (or withdrawn) before
the court pronounces judgment and the machinery of civil justice
could not operate if this were not so. As we have seen, in some cases
a settlement with one defendant may preclude the claimant from
taking further proceedings against others because he will be deemed
to have received full satisfaction.94 However, a defendant who has
settled must have the opportunity of seeking contribution against
any other person he considers liable. Under the law before the 1978
Act a defendant who settled, with or without admission of liability,
could seek contribution95 but this involved a curious reversal of the
normal roles of litigation, for in the contribution proceedings he was
required to show that he was liable to the claimant.96 What was
more, if he failed to do this he could recover no contribution even
though the evidence showed beyond any doubt that the person from
whom he sought it was liable to the claimant. Section 1(4) of the
1978 Act meets this point by providing that a person who has bona
fide settled a claim:
99
R.A. Lister & Co Ltd v E.G. Thompson (Shipping) Ltd (No.2) [1987] 3 All E.R. 1032 at
1039.
100
Nottingham Health Authority v Nottingham CC [1988] 1 W.L.R. 903 at 911–912. This is
the only way to avoid a conflict between s.1(3) and s.1(5). The wording proposed by the
Law Commission was clearer.
101
CPR Pt 20. If the court finds that one defendant is wholly to blame and exonerates the
other, that does not preclude an appeal by the first directed to placing all or part of the
blame on the second: Moy v Pettmann Smith [2005] UKHL 7; [2005] 1 W.L.R. 581.
CHAPTER 22
REMEDIES
IN this chapter we shall consider the remedies which may be availa- 22–1
ble to the victim of a tort. Of these the most important is an award
of damages, and the first part of this chapter is devoted to the rules
governing the action for damages and their assessment.1 In the
second part the other remedies, namely, self-help, injunction and an
order for the specific restitution of property, will be discussed.
1
Damages for fatal accidents are considered in the next chapter.
1005
1006 Remedies
Part I. Damages2
22–2 The general rule is that the damages to which a claimant is entitled
from the defendant in respect of a wrongful act must be recovered
once and for all.3 He cannot bring a second action upon the same
facts simply because his injury proves to be more serious than was
thought when judgment was given.4 The principal difficulties arise
in actions for personal injuries, because there the judge has so often
to base his award of damages upon an estimate of many future
uncertainties. Accordingly, the ‘‘once for all rule’’ has already been
modified in that context.5
22–3 i. Where two distinct rights are violated. It was held in Bruns-
den v Humphrey6 that where one act of the defendant violated two
distinct rights of the claimant (personal injury and property damage)
he could bring successive actions in respect of those rights. That
remains the law but it must now be qualified by the procedural rule
that it may be an abuse of process to return to court to raise issues
which could have been raised against the same party in earlier
proceedings7 and if so the second claim will be struck out.8 Lack of
funds to pursue both claims is unlikely in itself to mean there is no
abuse, though it is not irrelevant.9 Failure to raise both issues in the
initial proceedings may result in the claimant having an action
2
McGregor, Damages, 18th edn; Tettenborn, Wilby and Bennett, Law of Damages; Bur-
rows, Remedies for Torts and Breach of Contract, 3rd edn; Street, Principles of the Law
of Damages; Ogus, The Law of Damages; and, for personal injuries, Kemp and Kemp, The
Quantum of Damages. The Law Commission was very active in the field of damages in the
late 1990s. The Reports and Consultation Papers are referred to at appropriate points.
3
Laid down in Fetter v Beale (1701) 1 Ld.Raym. 339 at 692; Fitter v Veal (1701) 12 Mod.
542. For Winfield’s views on the merits of the rule, see the 7th edn of this work, pp.97–98.
Nor can the court make a complex conditional order tailored to do justice between the
parties: Patel v Hooper & Jackson [1999] 1 W.L.R. 1792.
4
A foreign judgment may preclude further action in England. See, e.g. Black v Yates [1992]
Q.B. 526.
5
See para.22–23, below.
6
(1884) 14 Q.B.D. 141.
7
Henderson v Henderson (1843) 3 Hare 100; Talbot v Berkshire CC [1994] Q.B. 290;
Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482. The court in Talbot
(where the claimant had been sued by X, a passenger in his car, and had issued a third-
party notice claiming contribution against the highway authority but had not lodged a
claim against the authority in respect of his own injuries) thought that Brunsden v
Humphrey might have been wrongly decided on the facts. Cf. Sweetman v Shepherd, The
Times, March 29, 2000 (not abuse to bring separate claim for contribution).
8
See Johnson v Gore Wood & Co [2001] 2 A.C. 1.
9
[2001] 2 A.C. 1.
Damages Recoverable Once Only 1007
against his legal advisers, but the fact that he has none will again not
itself mean that raising the issue in fresh proceedings against the
defendant is not an abuse.10
2. KINDS OF DAMAGES
A. Contemptuous
22–6 The amount awarded here is merely derisory—formerly 1 far-
thing, then 1 halfpenny and now, presumably, 1 new penny—and
17
Its original, technical, legal sense (in Roman Law) was the regaining of property by the rei
vindicatio.
18
See Att Gen of Trinidad and Tobago v Ramanoop [2005] UKPC 15; [2006] 1 A.C. 628;
Merson v Cartwright [2005] UKPC 38; Inniss v Attorney General of Saint Christopher and
Nevis [2008] UKPC 42; Subiah v Att Gen of Trinidad and Tobago [2008] UKPC 47;
Taunoa v Att Gen [2007] NZSC 70; [2008] N.Z.L.R. 429.
19
Takitoka v Att Gen of the Bahamas [2009] UKPC 12.
20
R. (Greenfield) v Secretary of State for the Home Dept [2005] UKHL 14; [2005] 1 W.L.R.
673.
21
Compare Merson v Cartwright above, fn.18, where the JCPC upheld awards of general
damages of US$180,000 for assault, battery and false imprisonment and US$100,000 for
violation of constitutional rights.
Kinds of Damages 1009
B. Nominal
Nominal damages are awarded when the claimant’s legal right 22–7
has been infringed, his conduct is not open to criticism in the above
sense, he has suffered no actual damage, but he still has a complete
cause of action because the tort is actionable per se, for example,
trespass to land, or because his cause of action is breach of contract.
In Constantine v Imperial Hotels Ltd,25 the defendants were guilty
of a breach of their duty as common innkeepers when they unjustifi-
ably refused accommodation in one of their hotels to the claimant,
the well-known West Indian cricketer. Although he was given
accommodation elsewhere, he was awarded nominal damages of 5
guineas.26 An award of nominal damages does not, therefore, con-
note any moral obliquity on the claimant’s part, but even so the
judge may in his discretion deprive the claimant of his costs or even
make him pay the costs of both sides.27
22
It seems that where D libels C it is not possible so to find and to award no damages. In
Reynolds v Times Newspapers Ltd [1998] 3 W.L.R. 862 the trial judge, after the jury’s
verdict, awarded 1p and the CA said this was correct (on appeal on other points [2001] 2
A.C. 127).
23
Pamplin v Express Newspapers Ltd [1988] 1 W.L.R. 116.
24
For an example, where the claimant got no costs, see Dering v Uris [1964] 2 Q.B. 669,
upon which the defendant based a successful book, Q.B. VII.
25
[1944] K.B. 693. See now the Race Relations Act 1976, which expressly allows damages
for injury to feelings and might therefore produce a larger award on such facts.
26
In fact, since this sum would now be at least £100, the case is perhaps better regarded as
an example of ‘‘small’’ or ‘‘conventional’’ damages. The standard sum for nominal
damages now seems to be £5 or £10.
27
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All E.R. 873 (a
case of contract). The real test is probably whether the claimant had a legitimate reason to
establish his right and that right has been vindicated by the judgment, for example where
an action of trespass is brought with the object of determining a dispute over a right of
way.
1010 Remedies
36
At least this is the theory of the matter. The element of vindication in cases of libel is in
fact so strong that it is questionable whether even the first category can really be called
compensation. See Windeyer J. in Uren v John Fairfax & Sons Pty Ltd (1967) 117 C.L.R.
118 at 150: ‘‘It seems to me that, properly speaking, a man defamed does not get
compensation for his damaged reputation. He gets damages because he was injured in his
reputation, that is simply because he was publicly defamed. For this reason, compensation
by damages operates in two ways—as a vindication of the plaintiff to the public, and as
consolation to him for a wrong done. Compensation is here a solatium rather than a
monetary recompense for harm measurable in money.’’
37
[1998] Q.B. 498; Manley v MPC [2006] EWCA Civ 879.
38
These are not rules to be applied in a mechanistic fashion and although the threshold for
interference has been lowered the jury (or judge) still retains some margin of discretion:
Clark v CC Cleveland, The Times, May 13, 1999.
39
The starting point for malicious prosecution is about £2,000. While these figures are only
a starting point they have to be increased by about 40 per cent to get end-2009 values.
40
Cf. Shah v Gale [2005] EWHC 1087 (QB).
41
W. v Meah [1986] 1 All E.R. 935 (rape); Appleton v Grant [1996] P.I.Q.R. P1 (non-
consensual dental treatment). In Shah v Gale, above, fn.40, the defendant was a joint
tortfeasor in respect of an assault which led to the murder of the deceased. The claim of
his estate was presented on the basis of asking for damages for the assault alone, without
the concomitant injury. £2,750 general and aggravated damages were awarded.
42
Jolliffe v Willmett & Co [1971] 1 All E.R. 478. See also Columbia Picture Industries Inc
v Robinson [1987] Ch. 38 (aggravated damages available where defendant executed an
Anton Piller order in an excessive and oppressive manner).
43
Archer v Brown [1985] Q.B. 401.
44
Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 A.C. 457 (the damages were not really
in issue on the appeal).
45
Prison Service v Johnson [1997] I.C.R. 275.
46
In Ashley v CC Sussex [2008] UKHL 25; [2008] 1 A.C. 962 (para.1–2, above) the
defendant conceded the availability of aggravated damages in the negligence claim against
him because he was seeking to avoid trial of the battery claim: at [23]. Lord Neuberger at
[101] was troubled by the idea that the parties could by agreement confer on the court
power to award damages not available at law but thought it was arguable that aggravated
damages might be available in some cases of negligence.
47
Kralj v McGrath [1986] 1 All E.R. 54.
1012 Remedies
57
[1964] A.C. at 1221.
58
Lord Devlin cites the Reserve and Auxiliary Forces (Protection of Civil Interests) Act
1951 s.13(2): [1964] A.C. at 1225. Lord Kilbrandon in Cassell v Broome, above, fn.55, at
1133, doubted whether any existing statute contemplated the award of exemplary damages
in the proper sense. The Copyright, Designs and Patents Act 1988 s.97, allows the award
of ‘‘additional’’ damages. The Inner House in Redrow Homes v Betts [1997] F.S.R. 828
held that this did not allow exemplary damages. In the House of Lords the only issue was
whether such additional damages could be awarded on a claim only for an account of
profits (no). The nature of the additional damages was left open, but in Lord Clyde’s view
they were probably not exemplary: [1999] A.C. 197 at 209.
59
A claim for exemplary damages must be pleaded: CPR 16.4(1)(c).
60
[1964] A.C. at 1226; Att Gen of St Christopher etc. v Reynolds [1980] A.C. 637.
61
(1763) 2 Wils. 205.
62
(1763) 2 Wils. 205 at 207 per Pratt C.J. Comparison is virtually impossible but on a price
inflation basis it might be £40,000 today. See also Wilkes v Wood (1763) Lofft. 1. In Wilkes
v Lord Halifax the jury awarded John Wilkes the then phenomenal sum of £4,000 for false
imprisonment: 19 State Trials 1466.
63
See Columbia Picture Industries Inc v Robinson [1987] Ch. 38. See also Moore v Lambeth
County Court Registrar (No.2) [1970] 1 Q.B. 56); cf. Al-Rawas v Pegasus Energy Ltd
[2008] EWHC 617; [2009] 1 All E.R. 346.
1014 Remedies
64
A.B. v South West Water Services Ltd [1993] 507. This case is overruled on the ‘‘cause of
action’’ test by Kuddus v CC Leicestershire [2001] UKHL 29; [2002] 2 A.C. 122 (see
below) but this element of the decision would still seem to stand. Nor does the action of
a councillor in a local authority committee necessarily fall within this category: Shendish
Manor Ltd v Coleman [2001] EWCA Civ 913 at [62].
65
An award may be made against an officer who acts under colour of authority even though
in the circumstances he is pursuing his own ends to such an extent that the chief constable
is not vicariously liable for him: Makanjuola v MPC, The Times, August 8, 1989.
66
Cassell & Co Ltd v Broome, above, fn.55, at 1077–1078, 1130, 1134 per Lord Hailsham
L.C. and Lords Diplock and Kilbrandon.
67
Holden v CC Lancashire [1987] Q.B. 380.
68
Actions for trespass and false imprisonment against the police will commonly be tried by
jury.
69
The judgment in Thompson v MPC [1998] Q.B. at 516 (which does not mention Holden)
is rather equivocal on this issue.
70
[1964] A.C. at 1226–1227.
71
It is, ‘‘merely preventing the defendant from obtaining a reward for his wrongdoing . . . the
plaintiff is the accidental beneficiary of a rule of law based on public policy rather than on
the reparation of private wrongs’’: McCarey v Associated Newspapers Ltd (No.2) [1965]
2 Q.B. 86 at 107 per Diplock L.J.
72
Now consolidated in the Powers of Criminal Courts (Sentencing) Act 2000. See also the
Proceeds of Crime Act 2002.
Kinds of Damages 1015
‘‘[M]ust have suspected that the words were untrue and have
deliberately refrained from taking obvious steps which, if taken,
would have turned suspicion into certainty’’.81
22–11 For a time there was a further restriction on the award of exem-
plary damages. In A.B. v South West Water Services Ltd82 the Court
of Appeal interpreted the modern authorities in such a way that,
even if the case fell within one of Lord Devlin’s categories, such
damages could only be awarded if they had been awarded for the
tort in question before Rookes v Barnard—the ‘‘cause of action’’
test. This meant that such awards were not based on principle but on
the accidents of past litigation83 but the restriction was rejected by
the House of Lords in Kuddus v CC Leicestershire.84 Exemplary
damages may therefore be awarded for misfeasance in a public
office,85 the paradigm example of a tort within the first category
above, but which had been almost forgotten in 1964.
The sum awarded by way of exemplary damages should be the
minimum necessary to punish the defendant, to show that tort does
not pay and to deter others.86 In the case of actions against the police
for trespass to the person and malicious prosecution the Court of
Appeal has said that where:
81
John v MGN Ltd, above [1997] Q.B. at 618.
82
[1993] Q.B. 507.
83
Kuddus v CC Leicestershire [2001] UKHL 29; [2002] 2 A.C. 122 at [22].
84
Above, fn.83. Design Progression Ltd v Thurloe Properties Ltd [2004] EWHC 324 (Ch);
[2004] 2 P. & C.R. 594.
85
Muuse v Secretary of State for the Home Dept [2009] EWHC 1886 (QB) (£25,000 for
basic loss of liberty, £7,500 aggravated damages, £27,500 exemplary damages); but not if
there is no actual damage on which to found the claim: Watkins v Home Office [2006]
UKHL 17. For the CA in Muuse, see Preface.
86
Rookes v Barnard [1964] A.C. at 1228.
87
Money has of course declined in value. £50,000 in 1998 would be approaching £70,000 in
2010.
88
Thompson v MPC [1998] Q.B. at 517.
Kinds of Damages 1017
The court in John v MGN Ltd was less prescriptive with regard to
libel, and it is clear from the substituted award of £50,000 exem-
plary damages in that case that libel awards may justifiably be
higher,89 since the conduct of the defendants in that case was not the
worst imaginable,90 but here, too, the tribunal must not cross the
threshold of the ‘‘necessary minimum’’. Exemplary damages may,
however, exceed any compensatory damages awarded by a large
margin.91 Before making an award the tribunal should ask itself
whether the sum which has been set for compensatory (including
aggravated) damages is sufficient to punish the defendant.92
The fact that the damages will be paid not by the actual wrong-
doer but by someone vicariously liable for his actions does not, as
the law now stands,93 prevent an exemplary award being made94 and
while the means of the defendant are in general relevant to the
quantum of exemplary damages an award against a newspaper or a
chief officer of police is not limited by the means of the journalist or
constable directly responsible.95 Where a policy of liability insur-
ance, on its proper construction, covers an award of exemplary
damages, there is no rule of public policy which prevents the insured
enforcing the indemnity.96 Where the claimant sues more than one
joint defendant in the same action, the sum which may be awarded
by way of exemplary damages is the lowest which the conduct of
89
No doubt because of the profit-making element.
90
Not as bad as that in Cassell & Co Ltd v Broome [1972] A.C. 1027.
91
A ratio of 2:1 in John. However, the ratios in Thompson were 0.75:1 and 1.25:1.
92
Cassell & Co Ltd v Broome [1972] A.C. at 1089; John v MGN Ltd [1997] Q.B. at 619;
Thompson v MPC [1998] Q.B. at 517. See Muir v Alberta (1996) 132 D.L.R. (4th) 695.
93
In Kuddus v CC Leicestershire, above, fn.83, the majority of the HL declined to deal with
the question of vicarious liability for exemplary damages, the matter not having been
argued; but see Lord Scott at [123]. The HCA decisively upheld the availability of
exemplary damages against those responsible for police officers in NSW v Ibbett [2006]
HCA 57; 231 A.L.R. 485 (though note that in NSW statute now provides that a police
officer is not personally liable for his torts).
94
It has been argued that large deterrent awards are likely to produce a greater managerial
response. ‘‘It is desirable as a matter of policy that the courts should be able to make
punitive awards against those who are vicariously liable for the conduct of their sub-
ordinates without being constrained by the financial means of those who committed the
wrongful acts in question. Only by this means can awards of an adequate amount be made
against those who bear public responsibility for the conduct of the officers concerned’’:
Rowlands v CC Merseyside [2006] EWCA Civ 1773; [2007] 1 W.L.R. 1065 at [47]; but
cf. Ipp J. dissenting in NSW v Ibbett [2005] NSWCA 445; 65 N.S.W.L.R. 68 at [162]: ‘‘it
is difficult to comprehend how an award against the State of New South Wales could be
said merely to irritate because it is $10,000 but would sting if it were $25,000, particularly
if regard is had to the State’s annual budget.’’ For HCA, see above, fn.93.
95
Thompson v MPC at [1998] Q.B. 517.
96
Lancashire CC v Municipal Mutual Insurance Co [1997] Q.B. 897. Note that in this case
the insurers had agreed by indorsement that injury caused by assaults by constables should
qualify as ‘‘accidental harm’’ within the meaning of the force’s policy and that it by no
means follows that a claim under a policy by the actual wrongdoer would succeed where
his conduct constituted a crime. On liability insurance and wilful wrongdoing see also
Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 and KR v Royal & Sun Alliance Plc
[2006] EWHC 48 (QB).
1018 Remedies
105
At [63] and [75] respectively.
106
At [95].
107
[1972] A.C. at 1114.
108
The Gleaner Co Ltd v Abrahams [2003] UKPC 55, [2004] 1 A.C. 628 at [54]. There was
no exemplary award in that libel case but in that context the theoretically clear line
between (compensatory) vindication and punishment/deterrence tends to break down in
practice.
109
For Canada see Vorvis v Insurance Corp of BC (1989) 58 D.L.R. (4th) 193 and Hill v
Church of Scientology (1995) 126 D.L.R. (4th) 129. For Australia see Uren v John Fairfax
(1966) 117 C.L.R. 118 and Gray v Motor Accidents Commission (1998) 196 C.L.R. 1.
They are, of course, firmly and widely established in the United States. Their formal
absence from civil law systems may conceal a more complex reality: L.C.C.P. 132,
ss.4.19–20 and Rogers (ed), Damages for Non-Pecuniary Loss in a Comparative Per-
spective (2001) at pp.290–291.
110
A v Bottrill [2002] UKPC 44; [2003] 1 A.C. 449.
111
Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; 44 A.C.S.R. 390.
1020 Remedies
to sell it above market value C could recover that and even if there
was no great difference between these figures, the claimant was
saved the trouble of showing what the property was worth.118 Not all
torts could be waived, for the essence of indebitatus assumpsit was
that the claimant claimed that the defendant ‘‘had and received’’
money which belonged to the claimant119—hence the modern termi-
nology that the defendant was unjustly enriched at the claimant’s
expense. Obviously, therefore, there are some torts in respect of
which the defendant receives no ‘‘enrichment’’, even by the most
generous interpretation—assault and battery or negligence for
example. Conversion or trespass to goods by taking, on the other
hand, are obvious candidates for inclusion.
Under modern procedure, the court is less likely to be concerned
with the precise labelling of the claimant’s claim or remedy and the
terminology of waiver of tort seems largely to have disappeared: a
court is now likely to say that it is awarding damages assessed on a
restitutionary basis rather than awarding a restitutionary remedy for
a tort. However, the question arises whether the modern form of
restitution for tort is still tied to the old waiver or whether there is
now a more general principle, applicable to all torts where a benefit
has been gained and perhaps applicable to contract as well, under
which the function of the law is to reverse the defendant’s gain
rather than compensate the claimant’s loss.120 It is well established
that where the defendant makes wrongful use of the claimant’s
property (for example by trespassing and dumping material on it121
or by taking or detaining it122) the court will assess the damages by
reference to a fair rental or access payment for the use,123 even
though the claimant has not in any real sense suffered a loss.124
However, the line between these cases and those where damages are
truly compensatory but assessed in a ‘‘conventional’’ form is not
118
See, e.g. Hospital Products Ltd v US Surgical Corp (1984) 55 A.L.R. 417 (not a tort
case).
119
It can be argued that the historical nature of conversion straddled tort and unjust enrich-
ment: see Douglas, ‘‘The Nature of Conversion’’ (2009) 68 C.L.J. 198
120
One of the two categories of exemplary damages may fulfil this function. Thus exemplary
damages may be awarded in some cases of libel (para.22–10, above) but no case suggests
that the tort of libel could be waived.
121
Whitwham v Westminster Brymbo Coal and Coke Co [1896] 2 Ch. 538; Martin v Porter
(1839) 5 M & W 351; Jegon v Vivian (1871) LR 6 ChApp 742; Penarth Dock Engineering
Co Ltd v Pounds [1963] 1 Lloyd’s Rep. 359.
122
Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson (1914) 31 R.P.C. 104 at 119;
Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 Q.B. 246.
See also MoD v Ashman (1993) 66 P.& C.R. 193 (relationship between restitution and
mesne profits).
123
Hence the expression ‘‘user’’ damages. Such damages are ‘‘readily awarded’’: Pell Frisch-
mann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45 at [48].
124
Att Gen v Blake [2001] 1 A.C. 268 at 279 per Lord Nicholls.
1022 Remedies
125
Compare in Blake the view of Lord Nicholls at 279 and Lord Hobhouse, dissenting, at 299
on the example put by Lord Halsbury L.C. in The Mediana [1900] A.C. 113 of wrongful
detention of a chair when the claimant still has enough chairs for all his needs. For Lord
Nicholls the award of damages based on interest on the capital value is depriving the
defendant of his gain; for Lord Hobhouse it is simply a conventional mode of assessment
of truly compensatory damages. In the ‘‘fair rental’’ case, although the defendant’s profits
are relevant to the quantification of this, the claim is not one for a share in the profits:
Severn Trent Water Ltd v Barnes [2004] EWCA Civ 570; [2004] E.G.L.R. 95 at [41];
Forsyth-Grant v Allen [2008] EWCA Civ 505 at [25]. In Experience Hendrix LLC v PPX
Enterprises Inc [2003] EWCA Civ 323; [2003] All ER Comm 83 Mance L.J. remarked at
[26]: ‘‘Whether the adoption of a standard measure of damages represents a departure from
a compensatory approach depends upon what one understands by compensation and
whether the term is only apt in circumstances where an injured party’s financial position,
viewed subjectively, is being precisely restored.’’
126
Stoke on Trent CC v W. & J. Wass Ltd [1988] 1 W.L.R. 1406.
127
Lord Nicholls in Att Gen v Blake at [2001] 1 A.C. 284 deprecates ‘‘restitutionary damages’’
as an ‘‘unhappy expression’’. Possibly this was because, as Longmore L.J. says in the
Devenish case, below, fn.129, at [144] to the uninitiated ‘‘restitution’’ may imply restora-
tion to the claimant of what he once had, whereas the true sense is surrender of unjust
enrichment.
128
Not merely interfered with them: Forsyth-Grant v Allen, above, fn.125 (nuisance).
129
[2008] EWCA Civ 1086; [2009] Ch. 390.
130
Att Gen v Blake, above, fn.127. Longmore L.J. indeed adopts the terminology of account
of profits even for tort cases (though see fn.127, above). We certainly allow an account of
profits for breach of copyright or breach of confidence. The first at any rate involves
interference with intangible property
131
They might have lost sales but that would be difficult to prove.
Kinds of Damages 1023
those who have actually suffered the loss. Neither the law of
restitution nor the law of damages is in the business of transfer-
ring monetary gains from one undeserving recipient to another
undeserving recipient even if the former has acted illegally while
the latter has not.’’132
3. MEASURE OF DAMAGES
A. Scope of Subject
In theory, even if not always in practice, this subject is distinct 22–14
from that of the chapter on remoteness of damage,134 though, obvi-
ously, both topics have a direct bearing upon the amount of money
the claimant will ultimately recover. Remoteness of damage con-
cerns the question: ‘‘in respect of what consequences of an estab-
lished breach of duty can the injured party recover?’’135 Now we
must see how the law attempts to answer the different question:
‘‘how much compensation can the injured party recover for conse-
quences of the breach of legal duty which have already been held to
be not too remote?’’
In the case of some torts such as conversion and deceit specific
rules for the assessment of damages exist, and these have been
noticed in their appropriate chapters.136 For the rest, and most
notably so far as damages for personal injury are concerned, the
courts were once content to leave the assessment of damages to the
jury with only general guidance from the judges, and many state-
ments can be found to the effect that the quantum of damages in
each case is a question of fact. It is no doubt still true that ultimately
the exact sum which the claimant is awarded in any case is depend-
ent upon all the detailed circumstances of the case, but this does not
132
At [146].
133
Law Com. No.247, above, fn.112.
134
See Ch.6, above. See Wilson and see fn.134, ‘‘A Re-examination of Remoteness’’ (1952)
15 M.L.R. 458.
135
Wilson and Slade, see fn.134.
136
For the measure of damages in defamation, see para.12–71, above.
1024 Remedies
the result that, for example, loss of earnings which had accrued by
the date of the trial was regarded as special damage (and therefore
had to be strictly pleaded) while future loss of earnings fell under the
head of general damages. However, under the current Civil Proce-
dure Rules the claimant has to attach to his particulars of claim a
schedule of details of all past and future losses which he claims, so
the distinction would seem to have disappeared for this purpose.
C. Restitutio in Integrum
The basic principle for the measure of damages in tort as well as 22–16
in contract is that there should be restitutio in integrum.145 Apart
from the special cases we have considered146:
So, in an action for deceit, the proper starting point for the
assessment of damages is to compare the position of the claimant as
it was before the fraudulent statement was made to him, with his
position as it became as a result of his reliance upon the state-
ment.148 The difference between the two situations is the measure of
the damages.149 In a case of personal injury, too, this criterion can
and should be applied to the pecuniary elements of the claimant’s
loss such as his loss of earnings,150 but it is difficult to see that it can
be applied to the non-pecuniary elements such as pain and suffering.
145
This expression has nothing to do with ‘‘restitution’’ in the sense used in para.1–10 and
para.22–13. Here the idea is ‘‘making whole’’.
146
See paras 22–5 to 22–13, above.
147
Livingstone v Rawyards Coal Co (1880) 5 App.Cas. 25 at 39 per Lord Blackburn;
Monarch Steamship Co Ltd v Karlshamns Oljefabriker (A/B) [1949] A.C. 196 at 221 per
Lord Wright. In The Albazero [1977] A.C. 774 at 841 per Lord Diplock. Lord Wright
described the principle of restitutio in integrum as ‘‘the dominant rule of law’’. ‘‘Subsidiary
rules can only be justified if they give effect to that rule.’’ Cf. Admiralty Commissioners
v SS Valeria [1922] 2 A.C. 242 at 248 per Lord Dunedin.
148
Doyle v Olby (Ironmongers) Ltd [1969] 2 Q.B. 158. See para.11–14, above.
149
What German law calls the Differenzhypothese. Of course one must take care that one
brings into the calculation what the claimant saves from the tort. If D destroys C’s goods
which are in the hands of X for refurbishment C can recover the cost of substitute goods
less what he would have had to pay X for the refurbishment: Re-Source America Inter-
national Ltd v Platt Site Services Ltd [2005] EWCA Civ 97; [2005] 2 Lloyd’s Rep. 50.
150
British Transport Commission v Gourley [1956] A.C. 185; Parry v Cleaver [1970] A.C. 1
at 22 per Lord Morris; Thompstone v Tameside and Glossop etc NHS Trust [2008] EWCA
Civ 5; [2008] 1 W.L.R. 2207 at [47].
1026 Remedies
D. Mitigation of Damage
22–17 In determining the loss suffered by the claimant there may have
to be brought into the account money or other benefits received by
the claimant as a result of the tort. This raises difficult questions of
law and policy, particularly in relation to personal injuries and is
considered later.155 Even where no countervailing advantage is in
fact received the claimant may not claim damages in respect of any
part of his loss that would have been avoidable by reasonable steps
on his part. Most of the authorities on the ‘‘duty’’ to mitigate relate
to breach of contract, but the broad principles are equally applicable
to tort. What is reasonable is a question of fact in each case: while
the claimant must not be allowed to indulge his own whims or
fancies at the expense of the defendant, it must also be remembered
that the defendant is a wrongdoer who has caused the claimant’s
difficulty.156 Accordingly, the standard of reasonableness is not a
high one.157
A. Heads of Damage
22–18 It was for long customary, even after the decline of the civil jury,
to make a global award which did not distinguish between the
different aspects of damages. This practice was supported partly on
the ground that separate assessment and addition of individual items
might lead to ‘‘overlapping’’ and a consequently excessive award.
However, the introduction by the Administration of Justice Act 1969
151
British Transport Commission v Gourley, above, fn.150, at 208 per Lord Goddard.
152
Rushton v National Coal Board [1953] 1 Q.B. 495 at 502 per Romer L.J.; H. West & Son
Ltd v Shephard [1964] A.C. 326 at 346 per Lord Morris.
153
Andrews v Grand & Toy Alberta Ltd (1978) 83 DLR (3d) 452 at 475 per Dickson J.
154
Heil v Rankin [2001] Q.B. 272 at 293; an ‘‘essentially judgemental question’’: Thomp-
stone, above, fn.150, at [47].
155
See para.22–31, below.
156
Banco de Portugal v Waterlow [1932] A.C. 452 at 506. For cases on refusal of medical
treatment, see Hudson in (1983) 3 L.S. 50.
157
Morris v Richards [2003] EWCA Civ 232; [2004] P.I.Q.R. Q30. For mitigation and
remoteness, see para.6–33, above.
Actions for Personal Injury 1027
i. Non-pecuniary loss.
(a) Pain, suffering and loss of amenity. This category of damage 22–19
consists of the two elements of (a) pain and suffering and (b) loss of
amenity (i.e. the damaging effect upon the claimant’s ability to
enjoy life161). In practice in nearly all cases the two elements are
lumped together in a global sum (known by the inelegant acronym
of ‘‘PSLA’’) and it is not usual to distinguish between them in the
award.162 If, for example, the claimant suffers more pain than would
be usual for an injury of the type in question, the court would simply
make an increase in the usual overall ‘‘tariff’’ figure rather than
award a separate sum for the extra pain. Contrariwise, damages
under this head may be lower if the claimant suffered no pain
because he remained unconscious.163 It is theoretically possible that
there could be pain and suffering without any loss of amenity and if
so the claimant is no doubt entitled to damages; but in practice even
temporary pain with no permanent physical effect164 is likely to lead
to continuing mental suffering as the injury is recalled.165 Pain and
suffering includes the suffering attributable to any consequential
158
See para.22–39, below.
159
Expenses are treated in broadly the same way as loss of earnings.
160
See Lim v Camden Area Health Authority [1980] A.C. 174 at 192.
161
Or ‘‘loss of faculty’’. Andrews v Freeborough [1967] 1 Q.B. 1 at 18 per Davies L.J. This
head may include social handicap: A v National Blood Authority [2001] 3 All E.R. 289 at
383.
162
Heil v Rankin [2001] Q.B. 272 at 298. In American terminology ‘‘pain and suffering’’
tends to be used to describe PSLA as a whole.
163
Wise v Kaye [1962] 1 Q.B. 638; West & Son Ltd v Shephard [1964] A.C. 326. See
below.
164
Even injuries like a broken limb will have a temporary disabling effect.
165
See, e.g. Phelan v E Cumbria HA [1991] 2 Med.L.R. 419 (£15,000 for being awake during
surgery and subsequently reliving the experience).
1028 Remedies
medical treatment, and worry about the effects of the injury upon the
claimant’s way of life and prospects, including worry attributable to
‘‘compensation neurosis’’ which will cease on the determination of
his claim for damages.166 A person is entitled to damages under this
head for the mental suffering caused by his awareness that his life
expectation has been shortened by the injuries,167 but fear and
anxiety is not in itself damage which can be the basis of the claim.
So where the claimant developed symptomless pleural plaques
which indicated penetration of the body by asbestos fibres and a
small (but greater than normal) chance of developing disease, the
physical condition was too insignificant in its effect to constitute
damage and there was no claim168; nor is there any cause of action
for awareness of impending death in an accident.169 The separate
head of ‘‘loss of expectation of life’’ was abolished by the Admini-
stration of Justice Act 1982.170 Before that Act a claim lay for the
shortening of life expectancy even though the claimant was unaware
of the loss and, indeed, even in cases of instantaneous death,171 but
the difficulties of valuation of such an item soon persuaded the
courts to adopt a modest conventional sum172 which would rarely be
departed from. In fact, the principal function of this head of damage
was to provide in an indirect way for damages for bereavement in
certain cases. This is now done directly by statute.173 At one time it
was thought that the fact that the claimant is wealthy may be a
reason for awarding a smaller sum by way of damages for personal
injuries,174 but this view is now untenable.175
It is sometimes said that the claimant is entitled to damages not
only for pain and suffering and loss of amenity but for ‘‘the injury’’
itself, but it is very doubtful if this is so, it being unlikely that there
could ever be a case in practice of bodily injury unaccompanied by
166
James v Woodall Duckham Construction Co Ltd [1969] 1 W.L.R. 903, where it was also
held that the claimant could not recover in respect of a period of delay in determining his
claim which was due to his own dilatoriness in proceeding with it.
167
Administration of Justice Act 1982 s.1(1)(b). Such damages were recoverable under this
head at common law: Davies and Davies v Smith and Smith (1958) CA No.34a; Forest v
Sharp (1963) 107 S.J. 536.
168
Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39; [2008] A.C. 281. See further
para.5–64, above. Cf. Fletcher v Comrs of Public Works [2003] 1 I.R. 465.
169
Hicks v CC South Yorkshire [1992] 2 All E.R. 65.
170
Section 1(1)(a).
171
Rose v Ford [1937] A.C. 826. Causes of action in tort generally survive for the benefit of
the estates of deceased persons under the Law Reform (Miscellaneous Provisions) Act
1934 (para.23–3, below) and the victim was regarded as having acquired a cause of action
for the shortening of his life.
172
£200 in Benham v Gambling [1941] A.C. 157.
173
See para.23–12, below.
174
Phillips v LSW Ry (1879) 5 C.P.D. 280 at 294 per Cotton L.J.
175
Fletcher v Autocar and Transporters Ltd [1968] 2 Q.B. 322 at 340, 361; West v Shephard,
above, fn.163, at 350 per Lord Morris.
Actions for Personal Injury 1029
176
See Law Com. CP. No.140 (1995) §2.20. Cf. Rothwell v Chemical & Insulating Co Ltd,
above, fn.168.
177
Heaps v Perrite Ltd [1937] 2 All E.R. 60; Manley v Rugby Portland Cement Co Ltd (1951)
C.A. No.286.
178
[1962] 1 Q.B. 638. Notwithstanding medical advances, such cases may be less frequent
after Airedale HA v Bland [1993] A.C. 789.
179
[1964] A.C. 326.
180
An increase of £2,500 over the award in Wise v Kaye, where the claimant had no
appreciation of her condition. The trial judge in Shephard said that if there had been a
normal life expectation the damages would have ‘‘come up well into the twenties of
thousands’’ (perhaps £120,000 more than today’s maximum, even for a fully conscious
claimant).
181
[1964] A.C. at 349.
1030 Remedies
22–21 The arguments are fairly evenly balanced. The Law Commission
in 1973 recommended no change in the law,187 but the Pearson
182
See the dissenting speeches of Lords Devlin and Reid in that case, the dissent of Diplock
L.J. in Wise v Kaye, above, fn.178, and the decision of the High Court of Australia in
Skelton v Collins (1966) 115 C.L.R. 94.
183
The difference became even greater when the Administration of Justice Act 1982 abol-
ished claims for loss of expectation of life; but against the argument based upon the
ultimate destination of the damages it must be pointed out: (1) the court has never
exercised any general power to control the damages awarded to the victim of an accident;
(2) some victims who are conscious but unable to ‘‘use’’ their damages might feel
compensated by being able to benefit their relatives.
184
See Law Com. No.257, Damages for Personal Injury: Non-Pecuniary Loss (1999), para.
2.14. Furthermore, the possibility of advances in medical science bringing about some
amelioration of the condition may contribute to the current judicial attitude (Croke v
Wiseman [1982] 1 W.L.R. 71 at 84) and diagnoses of permanent vegetative state may be
wrong.
185
See Diplock L.J. in Wise v Kaye, above, fn.178.
186
West v Shephard, above, fn.178, at 368–369.
187
Law Com. No.56, para.31.
Actions for Personal Injury 1031
188
Cmnd. 7054, Vol.1, para.398, recommending that damages for loss of amenities should no
longer be recoverable in cases of permanent unconsciousness. However, it is not clear
whether this would have extended to the case of the claimant who is, literally, conscious
but has suffered such severe brain damage that he is unable to appreciate his loss, or the
full extent of that loss. Since the Pearson Commission’s proposal was based on the premise
that, ‘‘when we compensate someone for non-economic loss we are essentially seeking to
relieve his suffering, and suffering is by its nature an experience subjective to the victim’’,
logic would dictate similar treatment in such cases. However, while medical science will
find it fairly easy to distinguish between consciousness and unconsciousness, ‘‘conscious-
ness of loss’’ will often be a much more speculative matter.
189
Law Com. No.257, paras 2.19 and 2.24.
190
Rogers (ed), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001),
p.257.
191
[1980] A.C. 174.
192
[1980] A.C. 174 at 189.
193
See [1964] A.C. at 341, 363.
194
Hence the larger award in West v Shephard, compared with Wise v Kaye.
195
The trial was in 1977.
196
[1980] A.C. at 189.
1032 Remedies
However, the case seems to have had little impact in this respect,
for the current ‘‘bracket’’ for very severe brain damage is
£180,000–£260,000,197 depending on the degree of insight, which is
comparable for the range for quadriplegia and is at least twice as
much as the updated figure from Lim’s case.
A more fundamental question is whether damages for non-pecu-
niary loss can be justified in any case. It has been argued that they
are necessarily arbitrary in amount since there is no market by which
to value a limb or brain function; that they are secondary in impor-
tance to income losses and they divert limited funds from the
replacement of those losses; and that they represent interests which
are not so highly valued by the public since the interests are not
commonly insured. However, such damages are found almost with-
out exception in developed legal systems and, judging by the
responses of accident victims to a Law Commission survey,198 they
provide some sort of solace, however, inadequate, for the real hurt
suffered by victims of injury. Few could be found to agree with the
view of an Italian court at one time that in the eye of the law,
‘‘people without any value can exist, as in the case of those who,
because of old age, have no earning capacity’’.199
The main concern in recent years has not been over the compar-
ison of one injury with another but with whether the overall scale of
awards accords with what public opinion regards as just and whether
205
For a statement of the function of the Court of Appeal in setting levels of awards for non-
pecuniary losses, see Heil v Rankin [2001] Q.B. 272. A useful publication is the Judicial
Studies Board’s Guidelines for the Assessment of General Damages in Personal Injury
Cases, 9th edn. Awards are summarised in Current Law and set out more fully in Kemp
and Kemp. For example, the appropriate award for loss of sight of one eye without any
complications and assuming perfect sight in the other, is now around £32,000. Obviously
the appropriate figure for total blindness is a good deal more than twice this (£172,000).
The standard tariff figures assume a claimant in the prime of life. See Nutbrown v Sheffield
HA [1993] 4 Med.L.R. 188 (claimant aged 76, half standard award).
206
This is particularly obvious in the case of scarring, where the ‘‘range’’ is about £1,500
(minor scarring male, limbs) to about £62,000 (disfiguring facial scarring of female).
207
However, insurers use two software systems (COA and COLOSSUS) for the purpose of
making initial offers so there is some resemblance in practice with the ‘‘medical points’’
system used in some European countries.
208
See fn.205.
209
£11,500 to £23,500 where claimant already has children, otherwise much higher, up to
£108,000.
210
£16,000 to £21,000 (but often higher because of impairment of sense of taste).
211
Bastow v Bagley & Co Ltd [1961] 1 W.L.R. 1494 at 1498.
1034 Remedies
212
On the level of personal injury damages in general, Mr Prevett, an actuary, calculated that
the 1982 value of the £16,000 awarded by the jury in Phillips v LSW Ry (1879) 5 C.P.D.
280 (under all heads) would have been £500,000 (probably £1,500,000 now). There are
now regularly awards of several millions (without interest) under all heads, pecuniary and
non-pecuniary. Medical techniques which enable seriously injured claimants to be kept
alive for years have inevitably increased the expenses elements in damages claims.
213
See Heil v Rankin [2001] Q.B. 272 at 308.
214
Above, fn.213.
215
See [2001] Q.B. at 302.
216
The Law Commission thought that an overall rise of 50 per cent in non-pecuniary loss
damages would put about 2 per cent on motor premiums and between 7 and 9 per cent on
employers’ liability premiums.
217
Wells v Wells [1999] 1 A.C. 345, para.22–28, below. For Australian developments see
para.1–44, above.
218
Pickett v British Rail Engineering Ltd [1980] A.C. 136; Heil v Rankin, above, fn.213.
219
The larger the claim, the longer the likely delay before settlement.
Actions for Personal Injury 1035
232
Some actual lump sum transfer will be necessary to cover pre-settlement losses and capital
expenditure.
233
Damages Act 1996 s.4. The Secretary of State was empowered to guarantee ‘‘directly
funded’’ settlements such as those by NHS Trusts.
234
Sections 100 and 101.
235
The provisions apply equally to fatal accident cases. Non-pecuniary loss damages may be
included in an order for periodical payments only with the consent of the parties: s.2(2).
It seems that any damages for personal injuries paid on a periodic basis are free of tax in
the hands of the recipient: Income Tax (Trading and Other Income) Act 2005 s.731.
1038 Remedies
for generally speaking the court has no role in determining the terms
of such a ‘‘judgment’’.241 That is not to say that in today’s climate
the impact of the court’s powers will not be felt at an early stage
even if the matter never proceeds to judgment. If the claimant’s
lawyers do not consider the possible advantages of periodical pay-
ments they are at risk of a suit for negligence; in the case manage-
ment context, r.41.6 requires the court to indicate as soon as
practicable whether it considers periodical payments to be the most
appropriate route and claimants may address this issue in the State-
ment of Case and may be required to do so. Under Pt 36 either party
may make an offer to settle, refusal of which may have significant
consequences for the costs of further proceedings: for example if a
claimant makes an offer at £X, this is refused by the defendant and
the claimant ‘‘beats’’ £X at trial the court may award interest at 10
per cent above base rate on the damages and indemnity costs with
enhanced interest on those.242 If the claimant refuses the defendant’s
offer and fails to beat it at trial the defendant will generally get his
costs from 21 days after the offer. Offers by either side may be
expressed in alternative terms of lump sum or periodical payments
(or a mixture of the two)243 and it may prove difficult in practice to
determine whether, say, a judgment for periodical payments at the
rate of £X is ‘‘more advantageous’’ (the term in the Rules) for the
claimant than a rejected offer by the defendant of a lump sum of £Y.
Nor is it simply a matter of comparing amounts: for example, an
offer of £X made early in the proceedings may be regarded as more
advantageous to the claimant than a judgment for, say £X+10 per
cent recovered later after substantial expenditure.244
In deciding whether to give judgment for periodical payments the
court must, ‘‘have regard to all the circumstances of the case and in
particular the form of award which best meets the claimant’s
needs’’,245 and by Practice Direction 41B the relevant factors
include:
‘‘(1) [T]he scale of the annual payments taking into account any
deduction for contributory negligence;
241
The CA in Thompstone at [103] said that it was no longer the right of a claimant of full
age and capacity to receive his damages as a lump sum and spend (or squander) them as
he wishes, but this statement is presumably contemplating a judgment. However, if the
settlement embodied in the consent order involves periodical payments, it seems that the
court must be satisfied that continuity is secure: Dept of Constitutional Affairs, Guidance
on Periodical Payments (2005), para.44.
242
Rule 36.21.
243
Rule 36.2A.
244
Carver v BAA Plc [2008] EWCA Civ 412; [2009] 1 WLR 113. This ‘‘open-textured’’
approach has led to considerable uncertainty and the Review of Costs in Civil Litigation
(2010) has recommended that it should be purely an arithmetical comparison of the offer
and judgment: Ch.41, 2.9.
245
Rule 41.7.
1040 Remedies
246
In Freeman v Lockett [2006] EWHC 102 (QB) a lump sum award of £5.5 million (mostly
in respect of future care) was made where the claimant had received expert advice and
wished to avoid dependence on public funds.
247
CPR r.41.8; PD41.
248
Damages Act 1996 s.2(3) as substituted.
249
The only body named in the third category for England is the NHS Litigation Authority:
Damages (Government and Health Service Bodies) Order, SI 2005/474. If an NHS Trust
becomes insolvent the National Health Service Residual Liabilities Act 2003 requires the
Minister to secure that its residual liabilities are dealt with, but the same is not true of a
Foundation Trust, which may leave the Clinical Negligence Scheme for Trusts: Kanu v
King’s College NHS Trust [2005] EWHC 2759 (QB).
250
The court approved the MIB in Thacker v Steeples, June 22, 2005 (LTLPI) on the basis that
in view of the Second European Motor Insurance Directive it was unlikely that the
Government would allow it to be wound up with its liabilities undischarged.
251
Section 2(8).
252
[2008] EWCA Civ 5; [2008] 1 W.L.R. 2207.
253
Known as ASHE 6115.
254
At [100].
Actions for Personal Injury 1041
22–26 (c) Lump sum awards. Where the court has to make a final lump
sum award for future pecuniary loss it has to capitalise a future
stream of income. The normal approach is that of the so-called
‘‘multiplier’’. One first determines the multiplicand in the form of
262
Guidance on Periodical Payments, above, para.8.
Actions for Personal Injury 1043
‘‘The calculations which [the court] makes will involve the use of
arithmetic as the multiplier is applied to the multiplicand. To that
extent the exercise will give the impression of accuracy. But the
accuracy of the result achieved by arithmetic will depend on the
assumptions on which it has been based.’’276
275
Paul v Rendell (1981) 34 A.L.R. 569 at 571, PC, per Lord Diplock; Wells v Wells [1999]
1 A.C. 345 at 363 per Lord Lloyd.
276
Wells v Wells [1999] 1 A.C. at 389 per Lord Hope.
277
For an extreme example of difficulty in assessing what future earnings would have been,
see Norris v Blake (1997) 41 N.S.W.L.R. 49 (Australian film actor, possible peak earnings
anywhere between AU$300,000 and $40 million pa). See also Collett v Smith [2008]
EWHC 1962 (QB) and [2009] EWCA Civ 583 (young professional footballer); van Wees
v Karkour [2007] EWHC 165 (QB); Leesmith v Evans [2008] EWHC 134 (QB).
278
6th edn, 2007.
Actions for Personal Injury 1045
279
See Section B, ‘‘Contingencies other than Mortality’’ and Herring v MoD [2003] EWCA
Civ 528; [2004] 1 All E.R. 44.
280
[1999] 1 A.C. at 379.
1046 Remedies
281
When the Retail Price Index began in 1948 money had about 27 times its present value.
The peak period was the 1970s.
282
Due to interest representing not only the sum a lender charges for the use of his money but
also his estimate of how much the value of the sum lent will have declined on
repayment.
283
The Law Commission found that 84 per cent of claimants with damages of more than
£100,000 had taken some investment advice: Law Com. No.224, s.2.30.
284
See, in a different context, Wright v B.R.B. [1983] 2 A.C. 773.
285
Law Com. No.224, §2.31.
286
[1999] 1 A.C. 345.
Actions for Personal Injury 1047
the claimant would invest his fund in ILGS stocks287 and that the
assumed rate of return should be 3 per cent. While in a sense this
gave the claimant a degree of protection288 denied to the ‘‘ordinary,
prudent investor’’ his position was not exactly the same, since he
would be likely to depend on the damages fund for the necessities of
life. Section 1 of the Damages Act 1996 provides that the court is to
take account of, ‘‘such rate of return . . . as may from time to time
be prescribed by the Lord Chancellor’’. This was not in force at the
time of Wells but the Lord Chancellor exercised the power and
prescribed a rate of 2.5 per cent from June 28, 2001.289 The financial
impact of this may be judged from a simple example. In the case of
a permanently disabled male aged 30 at the time of the trial, with a
loss of earnings to an assumed pension age of 65, the Ogden Tables
at 4.5 per cent give a multiplier of 17.5; at 2.5 per cent the multiplier
is 22.8, an increase of 30 per cent.290
22–30 (e) The ‘‘lost years’’. In some cases the injury suffered by the
claimant will reduce his expectation of life. For many years the rule
was that while a claimant was entitled to damages for ‘‘loss of
expectation of life’’ (a conventional sum)296 he could not recover
any further damages for loss of earnings during the period when, but
for the accident, he would probably have remained alive and work-
ing. For an adult claimant with dependants the consequences of this
might be catastrophic, for his dependants might be left without
compensation for a very large part of the loss they have suffered.297
In the face of prolonged legislative inaction, the House of Lords in
Pickett v British Rail Engineering Ltd298 held that damages for loss
of earnings were to be assessed on the claimant’s expectation of life
before the accident, making a deduction in respect of money which
the claimant would have spent on his own support during the lost
years. Nearly all the cases arose from claims by estates of deceased
persons, a context in which Pickett has been reversed by statute,299
but the general approach, although by no means identical to those
applicable to the assessment of damages under the Fatal Accidents
Act 1976,300 was at least similar: as one might say, the lost years
claim, though generally smaller, would be at least in the same ‘‘ball
park’’ as the claim by his dependants for loss of support had he been
killed instantly. The courts should not enter the realms of specula-
tion or guesswork: where the claimant is middle-aged with estab-
lished commitments the task may present no particular novelty or
294
The same applies to a claimant who is injured before his working life has begun: it may
be more appropriate to select a global figure which seems fair compensation than to seek
a multiplier and multiplicand: Joyce v Yeomans [1981] 1 W.L.R. 550.
295
See Ashcroft v Curtin [1971] 1 W.L.R. 1731; Smith v Manchester Corp (1974) 17 K.I.R.
1 (this item is commonly known as ‘‘Smith v Manchester damages’’); Clarke v Rotax
Aircraft Equipment Ltd [1975] I.C.R. 440; Moeliker v A. Reyrolle & Co Ltd [1976] I.C.R.
253; Nicholls v NCB [1976] I.C.R. 266; Robson v Liverpool CC [1993] P.I.Q.R. Q78 ;
Goldborough v Thompson [1996] P.I.Q.R. Q67. Damages may be awarded under this head
even though the claimant is unemployed at the date of the trial: Cook v Consolidated
Fisheries Ltd [1977] I.C.R. 635.
296
See para.22–19.
297
See Gammell v Wilson [1982] A.C. 27 at 64–65 per Lord Diplock. Where death is
attributable to the defendant’s tort the deceased’s dependants have a cause of action under
the Fatal Accidents Act (para.23–9, below), but this cannot be brought where the victim
has already recovered judgment before death.
298
[1980] A.C. 126.
299
See para.23–5, below.
300
Harris v Empress Motors Ltd [1983] 3 All E.R. 561, overruling a number of first instance
decisions.
Actions for Personal Injury 1049
301
In Gammell v Wilson, above, fn.297, at 78, Lord Scarman put forward the case of a five-
year-old child television star ‘‘cut short in her prime’’ as a possible exception. However,
in Connolly v Camden Area Health Authority [1981] 3 All E.R. 250, Comyn J. suggested
the addition of cases where the child might, but for the shortening of life, have inherited
a capital sum.
302
Croke v Wiseman [1982] 1 W.L.R. 71. This decision is inconsistent with Pickett and
Gammell but as a matter of precedent the CA is bound by it: Iqbal v Whipps Cross
University NHS Trust [2007] EWCA Civ 1170; [2008] P.I.Q.R. P9. Note, however, that the
claimant received £25,000 in respect of loss of earnings during the considerable life
expectancy that remained to him, during which he would be insensible of his plight. Lord
Denning M.R. thought this assessment just as speculative as that for the lost years.
303
See para.22–24, above.
304
CPR r.41.8(2). In fact it may not even be necessary to regard the post-death element as
resting on the lost years theory. PD41B, para.2–1 provides that an order, ‘‘may be made
under rule 41.8(2) where a dependant would have had a claim under section 1 of the Fatal
Accidents Act 1976 if the claimant had died at the time of the accident’’.
305
Lewis, Deducting Benefits from Damages for Personal Injury (2000).
306
See para.22–17, above.
307
The principle is this area extends to savings made as well as receipts: Salih v Enfield AHA
[1991] 3 All E.R. 400 is a macabre example.
308
Well known contract cases are Erie County Natural Gas Co v Carroll [1911] A.C. 105 and
British Westinghouse v Underground Electric Railways [1912] A.C. 673.
309
In something more than the simple ‘‘but–for’’ sense. Thus in Hussey v Eels [1990] 2 Q.B.
227, a negligent survey case, the profit from the disposal of the property for development
was not brought into account because it was not part of the original transaction. How fine
the line can be is illustrated by Monroe Schneider Associates v No.1 Raberem Pty (1991)
104 A.L.R. 397.
1050 Remedies
310
However, it would be brought into account for the purpose of determining entitlement to
a number of social security benefits—need is not the same as loss.
311
Hodgson v Trapp [1989] A.C. 807 at 820 per Lord Bridge. The views expressed to the Law
Commission were so diverse that it did not feel able to propose any general reform of this
area: Damages for Personal Injury: Medical, Nursing and other Expenses; Collateral
Benefits (1999) Law Com. No.262.
312
Hodgson, above: ‘‘It is the rule which is fundamental and axiomatic and the exceptions to
it which are only to be admitted on grounds which clearly justify their treatment as such’’:
Buxton L.J. in Ballantine v Newalls Insulation Co Ltd [2000] P.I.Q.R. Q327 at Q332.
313
The donor of the benevolence has no claim: Esso Petroleum Co Ltd v Hall Russell & Co
Ltd [1989] A.C. 643.
314
Redpath v Belfast County Down Ry [1947] N.I. 167; Parry v Cleaver [1970] A.C. 1;
Naahas v Pier House Management (Cheyne Walk) Ltd (1984) 270 E.G. 328 (property
loss).
315
Gaca v Pirelli General Plc [2004] EWCA Civ 373; [2004] 1 W.L.R. 2683. In theory of
course the tortfeasor might make the payment on the terms, ‘‘This is a gift which is not to
diminish any eventual award of damages against me.’’
316
Bradburn v GW Ry (1874) L.R. Ex. 1.
Actions for Personal Injury 1051
317
Gaca v Pirelli General Plc, above, fn.315, but it would be surprising if insurance payments
were brought into account where the premiums were paid by someone not responsible for
the tort: it is hard to believe that the damages of an injured holidaymaker are to be reduced
because another member of the party paid (otherwise than as agent) the travel insurance
premiums.
318
Parry v Cleaver [1970] A.C. 1.
319
Hussain v New Taplow Paper Mills Ltd [1988] A.C. 514.
320
Berriello v Felixstowe Dock & Ry Co [1984] 1 W.L.R. 695.
321
Parry v Cleaver, above, fn.318.
322
Smoker v London Fire Authority [1991] 2 A.C. 502.
323
Longden v British Coal Corp [1998] A.C. 653; Parry v Cleaver, above, fn.318; Cantwell
v Criminal Injuries Compensation Board [2001] UKHL 36; 2001 S.L.T. 966 (HL (Sc.).
324
See Parry v Cleaver, above, fn.318.
1052 Remedies
325
As in Bradburn v GW Ry, above, fn.316.
326
Note, however, one form of ‘‘add-on’’ cover sometimes found in liability policies, which
only covers the insured against the risk of a tort—where the policy promises to pay in the
event of the insured having an uncollectable award against an uninsured defendant.
327
See American Law Institute, Enterprise Responsibility for Personal Injury, Vol.II (1991);
Bristol and West BS v May, May & Merrimans (No.2) [1997] 3 All E.R. 206 at 226.
328
See Lord Morris in Parry v Cleaver [1970] A.C. 1 at 31.
Actions for Personal Injury 1053
329
Culminating in Hodgson v Trapp [1989] A.C. 807.
330
See Report of the National Audit Office (Session 1985/86, HC 553) and Public Accounts
Committee (Session 1987/88, HC 120).
331
In practice in most cases the defendant’s insurer.
332
The Act was held inapplicable to a case where the defendants failed to inform the
claimants of the risk of Down’s Syndrome in their unborn child and they incurred expense
(and received benefits) in looking after the child: Rand v E Dorset HA [2001] P.I.Q.R.
Q1.
333
Section 1(2).
334
Payments made from a disaster fund are treated as exempt payments provided no more
than 50 per cent of the capital sum was contributed by the alleged wrongdoer. Schedule 1,
Pt I.
335
These words are not very apt to cover the MIB, since the scheme depends on an agreement
between the Motor Insurers’ Association and the State which is technically unenforceable
by the victim. However, the statutory definition of compensation payment in s.1(2)(b)
extends to a payment made, ‘‘in pursuance of a compensation scheme for motor
accident’’.
336
The CRU recovered over £138 million in 2008/2009 from 812,000 cases but this figure
appears to include recovered NHS charges (see below).
1054 Remedies
337
Section 17. The effect of this is that the claimant is entitled to interest on damages which
he will not receive and which, in view of the benefits he has received, he has not (under
the philosophy of the Act) been ‘‘kept out of’’: Wisely v John Fulton (Plumbers) Ltd [2000]
1 W.L.R. 820, but where the benefits exceed the damages payable a deduction may be
made against any interest, too: Griffiths v British Coal Corp [2001] 1 W.L.R. 1493.
338
i.e. the benefits may reduce the defendant’s liability to the claimant to nil.
339
See s.8.
340
Under the regime applying between 1990 and 1997 the claimant would have got nothing
for pecuniary loss in such a case, since the deduction was of all specified benefits against
all heads of damages.
341
Thus damages for ‘‘loss of mobility’’ under Sch.2 must be confined to financial costs such
as having to take taxis, and does not extend to matters like sadness and frustration at being
unable to get around: Mitchell v Laing, The Times, January 28, 1998, IH.
342
Again contrast the pre-1997 position, under which it was not uncommon for claimants to
lose their damages altogether.
343
Though by protecting his damages for non-pecuniary loss the 1997 Act improved the
position of the claimant, it worsens the position of the defendant. Under the previous
regime the claimant might be advised that his damages would be eliminated altogether by
the deduction process and he would then have no incentive to sue, in which case the
recoupment procedure would not be triggered, there being no free-standing right in the
Secretary of State to seek recoupment. The justice of requiring the defendant to carry the
whole burden of the claimant’s support by the State when the injury is largely the
claimant’s fault is not apparent.
Actions for Personal Injury 1055
Under the regime in force between 1990 and 1997 small pay- 22–35
ments (not exceeding £2,500) were outside the scope of the recoup-
ment regime. They remained a matter purely between the parties and
were subject to a modified version of the 1948 Act. Although the
1997 Act contains power344 to make regulations disregarding small
payments there is at present apparently no intention to implement
this. However, fatal accident cases are entirely outside the scope of
the Act, which reflects the generally more favourable treatment
(from the claimant’s point of view) given to such cases in respect of
collateral benefits.345
Although the 1997 Act made important changes to the law, it is
essentially a modification of an existing regime, so it is with the
position before the 1989 Act that a comparison should probably be
made. Since there was then no right of recovery the State is never
the loser and sometimes makes substantial gains. Claimants some-
times win and sometimes lose. In smaller cases they generally lose
because the deduction is at the rate of 100 per cent of benefits
received rather than 50 per cent as under the 1948 Act, and there is
no ‘‘allowance’’ for contributory negligence, though their position is
somewhat ameliorated by the protection of damages for non-pecu-
niary loss by the 1997 Act. On the other hand, in a case of serious
long-term disability the claimant’s position is improved, because
certain benefits were deductible in full and in perpetuity at common
law, whereas under the Act they are deductible only for the first five
years or until settlement or payment of compensation, whichever
occurs earlier.346 It follows, of course, that in these big cases defen-
dants will be losers but they will also be losers in the general run of
cases because the ‘‘credit’’ they get from the claimant carries with it
the duty to reimburse the Secretary of State, perhaps for con-
siderably more than their liability to the claimant. Defendants (or
rather their insurers) will also carry the burden of the ‘‘paperwork’’
associated with the system.
Some State benefits are not covered by the 1997 Act. If there is
no indication as to their deductibility in the relevant legislation the
issue must be determined under the common law.347
344
Schedule 1, Pt II.
345
See para.23–16, below.
346
In Hodgson v Trapp [1989] A.C. 807 the damages would have been at least £32,000 higher
under the present regime. In Eagle v Chambers [2004] EWCA Civ 1033; [2004] 1 W.L.R.
3081 the claimant would receive ongoing mobility allowance. Using that to participate in
the Motability Scheme (which could only be done by payments from the allowance) would
have been cheaper than private vehicle arrangements but the court rejected the argument
that the claimant’s failure to take that route would have been a failure to mitigate: the court
was to ‘‘disregard’’ the allowance in the ‘‘assessment of damages’’ and a rule as to
mitigation is just that.
347
Ballantine v Newalls Insulation Co Ltd [2000] P.I.Q.R. Q327.
1056 Remedies
22–36 (g) Expenses. The claimant is entitled to the cost of medical and
similar services which he reasonably incurs as a result of his inju-
ries, and it is enacted that in determining the reasonableness of any
expenses the possibility of avoiding them by making use of the
National Health Service is to be disregarded.348 However, if the
claimant in fact receives treatment under the NHS he cannot recover
the notional cost of private treatment349 nor can he recover the cost
of future private treatment if the evidence shows that he will not take
that course, perhaps because it is unlikely to be available.350 If the
NHS is utilised the Health and Social Care (Community Health and
Standards) Act 2003 provides for the NHS to recover the cost of
treatment from the tortfeasor’s insurer up to a current maximum of
£41,545.351
Damages for expenses may be awarded in respect of both past and
prospective expenses and may include not only the cost of medical
treatment and attendance but all such matters as increased living
expenses: if, for example the claimant has to live in a special
institution because of his injuries352 or to be supplied with special
equipment.353 The fact the claimant may have a statutory right to
call upon the local authority for free institutional care does not
prevent him electing to pay for such services in the market and
recovering the cost from the defendant: such a situation has nothing
to do with mitigation.354 In serious cases it is now the practice to
present very detailed schedules of future expenses and awards under
this head can be very large indeed, often much larger than those for
348
Law Reform (Personal Injuries) Act 1948 s.2(4).
349
Harris v Brights Asphalt Contractors Ltd [1963] 1 Q.B. 617 at 635 per Slade J.
350
Eagle v Chambers [2004] EWCA Civ 1033; [2004] 1 W.L.R. 3081 (same applies to social
services).
351
The regime does not apply to a disease which is not the result of an injury: s.150(5), (6)
of the Act. The system is, like that for recovery of social security payments, operated by
the Compensation Recovery Unit. Contributory negligence is taken into account: Personal
Injuries (NHS Charges) (General) Regulations and Road Traffic (NHS Charges) (Amend-
ment) Regulations SI 2006/3388. For the background to the 2003 Act see Law Com.
No.262 (1999).
352
Shearman v Folland [1950] 2 K.B. 43; Oliver v Ashman [1962] 2 Q.B. 210; Cutts v
Chumley [1967] 1 W.L.R. 742. For the position where the claimant purchases more
suitable accommodation, see George v Pinnock [1973] 1 W.L.R. 118; Roberts v Johnstone
[1989] Q.B. 878.
353
S. v Distillers (Biochemicals) Ltd [1970] 1 W.L.R. 114; Povey v Governors of Royal
School [1970] 1 All E.R. 841, but the claimant cannot recover the cost of an increase in
cigarette consumption unless perhaps there is a brain injury which deprives him of all real
choice: Eagle v Chambers [2004] EWCA Civ 1033; [2004] 1 W.L.R. 3081.
354
Peters v E. Midlands Strategic HA [2009] EWCA Civ 145; [2010] Q.B. 48, distinguishing
Sowden v Lodge [2004] EWCA Civ 1370; [2005] 1 W.L.R. 2129 and Crofton v NHSLA
[2007] EWCA Civ 71; [2007] 1 W.L.R. 923. At present the local authority cannot make
a charge to a personal injury claimant because his damages are disregarded in the
assessment of his resources. If the claimant suffers from lack of capacity (as in Peters) it
is possible to guard against a change of mind by those responsible for him by ordering that
no application for public care be made without the consent of the court.
Actions for Personal Injury 1057
355
e.g. Housecroft v Burnett [1986] 1 All E.R. 332; Cassell v Riverside HA [1992] P.I.Q.R.
Q168.
356
Pritchard v J.H. Cobden Ltd [1988] Fam. 22.
357
Where the claimant is maintained in a hospital at public expense the saving to him is offset
against his damages for loss of earnings: Administration of Justice Act 1982 s.5. For
recoupment of treatment costs by the NHS see above. The assessment of compensation for
a victim of miscarriage of justice (para.19–1, above) involves substantial analogy with tort
damages and a deduction will be made in respect of saved living expenses attributable to
imprisonment: O’Brien v Independent Assessor [2007] UKHL 10; [2007] 2 A.C. 313.
358
Lim v Camden AHA [1980] A.C. 174.
359
The same considerations do not necessarily apply to business services: Hardwick v Hudson
[1999] 1 W.L.R. 1770.
360
[2005] EWCA Civ 596; [2006] P.I.Q.R. P3.
361
On the facts the damages were by way of a structured settlement, but a lump sum of
damages for personal injury is to be wholly disregarded under the regulations governing
a local authority’s power to charge for residential care: Peters v E Midlands Strategic HA
[2009] EWCA Civ 145; [2010] Q.B. 48.
362
[1974] Q.B. 454.
1058 Remedies
363
[1994] 2 A.C. 350.
364
H v S [2002] EWCA Civ 792; [2003] Q.B. 965 at [30] criticising Bordin v St Mary’s NHS
Trust [2000] Lloyd’s Rep. Med. 287.
365
This is the law in Scotland: Administration of Justice Act 1982 s.8(2). This would be the
effect of a draft Civil Law Reform Bill published at the end of 2009.
366
As the CA contemplated when coming to the opposite conclusion: [1993] 3 W.L.R.
558.
367
Law Com. No.262, para.3.76. See also the draft Civil Law Reform Bill referred to above.
The High Court of Australia, which has consistently adopted the reasoning in Donnelly v
Joyce, rejected Hunt v Severs in Kars v Kars (1996) 141 A.L.R. 37.
Actions for Personal Injury 1059
(h) Other pecuniary loss. The heads of damage so far mentioned 22–38
are not exhaustive, nor can an exhaustive list be given, for the
claimant is entitled to damages for any item of loss he may have
suffered provided only that it is not too remote. The following
examples provide some indication, however, of the kinds of loss that
may have to be considered in any given case. If his employer
provided board and lodging371 or a car available for private use372
and he has to give up his employment, the claimant may recover the
value of those items as well as his actual loss of earnings, and if he
has to give up a pensionable employment he can recover for any
consequent loss of pension rights.373 The injury inflicted by the
defendant may have made it more difficult for the claimant to obtain
life or health insurance.374 In professions where reputation is sig-
nificant, damages may be awarded for loss of opportunity of enhanc-
ing that reputation.375 On a less material level, a woman may
recover damages for the reduction of her prospects of marriage,
which is an item of pecuniary as well as non-pecuniary loss, but it
must be borne in mind that if she had married that might have
reduced her earning capacity for a time. Rather than make an
addition to one side of the equation and a balancing deduction on the
368
Housecroft v Burnett [1986] 1 All E.R. 332 (£3,000 pa, against commercial rate of £3,640
pa). 25 per cent below the commercial rate seems common: A v National Blood Authority
[2001] 3 All E.R. 289 at 390.
369
Hunt v Severs [1994] 2 A.C. at 357. Cf. Richardson v Schultz (1980) 25 S.A.S.R. 1 (no
recovery where victim unconscious).
370
Daly v General Steam Navigation Ltd [1981] 1 W.L.R. 120. There are, however, certain
difficulties with the practical application of this: Law Com. No.262, para.87.
371
Lifften v Watson [1940] 1 K.B. 556. It is immaterial that a relative provides the claimant
with free accommodation and food.
372
Clay v Pooler [1982] 3 All E.R. 570 (a fatal accident case).
373
Judd v Hammersmith etc. Hospital Board [1960] 1 W.L.R. 328; Parry v Cleaver [1970]
A.C. 1.
374
A v National Blood Authority [2001] 3 All E.R. 289.
375
Cf. Clayton v Oliver [1930] A.C. 209 (contract).
1060 Remedies
376
As was done in Moriarty v McCarthy [1978] 1 W.L.R. 155.
377
Hughes v McKeown [1985] 1 W.L.R. 963, approved in Housecroft v Burnett [1986] 1 All
E.R. 332 in so far as the loss of earnings multiplicand is reasonably equivalent to the
economic support of the never-to-be spouse. In Lampert v Eastern National Omnibus Co
[1954] 1 W.L.R. 1047 it was accepted in principle that if a woman’s husband leaves her
because of disfigurement suffered in an accident this is a compensable head of damage, but
it is hard to see how this can survive Pritchard v J.H. Cobden, above, fn.356, even though
that case concerned a male claimant and was concerned only with the financial conse-
quences of divorce.
378
i.e. apart from their relevance to the claim for loss of amenities, para.22–20, above.
379
See also Morris v Johnson Mathey (1967) 112 S.J. 32.
380
Senior Courts Act (formerly known as the Supreme Court Act) 1981 s.35A (added by
Administration of Justice Act 1982) replacing the Administration of Justice Act 1969 s.22;
County Courts Act 1984 s.69.
381
Cookson v Knowles [1979] A.C. 556. There is also interest on the judgment debt under the
Judgments Act 1838.
382
Jefford v Gee [1970] 2 Q.B. 130; Cookson v Knowles [1977] Q.B. 913 (on appeal, [1979]
A.C. 556). There may be cases in which the award should be at the full, not the half rate:
Ichard v Frangoulis [1977] 1 W.L.R. 556.
383
Pickett v British Rail Engineering Ltd [1980] A.C. 136.
384
Wright v B.R.B. [1983] 2 A.C. 773.
Actions for Personal Injury 1061
As we have seen, the basic principle for the assessment of damages 22–40
is that there should be restitutio in integrum,387 and in cases of loss
of or damage to property this principle can be more fully applied
than in cases of personal injury. It is, in fact, the dominant rule to
which the subsidiary rules which follow must conform.388 In work-
ing out these subsidiary rules the courts have been mainly concerned
with cases involving ships, but the rules are the same in Admiralty
and under the common law.389
A. Destruction
Where property is totally destroyed as a result of the defendant’s 22–41
tort the normal measure of damage is its value at the time and place
of the destruction, and at common law this was so even if the
claimant had only a limited interest in the property destroyed.390 In
principle the claimant is generally entitled to such a sum of money
as would enable him to purchase a replacement in the market at the
prices prevailing at the date of destruction391 or as soon thereafter as
is reasonable.392 Where no precise equivalent is available the claim-
ant may be allowed a recovery which exceeds the amount he could
have obtained by selling the property,393 but the cost of producing an
exact replacement will be refused where it is well in excess of the
385
Arguably this should be the figure (2.5 per cent) used as the assumed rate of return on
damages for future pecuniary loss, but it is not: Laurence v CC Staffordshire [2000]
P.I.Q.R. Q349. The court may abridge the period during which interest is payable if the
claimant unjustifiably delays bringing the case to trial.
386
For the measure of damages in conversion, see para.17–27, above.
387
See para.22–16, above.
388
Liesbosch Dredger v SS Edison [1933] A.C. 449 at 463 per Lord Wright.
389
Admiralty Commissioners v SS Susquehanna [1926] A.C. 655 at 661 per Viscount Dune-
din. An English court in an action of tort may give judgment in the currency in which the
loss was sustained: The Despina R. [1979] A.C. 685; Hoffman v Sofaer [1982] 1 W.L.R.
1350 (personal injuries).
390
The Winkfield [1902] P. 42. For the effect of the Torts (Interference with Goods) Act 1977,
see para.17–18, above.
391
Liesbosch Dredger v SS Edison [1933] A.C. 449. In Smith Kline & French Laboratories
Ltd v Long [1989] 1 W.L.R. 1 (a case of deprivation by deceit) the claimants could
themselves produce a replacement at less than market cost, because with drugs most of the
cost is attributable to research and development but were nevertheless entitled to recover
the market value. This seems to be a case of a restitutionary award: para.22–13, above. Cf.
para.17–27, above.
392
The price the claimant paid for the article is not decisive for he may have got a bargain:
Dominion Mosaic and Tile Co Ltd v Trafalgar Trucking Co [1990] 2 All E.R. 246.
393
Clyde Navigation Trustees v Bowring (1929) 34 Ll.L.R. 319.
1062 Remedies
B. Damage
Where property is damaged the normal measure of damages is the 22–42
amount by which its value has been diminished, and in the case of
ships and other chattels this will usually be ascertained by reference
to the cost of repair,404 simply because that is usually the only
399
For this distinction see The Philadelphia [1917] P. 101 at 108 per Swinfen Eady L.J.
400
The Kate [1899] P. 165; The Racine [1906] P. 273; The Philadelphia [1917] P. 101.
401
See the explanation of Greer L.J. in The Arpad [1934] P. 189 at 217; The Fortunity [1961]
1 W.L.R. 351.
402
The Llanover [1947] P. 80.
403
Southampton Container Terminals Ltd v Schiffahrtsgesellschaft ‘‘Hansa Australia’’
M.B.H. & Co (The Maersk Colombo) [2001] EWCA Civ 717; [2001] 2 Lloyd’s Rep. 275;
Ali Reza-Delta Transport Co Ltd v United Arab Shipping Co S.A.G. [2003] EWCA Civ
684; [2003] 2 Lloyd’s Rep. 450.
404
The London Corp [1935] P. 70 at 77 per Greer L.J. This is of course the reasonable cost
of repair. Where the claimant does repairs ‘‘in house’’ he may be entitled to a sum for
overheads as well as direct labour costs but what is relevant in causation terms may be a
difficult question: Ulsterbus Ltd v Donnelly [1982] 13 N.I.J.B.; British Telecommunica-
tions Plc v Geraghty & Miller International Inc, July 29, 2004, Leeds Mercantile
Court.
1064 Remedies
405
The Kingsway [1918] P. 344.
406
The York [1929] P. 178 at 184–185 per Scrutton L.J.; The London Corp, above, fn.404;
Dimond v Lovell [2000] 2 W.L.R. 1121 at 1140.
407
See The London Corp [1935] P. 70 at 77–78, where Greer L.J. seems to have been in two
minds on this point. See also C.R. Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 1
W.L.R. 659 (land). In any event it will be for the defendant to prove that the damage he
has caused to the claimant’s ship has not reduced its value to the claimant.
408
Darbishire v Warran [1963] 1 W.L.R. 1067, distinguishing O’Grady v Westminster
Scaffolding Ltd [1962] 2 Lloyd’s Rep. 238.
409
Dominion Mosaics and Tile Co Ltd v Trafalgar Trucking Co Ltd [1990] 2 All E.R. 246.
410
See para.22–32, above.
411
Burdis v Livesey [2002] EWCA Civ 510; [2003] Q.B. 36 (on appeal, but not on this point,
sub nom. Lagden v O’Connor [2003] UKHL 64; [2004] 1 A.C. 1067).
Destruction of or Damage to Property 1065
such losses, the cost of that hire.412 However, the measure based
upon prevailing freight rates may in the actual case be too high or
too low. It will be too high if the ship was operating at a loss at the
time of the damage413 and too low if the damage prevented the ship
from fulfilling an actual charter already entered into at favourable
rates.414
It was held in Giles v Thompson415 that where a substitute is hired
it is no answer that the claimant’s obligation to pay for the hire is
contingent upon recovery from the defendant416 but it was also said
that the fact of hire (and not merely its quantum or level) must be
reasonably undertaken, so that damages could not be recovered
where, for example, the claimant spent the period abroad or in
hospital,417 which may mean that if I have two cars for my sole use,
I cannot recover the cost of hiring a replacement when one is
damaged. In other words, whereas the cost of repair, even if not
incurred, is a more or less automatic measure of diminution in value,
the cost of hire is not in any sense an automatic measure of loss of
use: the first is an immediate, direct loss, the second is consequen-
tial.418 Nevertheless, there is still a real loss. In The Mediana419 Lord
Halsbury L.C. was clearly of the opinion that the fact that the
claimant would not have used the chattel was no bar to a claim for
loss of use.
421
Ruxley Electronics and Construction Ltd v Forsyth [1996] A.C. 344 at 354 (breach of
contract; sum for ‘‘loss of amenity value’’ recoverable rather than disproportionate cost of
remedial work).
422
In Admiralty Commissioners v SS Susquehanna [1926] A.C. 655 at 661 Viscount Dunedin
said that these are jury-type questions on which no rigid rules are possible.
423
The Marpessa [1907] A.C. 242; Admiralty Commissioners v SS Susquehanna, above,
fn.422; The Hebridean Coast [1961] A.C. 545; Birmingham Corp v Sowsbery (1969) 113
S.J. 577 (bus); cf. Alexander v Rolls Royce [1996] R.T.R. 95 (car).
424
Admiralty Commissioners v SS Chekiang [1926] A.C. 637, but where this applies it is the
end of the matter. The damages for loss of use of the chair in Lord Halsbury’s example
above do not vary according to how often he sits in it: Voaden v Champion (The Baltic
Surveyor) [2002] EWCA Civ 89; [2002] 1 Lloyd’s Rep. 623.
425
Carslogie SS Co Ltd v Royal Norwegian Government [1952] A.C. 292. Cf. Admiralty
Commissioners v SS Chekiang [1926] A.C. 637.
Destruction of or Damage to Property 1067
the same site rather than remove the business to a different loca-
tion.426 Ultimately, however, the reasonableness of the proposed
expenditure is the issue so that where the cost of reinstatement is out
of all proportion to the diminution in value the latter will be taken
as the measure.427 Again, the court may allow a degree of reinstate-
ment but refuse the claimant the extra cost of precise and meticulous
restoration which will not increase the utility of the property.428 The
claimant may not claim the cost of repairs which exceed diminution
in value where he has no intention of having them carried out.429
What has been said above represents a broad principle which may
be departed from in particular contexts. For example, the usual
measure of damages for negligent survey (where the action will
commonly lie concurrently in contract and tort) is the difference
between the price paid by the claimant and the actual market value
of the property, not the cost of putting the property in the condition
described in the report430 and, as we have seen, in some cases of
wrongful interference with property the courts have shown signs of
a restitutionary approach by assessing damages so as to deprive the
defendant of the fruits of his wrong.431
The rapid inflation of the 1970s brought into prominence, partic-
ularly on the context of damage to buildings, the question of the date
as at which damages were to be assessed, for a judgment represent-
ing the cost of repair at the time of the wrong, even with interest,
would be unlikely to be sufficient to cover the work when the action
came on for trial.432 While there may still be a general rule that
426
See Harbutt’s ‘‘Plasticine’’ Ltd v Wayne Tank and Pump Co Ltd [1907] 1 Q.B. 447 at 467,
472, pointing out that the market in land and buildings is more limited and inflexible than
in, e.g. secondhand cars. Ward v Cannock Chase DC [1986] Ch. 546; Aerospace Publish-
ing Ltd v Thames Water Utilities Ltd [2007] EWCA Civ 3 (a goods case—high cost of
restoration, low consequential loss; lower diminution in value, higher consequential loss).
Contrast Dominion Mosaics & Tile Co Ltd v Trafalgar Trucking Co Ltd [1990] 2 All E.R.
246 (rebuilding impracticable; value of destroyed building £60,000; £390,000 cost of lease
of new premises recoverable since this was a reasonable way of mitigating loss of
profits).
427
Jones v Gooday (1841) 8 M. & W. 146; Lodge Holes Colliery Co Ltd v Wednesbury Corp
[1908] A.C. 323; Taylor v Auto Trade Supply Ltd [1972] N.Z.L.R. 102; Munnelly v Calcon
Ltd [1978] I.R. 387.
428
Dodd Properties Ltd v Canterbury CC [1980] 1 W.L.R. 433 at 441 (on appeal, without
affecting this point, at 447); Ward v Cannock Chase DC [1986] Ch. 546. Cf. Farmer Giles
v Wessex Water [1990] 18 E.G. 102 (loss of development opportunity).
429
Perry v Sidney Phillips & Son [1982] 1 W.L.R. 1297 (though it is not certain that the Court
of Appeal would have upheld an award based on cost of repairs even if the claimant had
intended to carry them out); Hole & Son (Sayers Common) v Harrisons [1973] 1 W.L.R.
345.
430
Perry v Sidney Phillips & Son [1982] 1 W.L.R. 1297; Patel v Hooper & Jackson [1999]
1 W.L.R. 1792; but the claimant may recover damages for the inconvenience of living
elsewhere while repair work is done.
431
See para.22–13, above.
432
In Dodd Properties Ltd v Canterbury CC [1980] 1 W.L.R. 433 the cost of repair when the
damage was done in 1968 was £10,817. At judgment, 10 years later, it was £30,327.
Interest on a judgment at the 1968 cost would have amounted to about £5,500.
1068 Remedies
damages for tort are to be assessed as at the time when the tort is
committed,433 that rule is subject to exceptions and in a repair case
the applicable principle is that the date for assessment of damages is
the time when, having regard to all relevant circumstances, repairs
can first reasonably be undertaken,434 and in determining this ques-
tion it is proper to pay regard to the claimant’s financial
position.435
Consequential losses such as loss of rental or profits, may also be
recovered.436
D. ‘‘Betterment’’
22–45 While the broad approach to damages for injury to goods or
buildings is clear enough, no mechanical rules can be laid down:
given the fundamental principle that the claimant is entitled to, and
only entitled to, fair compensation for his loss the application of the
broad principles must be ‘‘fact sensitive’’. This is well illustrated by
the problem of ‘‘betterment’’. A claimant whose two-year-old car is
destroyed is entitled to its value, or in practical terms, the cost of a
similar two-year-old car; but if his two-year-old car suffers damage
this may have to be repaired with new parts which may make it more
valuable than it was before.437 The real question here is whether the
claimant gets any real advantage from the betterment produced by
the repairs.438 Where new parts are fitted in repairs to ships or
vehicles439 or machinery440 any benefit to the owner is likely to be
trivial or speculative. Although such an issue is more likely to arise
in a case of repair rather than replacement, because in the latter case
the market will commonly provide access to a substitute of compa-
rable age and condition, it may also have to be considered where an
equivalent is not available. If a building is destroyed by the defen-
dant the claimant may, as a practical matter, have to rebuild on the
same site but the fact that he has a new building which may have a
higher market value than the old may not be much of an advantage
to him if the business carried on there is to continue.441 However, if
433
Miliangos v George Frank (Textiles) Ltd [1976] A.C. 443 at 468; Johnson v Perez (1988)
82 A.L.R. 587.
434
Dodd Properties Ltd v Canterbury CC, above, fn.432.
435
Dodd Properties Ltd, fn.432; Alcoa Minerals v Broderick [2002] 1 A.C. 371.
436
Rust v Victoria Graving Dock Co (1887) 36 Ch.D. 113; Dodd Properties Ltd v Canterbury
CC, above, fn.432. For mesne profits, see para.13–18, above.
437
Of course in many cases the effect of the new parts may be more than offset by the
suspicion among buyers of an ‘‘accident car’’ but in principle the point must be true.
438
Voaden v Champion (The Baltic Surveyor) [2002] EWCA Civ 89; [2002] 1 Lloyd’s Rep.
623.
439
The Gazelle (1844) 2 W.Rob.(Adm.) 279; The Munster (1896) 12 T.L.R. 264.
440
Bacon v Cooper (Metals) Ltd [1982] 1 All E.R. 397.
441
Harbutt’s ‘‘Plasticine’’ Ltd v Wayne Tank and Pump Co Ltd [1970] 1 Q.B. 447; Dominion
Mosaics and Tile Co Ltd v Trafalgar Trucking Co Ltd [1990] 2 All E.R. 246.
Destruction of or Damage to Property 1069
6. SELF-HELP
A. Abatement of Nuisance
A nuisance may be abated, i.e. removed, but this is a remedy 22–47
which the law does not favour, because, as Sir Matthew Hale
said—‘‘this many times occasions tumults and disorders’’.448 In the
first place, before abatement is attempted, notice should be given to
442
British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rail-
ways Co of London Ltd [1912] A.C. 673. So in the Dominion Mosaics case, above, fn.441,
where there was 20 per cent more space in the leased substitute the result might have been
different if there had been evidence of a realistic prospect of sub-letting this: The Baltic
Surveyor, above, fn.438, at [85].
443
R. v CC Devon and Cornwall, Ex p. C.E.G.B. [1982] Q.B. 458 at 473. This case contains
a review of the powers and duties of the police where a landowner or person with rights
over land exercises the right of self-help.
444
If the trespasser is in a building or land ancillary to a building and the occupier uses or
threatens violence to secure entry, the occupier may be guilty of an offence under the
Criminal Law Act 1977 s.6: see further, para.13–14, above.
445
Burton v Winters [1993] 1 W.L.R. 1077 (where the claimant received a two-year sentence
for contempt because of her efforts to remove an encroachment).
446
See para.17–10, above. The right of distress over trespassing animals was abolished and
replaced with a statutory remedy: para.16–11, above.
447
See para.17–25, above.
448
De Portubus Maris, Pt 2, Ch.VII.
1070 Remedies
7. INJUNCTION
449
Lagan Navigation Co v Lambeg Bleaching Co Ltd [1927] A.C. 226.
450
Lemmon v Webb [1895] A.C. 1. Roots of a tree projecting into one’s soil from neighbour-
ing land may be sawn off, but it is not clear whether notice to the neighbouring land
occupier must first be given: Butler v Standard Telephones, etc. Ltd [1940] 1 K.B. 399.
451
Mills v Brooker [1919] 1 K.B. 555.
452
Du Bost v Beresford (1801) 2 Camp. 511, where the point was left open, but it may
probably be regarded as settled now.
453
Blackburn J. in Roberts v Rose (1865) L.R. 1 Ex. 82 at 89 adopted by Lord Atkinson in
Lagan Navigation Co v Lambeg, etc. Bleaching Co Ltd [1927] A.C. 226 at 244–246, where
the abators satisfied none of these three conditions.
454
Burton v Winters [1993] 1 W.L.R. 1077; cf. Chamberlain v Lindon [1998] 1 W.L.R. 1252.
For the financial consequences of minor ‘‘boundary wars’’ see Macnab v Richardson
[2008] EWCA Civ 1631.
455
Abbahall Ltd v Smee [2002] EWCA Civ 1831; [2003] 1 W.L.R. 1472.
456
Senior Courts Act (formerly known as the Supreme Court Act) 1981 s.37. As to county
courts, see the County Courts Act 1984 s.38, as substituted by the Courts and Legal
Services Act 1990 s.3.
457
e.g. an injunction may be granted to restrain a breach of contract or a breach of confidence.
For the possibility that there remains a wider jurisdiction to restrain any ‘‘unlawful injury
to property’’, see para.7–10, above.
Injunction 1071
458
CC Kent v V [1983] Q.B. 34 at 45 per Donaldson L.J.
459
See Feldman (1979) 42 M.L.R. 369. See also s. 222 of the Local Government Act 1972
(local authorities). See also anti-social behaviour orders under the Crime and Disorder Act
1998, proceedings for which are classified as civil: R. (McCann) v Crown Court at
Manchester [2002] UKHL 39; [2003] 1 A.C. 787.
460
For injunctions in the context of trade disputes, see para.18–43, above.
461
See, e.g. Egan v Egan [1975] Ch. 218 (injunction to restrain assaults).
462
For mandatory injunctions, see para.22–51, below.
463
Patel v W.H. Smith (Eziot) [1987] 1 W.L.R. 853 and see John Trenberth Ltd v National
Westminster Bank Ltd (1979) 39 P. & C.R. 104.
464
League against Cruel Sports v Scott [1986] Q.B. 240.
465
Anchor Brewhouse Developments v Berkley House (Docklands Developments) (1987) 284
E.G. 625, para.13–7, above.
466
London and Blackwall Ry v Cross (1886) 31 Ch.D. 354 at 369 per Lindley L.J. For the
statutory power to award damages in lieu of an injunction, see para.22–53, below.
467
[1895] 1 Ch. 287 at 315–316.
1072 Remedies
468
Best illustrated by attempts to restrain use of the beach or access thereto: Llandudno UDC
v Woods [1899] 2 Ch. 705; Behrens v Richards [1905] 2 Ch. 614. See Armstrong v
Sheppard and Short Ltd [1959] 2 Q.B. 384.
469
Cf. the strange case of Bank of NZ v Greenwood [1984] 1 N.Z.L.R. 525 where glare from
the defendant’s building amounted to a nuisance which could be abated, (1) by major work
on the building, or (2) by the claimants installing blinds. Disclaiming any power to award
damages in lieu of an injunction, Hardie Boys J. intimated that the installation of blinds at
the defendant’s expense would satisfy the claimant’s rights and adjourned the action sine
die.
470
Armstrong v Sheppard and Short, above, fn.468.
471
Jones v Stones [1999] 1 W.L.R. 1739.
472
Wood v Sutcliffe (1851) 2 Sim.(N.S.).
473
[1977] Q.B. 966.
474
Lord Denning M.R. and Cumming-Bruce L.J. The former in fact held the defendants’
conduct not actionable at all.
475
[1981] Q.B. 88. However, the injunction was formulated so as to allow the defendants
some scope for the continuation of their noisy activities and in Miller v Jackson, Geoffrey
Lane L.J., dissenting, would have suspended an injunction for 12 months to allow the
defendants to find an alternative pitch.
Injunction 1073
A. Interim Injunction478
An injunction which is issued at the conclusion of a trial upon the 22–50
merits is known as a perpetual injunction, but an injunction may be
issued provisionally until the hearing of the case on the merits, when
it is known as an interim injunction.479 The court on an application
for an interim injunction does not profess to anticipate the final
outcome of the action and since it is always possible that when the
case actually comes to trial the defendant may be found to have been
in the right after all, the claimant may be required, as a condition of
the grant of an interim injunction, to give an undertaking in dam-
ages, i.e. to undertake to pay damages to the defendant for any loss
suffered by him while the injunction was in force, should it prove to
have been wrongly issued.480 The principles on which the court acts
on an application for an interim injunction are to be found in
American Cyanamid Co v Ethicon Ltd.481 A claimant need not
establish a prima facie case but merely that there is a ‘‘serious
question’’ to be tried.482 If so, the court must then decide whether the
balance of convenience lies in favour of granting or refusing interim
relief. The court should consider all the circumstances of the case,
particularly whether damages are likely to be an adequate remedy
for the claimant, whether the claimant’s undertaking in damages
gives the defendant adequate protection if the claimant fails at the
476
Elliott v Islington LBC [1991] 10 E.G. 145 (encroachment by ancient tree). See further as
to damages and injunctions, Tromans, ‘‘Nuisance—Prevention or Payment?’’ [1982]
C.L.J. 87.
477
Dennis v MoD [2003] EWHC 793 (QB); [2003] Env L.R. 34 (though what was in fact
sought was a declaration).
478
For specialised forms of interim injunctions, the search (formerly Anton Piller) order
(allowing entry to search for property and documents) and the freezing (formerly Mareva)
injunction (restraining removal of assets beyond the jurisdiction) see Clerk and Lindsell,
Torts, 19th edn, Ch.30.
479
Before the CPR 1999 an ‘‘interlocutory injunction’’.
480
An undertaking in damages will not normally be required where the Crown or a local
authority seeks an injunction in aid of the criminal law: Kirklees MBC v Wickes Building
Supplies Ltd [1993] A.C. 227. In practice the parties often treat the application for an
interim injunction as the trial of the action. In cases of great urgency the claimant can
obtain an interim injunction in the absence of the defendant which will remain in force for
a few days, until there can be a hearing.
481
[1975] A.C. 396. The case concerned an application for a prohibitory injunction against
patent infringement. An interim injunction may be in mandatory (see below) form, but a
stronger case is probably required than for a prohibitory injunction.
482
Cf. J.T. Stratford & Son Ltd v Lindley [1965] A.C. 269 at 325, 331, 388, 339, 342–343 and
the remarks of Lord Denning M.R. in Fellowes v Fisher [1976] Q.B. 122. For trade
disputes cases, see para.18–43, above.
1074 Remedies
483
‘‘I confess that I cannot see how the ‘balance of convenience’ can be fairly or reasonably
considered without taking some account as a factor of the relative strength of the parties’
cases, but the House of Lords seems to have held that this is only the last resort’’: Fellowes
v Fisher [1976] Q.B. 122 at 138 per Browne L.J.; but cf. Series 5 Software v Clarke [1996]
1 All E.R. 853.
484
Herbage v Pressdram Ltd [1984] 1 W.L.R. 1160.
485
Coulson v Coulson (1887) 3 T.L.R. 846; Bonnard v Perryman [1891] 2 Ch. 269.
486
There must be some apparent basis for the defence, it is not something that can be put
forward on the insistence of an obsessive client: Howlett v Holding [2006] EWHC 41
(QB). The claimant might be a little more likely to succeed in showing this where the
defence was comment or privilege because, e.g. it might be clear that the words were not
comment or there was no privileged occasion. However, an injunction would still be
wholly exceptional.
487
Herbage v Times Newspapers Ltd, The Times, May 1, 1981; Kaye v Robertson [1991]
F.S.R. 62.
488
Holley v Smyth [1998] Q.B. 726 (threat to expose alleged wrongdoing unless claimants
made restitution).
489
Gulf Oil (GB) Ltd v Page [1987] Ch. 327.
490
Femis-Bank (Anguilla) Ltd v Lazar [1991] Ch. 391, explaining Gulf Oil, above, fn.489.
491
Bestobell Paints Ltd v Bigg [1975] F.S.R. 421. Cf. Kaye v Robertson [1991] F.S.R. 62 and
Compaq Computer Corp v Dell Computer Corp Ltd [1992] F.S.R. 93 where the claimants
established sufficiently strong cases.
Injunction 1075
B. Mandatory Injunction
Normally injunctions are prohibitory, they forbid the defendant 22–51
from persisting in his wrongful conduct, but the court has power
also to grant a mandatory injunction by virtue of which the defen-
dant is actually ordered to take positive action to rectify the conse-
quences of what he has already done. In Redland Bricks Ltd v
Morris495 the defendants’ excavations on their own land had caused
part of the claimant’s land to subside and had endangered part of the
remainder. In the county court the claimants recovered damages in
respect of the subsidence which had already occurred, and the judge
also granted them a mandatory injunction requiring the defendants
to restore support to their land, the estimated cost of doing which
was very great, and, indeed, actually exceeded the value of the
whole of the claimant’s land. In the House of Lords the defendants’
appeal against this injunction was allowed and, while emphasising
that the issue of a mandatory injunction is entirely discretionary and
that each case depends upon its own circumstances, Lord Upjohn
laid down certain general principles.496 These may be summarised
as follows:
492
e.g. the code of the Press Complaints Commission.
493
Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462; [2005] Q.B. 972.
494
Cream Holdings Ltd v Bannerjee [2004] UKHL 44; [2005] 1 A.C. 253. See para.12–86,
above.
495
[1970] A.C. 652.
496
[1970] A.C. 652 at 665–667. The other members of the House of Lords agreed with Lord
Upjohn’s speech.
497
Taylor v Auto Trade Supply Ltd [1972] N.Z.L.R. 102; Daniells v Mendonca (1999) 78 P.
& C. R. 401. This is a general principle applicable to all injunctions: [1970] A.C. 652 at
655.
1076 Remedies
‘‘Laid down [over] 100 years ago [this] checklist has stood the
test of time,514 but it needs to be remembered that it is only a
working rule and does not purport to be an exhaustive statement
of the circumstances in which damages may be awarded instead
of an injunction.’’515
22–54 Orders for the specific restitution of property may be for the recov-
ery of land or for the recovery of chattels, but whether it is restitu-
tion of land or of goods that is sought, the remedies are confined to
cases where one person is in possession of another’s property and
this limits them to torts infringing such possession. They have,
therefore, been considered at appropriate points.518
513
Shelfer v City of London Electric Lighting Co [1895] 1 Ch. 287 at 322 per Smith L.J. Cf.
Fishenden v Higgs and Hill Ltd (1935) 152 L.T. 128 at 141.
514
See Regan v Paul Properties Ltd [2006] EWCA Civ 1391; [2007] Ch. 135, where it is said
that it is wrong to put the onus on the applicant to show why he should not be confined
to damages. In this case the injunction involved demolition of part of a building. Although
the courts are reluctant to order demolition it cannot be said that there is any universal rule
preventing it: Site Developments (Ferndown) Ltd v Barratt Homes Ltd [2007] EWHC 415
(Ch).
515
Jaggard v Sawyer, above, fn.512, Millett L.J.; Watson v Croft Promo Sport Ltd [2009]
EWCA Civ 15; [2009] 3 All E.R. 249. The checklist is structured around the assumption
that the claimant wants an injunction and the defendant resists that. It may not be suitable
in a case where the claimant ‘‘only wants money’’ (Lindley L.J. in Shelfer at 317): Marcic
v Thames Water Utilities Ltd (No.2) [2001] 4 All E.R. 326 at [10].
516
Johnson v Agnew [1980] A.C. 367.
517
Jaggard v Sawyer, above, fn.512.
518
See paras 13–15, 17–29, above.
CHAPTER 23
1. Death as Extinguishing Liability .......... 23–2 ii. Nature of the action ................23–11
A. Survival of Causes of Action ......... 23–3 iii. What is recoverable ................23–12
B. ‘‘Subsisting’’ Action ....................... 23–4 iv. Assessment of damages ..........23–14
C. Damages Recoverable .................... 23–5 v. Deductions ..............................23–16
D. Time Limitation .............................. 23–6 vi. Contributory negligence .........23–17
E. Right of Action is Cumulative ....... 23–7 3. Relationship of the Fatal Accidents Act
2. Death as Creating Liability .................. 23–8 and Law Reform Act ............................23–18
A. Fatal Accidents Act 1976 ............... 23–9 4. Miscellaneous Statutes ..........................23–19
i. Dependants ..............................23–10
At common law the general rule was that death of either party 23–2
extinguished any existing cause of action in tort by one against the
other—actio personalis moritur cum persona.1 Actions in contract
1
For the historical background see Winfield (1929) 29 Col. L.R. 239.
1079
1080 Death in Relation to Tort
generally escaped the rule, and so too did those in which property
had been appropriated by a deceased person and added to his own
estate, but it was not until 1934 that the defects of the law were
forced on the attention of the legislature by the growth of motor
traffic and its accompanying toll of accidents. If a negligent driver
was killed in the accident which he himself had caused, nothing was
recoverable from his estate or his insurer2 by those whom he had
injured. Accordingly, the Law Reform (Miscellaneous Provisions)
Act 1934 was passed to provide generally for the survival of causes
of action in tort.3 Its main provisions may be summarised as
follows.
B. ‘‘Subsisting’’ Action
It may happen that a cause of action is not complete against a 23–4
wrongdoer until after he has in fact died, as, for example, where
damage is the gist of the action and no damage is suffered until after
the death of the wrongdoer. In such a case no cause of action
subsists against the wrongdoer at the date of his death and there is
nothing to survive against his estate, so that, were there no provision
in the Act to deal with the point, the person suffering the damage
would be deprived of his remedy. Section 1(4) provides, however,
that where damage has been suffered as a result of a wrongful act in
respect of which a cause of action would have subsisted had the
wrongdoer not died before or at the same time as the damage was
suffered, there shall be deemed to have subsisted against him before
his death such cause of action as would have subsisted if he had died
after the damage had been suffered. Thus, if on facts similar to those
of Donoghue v Stevenson,11 D, the negligent manufacturer of nox-
ious ginger beer, dies before the ultimate consumer, C, suffers
damage from drinking it, C’s cause of action against D’s estate is
preserved as it is regarded as arising before D’s death.12
C. Damages Recoverable
1. Where the injured party dies, the damages recoverable for the 23–5
benefit of the estate may not include any exemplary dam-
ages,13 nor any damages for loss of income in respect of any
10
The Neill Report (see para.12–68, above) Ch.VI. Compare s.39 of the Irish Defamation
Act 2009.
11
[1932] A.C. 562, para.5–5, above.
12
A right to claim contribution from another tortfeasor is not a claim in tort and survives
death without reference to the 1934 Act: Ronex Properties Ltd v John Laing Construction
Ltd [1983] Q.B. 398.
13
It is hard to see why the death of the victim should bar punishment of the surviving
wrongdoer, while at the same time the death of the wrongdoer does not (apparently) bar
civil punishment of his estate. The Law Commission has recommended the correction of
this: Law Com. No.247, ss.5.275, 5.278. A similar provision in Victoria produced a
historical tour de force on the practice of giving judgment nunc pro tunc in Hartley
Poynton Ltd v Ali [2005] VSCA 53.
1082 Death in Relation to Tort
14
Law Reform (Miscellaneous Provisions) Act 1934 s.1(2)(a), as amended by the Admini-
stration of Justice Act 1982 s.4.
15
See para.22–30, above.
16
However, it may be unsafe to assume that this provision removes all possibility of a ‘‘lost
years’’ claim by the estate. It refers only to loss of income and the common law may extend
to loss of the opportunity to inherit capital: see Adset v West [1983] Q.B. 826. Further, the
court in Ward v Foss, The Times, November 29, 1993, allowed a lost years claim by the
estate to proceed by disapplying the Limitation Act (para.26–19, below): the fact that the
law had subsequently been changed did not make it inequitable to allow old claims to
proceed. It is important to note that the 1982 Act has no application to a claim by a living
claimant, who may still sue for loss of earnings during the ‘‘lost years’’: Gregg v Scott
[2005] UKHL 2; [2005] 2 A.C. 176 at [181]. This is essential to allow full compensation
for claimants with dependants who face premature death: para.22–30, above.
17
e.g. cessation of an annuity or life interest.
18
e.g. insurance money.
19
Section 12(2)(c). A living claimant whose life expectancy has been shortened cannot claim
‘‘anticipatory’’ funeral expenses: Watson v Cakebread Robey Ltd [2009] EWHC 1695
(QB).
20
Otter v Church, Adams, Tatham & Co [1953] Ch. 280. This was an action in contract for
professional negligence, which survived at common law. It is submitted, however, that the
result would have been the same even if the plaintiff had had to rely upon the Act of
1934.
21
Not momentary pain which is effectively part of the process of death itself: Hicks v CC
South Yorkshire [1992] 1 All E.R. 65. Cf. Beesley v New Century Group Ltd [2008] EWHC
3033 (QB) (£72,000 for 17 months of suffering).
Death as Extinguishing Liability 1083
D. Time Limitation
Until 1970 special rules governed the time within which proceed- 23–6
ings in tort had to be started against a deceased person’s estate.
However, those rules were abolished by the Proceedings Against
Estates Act of that year and generally the ordinary law for the
limitation of actions applies, whether the action is brought against or
for the benefit of the estate.23
We have seen how the Act of 1934 abolished the common law rule 23–8
of actio personalis moritur cum persona and allowed the survival of
the cause of action of a deceased person, though it did not as such
create any cause of action. A quite separate rule of the common law
providing that the death could not give rise to a cause of action in
other persons, although they were dependent on the deceased, was
derived from the ruling of Lord Ellenborough in Baker v Bolton25
that, ‘‘in a civil court the death of a human being could not be
complained of as an injury’’.26 Baker v Bolton was only a ruling at
22
Until the Administration of Justice Act 1982 the conventional award for ‘‘loss of expecta-
tion of life’’ (para.22–18, above) could be regarded as representing post mortem loss of
amenity.
23
See para.26–19, below, but under the Limitation Act 1980 s.11(5), a new, fixed period of
limitation arises where the victim dies during the period which commenced with his injury.
Provision is made, by rules of court, to enable proceedings to be started against an estate
where no grant or probate or administration has been made: CPR 19.8.
24
Section 1(5), as amended by the Fatal Accidents Act 1976 s.6 Sch.1 para.2(2).
25
(1808) 1 Camp. 493 (the claimant’s wife had been killed in a stagecoach accident).
26
The rule in Baker v Bolton does not apply where the claimant’s cause of action is founded
upon contract: Jackson v Watson [1909] 2 K.B. 193.
1084 Death in Relation to Tort
Nisi Prius, not a single authority was cited and the report is
extremely brief, but it was nevertheless upheld in later cases and the
seal of approval placed upon it by the House of Lords in Admiralty
Commissioners v SS Amerika.27 Long before that case, however, the
legislature had intervened.
27
[1917] A.C. 38.
28
Law Com. No.263, Claims for Wrongful Death (1999).
29
The 1976 Act was amended in important respects by the Administration of Justice Act
1982.
30
It is now common form in statutes imposing strict liability to provide that a situation giving
rise to such liability is ‘‘fault’’ within the meaning of the Fatal Accidents Act: see, e.g. the
Animals Act 1971 s.10. A breach of contract causing death is within the statute: Grein v
Imperial Airways Ltd [1937] 1 K.B. 50.
31
Section 1.
32
Substituting a new s.1 in the Fatal Accidents Act 1976.
33
Including a person whose marriage has been annulled or declared void; the same applies
where a civil partnership is annulled or dissolved.
34
i.e. a person party to a registered same-sex civil partnership under the Civil Partnership Act
2004: s.83 of the Act.
Death as Creating Liability 1085
before the date of the death and had been so living for at least two
years35; (4) any parent or other ascendant of the deceased or person
treated by the deceased as his parent; (5) any child36 or other
descendant of the deceased or any person who has been treated by
the deceased as a child of the family in relation to any marriage or
civil partnership of the deceased; and (6) any person who is, or is the
issue of, a brother, sister, uncle or aunt of the deceased.37 Moreover,
in deducing any relationship an adopted person is to be treated as the
child of the persons by whom he was adopted,38 a relationship by
marriage or civil partnership as one of consanguinity and a relation-
ship of the half-blood as a relationship of the whole blood. The
stepchild39 of any person is to be treated as his child and an
illegitimate person as the legitimate child of his mother and reputed
father.40 The major change introduced by the 1982 Act was the
admission of the ‘‘common law spouse’’ to the list of dependants41
and various amendments were made in 2005 consequent on the
general assimilation of the legal status of registered same-sex part-
nerships with that of marriage by the Civil Partnership Act 2004.
The Fatal Accidents Act also gives rise to a claim for damages for
‘‘bereavement’’, but in favour of a much narrower range of persons.
This is dealt with below.
An action under the Fatal Accidents Act must normally be
brought on behalf of the dependants by the executor or administrator
of the deceased42 but where there is no personal representative, or
no action is brought by him within six months, any dependant who
is entitled to benefit under the Act may sue in his own name on
behalf of himself and the others.43 Subject to the court’s powers
under the Limitation Act 1980, the action must in any case be
brought within three years of the death.44
35
Compare the very much wider residual category under the Inheritance (Provision for
Family and Dependants) Act 1975, and see Law Com. No.263, above, §3.18 and Shepherd
v Post Office, The Times, June 15, 1995. A draft Civil Law Reform Bill published at the
end of 2009 would extend eligibility to a person not falling within the other categories who
was being maintained by the deceased immediately before the death.
36
Including a posthumous child: The George and Richard (1871) L.R. Ad. & E. 466.
37
Fatal Accidents Act 1976 s.1(3), as substituted by Administration of Justice Act 1982.
38
Where a cause of action in respect of the death of the natural parent has accrued, a
subsequent adoption does not extinguish the child’s claim: Watson v Willmott [1991] 1
Q.B. 140.
39
Including the child of the deceased’s civil partner: Civil Partnership Act 2004 Sch.21.
40
Fatal Accidents Act 1976 s.1(5).
41
Before the 1982 Act a reduction in the resources of an unmarried mother as a result of the
death of the father might constitute a loss to the children: K. v J.M.P. Co Ltd [1975] Q.B.
85. This might still be relevant where the conditions of the 1982 Act are not fulfilled.
42
Section 2. An executor’s title to sue dates from the death, but an administrator must first
obtain a grant of letters of administration.
43
Section 2(2). If there is no executor or administrator, the dependants need not wait six
months before suing: Holleran v Bagnell (1879) 4 L.R.Ir. 740.
44
See para.26–19, below.
1086 Death in Relation to Tort
23–11 ii. Nature of the action. In comparison with the common law, the
right of action created by the Fatal Accidents Act is, ‘‘new in its
species, new in its quality, new in its principles, in every way
new’’45; it is not the deceased’s own cause of action which is caused
to survive, it is a new action for the benefit of his dependants. For
this new cause of action to exist, however, it is necessary that the
circumstances of his death should have been such that the deceased
himself, had he been injured and not killed, could have sued for his
injury.46 One must consider the hypothetical ability of the deceased
to sue as at the moment of his death, with the idea fictionally that
death has not taken place.47 If, therefore, the deceased had been run
over in the street through nobody’s fault but his own, there will be
no claim on behalf of his dependants nor will there be such a claim
if by contract with the defendant the deceased had excluded any
possibility of liability to himself,48 but if the contract merely limited
the amount of the defendant’s liability, then the deceased could have
sued for some damages, the way is open for the dependant’s claim,
and that claim, being independent of the deceased’s, will not be
affected by the limitation of liability.49 Similarly the dependants
have no claim if the deceased, before his death,50 had accepted
compensation from the defendant51 in satisfaction of his claim,52 or
had actually obtained judgment against the defendant,53 or if by the
date of his death his claim had become statute-barred.54 Nonethe-
less, so long as the deceased’s claim has not become statute-barred
when he dies, then the dependants have the full three years from the
45
Seward v Vera Cruz (1884) 10 App.Cas. 59 at 70–71 per Lord Blackburn.
46
For a curious qualification to this, caused by the wording of the MIB agreement, see
Phillips v Rafiq [2007] EWCA Civ 74; [2007] 1 W.L.R. 1351.
47
British Columbia Electric Ry v Gentile [1914] A.C. 1034 at 1041 per Lord Dunedin; Pym
v GN Ry (1862) 2 B. & S. 759, 4 B. & S. 396.
48
Haigh v Royal Mail Steam Packet Co Ltd (1883) 52 L.J.Q.B. 640; The Stella [1900] P. 161;
but since the passing of the Unfair Contract Terms Act 1977 s.2 (para.25–6, below), it is
a good deal less likely that such a term will be binding.
49
Nunan v Southern Ry [1924] 1 K.B. 223; Grein v Imperial Airways [1937] 1 K.B. 50.
50
If there is a discontinuance of the deceased’s claim after death that does not bar the Fatal
Accidents Act claim unless as a matter of construction of the agreement it is intended to
do so: Reader v Molesworths Bright Clegg [2007] EWCA Civ 169; [2007] 1 W.L.R.
1082.
51
Not if he has accepted a payment from another tortfeasor unless this in fact fully satisfies
his claim: Jameson v C.E.G.B. [2000] 1 A.C. 455.
52
Read v GE Ry (1868) L.R. 3 Q.B. 555. This does not contravene arts 6 or 8 of the European
Convention on Human Rights: Thompson v Arnold [2007] EWHC 1875 (QB); [2008]
P.I.Q.R. P1. The view that the dependants are barred was assumed to be correct for the
purposes of the appeal in Pickett v British Rail Engineering Ltd [1980] A.C. 136. Whether
the liability in tort is destroyed from the moment that the agreement to accept compensa-
tion is made, even before the money is actually paid is a question of construction: British
Russian Gazette v Associated Newspapers Ltd [1933] 2 K.B. 616.
53
The award of provisional damages to the deceased does not bar the dependants’ claim:
Damages Act 1996 s.3.
54
Williams v Mersey Docks and Harbour Board [1905] 1 K.B. 804; but the court may be able
to override the limitation period: Limitation Act 1980 s.33.
Death as Creating Liability 1087
death (or, in certain cases, the time when they know they have a
cause of action) in which to sue,55 for their claim, which arises on
the death, has no connection with the deceased’s. It is thus some-
what illogical, though doubtless good practical sense, that, since the
Law Reform (Contributory Negligence) Act 1945, if the deceased
was himself partly to blame for the accident which caused his death,
the damages recoverable by his dependants are reduced in propor-
tion to his share of responsibility for the accident.56 Before the Act
of 1945, of course, the dependants could have recovered nothing for
the deceased could not himself have sued. At the present time, were
it not for express statutory provision to the contrary, they would be
able to recover the full amount of their loss without reduction.
55
Limitation Act 1980 s.12(2).
56
Fatal Accidents Act 1976 s.5.
57
The standard works mentioned in para.22–1, above, also deal with damages under the Fatal
Accidents.
58
In the case of an illegitimate child, only the mother.
59
There is no claim for bereavement if the victim is injured before majority but dies after
majority: Doleman v Deakin, The Times, January 30, 1990. The Act does not apply to a
stillborn child, though since the tort causing the stillbirth will be a tort against the mother
she may recover substantial damages (not necessarily limited to the statutory sum) for the
effect of the loss of the child on her: Bagley v North Herts Health Authority (1986) 136
N.L.J. 1014. Cf. Kralj v McGrath [1986] 1 All E.R. 54, where the emphasis seems to be
on the mother’s grief hindering her physical recovery, and Kirby v Redbridge HA [1993]
4 Med. L.R. 178.
60
Like other damages under the Act, this sum would seem to be subject to reduction on
account of the deceased’s contributory negligence.
61
Fatal Accidents Act 1976 s.1A (inserted by Administration of Justice Act 1982 s.3) as
amended by SI 2007/3489. These damages are additional to any recoverable by the
claimant for psychiatric trauma because there has been a tort to him: Jones v Royal Devon
etc NHS Foundation Trust [2008] EWHC 558 (QB); 110 B.M.L.R. 154. Where the claim
is made by both parents the sum is to be divided equally between them (s.1A(4)), the form
of which might suggest that if one parent is the tortfeasor, the other receives the full sum
but contra, Navei v Navei [1995] C.L.Y., Cty Ct). The statutory damages for bereavement
are even more arbitrary than those for pain and suffering and loss of amenity in an injury
case. For a dramatically different perspective from the point of view of the economics of
happiness see Oswald and Powdthavee, ‘‘Death, Happiness and the Calculation of Com-
pensatory Damages’’ (2008) 37 Jo. of Legal Studies S217 (suggesting figure of the order
of £312,000 for first year from loss of spouse).
62
In effect, though not in theory, the previous law allowed a solatium where the deceased
was a young child. The child’s action for loss of expectation of life (a conventional sum
not exceeding £1,750) survived for the benefit of the estate and passed to the parents, who
would, since there was no dependency, generally have no Fatal Accidents Act claim from
which it could be deducted.
1088 Death in Relation to Tort
63
However, by the Damages (Scotland) Act 1976 s.1(4), the common law claim for solatium
was replaced by a claim for, ‘‘such non-patrimonial benefit as the relative might have been
expected to derive from the deceased’s society and guidance if he had not died’’.
64
Law Com. No.263, Pt VI. A draft (i.e. for pre-legislative consultation rather than immedi-
ate enactment) Civil Law Reform Bill published in December 2009 contains provisions to
extend such damages to cohabitants and (at half the standard rate) to minor children of a
deceased person. Some European systems award damages to relatives of a living victim for
the distress to them: see Rogers (ed.) Damages for Non-Pecuniary Loss in a Comparative
Perspective (2001) p.262. See also para.2–14, above, in relation to the Human Rights Act
1998.
65
Section 3(1). A literal interpretation of the Act might mean that it did not apply to a case
where the deceased was seriously injured but did not die for some time, for his earning
capacity would be destroyed before the death. Naturally, this has been rejected: Jameson
v C.E.G.B. [1997] 3 W.L.R. 151 (on appeal [2000] 1 A.C. 455).
66
Franklin v SE Ry (1858) 3 H. & N. 211 at 213–214. Hence the dependants are entitled to
recover where the deceased has been prevented from accumulating savings which they
would have received from him: Singapore Bus Co v Lim [1985] 1 W.L.R. 1075. It has been
held that where the deceased’s estate is substantial and pays estate duty (now inheritance
tax) which would otherwise have been avoided, that duty is recoverable by the dependants/
beneficiaries from the tortfeasor: Davies v Whiteways Cyder Co Ltd [1975] Q.B. 262.
67
Duckworth v Johnson (1859) 29 L.J. Ex. 257.
68
Burns v Edman [1970] 2 Q.B. 541. This decision has come in for a good deal of criticism
but, while the claim of the dependants is certainly separate from that of the deceased, it is
hard to see how the court can countenance an award of damages in respect of loss of the
benefits of criminal activity. See also Hunter v Butler, The Times, December 28, 1995
(fraudulent concealment of savings, claimant aware) and para.25–18, below.
69
Hay v Hughes [1975] Q.B. 790 at 802; Regan v Williamson [1976] 1 W.L.R. 305; Mehmet
v Perry [1977] 2 All E.R. 529; Beesley v New Century Group Ltd [2008] EWHC 3033
(QB) (principle of recovery for ‘‘intangible’’ benefits also applicable to spouses). See also
para.23–15, below.
Death as Creating Liability 1089
he had lost the son’s services, he could not prove that he had lost any
pecuniary benefit since he had paid full wages for them.70 An
additional reason for rejecting the father’s claim in that case was that
the father could not show any benefit accruing to him from his
relationship with his son, but only that he had lost an advantage
derived from a contract with him, and this was insufficient.71 ‘‘The
benefit, to qualify under the Act, must be a benefit which arises from
the relationship between the parties.’’72 In Malyon v Plummer73 the
claimant widow had been in receipt of a salary of about £600 per
annum for somewhat nominal services to her husband’s ‘‘one-man’’
company. The Court of Appeal estimated the value of her services
to the company at £200 per annum and held that the balance, but
only the balance, was attributable to her relationship as wife to the
deceased. The £200 represented payment for services rendered
under her contract of employment and could not therefore be recov-
ered. Nor is a mere speculative possibility of pecuniary benefit
sufficient, as where the person killed was aged four years and his
father proved nothing except that he had intended to give the child
a good education.74
On the other hand, there may be a reasonable expectation of 23–13
pecuniary benefit although the relatives had no legal claim to sup-
port by the deceased, as where a son who was killed had voluntarily
assisted his father in the father’s work,75 or where he once gave him
money during a period of unemployment,76 or where a wife who
was killed had gratuitously performed the ordinary household
duties.77 Indeed, it is not necessary that the deceased should have
been actually earning anything or giving any help, provided there
was a reasonable probability, as distinct from a bare possibility, that
he would do so, as there was where the deceased was a girl of 16
who lived with her parents, was on the eve of completing her
apprenticeship as a dressmaker, and was likely in the near future to
earn a wage which might quickly have become substantial.78
70
Sykes v NE Ry (1875) 44 L.J.C.P. 191.
71
Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 Q.B. 349.
72
[1955] 1 Q.B. 349 at 360 per Devlin J.
73
[1964] 1 Q.B. 330; Williams v Welsh Ambulance Service NHS Trust [2008] EWC Civ 81;
Cox v Hockenhull [2000] 1 W.L.R. 750 (loss of invalid care allowance not recoverable;
claimant in effect employed by State to care for deceased).
74
Barnett v Cohen [1921] 2 K.B. 461. Funeral expenses (not including the cost of a wake:
Jones v Royal Devon etc NHS Foundation Trust [2008] EWHC 558, QB) are recoverable
under s.3(5).
75
Franklin v SE Ry (1858) 3 H. & N. 211.
76
Hetherington v NE Ry (1882) 9 Q.B.D. 160.
77
Berry v Humm [1915] 1 K.B. 627. See also Burgess v Florence Nightingale Hospital for
Gentlewomen [1955] 1 Q.B. 349 at 361–362.
78
Taff Vale Ry v Jenkins [1913] A.C. 1; Wathen v Vernon [1970] R.T.R. 471; Kandella v
B.E.A. [1981] Q.B. 158.
1090 Death in Relation to Tort
79
Davies v Taylor [1974] A.C. 207. See also Wathen v Vernon [1970] R.T.R. 471; Gray v
Barr [1971] 2 Q.B. 554.
80
Fatal Accidents Act 1976 s.3(4), as substituted by the Administration of Justice Act 1982.
The position is the same where there is same-sex cohabitation but no registered civil
partnership.
81
Thus where the deceased’s widow actually died before the trial damages were awarded to
her estate in respect only of the period during which she actually survived him: Williams
v John I. Thornycroft Ltd [1940] 2 K.B. 658; Voller v Dairy Produce Packers Ltd [1962]
1 W.L.R. 960.
82
Fatal Accidents Act 1976 s.3(3). A draft Civil Law Reform Bill published at the end of
2009 would take into account actual remarriage.
Death as Creating Liability 1091
83
See para.23–16, below. Perhaps for this reason there is no provision dealing with the
contingency of a civil partner dependant entering into a new civil partnership, but there are
other contexts in which a court may still have to assess a person’s prospects of marriage:
para.22–38, above.
84
The High Court of Australia by a majority departed from the common law rule in De Sales
v Ingrilli [2002] HCA 52; 212 C.L.R. 338.
85
Pym v Great Northern Ry (1863) 4 B. & S. 396; Avery v London & NE Ry [1938] A.C. 613;
Jeffrey v Kent CC [1958] 1 W.L.R. 926; Dietz v Lennig Chemicals Ltd [1969] 1 A.C. 170
at 183 per Lord Morris.
86
Bishop v Cunard White Star Co Ltd [1950] P. 240 at 248 per Hodson J. Once the total
liability of the defendant has been determined, the apportionment of that sum is no concern
of the defendant: Eifert v Holt’s Transport Co Ltd [1951] 2 All E.R. 655n.
87
Kassam v Kampala Aerated Water Co Ltd [1965] 1 W.L.R. 688 at 672 per Lord Guest.
88
Damages Act 1996 s.7. See para.22–24, above.
89
For a full analysis see the judgment of Purchas L.J. in Corbett v Barking HA [1991] 2 Q.B.
408.
1092 Death in Relation to Tort
cases be more apt to take the earnings loss of the other parent who
stays at home to look after the children.99 The fact that commercial
help is not engaged (as where the children are looked after by a
relative) does not prevent the cost of such help being used as a
measure but in this event it should be the net wage without tax and
insurance contributions for those are items of expenditure which
will never be incurred.100 In any event the loss by children of the
services of their mother is one which is likely to be a declining one
so it cannot be valued at a constant figure for the whole of the child’s
dependency.101
The law is now therefore very simple: once one has assessed the
dependency there is simply no deduction to be made. If the benefit
does not arise as a consequence of the death it is irrelevant; and if
it does so arise it is excluded from consideration by the statute. This
goes even to the extent of refusing any deduction for ex gratia
payments made by the defendant, though he can of course express
such a payment to be on account of potential liability.103 We are
therefore much more generous to the dependants of the deceased
than to claimants in personal injury cases: where the breadwinner is
killed the dependants are entitled to a full award based on loss of
support from the deceased’s earnings, even though as a result of an
occupational pension, widow’s benefit, insurance money and the
devolution of the deceased’s estate they may be better off in finan-
cial terms than they were before the death. The effect of s.4 has also
been in issue where voluntary care is provided by a relative after the
death of a parent. In Stanley v Saddique104 the Court of Appeal held
that ‘‘benefit’’ was to be given a wide meaning and was not confined
99
Mehmet v Perry [1977] 2 All E.R. 529; Cresswell v Eaton [1991] 1 W.L.R. 1113.
100
Spittle v Bunney [1988] 1 W.L.R. 847; Corbett v Barking HA [1991] 2 Q.B. 408
(‘‘acceptable only on the basis that there is no better means of approaching this difficult
and almost unquantifiable aspect of dependency’’). It seems that these damages are held on
trust for the carer: para.22–37, above.
101
Spittle v Bunney, above, fn.100 (£47,500 reduced on this basis to £25,000).
102
As substituted by the Administration of Justice Act 1982.
103
Arnup v M.W. White Ltd [2008] EWCA Civ 447; [2008] I.C.R. 1064.
104
[1992] Q.B. 1; R. v Criminal Injuries Compensation Board, Ex p. K [1999] Q.B. 1131.
1094 Death in Relation to Tort
The rights of action under these Acts are cumulative, with damages 23–18
under the Law Reform (Miscellaneous Provisions) Act 1934 going
to the estate and those under the Fatal Accidents Act going to
dependants. In most cases, one or more of the dependants will also
be entitled to the deceased’s estate. There is no longer any provision
for deduction of Law Reform Act claims from those under the Fatal
112
See Law Com. No.263, Pt V.
113
See para.23–11, above.
114
See para.6–53, above.
115
Mulholland v McRae [1961] N.I. 135.
116
Dodds v Dodds [1978] Q.B. 543. There seems no reason why the defendant should not
claim contribution from a negligent dependant under the Civil Liability (Contribution) Act
1978, and this would be the better course where the negligent dependant is not the only
dependant. It would also be the appropriate course where the executor or administrator of
the deceased, i.e. the nominal claimant, has contributed to the death but is not himself the
principal dependant.
1096 Death in Relation to Tort
4. MISCELLANEOUS STATUTES
117
See Clerk & Lindsell, Torts, 19th edn, Ch.29.5.g. Note that the liability of EC air carriers
is no longer subject to limitation: Council Regulation (EC) 2027/97 and SI 1998/1751. In
another context see the Coal Mining (Subsidence) Act 1991 s.32.
CHAPTER 24
CAPACITY
1. The State and its Subordinates ............. 24–2 B. Liability to be Sued ........................24–16
A. The Crown and State Officials ....... 24–2 C. Tort and Contract ............................24–17
B. Crown Proceedings Act 1947 ........ 24–3 D. Liability of Parent ..........................24–18
C. Act of State ..................................... 24–4 4. Spouses ..................................................24–19
D. Post Office ...................................... 24–5 5. Corporations ..........................................24–20
E. Foreign Sovereigns ......................... 24–6 A. Capacity to Sue in Tort ..................24–21
F. European Community ..................... 24–7 B. Liability to be Sued ........................24–22
2. Judicial Acts .......................................... 24–8 C. Liability of Directors ......................24–23
A. Other Exemptions Connected with 6. Partners ..................................................24–24
the Administration of Justice .........24–10 7. Clubs .....................................................24–25
B. Officers of the Law ........................24–11 8. Persons of Unsound Mind ....................24–26
3. Minors ...................................................24–12 9. Person having Parental or Quasi-
A. Capacity to Sue; Unborn Children 24–13 Parental Authority .................................24–27
1097
1098 Capacity
3
Canterbury (Viscount) v Att Gen (1842) 1 Ph. 306. The remedy by way of petition of right
was available for breach of contract, and to recover property which had been wrongfully
taken and withheld. France, Fenwick & Co Ltd v R. [1927] 1 K.B. 52. Proceedings by way
of petition of right were abolished by the Crown Proceedings Act 1947 Sch.1 para.2, but
only with regard to liability in respect of Her Majesty’s Government in the UK. A petition
of right may, therefore, still lie in certain cases, but in the common law form used prior to
the Petition of Right Act 1860: Franklin v Att Gen [1974] Q.B. 185.
4
Raleigh v Goschen [1898] 1 Ch.73 at 83; Bainbridge v Postmaster-General [1906] 1 K.B.
178.
5
He could not, and cannot now, plead the orders of the Crown or State necessity as a
defence. Entick v Carrington (1765) 19 St. Tr. 1030; Wilkes v Wood (1763) 19 St. Tr. at
1153; M. v Home Office [1994] 1 A.C. 337.
6
[1947] K.B. 204, the Court of Appeal acting upon emphatic obiter dicta of the House of
Lords in Adams v Naylor [1946] A.C. 543.
7
Section 40(1).
8
Section 11(1).
The State and its Subordinates 1099
of full age and capacity for the purposes of tortious liability.9 The
Crown cannot, however, be liable in tort except as provided by the
Act and this cannot be evaded by dressing up the claim as one for
a declaration that the Crown is behaving wrongfully.10 Section 2(1)
provides that the Crown shall be liable11 as if it were a private
person: (1) in respect of torts committed by its servants or agents12;
(2) in respect of any breach of those duties which a person owes to
his servants or agents at common law by reason of being their
employer; and (3) in respect of any breach of the duties attaching at
common law to the ownership, occupation, possession or control of
property.13 Section 2(2) makes the Crown liable for breach of
statutory duty, provided that the statute in question is one which
binds other persons besides the Crown and its officers. The starting
point is still, apart from the Human Rights Act 1998, that the Crown
can do no wrong in private law. In the second and third cases
enumerated in s.2(1) and that in s.2(2) the Crown can be ‘‘institu-
tionally’’ or ‘‘personally’’ liable14; but otherwise the Act makes the
Crown liable for the acts of human agents who commit torts. Hence
the Crown can only be liable for misfeasance in a public office if the
mental element of that tort can be brought home to some individual
for whose actions the Crown is answerable.15 The apportionment
provisions of the Civil Liability (Contribution) Act 1978 and the
Law Reform (Contributory Negligence) Act 1945, as well as the
analogous provisions of the Merchant Shipping Act 1995, apply to
proceedings in which the Crown is a party.16 There is a little doubt
whether an action lies against the Crown on behalf of a deceased
person’s estate under the Law Reform (Miscellaneous Provisions)
Act 1934 or on behalf of his dependants under the Fatal Accidents
9
The Civil Procedure (Modification of Crown Proceedings Act 1947) Order SI 2005/2712
removed certain procedural advantages of the Crown, but the 1947 Act does not mean that
duties owed by the Crown can in all respects be equated with those owed by private
persons: para.5–4, above.
10
Trawnik v Lennox [1985] 1 W.L.R. 532 (where the court had no jurisdiction to hear a claim
for a nuisance in Berlin because it did not arise in respect of the Crown’s activities in the
UK: s.40(2)(b)).
11
The action is brought against the appropriate government department in accordance with
a list published by the Treasury, otherwise the Attorney-General may be made defendant
(s.17).
12
‘‘Agent’’ includes an independent contractor (s.38(2)) but the Crown is not on this account
subject to any greater liability for the tort of an independent contractor employed by it than
it would be if it were a private person: s.40(2)(d).
13
The duties owed by an occupier of premises to his invitees and licensees are now contained
in the Occupiers’ Liability Act 1957, which binds the Crown. The liability of the Crown
under the Act thus falls under s.2(2), but s.2(1)(c) continues to apply to the other duties
which attach to the ownership, occupation, possession or control of property such as those
in the tort of nuisance.
14
The statement in Chagos Islanders v Att Gen [2004] EWCA Civ 997 at [20] seems to go
too far in that it ignores these categories.
15
[2004] EWCA Civ 997.
16
Section 4.
1100 Capacity
C. Act of State
It is proposed to deal with this matter briefly since it belongs 24–4
much more to the realm of constitutional and international law than
to the law of tort. There is no doubt that no action may be brought
either against the Crown or anyone else in respect of an act of State,
but there is less agreement on the meaning of this phrase. Certainly
an injury inflicted upon a foreigner abroad which is done pursuant to
a policy which is not justiciable by the courts27 and which is either
authorised or ratified by the Crown is for this purpose an ‘‘act of
State’’ and cannot be made the subject of an action in the English
courts,28 but it is doubtful whether, as an answer to a claim for tort,
act of State goes any further than that. It will probably not avail a
defendant to plead act of State in respect of an act done within
British territory,29 whatever the nationality of the claimant.30 There
has been some dispute as to whether it may be available against a
British citizen abroad, though the only case in which the point
appears to have arisen decided that it may be.31 An act of the Crown
may, of course, be lawful as an act of prerogative, and s.11 of the
Crown Proceedings Act preserves the Crown’s rights to exercise its
statutory and prerogative powers, but there is no prerogative power
25
Clerk and Lindsell, Torts, 19th edn, s.5–05. Contra, Glanville Williams, Crown Proceed-
ings, pp. 44–45.
26
Section 2(5). In Quinland v Governor of Swaleside Prison [2002] EWCA Civ 174; [2003]
Q.B. 306, the failure of the Criminal Appeal office to expedite the correction of the judge’s
error was held to fall within s.2(5) and the suggestion that the subsection does not cover
‘‘administrative’’ responsibilities in Welsh v CC Merseyside [1993] 1 All E.R. 692 was
disapproved. However, failure to deal with money paid into court is not a judicial act and
outside the subsection: Kirvek Management etc. v Att Gen of Trinidad and Tobago [2002]
UKPC 43; [2002] 1 W.L.R. 2792 (similar legislation). An award of damages may be made
against the Crown in limited circumstances under the Human Rights Act 1998: see
para.24–9, below.
27
Not merely ‘‘administrative’’ acts like providing accommodation for troops as in Att Gen
v Nissan [1970] A.C. 179. There was no reliance on act of state in Bici v MoD [2004]
EWHC 786 (QB).
28
Buron v Denman (1848) 2 Ex. 167. Cf. Carr v Francis, Times & Co [1902] A.C. 176.
29
Johnstone v Pedlar [1921] A.C. 262.
30
With the rather obvious exception of enemy aliens present in British territory without
licence.
31
Hilal v Secretary of State for Defence [2009] EWHC 397 (QB). This at least avoids
problems arising from the fact that the old cases spoke in terms of ‘‘British subjects’’, a
concept far wider than modern British citizenship.
1102 Capacity
D. Post Office
24–5 The Post Office was until 1969 a department of Government, but,
despite the general provisions of the Crown Proceedings Act 1947,
no proceedings in tort lay against the Crown for any act or omission
of a servant of the Crown in relation to a postal packet or telephonic
communication.34 Nor was there any contract between the Post
Office and the sender of mail. In 1969 the Post Office became a
statutory corporation but the immunity from suit was preserved and,
indeed, somewhat extended.35 Now the law is contained in the
Postal Services Act 2000. The Post Office became a company, albeit
wholly owned by the Crown and its monopoly on delivery of certain
mail may be broken up by the issue of licences to others. Both these
others and the Post Office company are ‘‘universal service pro-
viders’’36 and s.90 provides that no proceedings in tort lie against a
universal service provider in respect of loss or damage suffered by
any person in connection with the provision of a universal postal
service because of (a) anything done, or omitted to be done, in
relation to any postal packet in the course of transmission by post,
or (b) any omission to carry out arrangements for the collection of
anything to be conveyed by post. Furthermore, no officer, servant,
employee, agent or sub-contractor of a universal service provider
nor any person engaged in or about the conveyance of postal packets
is subject, except at the suit or instance of the provider, to any civil
liability for (a) any loss or damage in the case of which liability of
the provider is excluded or (b) any loss of, or damage to, an inland
packet to which s.91 applies. Under s.91 the service provider is
liable for loss of or damage to registered inland postal packets where
he has accepted liability under a ‘‘scheme’’ made by it37 and the loss
or damage is due to the wrongful act, neglect or default of servants,
32
Att Gen v De Keyser’s Royal Hotel [1920] A.C. 508; Burmah Oil Co Ltd v Lord Advocate
[1965] A.C. 75; Att Gen v Nissan, (above, fn.27) at 227 per Lord Pearce. The common law
right to compensation was considerably restricted by the War Damage Act 1965,
para.25–36, below.
33
R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 153.
34
Crown Proceedings Act 1947 s.9(1).
35
Post Office Act 1969 s.29.
36
See s.4.
37
Under s.89.
The State and its Subordinates 1103
E. Foreign Sovereigns
English law was for long committed to the proposition (which 24–6
derives from general public international law39) that a foreign sover-
eign State enjoyed absolute immunity from liability before an Eng-
lish court unless the immunity had been waived by submission to
the jurisdiction.40 The doctrine was not confined to ‘‘acts of State’’
and had become a serious problem in modern times because of the
practice by many countries of carrying on ordinary trading activities
through organs of State. Accordingly, attempts were made to restrict
the immunity, culminating in the decision of the House of Lords in
The Congreso del Partido41 whereby a court was required to analyse
the nature of the obligation and breach in question to determine
whether it was of a private law or a ‘‘governmental’’ character.
However, the law is now contained in the State Immunity Act 1978.
The fundamental provision is that a State is immune from the
jurisdiction of the English courts except as provided by the Act.42
Much of the Act concerns matters of contract, but for our purposes
the principal exceptions from sovereign immunity43 are: (1) an act
or omission in this country causing death or personal injury; (2)
obligations arising out of the ownership, possession or use of prop-
erty in this country44; and (3) Admiralty proceedings (whether in
rem or in personam) in respect of ships used for commercial pur-
poses.45 The residual immunity contained in the Act does not protect
an entity distinct from the executive organs of the State46 unless the
proceedings arise out of the exercise of sovereign authority and the
State would have been immune.47 However, the Act does not apply
38
Section 92(7). This section also contains provisions governing who may sue and the
amount recoverable.
39
It, ‘‘pursues the legitimate aim of complying with international law to promote comity and
good relations between states through the respect of another state’s sovereignty’’ and its
recognition does not infringe art.6 of the European Convention on Human Rights: Al-Ad-
sani v UK (2002) 34 E.H.R.R. 273 at [54].
40
The Cristina [1938] A.C. 485. As to the immunity of diplomatic officials, see the
Diplomatic Privileges Act 1964.
41
[1983] A.C. 244.
42
Section 1(1).
43
The State may still submit to the jurisdiction: s.2.
44
Sections 5 and 6 respectively.
45
Section 10. For States parties to the Brussels Convention of 1926, see s.10(6).
46
Cf. C. Czarnikow Ltd v Centrala Handler Zagranicznego ‘‘Rolimpex’’ [1979] A.C. 351.
47
Section 14(2); but a central bank is equated with a State: s.14(4). The provisions of s.14(2)
are fully examined in Kuwait Airways v Iraqi Airways [1995] 1 W.L.R. 1147 (a $630
million claim for conversion). The effect of s.14(2) seems to be that the issue is essentially
the same as it would have been at common law under The Congreso del Partido.
1104 Capacity
F. European Community
24–7 Article 288 (formerly 215) of the EEC Treaty renders the Com-
munity liable for damage caused by its institutions or servants: ‘‘in
48
Section 16(2).
49
See Littrell v USA (No.2) [1995] 1 W.L.R. 92 (treatment not actionable in US law and not
justiciable here as interference with sovereign rights of USA over its military personnel)
and Holland v Lampen-Wolfe [2000] 1 W.L.R. 1573 (provision for education of military
personnel a matter within the sovereign immunity of the USA so as to bar a claim for
libel).
50
Jones v Saudi Arabia [2006] UKHL 26; [2007] 1 A.C. 270.
51
Jones in the CA at [2004] EWCA Civ [105].
52
[2005] EWHC 2944 (QB); [2006] 1 W.L.R. 3323.
53
[1982] A.C. 888. Similar considerations played some part in English law’s long adherence
to the rule that an English court had no jurisdiction over actions involving trespass to
foreign land. See the discussion in Pearce v Ove Arup Partnership Ltd [2000] Ch. 403.
That rule was abolished by the Civil Jurisdiction and Judgments Act 1982 s.30—there is
still no jurisdiction if the action is principally concerned with title to, or the right to
possession of such property.
54
Nor will the English court entertain a claim by a foreign State which in substance amounts
to an exercise of its sovereign authority: Mbasogo v Logo Ltd [2006] EWCA Civ 1370;
[2007] Q.B. 846.
55
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 A.C.
883.
The State and its Subordinates 1105
2. JUDICIAL ACTS58
The law casts a wide immunity around acts done in the administra- 24–8
tion of justice. This has been rather infelicitously styled a ‘‘privi-
lege’’, but that might imply that the judge has a private right to be
malicious, whereas its real meaning is that in the public interest it is
not desirable to inquire whether acts of this kind are malicious or
not. It is rather a right of the public to have the independence of the
judges preserved rather than a privilege of the judges themselves.59
It is better to take the chance of judicial incompetence, irritability, or
irrelevance, than to run the risk of getting a bench warped by
apprehension of the consequences of judgments which ought to be
given without fear or favour.60
Despite a valiant attempt by Lord Denning M.R. to rationalise the
law into one, unified principle61 and despite recent legislation, the
law is still hard to state concisely or with precision. First, as to
judges of the High Court, they are immune from liability for any act
of a judicial character even though the act is in excess of or outside
their jurisdiction and whether this is a result of mistake of fact or of
law. If, however, an act is in excess of jurisdiction and is done in bad
faith, then the judge would be liable in damages for what follows
from the order made, for example, imprisonment or seizure of
property.
56
See Antoniolli, ‘‘Community Liability’’ in Koziol and Schulze (eds) Tort Law of the
European Community (2008).
57
See para.7–12, above.
58
The topic is dealt with at length in Winfield, Present Law of Abuse of Legal Procedure,
Ch.7.
59
Bottomley v Brougham [1908] 1 K.B. 584 at 586–587 per Channell J.; Nakhla v McCarthy
[1978] 1 N.Z.L.R. 291.
60
For a more sceptical view, see Olowofoyeku (1990) 10 L.S. 271 and Suing Judges
(1993).
61
In Sirros v Moore [1975] Q.B. 118.
62
Re McC [1985] A.C. 528 at 540 per Lord Bridge.
1106 Capacity
63
By s.10C of the Justices of the Peace Act 1997, inserted by the Access to Justice Act 1999
a district judge, magistrates’ courts (formerly a stipendiary magistrate) is a justice for
every commission area.
64
Courts Act 2003 s.31.
65
Section 32. There are provisions for indemnity of justices in s.35, which dates from the
Justices of the Peace Act 1979.
66
Other than those of magistrates’ courts.
67
[1985] A.C. 541.
68
In fact the majority of High Court civil actions are now heard by deputy judges, i.e. circuit
judges and QCs, but there does not seem any doubt that they enjoy the same immunity as
a full High Court judge.
69
See Hinds v Liverpool County Court [2008] EWHC 665 (QB).
Judicial Acts 1107
70
Nor does error as to a collateral matter on which the jurisdiction depends: McC, Re, above,
fn.67, at 544; Johnson v Meldon (1890) 30 L.R.Ir. 15.
71
[1975] Q.B. 118.
72
Not being a trial on indictment, the court was not a court of record.
73
The distinction between judges of the High Court and others seems to have been aban-
doned in the rarified context of a judge’s compellability as a witness: Warren v Warren
[1997] Q.B. 488.
74
The award is made against the Crown: Human Rights Act 2000 s.9(4).
75
Section 9. Proceedings may only be brought by exercising a right of appeal, by judicial
review or in such other forum as may be prescribed by rules. However, the decision of an
inferior court may be subject to judicial review and a claim for damages may be presented
in an application for judicial review. It is not necessarily the case that an erroneous
decision gives rise to a claim under art.5: Benham v UK (1996) 22 E.H.R.R. 293.
76
Hinds v Liverpool County Court [2008] EWHC 665 (QB).
1108 Capacity
the trial of the action against him, is not liable in spite of any defect
of jurisdiction in the justice. However, if he arrests a person not
named in the warrant or seizes goods of one who is not mentioned
in it, he does so at his peril. His mistake, however honest, will not
excuse him. In Hoye v Bush85 Richard Hoye was suspected of
stealing a mare. A warrant was issued for his arrest, but it described
him as ‘‘John Hoye’’, which in fact was his father’s name. Richard
was arrested under this warrant and subsequently sued Bush, the
constable, for false imprisonment. Bush was held liable, for
although Richard was the man who actually was wanted, still the
warrant described somebody else and it did not help Bush that John
Hoye was not really wanted.86
3. MINORS
85
(1840) 1 M. & G. 775.
86
Contrast McGrath v CC, RUC [2001] UKHL 39; [2001] 2 A.C. 731 (under s.38 of the
Criminal Law Act 1977 arrest of C, who was named in the warrant, was lawful, even
though the person wanted was X, who had given C’s name). Both cases are consistent with
a policy of requiring the constable to exercise the warrant at its face value. Contrast the
matter of the timing of the execution of the warrant, where the constable may have a
discretion: Henderson v CC Cleveland [2001] EWCA Civ 335; [2001] 1 W.L.R. 1103.
87
Holdsworth, HEL iii, pp.510–511.
88
Family Law Reform Act 1969 s.1.
89
There is no bar to a child suing a parent: see below, and para.5–29, above. A number of
claims have been brought against parents (as opposed to those having institutional care) for
sexual abuse (see, e.g. Stubbings v Webb [1993] A.C. 498; Pereira v Keleman [1995] 1
F.L.R. 428) though for obvious reasons most of them have gone to the Criminal Injuries
Compensation Board. On claims by parents wrongly suspected of abuse see para.5–53,
above.
90
It was held at an early date that a posthumous child of a deceased father could maintain
an action under the Fatal Accidents Act: The George and Richard (1871) L.R. 3 Ad. & E.
466. Winfield thought that if a tort were committed before a child’s birth to property to
which he became entitled on birth, he could sue, but cf. para.5–40, above.
1110 Capacity
not a legal person, was put beyond doubt by the Congenital Disabili-
ties (Civil Liability) Act 1976, which applies to all births on or after
July 22 in that year. However, the Limitation Act allows claims by
children to be brought many years after injury is suffered and the
common law position was not finally determined in England91 until
1992 when the Court of Appeal in Burton v Islington Health Author-
ity held that an action lay.92 It seems unlikely that an English court
will have to grapple with questions such as how far an action lies
against the mother,93 or whether a claim might lie on behalf of a
stillborn child since these issues are specifically dealt with by the
Act and the common law is now a virtually obsolete category.94 The
principal provisions of the Act may be summarised as follows. In
the first place, an action only lies if the child, the claimant, is born
alive and disabled.95 Secondly, the liability to the child is ‘‘deriva-
tive’’, in other words it only arises if the defendant was under an
actual or potential tort liability96 to either parent of the child for the
act or omission which led to the disability, but for this purpose:
‘‘[I]t is no answer [to a claim by the child] that there could not
have been such liability because the parent suffered no actionable
injury, if there was a breach of legal duty which, if accompanied
by injury, would have given rise to the liability’’.97
91
There were favourable decisions in the Commonwealth.
92
[1993] Q.B. 204.
93
See e.g. Dobson v Dobson [1999] 2 S.C.R 753. In Preston v Chow (2002) 211 D.L.R. (4th)
756, Man. CA, the defendants were sued for failing to prevent the claimant child becoming
infected with genital herpes via the mother. The defendants’ claim for contribution or
indemnity against the mother because of her fault in engaging in unprotected sex failed
because the mother could not have been liable to the child.
94
No common law liability can arise in respect of births after the commencement of the Act:
s.4(5).
95
The mother may have an action in respect of a stillbirth: Bagley v N Herts HA (1986) 136
N.L.J. 1014. For definition of ‘‘disabled’’ see s.4(1). The damages referred to in s.4(4) for
‘‘loss of expectation of life’’ were abolished by the Administration of Justice Act 1982:
para.22–19, above.
96
This liability will commonly be for negligence, but there is nothing in the Act to confine
it to this. Section 3 extends the provisions of the Nuclear Installations Act 1965
(para.15–24, above) to prenatal injury. The running of time against the parent is irrelevant:
s.1(3) (‘‘or would, if sued in time, have been so’’). While the child’s cause of action
accrues upon birth (s.4(3)) the Limitation Act would prevent time running against him
until he reached majority: para.26–17, below.
97
Section 1(3).
Minors 1111
parent of the risk of disablement will bar the child’s action106; where
the parent affected shared responsibility for the child being born
disabled, the child’s damages are to be reduced according to the
extent of the parent’s responsibility107; and any contract term having
the effect of excluding or restricting liability to the parent is equally
effective in respect of liability to the child.108
Since the Act was passed there have been major developments in
the treatment of infertility and the possibility arises of a disability
being caused by some act or omission in the course of such treat-
ment but which would not fall within s.1, for example during the
keeping of the gametes or the embryo outside the body. Section 1A
of the Act, inserted by s.44 of the Human Fertilisation and Embryol-
ogy Act 1990, covers these cases and provides a virtual mirror
image of s.1. So far we have been dealing with cases where, but for
the defendant’s wrongful act or omission, the claimant would have
been born without the disability or with a lesser degree of it; but
another situation presents much more acute legal problems, that is to
say, where the claimant contends that he should never have been
born at all, the so-called ‘‘wrongful life’’ case. Such a case could
conceivably be advanced against a person responsible for the child’s
conception109 but is more likely to arise from failure during the early
stages of pregnancy to detect some deformity or disability which, if
it had been detected, would have led to an abortion.110 Such was one
of the claims in McKay v Essex Area Health Authority,111 decided at
common law since the birth was before the 1976 Act. In striking out
this claim, the court referred to various objections of a public policy
nature (for example, the dangers of a legal assessment of the life of
a handicapped child as less valuable than that of a ‘‘normal’’ child
106
Section 1(4); but not where the father is responsible for the injury to the mother and she
does not know of the risk. If a woman is the child’s other parent, under the Human
Fertilisation and Embryology Act 2008 she is treated in the same way as the father:
s.1(4A).
107
Section 1(7). Cf. a case under s.2, which would follow the normal rule of non-identifica-
tion (para.6–51, above), allowing the child to recover in full against either defendant and
consigning the final allocation of loss to contribution proceedings between the defendants.
The effect of s.1(7) might be to raise by a side-wind the very issue of maternal responsibil-
ity which had prompted the grant of immunity to the mother. Accordingly, the Pearson
Commission recommended its repeal: Cmnd. 7054, Vol.1, para.1477, but it would still be
open to that defendant to allege that the injury was solely the mother’s fault.
108
Section 1(6). This provision is likely to be of very limited effect in view of the Unfair
Contract Terms Act 1977 s.2(1) (para.25–6, below), and is anyway inapplicable to cases
under the Consumer Protection Act 1987: see s.6(3)(c) of that Act.
109
See, e.g. Zepeda v Zepeda 190 N.E. 2d 849 (1963).
110
The risk of serious handicap is a ground for lawful abortion. Since the amendment of the
Abortion Act 1967 by the Human Fertilisation and Embryology Act 1990 s.37, there is no
specific time limit for these cases, nor is the Infant Life Preservation Act 1929 applicable
(cf. Rance v Mid-Downs HA [1991] 1 Q.B. 587) but there might still be practical or
medical grounds ruling out a late abortion.
111
[1982] Q.B. 1166. An alternative basis of the case was unproblematical: that if the mother
had received treatment the disability would have been less.
Minors 1113
112
[1982] Q.B. 1166 at 1193 per Griffiths L.J. Cf. Cherry v Borsman (1992) 94 D.L.R. (4th)
487 (attempted but unsuccessful abortion caused claimant’s injuries).
113
At the time of the case damages were recoverable in a fatal accident case by the estate of
the victim for ‘‘loss of expectation of life’’, i.e. for the fact of death itself (these damages
have now been abolished, see para.22–19, above). The court was in essence comparing life
with death by setting a value on the former but the assumption was that the former was
preferable to the latter in all cases and the claimant was hardly likely to challenge this. The
problem of valuation was sidestepped by awarding a more or less fixed, conventional
sum.
114
[1991] Fam. 33; but cf. Ward L.J.’s view of this case in A, Re [2001] Fam. 147.
115
That was also the view of the majority of the High Court of Australia in Harriton v
Stephens [2006] HCA 15; 226 C.L.R. 52, which contains an exhaustive discussion. French
law granted a claim to the child (the Perruche case, Cass, Ass. Plén., November 17, 2000,
Bull. Ass. Plén., No.9). Legislative action to reverse this fell foul of art.1 of the First
Protocol to the European Convention on Human Rights in Draon v France [2005] 3 F.C.R.
409.
1114 Capacity
s.1(2)(b),116 which deals with the most obvious case, that where
there is negligence towards the mother during pregnancy. However,
no such assumption is expressly built into s.1(2)(a) dealing with pre-
conception events, nor into the new s.1A. Indeed, one of the speci-
fied matters dealt with by the latter (‘‘the selection . . . of the
embryo . . . or of the gametes used to bring about the creation of the
embryo’’) seems to point to a situation where the defect is already
inherent in the ‘‘material’’ used. Nearly all the discussion in the
English and American cases has been in terms of general damages.
In some American cases damages have been allowed in respect of
medical expenses caused by the disability117 but in practice such
claims are likely to be presented by parents, whose claims are
clearly not affected by the 1976 Act. It is to claims of parents that
we now turn.
24–15 From the mid-1980s the courts faced claims by parents (usually
arising out of unsuccessful sterilisation operations) for the cost of
upbringing of children. These were allowed, damages being based
upon the parents’ station in life and therefore sometimes amounting
to very substantial sums. This line of cases was overturned by the
House of Lords in McFarlane v Tayside Health Board.118 The
reasons were various: to award damages representing the cost of
upbringing was disproportionate to the wrong committed (negligent
advice to the father that his vasectomy had been successful); it
would fail to take account of the real (though incalculable) counter-
vailing benefits brought to the family by the birth of a healthy child,
benefits which were still present even if the parents’ intention had
been to have no more children119; and it would offend against the
116
‘‘An occurrence . . . which . . . affected the mother . . . or the child . . . so that the child is
born with disabilities which would not otherwise have been present.’’
117
In Turpin v Sortini 182 Cal. Rptr. 337 (1981), the claimant’s parents alleged that they
would not have conceived her but for the negligence of the defendants in respect of the risk
of the disability. The Supreme Court of California held that a claim by the claimant for
medical expenses in treating her condition stated a cause of action but one for general
damages did not. Suppose a doctor, dealing with a patient who may become pregnant, fails
to advise her properly of the risk of medication to a foetus if she does become pregnant.
The mother would otherwise have taken effective steps not to become pregnant or would
have discontinued the treatment. Now the doctor has caused (at least in a factual sense)
both the disability and the birth. The fact that recognising a duty to the child risks a conflict
with the mother’s health has been used to deny liability: Lacroix v Dominique [2001]
MBCA 211; 202 D.L.R. (4th) 121; Paxton v Ramji [2008] ONCA 697; 299 D.L.R. (4th)
614. Again the argument can hardly be applied to the claim of a parent denied the freedom
to make a decision.
118
[2000] 2 A.C. 59. The majority of the High Court of Australia took a contrary view:
Cattanach v Melchior [2003] HCA 38; 215 C.L.R. 1. The court was divided 4:3 and the
differences between the members were profound. However, the effect of the decision has
been reversed by statute in most states: see, e.g. Civil Liability Act 2002 (NSW) s.71.
119
Hale L.J. in Parkinson v St James Hospital Trust [2001] EWCA Civ 530; [2002] Q.B. 266
at [87] said, referring to Mcfarlane, that, ‘‘at the heart of it all is the feeling that to
compensate for the financial costs of bringing up a healthy child is a step too far.’’
Minors 1115
120
See also Frost v CC South Yorks [1999] 2 A.C. 455, para.5–69, above.
121
The mother’s loss of earnings during the upbringing of the child is not recoverable: there
is no material distinction between such loss and the expenses of upbringing: Greenfield v
Flather [2001] EWCA Civ 113, [2001] 1 W.L.R. 179 (where an attempt to rely on art.8
of the European Convention on Human Rights was also rejected).
122
[2003] UKHL 52; [2004] 1 A.C. 309.
123
In Rees the mother was disabled (see below) but the proposition is plainly not confined to
such cases.
124
See para.22–19, above.
125
See para.23–12, above.
126
Parkinson v St James Hospital Trust [2001] EWCA Civ 530; [2002] Q.B. 266.
1116 Capacity
B. Liability to be Sued
24–16 In the law of tort there is no defence of infancy as such and a
minor is as much liable to be sued for his torts as is an adult. In
Gorely v Codd,129 Nield J. had no hesitation in holding that a boy of
16 had been negligent when he accidentally shot the claimant with
an air rifle in the course of ‘‘larking about’’, and it is obvious that a
motorist of 1712 is as responsible for negligent driving as one six
months older. However, where a minor is sued for negligence, his
age is relevant in determining what he ought reasonably to have
foreseen. In an action for negligence against a young child, there-
fore, it is insufficient to show that he behaved in a way which would
amount to negligence on the part of an adult. It must be shown that
his behaviour fell below the standard of an ordinarily reasonable and
prudent child of his age130 and even though one cannot fix the age
precisely, it is obvious that a tiny infant cannot be liable in tort at
all.
127
In the earlier case of A.D. v East Kent Community NHS Trust [2002] EWCA Civ 1872;
[2003] 3 All E.R. 1167 the court had dismissed a claim where the child was cared for by
a relative of the disabled mother.
128
At [147]; and Lord Bingham at [9] said that, ‘‘it is arguably anomalous that the defendant’s
liability should be related to a disability which the doctor’s negligence did not cause and
not to the birth which it did’’. Contra Lord Nicholls at [35] (‘‘The legal policy on which
McFarlane was based is critically dependent on the birth of a healthy and normal child.’’),
Lord Hope at [57] and Lord Hutton at [91] (both dissenting on the main issue). Lord Millet
at [112] left the point open.
129
[1967] 1 W.L.R. 19; Buckpitt v Oates [1968] 1 All E.R. 1145 at 1149 per John Stephenson
J.
130
Mullin v Richards [1998] 1 W.L.R. 1304, adopting McHale v Watson (1966) 115 C.L.R.
199.
Minors 1117
131
Pollock, Contract, 13th edn, pp.62–63, approved by Kennedy L.J. in R. Leslie Ltd v Shiell
[1914] 3 K.B. 607 at 620.
132
Above, fn.131.
133
(1863) 14 C.B.(N.S.) 45. Cf. Jennings v Rundall (1799) 8 T.R. 335; Fawcett v Smethurst
(1915) 84 L.J.K.B. 473.
134
(1863) 14 C.B. (N.S.) 45 at 53.
135
See too Ballett v Mingay [1943] K.B. 281.
1118 Capacity
D. Liability of Parent
24–18 A parent or guardian136 is not in general liable for the torts of a
child137 but to this there are two exceptions. First, where the child is
employed by his parent and commits a tort in the course of his
employment, the parent is vicariously responsible just as he would
be for the tort of any other servant of his. Secondly, the parent will
be liable if the child’s tort is due to the parent’s negligent control of
the child in respect of the act that caused the injury,138 or if the
parent expressly authorised the commission of the tort, or possibly
if he ratified the child’s act. Thus, where a father gave his boy, about
15 years old, an airgun and allowed him to retain it after he had
smashed a neighbour’s window with it, he was held liable for the
boy’s tort in injuring the eye of another boy with the gun.139 Where,
however, a boy aged 13 had promised his father never to use his air
rifle outside the house (where there was a cellar in which the rifle
could be fired) and subsequently broke that promise, the Court of
Appeal refused to disturb the trial judge’s findings that the father
had not been negligent.140 Nor will he be liable to one who is bitten
by a dog which belongs to his daughter who is old enough to be able
to exercise control over it, and this is so even if the father knows of
the dog’s ferocious temper.141 Where, however, the child is under
the age of 16 a different rule prevails by statute.142
4. SPOUSES
24–19 It is now over 70 years since the abolition of the special rules
governing a married woman’s liability in tort and making her
husband liable for her torts during marriage.143 Suffice now to say
that as far as third parties are concerned there are no special rules
governing husband and wife and neither is liable for the other’s
136
Note in this connection that it has been said that school authorities are under no greater
duty than that of a reasonably careful parent: Ricketts v Erith BC [1943] 2 All E.R. 629;
Rich v London CC [1953] 1 W.L.R 895. However, while this may be true for ordinary
supervision in the classroom, it seems unrealistic in modern conditions to apply it to, say,
the organisation of a school trip.
137
Such liability is common in Europe, e.g. in France and the Netherlands. Nor is it simply
‘‘vicarious’’. Thus under para.6–169 of the Dutch Civil Code a parent of a child under 14
is liable for an act of the child where, ‘‘but for the child’s age, [it] could be imputed to him
as an unlawful act’’. See Martin-Casals, Children in Tort Law Part I: Children as
Tortfeasors (2006).
138
If a juvenile court imposes a compensation order it is to be paid by the parent or guardian
unless the court considers this unreasonable: see T.A. v DPP [1997] 2 F.L.R. 887.
139
Bebee v Sales (1916) 32 T.L.R. 413; Newton v Edgerley [1959] 1 W.L.R. 1031.
140
Donaldson v McNiven (1952) 96 S.J. 747.
141
North v Wood [1914] 1 K.B. 629.
142
See para.16–4, above.
143
Law Reform (Married Women and Tortfeasors) Act 1935. For a summary of the common
law see the 11th edn of this work.
Spouses 1119
5. CORPORATIONS
B. Liability to be Sued
It has always been generally accepted that a chartered corpora- 24–22
tion156 has all the powers of a natural person157 but most companies
were incorporated under statute and were expressly limited by the
terms of their incorporation as to what they might lawfully do.
While this is still true as far as the internal affairs of the company are
concerned, s.39 of the Companies Act 2006 provides that:
This would seem to render otiose any distinction for the purposes of
the law of torts between intra vires and ultra vires acts, though the
distinction had in fact been largely effaced under the old law.158 A
company will be liable for the acts of its servant committed within the
course of employment159 (and where relevant in tort, for the acts of its
agent within the scope of his authority160) and no doubt the objects
for which the company was incorporated may be very relevant in
determining the limits of the employment or authority of the servant
or agent.161 However, there are acts or omissions which, for the
purposes of the law, are to be regarded as those of the company itself.
154
Johnson v Gore Wood & Co [2001] 2 A.C. 1 (though there were some differences of
opinion in the HL on what the law ought to be and Lord Cooke thought the rule was of
narrower scope); Prudential Assurance Co Ltd v Newman Industries Ltd (No.2) [1982] Ch.
204. Cf. Christensen v Scott [1996] N.Z.L.R. 273). Where the claimant is sole owner of the
company matters like loss of salary and pension or liability on guarantees may be affected
by this principle: Humberclyde Finance Group Ltd v Hicks, November 14, 2001; Rushmer
v Smith [2009] EWHC 94 (QB).
155
Lee v Sheard [1956 1 Q.B. 192; Fischer (George) GB Ltd v Multi-Construction Ltd [1995]
1 B.C.L.C. 260; Gerber Garment Technology Inc v Lectra Systems Ltd [1997] R.P.C.
443.
156
e.g. the older universities.
157
Case of Sutton’s Hospital (1613) 10 Co Rep. 23a.
158
See the 13th edn of this work, p.675.
159
See Ch.20, above.
160
New Zealand Guardian Trust Co Ltd v Brooks [1995] 1 W.L.R. 96 (directors).
161
Under the Companies Act 2006 s.40 (originating in 1989), ‘‘in favour of a person dealing
with a company in good faith, the power of the board of directors to bind the company, or
authorise others to do so, is deemed to be free of any limitation under the company’s
constitution’’.
1122 Capacity
oritur actio,171 suing its auditors for failure to discover the fraud, to
which the majority answered that it did.172
In modern conditions a business may be carried on by a group of
companies, perhaps in the form of a holding company with subsidi-
aries in many different jurisdictions. In principle these are as much
separate entities as the companies and their shareholders and direc-
tors173 and one is not liable for the acts of another. However, where
one company in the group is involved in the management of another
it may owe a duty of care to persons (for example workers or
consumers) affected by the activities of the other.174
C. Liability of Directors175
As a company is a separate legal person its directors are not, apart 24–23
from statute, personally liable on contracts made by the company,
nor for torts of company servants for which the company is vic-
ariously liable. To identify the director with the company would be
too great a brake on commercial enterprise and adventure, however
small the company and however powerful the control of the director.
Nevertheless, where directors order an act by the company which
amounts to a tort they may be liable as joint tortfeasors on the
ground that they have procured the wrong to be done.176 Where the
tort in question requires a particular state of mind the director must
have that, but there is no general principle that a director must know
that the act is tortious or be reckless as to that.177 If a company
servant were to trespass on the claimant’s land believing it to belong
to the company that would be trespass and there is no reason why a
director who, with the same state of mind, instructed him to do the
act should escape liability. The director is also, of course liable if he
171
See para.25–18, below.
172
Cf. Safeway Stores Ltd v Twigger [2010] EWHC 11 (Comm) (not directing mind).
173
See below.
174
See C.S.R. Ltd v Wren (1997) 44 N.S.W.L.R. 463; James Hardie & Co v Hall (1998) 43
N.S.W.L.R. 554. Such an issue underlay Lubbe v Cape Plc [2000] 1 W.L.R. 1545 but the
only point before the HL was whether England was a proper forum.
175
For a very full examination of the authorities see Johnson Mathey (Aust) Ltd v Dacorp Pty
Ltd [2003] VSC 291; 9 V.R. 171.
176
See, e.g. Mancetter Developments Ltd v Germanson Ltd [1986] Q.B. 1212 (waste); Global
Crossing Ltd v Global Crossing Ltd [2006] EWHC 2043 (Ch) (incorporation of company,
trade mark infringement). A company and its directors may be conspirators: para.18–25,
above; but if C makes a contract with the D Co and the directors resolve not to perform
it, C cannot sue them for inducing breach of contract: para.18–6, above. It has been said
that there is a general principle that a director will not be liable in tort if he does no more
than carry out his constitutional function in governing the company by voting at board
meetings: MCA Records v Charly Records [2001] EWCA Civ 1441; [2002] F.S.R. 26 at
[49]; applied, Società Esplosivi Industriali v Ordnance Technologies (UK) [2007] EWHC
2875; [2008] R.P.C. 12.
177
C. Evans & Sons Ltd v Spriteband Ltd [1985] 1 W.L.R. 317. Johnson Mathey (Aust) Ltd
v Dacorp Pty Ltd, above, fn.175 (conversion). Joiner v George [2002] EWHC 90 (Ch)
turns on the way the case was pleaded and perhaps on the erroneous view of the CA in
Standard Chartered Bank, below, fn.178.
1124 Capacity
commits the tort himself. In some cases company law will regard an
act of the directors as an act of the company itself. If the director of
a company were to assault the director of a rival business in the
course of a dispute about sales that could hardly be regarded as an
assault by the company and any liability of the company would have
to be truly vicarious, that is to say for the director qua employee. On
the other hand, if the board of a company were to induce someone
to make a contract by fraudulent misrepresentation that would be a
fraud by the company. However, that fact does not mean that the
individual directors are not also liable.
‘‘No one can escape liability for his fraud by saying: ‘I wish to
make it clear that I am committing this fraud on behalf of
someone else and I am not to be personally liable.’’’178
In such a case the director would not be liable for the company’s
fraud but for his own fraud, as indeed would a non-director
employee who participated.179
As far as negligence is concerned, it has been held that a director
may be liable as a joint tortfeasor with the company when he sends
a vessel to sea in an unseaworthy condition causing personal
injury180 but a liberal approach to director’s liability will have the
effect that the limited liability which is the main object of incorpora-
tion for a small, ‘‘one man’’ company will be set at naught. In
Williams v Natural Life Health Foods Ltd181 the House of Lords
held that to justify liability of a director for advice there must be
some special facts showing a personal assumption of responsibil-
ity,182 which the court declined to find in the combination of the
active part which the director played in preparing the financial
projection in question and the representation in the company’s
brochure that the company’s expertise in the trade was based upon
the director’s experience gained in a personal capacity independent
of the company. There were no exchanges between the director and
178
Standard Chartered Bank v Pakistan National Shipping (Nos 2 and 4) [2002] UKHL 43;
[2003] 1 A.C. 959 at [22].
179
‘‘The maxim culpa tenet suos auctores may not be the end, but it is the beginning of
wisdom in these matters’’: [2002] UKHL 43; [2003] 1 A.C. 959 at [40] per Lord Rodger.
‘‘Attribution provides a basis for imposing liability on a company, not conferring an
immunity on an individual’’: Body Corporate 202254 v Taylor [2008] NZCA 317; [2009]
2 N.Z.L.R. 17 at [30]
180
Yuille v B.&B. Fisheries (Leigh) Ltd [1958] 2 Lloyd’s Rep. 596. It is usually regarded as
self-evident that a servant whose negligence in the course of employment causes personal
injury is personally liable even though the employer is vicariously liable.
181
[1998] 1 W.L.R. 830.
182
Cf. Standard Chartered Bank, above, fn.178, a case of deceit, which is not based on a duty
of care.
Corporations 1125
the claimants which could have led them reasonably to believe that
he was assuming a personal responsibility to them.183
6. PARTNERS
In English law a partnership is not a legal person distinct from its 24–24
members and consequently has no capacity to sue or be sued,184 but
each partner is liable jointly and severally with his co-partners for
any wrongful act or omission committed by any of them against an
outsider while acting in the ordinary course of business of the
firm.185 If a partner in a firm of solicitors were to commit fraudulent
misrepresentations in the course of persuading someone to buy
double glazing the other partners would not be liable for that
because selling double glazing is not within the description of
activities which a solicitors’ firm ordinarily carries out.186 Even
where the transaction is one within that general description it may be
that its details are so unusual that it is not within the ordinary course
of business187 but the mere fact that the partner intends to behave
dishonestly does not take it outside the scope of vicarious liabil-
ity.188 The Limited Liability Partnerships Act 2000 introduced a new
form of legal entity known as a limited liability partnership, which
is a body corporate (with legal personality separate from that of its
members and with unlimited capacity) and which is formed by being
incorporated under the Act.
7. CLUBS189
In the case of proprietary and incorporated clubs, it would seem that 24–25
the ordinary rules as to the liability of employer or principal for the
183
Cf. Merrett v Babb [2001] EWCA Civ 214; [2001] 3 W.L.R. 1, para.11–22, above
(employee). The root of the problem is of course our readiness to accept concurrent
liability in contract and tort. Cf. Trevor Ivory Ltd v Anderson [1992] 2 N.Z.L.R. 517, where
the director of a small company was held not liable for advice. Fairline Shipping Corp v
Adamson [1975] Q.B. 180 is perhaps a rather clearer case for liability.
184
The partners may sue or be sued in the name of the firm: CPR r.5A.3.
185
Partnership Act 1890 ss.10 and 12. See Dubai Aluminium Co Ltd v Salaam [2002] UKHL
48; [2003] 2 A.C. 366. The partners may, of course, also be liable for the torts of their
servants or agents under ordinary principles: see, e.g. Lloyd v Grace, Smith & Co [1912]
A.C. 716.
186
J.J. Coughlan Ltd v Ruparelia [2003] EWCA Civ 1057; [2004] P.N.L.R. 4 at [25].
187
J.J. Coughlan Ltd, above, fn.186.
188
See Dubai Aluminium Co Ltd v Salaam, above, fn.185, especially at [120].
189
Lloyd (1953) 16 M.L.R. 359. For the position of trade unions, see para.18–35, above.
1126 Capacity
190
Halsbury, Laws of England, 5th edn (2009), Vol.136; for different kinds of clubs, see
para.204. In a proprietary club the property and funds of the club belong to a proprie-
tor, who may sue or be sued in his own name or in the name of the club. The members
are in contractual relation with the proprietor, and have a right to use the club premises
in accordance with the rules, but they are not his servants or agents. An incorporated
club may sue or be sued in its corporate name. An unincorporated members’ club has
no legal existence apart from its members, who are jointly entitled to the property and
funds, though usually the property is vested in trustees. It cannot sue or be sued in the
club name, nor can the secretary or any other officer sue or be sued on behalf of the
club.
191
For an extensive review (in the context of the Roman Catholic Church in Australia) see
Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117.
192
Prole v Allen [1950] 1 All E.R. 476; Shore v Ministry of Works [1950] 2 All E.R. 228 ;
Jones v Northampton BC, The Independent, May 25, 1990; Grice v Stourport Tennis etc.
Club, February 28, 1997, CA cf. Robertson v Ridley [1989] 2 All E.R. 474.
193
Halsbury, Laws of England, above, para.231; Brown v Lewis (1896) 12 T.L.R. 445;
Bradley Egg Farm Ltd v Clifford [1943] 2 All E.R. 378.
194
Lloyd, above, fn.189, p.359.
195
Lloyd, above, fn.189, p.360.
Clubs 1127
and all the other club members have the same interest in the
action.196
DEFENCES
1. Consent. Volenti Non Fit Injuria .......... 25–2 i. Volenti non fit injuria .............25–15
A. Consent and Intentional Torts ........ 25–3 ii. Novus actus interveniens ........25–16
B. ‘‘Informed’’ Consent ....................... 25–4 iii. Contributory negligence .........25–17
C. Vitiating Factors ............................. 25–5 2. Public Policy. Illegality ........................25–18
D. Negligence: Exclusion of Liability 3. Mistake ..................................................25–26
and Volenti Non Fit Injuria ............ 25–6 4. Inevitable Accident ...............................25–27
i. Express exclusion of liability . 25–6 5. Act of God ............................................25–28
ii. Implied assumption of risk .... 25–8 6. Private Defence .....................................25–29
E. Is an ‘‘Agreement’’ Necessary? ..... 25–9 A. Defence of the Person ....................25–30
F. Knowledge does not Necessarily B. Defence of Property .......................25–31
Imply Assent ...................................25–11 C. Injury to Innocent Third Person ....25–32
G. Consent Must be Freely Given ......25–12 7. Necessity ...............................................25–33
H. Consent and the Standard of Care .25–13 8. Duress ....................................................25–37
I. Rescue Cases ..................................25–14 9. Statutory Authority ...............................25–38
1
Winfield described these as ‘‘conditions which in general negative liability’’.
1131
1132 Defences
act which caused his harm.2 Simple examples are the injuries
received in the course of a lawful game or sport, or in a lawful
surgical operation. The effect of such consent or assent is commonly
expressed in the maxim volenti non fit injuria, which is certainly of
respectable antiquity. The idea underlying it has been traced as far
back as Aristotle,3 and it was also recognised in the works of the
classical Roman jurists,4 and in the canon law. In English law,
Bracton in his De Legibus Angliae (c. AD 1250–1258) uses the
maxim, though not with the technicality that attached to it later,5 and
in a Year Book case of 1305 it appears worded exactly as it is now.6
So far as actual citation of the maxim goes, most of the modern
cases use it in connection with harm to the person rather than to
property. The explanation seems to be that if the assent is to the
infliction of harm on, or at any rate to, the use of the claimant’s
property, such assent is more usually styled leave and licence of the
claimant, but this phrase expresses much the same idea.7
Though the terminology in the case law is by no means con-
sistent, ‘‘consent’’ is normally the expression used in relation to
intentional torts and volenti non fit injuria in relation to negligence,
though the modern ‘‘voluntary assumption of risk’’ is now perhaps
more popular.8
B. ‘‘Informed’’ Consent
Consent to one medical procedure does not justify another, as 25–4
where a condition is discovered and treated for mere convenience
during the authorised treatment of another condition18 or where an
operation authorised by patient A is performed on patient B by
11
In old pleading terminology, consent could be raised by a plea of ‘‘not guilty’’ to the
general issue.
12
As was, indeed, done in Freeman v Home Office, above, fn.9. See [1984] Q.B. 524, 548.
Under CPR r.16.5(2) a defendant who denies an allegation must state his reasons for doing
so and if he intends to put forward a different version of events from that given by the
claimant, he must state his own version.
13
In the criminal law the issue of the defendant’s belief in the victim’s consent on a charge
of rape was subjective. Now, however, under s.1 of the Sexual Offences Act 2003, a
defendant is guilty even if he believes there is consent where his belief is unreasonable.
14
However, where non-trivial medical procedures are involved it is customary to require the
patient to sign a consent form.
15
Cf. Freeman v Home Office (No.2) above, fn.9, at 557, where Sir John Donaldson M.R.
suggests that ‘‘consent’’ applies if the claimant does consent, but volenti non fit injuria
applies if he does not consent but so conducts himself as to lead the defendant to believe
that he does.
16
Obviously, a threat might vitiate the will of a child but not of an adult. Latter v Braddell
(1881) 50 L.J.Q.B. 448 seems unduly narrow in insisting on threats of violence.
17
See para.4–9, above.
18
The terms of the consent may authorise such further treatment as the doctor considers
necessary or desirable. For consideration of this, see Brushett v Cowan (1990) 69 D.L.R.
(4th) 743.
1134 Defences
19
Chatterton v Gerson [1981] Q.B. 432.
20
Cf. Canterbury v Spence (1972) 464 F.2d 772.
21
Chatterton v Gerson [1981] Q.B. 432; Hills v Potter [1984] 1 W.L.R. 641; Sidaway v
Bethlehem Royal Hospital [1985] A.C. 871; Reibl v Hughes (1981) 114 D.L.R. (3d) 1
(Sup. Ct. of Canada). Cf. Tan, ‘‘Failure of Medical Advice: Trespass or Negligence?’’
(1987) 7 L.S. 149. If there is no consent, the defendant’s act is actionable even if the
claimant would have consented if he had been aware of the truth.
22
See para.5–81, above.
23
Sidaway v Bethlehem Royal Hospital [1985] A.C. 871. Named after Bolam v Friern
Hospital Management Committee [1957] 1 W.L.R. 582, para.5–81, above. Teff, ‘‘Consent
to Medical Procedures’’ (1985) 101 L.Q.R. 432; Brazier, ‘‘Patient Autonomy and Consent
to Treatment’’ (1987) 7 L.S. 169. There is no distinction for this purpose between
therapeutic and non-therapeutic contexts: Gold v Haringey HA [1987] 32 W.L.R. 649.
24
For the position where the patient would or might have undergone the procedure on
another occasion see para.6–12, above.
25
However, the court must be alive to the risk of self-serving (albeit honest) testimony from
the patient. Also in favour of the ‘‘subjective’’ test of causation, Rosenberg v Percival
[2001] HCA 18; (2001) 178 A.L.R. 577. In Reibl v Hughes (1981) 114 D.L.R. (3d) 1 the
Supreme Court of Canada adopted the test of what a reasonable person would have done,
but on any view a pure ‘‘but-for’’ causation would be unsuitable. If the defendant fails to
inform the patient of highly significant risk A and what occurs is injury from risk B which
the defendant could legitimately omit to mention, he should not be liable. Cf. Banque
Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] A.C. 191, para.6–27,
above.
Consent. Volenti Non Fit Injuria 1135
to an adequate answer26 and in the last resort it is the court, not the
profession, that sets the standards. As Lord Bridge said:
C. Vitiating Factors
What if consent to what would otherwise be a trespass is obtained 25–5
by fraud? Or if the actor fails to disclose some fact (for example that
he has a contagious disease) which would have led to the other party
to withhold consent? The view long prevailed that the consent was
valid so long as the claimant was aware of the essential nature of the
act done (which includes the identity of the actor, where that is
relevant). Thus if, as happened in one criminal case, the defendant
26
[1985] A.C. 871 at 898, 895, 901; Pearce v United Bristol Healthcare NHS Trust (1998)
48 B.M.L.R. 118; the patient cannot expect all the information at the doctor’s disposal and
therapeutic discretion must have a part to play even in responding to a direct question: see
Blyth v Bloomsbury AHA, The Times, February 11, 1987.
27
At 900; Pearce v United Bristol Healthcare NHS Trust, above, fn.26. See also Bolitho v
City and Hackney HA [1998] A.C. 232, dealing with treatment, para.5–81, above. In
Chester v Afshar [2004] UKHL 41; [2005] 1 A.C. 345 a duty to warn of a 1 or 2 per cent
risk in spinal surgery was not contested. On comparative risks of different procedures see
Birch v University College etc NHS Foundation Trust [2008] EWHC 2237 (QB).
28
(1992) 175 C.L.R. 479. This has survived recent statutory restrictions on tort liability
(para.1–44, above). See, e.g. Civil Liability Act 2002 s.5P (NSW); Wrongs Act 1958 s.60
(Vic).
1136 Defences
39
Att Gen’s Reference (No.6 of 1980) [1981] Q.B. 715.
40
R. v Brown [1994] 1 A.C. 212; Laskey, Jaggard and Brown v UK (1997) 24 E.H.R.R. 39,
ECHR; but consent to run the risk of infection with HIV from sexual intercourse is valid:
R v Dica [2004] EWCA Crim 1103; [2004] Q.B. 1257.
41
Murphy v Culhane [1977] Q.B. 94.
42
M (M) v K (K) (1989) 61 D.L.R. (4th) 392.
43
[1968] 1 Q.B. 379.
44
Although the Law Reform (Contributory Negligence) Act 1945 probably applies to
intentional trespass to the person the disproportion between the conduct of the two parties
in Lane v Holloway prevented any reduction of the damages: see Murphy v Culhane,
above, fn.41. See, too, Barnes v Nayer, The Times, December 19, 1986 (insufficient
provocation for murderous attack with machete).
45
Such cases are distinguished from volenti proper by Lord Denning M.R. in Barnett v
British Waterways Board [1973] 1 W.L.R. 700. It is also implicit in the Unfair Contract
Terms Act 1977 s.2(3), that the defences are separate.
1138 Defences
The implication of this is that the defence of volenti non fit injuria
is still available, but it remains to be seen what evidence of volun-
tary acceptance of the risk beyond the making of the agreement
(which is not enough)53 will be required. In 1993 the Council of the
EC issued a Directive on Unfair Terms in Consumer Contracts,54
which is now in England given effect by the Unfair Terms in
46
Similarly, where a person accepted a lift in a car which carried a prominent notice that
passengers travelled at their own risk, he could not sue the driver for negligence: Buckpitt
v Oates [1968] 1 All E.R. 1145. Such notices became ineffective as a result of the Road
Traffic Act 1972 s.148(3) (now the Road Traffic Act 1988 s.149(3)). Disclaimers in
relation to the giving of advice are discussed, para.11–30, above.
47
Which, ‘‘includes a profession and the activities of any government department or local or
public authority’’: s.14.
48
Section 1(3). For a modification of this restriction in relation to premises, see para.9–19,
above.
49
Which, ‘‘includes an announcement, whether or not in writing, and any other communica-
tion or pretended communication’’.
50
Section 2(1).
51
Section 2(2).
52
Section 2(3).
53
In Johnstone v Bloomsbury HA [1992] Q.B. 333 the CA held that an agreement to work
excessive hours might be construed as an ‘‘express assumption of risk’’ and might arguably
be subject to s.2(1) of the 1977 Act.
54
Directive 93/13 [1993] O.J. L95/29.
Consent. Volenti Non Fit Injuria 1139
55
SI 1999/2083.
56
Though in New Zealand Shipping Co Ltd v A.M. Satterthwaite & Co Ltd [1975] A.C. 154
the Privy Council made it fairly easy to establish such privity in the stevedore situation.
The court declined to express an opinion on the, ‘‘argument that, quite apart from contract,
exemptions from, or limitations of, liability in tort may be conferred by mere consent on
the part of the party who may be injured’’. See also The Mahkutai [1996] A.C. 650.
57
[1989] 1 All E.R. 1180, distinguished in British Telecommunications v James Thomson &
Sons (Engineers) [1999] 1 W.L.R. 9.
58
However, in the latter case it is open to the contracting parties to provide that the third
party may not enforce the term. This is not subject to the Unfair Contract Terms Act
1977.
59
See s.1. The Act is of course primarily concerned with the enforcement of ‘‘positive’’
benefits by the third party, e.g. a promise between A and B to pay money to C. The
provisions on the ‘‘negative’’ benefit of an exclusion clause are in fact rather wider than
in the other case: s.6(5).
1140 Defences
60
See the Occupiers’ Liability Act 1957 s.2(3)(b), para.9–12, above.
61
[1963] 2 Q.B. 43.
62
[1963] 2 Q.B. 43 at 66.
Consent. Volenti Non Fit Injuria 1141
63
Cf. Bolton v Stone, para.5–84, above, where P was injured outside the ground by activity
inside the ground.
64
As appears to have been the case in Murray v Harringay Arena Ltd [1951] 2 K.B. 529.
65
[1963] 2 Q.B. at 69. As between the claimant and the organisers of the game or as between
one participant and another, his Lordship regarded the matter as resting on an implied term
in the relationship between them, e.g. that, ‘‘the occupier need take no precautions to
protect the invitee from all or from particular kinds of risks incidental to the game or
competition which the spectator has come on the premises to watch.’’ In Murray v
Harringay Arena, above, fn.64, the action was against the occupier and the court seems to
have regarded the six-year-old claimant as a party to a contract. Sed quaere.
66
It is assumed that, unlike in the case of Reeves v MPC, below, the operator’s duty does not
extend to guarding against suicide.
67
[2000] 1 A.C. 360.
68
Cf. Kirkham v CC Greater Manchester [1990] 2 Q.B. 283.
1142 Defences
E. Is an ‘‘Agreement’’ Necessary?
25–9 In Nettleship v Weston, Lord Denning M.R. speaking of a case
where an amateur instructor embarked on a lesson with a learner
driver, said that:
76
Putting aside the fact that now statute covers the field: see below. For Salmon L.J. the
critical factor was the parties’ prior conversation about insurance cover, which rebutted the
inference of volenti. While Lord Denning M.R. refers to this, he implies that volenti should
be inapplicable to the non-professional instructor in the absence of an express
agreement.
77
[1965] A.C. 656.
78
See para.7–16, above.
79
[1983] 1 W.L.R. 1427.
80
See also Ratcliffe v McConnell [1999] 1 W.L.R. 670.
81
[1939] 1 K.B. 509. Cf. Insurance Comr v Joyce (1948) 77 C.L.R. 39.
1144 Defences
82
Asquith J. made it plain, extra-judicially, that there was no plea of contributory negligence
(at that time a complete defence): (1953) 69 L.Q.R. 317.
83
[1991] 1 Q.B. 24.
84
See para.25–18, below.
85
See, e.g. Owens v Brimmell [1977] Q.B. 859, but it would be difficult to describe the
conduct of a professional driving instructor in embarking on a course of lessons with a new
driver (as opposed to mishandling them) as ‘‘contributory negligence’’.
86
[1991] 2 Q.B. 6.
Consent. Volenti Non Fit Injuria 1145
‘‘It seems to me that when this lady walked in the tunnel, though
it may be said that she voluntarily took the risk of danger from the
running of the railway in the ordinary and accustomed way,
nevertheless she did not take the risk of negligence by the
driver.’’88
is volenti non fit injuria, not scienti non fit injuria, and it does not
follow that a person assents to a risk merely because he knows of it.
The most conspicuous illustrations of this have occurred in cases of
harm sustained by workers in the course of their employment. Until
the latter half of the 19th century, very little attention was paid by
the law to the safety of manual labourers, and several of the deci-
sions on volenti non fit injuria went near to holding that knowledge
of risk in the employment invariably implied assent to it. Protective
legislation began to make notable headway from about 1860
onwards, and, quite apart from legislation, the courts, beginning
with the judgment of Bowen L.J. in Thomas v Quartermaine,91
declined to identify, as a matter of course, knowledge of a risk with
acceptance of it.
This doctrine was driven home by the House of Lords in Smith v
Baker,92 where it was held that volenti non fit injuria had no
application to harm sustained by a workman from the negligence of
his employers in not warning him of the moment of a recurring
danger, although the man knew and understood that he personally
ran risk of injury if and when the danger did recur. He worked in a
cutting on the top of which a crane often jibbed (i.e. swung) heavy
stones over his head while he was drilling the rock face in the
cutting. Both he and his employers knew that there was a risk of the
stones falling, but no warning was given to him of the moment at
which any particular jibbing commenced. A stone from the crane
fell upon and injured him. The House of Lords held that the defen-
dants were liable. Lord Herschell admitted that:
but he added:
91
(1887) 18 Q.B.D. 683.
92
[1891] A.C. 325.
Consent. Volenti Non Fit Injuria 1147
non fit injuria’, applies to such a case, and that the employer can
invoke its aid to protect him from liability for his wrong.’’93
defendant but has not given him complete carte blanche. This point
is obvious with regard to participants in sports. As Barwick C.J. said
in Rootes v Shelton99:
99
[1968] A.L.R. 33 at 34.
100
See Cleghorn v Oldham (1927) 43 T.L.R. 465 and the unreported cases referred to by
Sellers L.J. in Wooldridge v Sumner [1963] 2 Q.B. 43 at 55–56. For the position of the
occupier of the premises where the game or sport is taking place, see Murray v Harringay
Arena Ltd [1951] 2 K.B. 529; Wilks v Cheltenham Home Guard Motor Cycle and Light
Car Club [1971] 1 W.L.R. 668.
101
Wooldridge v Sumner, above, fn.100, at 56 per Sellers L.J., at 67 per Diplock L.J.
102
Above, fn.100.
103
[1963] 2 Q.B. 43 at 57 per Sellers L.J.: ‘‘There would, I think, be a difference, for instance,
in assessing blame which is actionable between an injury caused by a tennis ball hit or a
racket accidentally thrown in the course of play into the spectators at Wimbledon and a ball
hit or a racket thrown into the stands in temper or annoyance when play was not in
progress.’’
Consent. Volenti Non Fit Injuria 1149
I. Rescue Cases
25–14 Rescuers are not a specially privileged category of persons in tort
law.113 Nevertheless, their presence may be foreseeable when that of
others would not be and they deserve some further treatment here,
too, for the ‘‘rescue cases’’ straddle three branches of the law
—volenti non fit injuria, causation and contributory negli-
gence—and the two latter may, for the sake of convenience, be
considered here as well as the first. Rescue cases are typified by C’s
death or injury in rescuing or endeavouring to rescue X from an
emergency of danger to X’s life or limb created by the negligence of
D. Is D liable to C? Or can D successfully plead: (1) volenti non fit
injuria; or (2) that C’s conduct is a novus actus interveniens which
makes his injury too remote a consequence of D’s initial negligence;
or (3) that C’s injury was due to contributory negligence on his own
part?
Until 1924, our law was almost destitute of any decision on these
questions.114 The American law reports, on the other hand, from
1871 onwards had contained numerous cases which, subject to the
limitations stated below, conferred a right of action upon the rescuer
or his representatives. In 1935, in Haynes v Harwood115 the Court of
Appeal adopted a similar principle.
We can best consider the three arguable defences of D to such an
action separately.
113
Frost v CC South Yorkshire [1999] 2 A.C. 455 at 508. Thus they have no special status in
relation to psychiatric injury: para.5–69, above.
114
Roebuck v Norwegian Titanic Co (1884) 1 T.L.R. 117 seems to have been forgotten soon
after it was reported.
115
[1935] 1 K.B. 146.
116
This phrase should not be taken as implying that the claimant must literally be doing
something like pulling the victim from danger. A person who is engaged in dangerous
conditions in a search for the victim is within the rescue principle.
117
Goodhart, ‘‘Rescue and Voluntary Assumption of Risk’’ (1934) 5 C.L.J. 192 at 196.
118
[1935] 1 K.B. at 156–157.
Consent. Volenti Non Fit Injuria 1151
ii. Novus actus interveniens. The policeman’s act was that of a 25–16
normally courageous man in the like circumstances, and therefore
was both the direct and foreseeable consequence of the defendant’s
unlawful act; hence the injury which he suffered was not too
remote.
119
[1935] 1 K.B. 146 at 158–159 per Greer L.J., at 164 per Maugham L.J.
120
Videan v British Transport Commission [1963] 2 Q.B. 650.
121
Cf. Reeves v MPC, para.6–41, above.
122
Frost v CC South Yorkshire [1999] 2 A.C. 455 at 509.
123
Baker v T.E. Hopkins & Son Ltd [1959] 1 W.L.R. 966 at 976 per Morris L.J.
124
[1935] 1 K.B. at 162 per Maugham L.J.
1152 Defences
125
Pollock, Torts, 15th edn, p.370, adopted by Maugham L.J. in Haynes v Harwood [1935]
1 K.B. 146 at 163.
126
It is no defence that hindsight shows the attempt to have been futile so long as it appears
reasonable at the time: Wagner v International R.R. (1921) 133 N.E. 437.
127
[1967] 1 W.L.R. 912. In Urbanski v Patel (1978) 84 D.L.R. (3d) 650 the first claimant lost
her only kidney as a result of the defendant’s negligence. The second claimant recovered
damages in respect of an unsuccessful kidney donation by him.
128
The case is now explained on the basis that although the psychiatric injury was suffered
as a result of what he saw (no longer enough) he was nevertheless in the zone of physical
danger: para.5–63, above.
129
[1935] 1 K.B. 146 at 163 per Maugham L.J.
130
Cutler v United Dairies (London) Ltd [1933] 2 K.B. 297. That seems to be the inter-
pretation of this case by the Court of Appeal in Haynes v Harwood.
131
Crossley v Rawlinson [1982] 1 W.L.R. 369. Cf. Chapman v Hearse (1961) 106 C.L.R.
112.
132
[1988] A.C. 431.
Consent. Volenti Non Fit Injuria 1153
‘‘Bearing in mind that danger invites rescue, the court should not
be astute to accept criticism of the rescuer’s conduct from the
wrongdoer who created the danger.’’134
Do the rules just stated apply where the person who is rescued is
the person who was negligent, instead of being some third party
endangered by the negligent person’s conduct? So far we have been
considering a case in which C is injured in trying to rescue X from
the effects of D’s negligence, but is the position the same if C is
injured in trying to rescue D himself from peril caused by D’s own
negligence? Would it have made any difference in Haynes v Har-
wood if the person by whose negligence the horses had bolted had
been imperilled and had been saved by the policeman? On principle,
it seems that there ought to be no difference, bearing in mind that the
rescuer’s right in the more usual three-party situation is an inde-
pendent one and is not derived from that of the person imperilled,
and that D ought to be just as much liable in the one case as in the
other. It was so held at first instance in Harrison v British Railways
Board.135
Another question is whether someone would be justified in run-
ning risks to life or limb in order to save his own or other people’s
133
[1924] 1 K.B. 548.
134
Baker v T.E. Hopkins Ltd, above, fn.123, at 984 per Wilmer L.J.
135
[1981] 3 All E.R. 679; Canadian National Ry v Bakty (1978) 82 D.L.R. (3d) 731. Barry
J. had expressed the same view obiter in Baker v T.E. Hopkins Ltd [1958] 1 W.L.R. 993
at 1004. The Court of Appeal did not consider the point.
1154 Defences
25–18 It is a well known principle of the law of contract that if the claimant
has to found his claim on an illegal act or agreement he will fail: ex
turpi causa non oritur actio. Though that maxim may be properly
confined to cases involving contracts140 there are also certainly cases
of tort in which to allow recovery to a claimant implicated in
illegality is against public policy.141 The difficulty arises in deter-
mining when a claim (or part of it, for illegality may affect only one
element of the damages claimed) will be rejected for this reason. As
136
[1948] 1 K.B. 345. See Hutterly v Imperial Oil and Calder (1956) 3 D.L.R. (2d) 719;
Russell v McCabe [1962] N.Z.L.R. 392. In the Scottish decision Steel v Glasgow Iron and
Steel Co 1944 S.C. 237, such an action was held to be maintainable subject to the
conditions that (1) the rescuer’s act ought reasonably to have been contemplated by the
defendant, and (2) the risk undertaken must be reasonable in relation to the interests
protected
137
[1948] 1 K.B. 345 at 348 per Tucker L.J. Note that the industrial injuries scheme includes
in the ‘‘course of employment’’ steps taken by the insured person to rescue persons or
property on his employer’s premises.
138
5 C.L.J. at 198.
139
See Russell v McCabe [1962] N.Z.L.R. 392 at 404 per North J.
140
Smith v Jenkins (1970) 119 C.L.R. 397 at 410 per Windeyer J.
141
The same idea may surface in ‘‘no-fault’’ or social security compensation. The Criminal
Injuries Compensation Scheme (para.4–2, above) allows payments to be reduced or
withheld on account of the applicant’s character or conduct and under the New Zealand
Accident Compensation Scheme (para.1–40, above) the compensation authority may
decline to give compensation where, ‘‘it would be repugnant to justice for . . . such
compensation to be paid’’. Compensation can never be entirely about need.
Public Policy. Illegality 1155
is so often the case, it may make no difference whether one rests the
decision on lack of a duty of care or upon a separate ground of
illegality, since the nature of the claimant’s behaviour is a matter
which is relevant to the question of whether it is fair, just and
reasonable to impose a duty.142
One statutory provision which takes into account the claimant’s 25–19
criminal behaviour may be noted at the outset. Under s.329 of the
Criminal Justice Act 2003 a person has a defence to a claim in
respect of a trespass to the person brought by a claimant who he
believed was committing an imprisonable offence if there was a
conviction and his act was not grossly disproportionate.143 This
provision is of comparatively narrow scope and it is now necessary
to examine the common law.
There are two principles in play here: first that tort law must not 25–20
contradict the criminal law by giving the claimant an indemnity or
compensation for a penalty imposed on him by the latter, secondly
(a broader principle) that a claimant may not recover damages for a
loss which is regarded by the law as the consequence of his own
illegal act.
The first principle may be illustrated by Gray v Thames Trains
Ltd.144 The claimant was involved in a rail crash caused by the
negligence of the defendants, suffered psychiatric trauma and,
nearly two years later and under the influence of this, killed a person
in a ‘‘road rage’’ incident, which led to his conviction for man-
slaughter on the ground of diminished responsibility for which he
was sentenced to be detained indefinitely in hospital. He was sane in
the legal sense and responsible for his actions, the diminished
responsibility merely preventing the offence being murder. There
was no doubt that the defendants’ negligence was a cause in fact of
his detention but the House of Lords held that he was not entitled to
recover his lost earnings from the time of the detention. In such a
situation:
‘‘If the [claimant] has been convicted and sentenced for a crime,
it means that the criminal law has taken him to be responsible for
his actions and has imposed an appropriate penalty. He or she
should therefore bear the consequences of the punishment,145
142
Vellino v CC Greater Manchester [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218 at
[62].
143
See para.4–27, above.
144
[2009] UKHL 33; [2009] A.C. 1339. See also Clunis v Camden and Islington Health
Authority [1998] QB 978; British Columbia v Zastowny [2008] SCC 4; [2008] 1 S.C.R.
27.
145
There may be losses arising from conviction rather than penalty which do not fall within
this principle: Griffin v Uhy Hacker Young & Partners [2010] EWHC 146 (Ch). Nor does
it apply to a fine imposed even though the claimant was in no way at fault: Osman v J.
Ralph Moss Ltd [1970] 1 Lloyds Rep 313; Safeway Stores Ltd v Twigger [2010] EWHC
11 (Comm).
1156 Defences
146
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 at 514, cited
by Lord Hoffmann at [40] and Lord Rodger at [67] in Gray.
147
Hall v Hebert [1993] 2 SCR 159 at 178.
148
See Clunis above, fn.144 at 989 and Hunter Area Health Service v Presland [2005]
NSWCA 33; 63 NSWLR 22, where the majority of the court denied liability in such a
case.
149
[1982] AC 794, para.6–8, above.
150
[2009] UKHL 33; [2009] A.C. 1339 at [101]. ‘‘If one cannot get ‘direct’ compensation for
the non-economic or economic loss resulting from imprisonment, one should not be able
to receive ‘indirect’ compensation for lost earning capacity after imprisonment by treating
the fact of imprisonment as irrelevant to the assessment of economic loss’’ : State Rail
Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 at 515.
Public Policy. Illegality 1157
In many cases the first principle does not come into play, either 25–21
because the criminal law has not been invoked at all or because the
loss suffered by the claimant is plainly not the product of any
sentence—as where the claimant suffers injury during the commis-
sion of an offence.151 Probably few people would disagree with the
remark of Lord Asquith in National Coal Board v England152
that:
151
See those parts of the claim in Gray v Thames Trains, above, fn.144, relating to the
claimant’s feelings of remorse and an indemnity against a claim by relatives of the victim
(though since no claim had been made by them, the basis of the latter is not entirely
clear).
152
[1954] A.C. 403 at 429.
153
Jackson v Harrison (1978) 138 C.L.R. 438; Gala v Preston (1999) 172 C.L.R. 243;
Balcombe L.J. in Pitts v Hunt [1991] 1 Q.B. 24 at 50.
154
The point is obvious if one bears in mind that the court might have to consider a case in
which the escaping robbers collided with an innocent motorist.
1158 Defences
‘‘ . . . [T]o allow recovery [where the claim arises from the claim-
ant’s illegal conduct] . . . would be to allow recovery for what is
illegal. It would put the courts in the position of saying that the
same conduct is both legal, in the sense of being capable of
rectification by the court, and illegal. It would, in short, introduce
an inconsistency in the law. It is particularly important in this
context that we bear in mind that the law must aspire to be a
unified institution, the parts of which—contract, tort, the criminal
law—must be in essential harmony. For the courts to punish
conduct with the one hand while rewarding it with the other,
would be to ‘create an intolerable fissure in the law’s conceptually
seamless web’ . . . We thus see that the concern, put at its most
fundamental, is with the integrity of the legal system.’’155
The point may be illustrated by Stone & Rolls Ltd v Moore Ste-
phens,156 where the C Company defrauded X in a scheme set up by
its sole controller Y and then sued its auditors, D, for negligence in
failing to spot what Y was doing, the damages claimed being the
sum for which it was liable to X.157 The claim failed because to
allow it would have been to say that what was recoverable from C
in the action against it for fraud was damage to it for the purposes
of its claim against D.158
25–22 Some of the cases have spoken in terms which figure large in the
contract cases, of asking whether the claimant needs to rely on his
illegality in order to make out his cause of action. That will fit the
case where the claimant’s loss arises directly from the consequences
to him of his criminal act159 or where he is complaining of being
deprived of income from a criminal source160 (though most such
cases are covered at least in part by the ‘‘inconsistency’’ principle
discussed above). However, this approach is not merely a matter of
155
Hall v Hebert (1993) 101 DLR (4th) 129 at 165 per McLachlin J.
156
[2009] UKHL 39; [2009] A.C. 1391.
157
Assuming this to amount to damage at all: see Lord Phillips at [5].
158
No one contested that this was the result had Y acted as a natural person, but the fact that
the vehicle of fraud was the company produced profound disagreement on the result. The
majority took the view that (a) Y’s acts were to be attributed to the company, so that it was
directly and not merely vicariously liable for the fraud on X and (b) that a decision the
other way would outflank the principle that auditors do not owe a duty of care to the
company’s creditors (see para.11–25, above), the company being insolvent and X being
the likely beneficiary of any judgment.
159
Clunis v Camden and Islington Health Authority [1998] Q.B. 978.
160
Neither a burglar nor his dependants if he is killed can claim as damages the loss of income
from his trade: Burns v Edman [1970] 2 Q.B. 541. As Clarke L.J. put it Hewison v
Meridian Shipping Services Pte Ltd [2002] EWCA Civ 1821; [2003] I.C.R. 766 at [28] it
is not so much ex turpi causa non oritur actio as ex turpi causa non oritur damnum.
Public Policy. Illegality 1159
what the claimant needs to prove to make out a prima facie cause of
action. While it is true that if the complaint is of interference with
property rights the defendant cannot defeat the claim by contending
that the claimant acquired his title to the property by an illegal
transaction,161 a person who has obtained employment by fraudulent
misrepresentation about his health cannot, when injured during the
course of that employment, recover damages for future lost earnings
therein, even though his pleadings would not need to say anything
about the circumstances in which he obtained the employment and
the matter will have been raised by the defendant.162 In Cross v
Kirby163 Beldam L.J. said:
‘‘I do not believe that there is any general principle that the
claimant must either plead, give evidence of or rely on his own
illegality for the principle to apply. Such a technical approach is
entirely absent from Lord Mansfield’s exposition of the principle
[of ex turpi causa in Holman v Johnson (1775) 1 Cowp. 341]’’.
161
Bowmakers Ltd v Barnet Instruments Ltd [1945] K.B. 65; Singh v Ali [1960] A.C. 167;
Tinsley v Milligan [1994] 1 A.C. 340; Webb v CC Merseyside [2000] Q.B. 427.
162
Hewison v Meridian Shipping Services Pte Ltd [2002] EWCA Civ 1821; [2003] I.C.R.
766: Romantiek BVBA v Simms [2008] EWHC 3099 (QB). Cf. Major v MoD [2003]
EWCA Civ 1433. (Claimant suffered injury from the defendants which produced a
pathological mental condition. She concealed this in order to join the RAF and was
discharged when this was discovered. Hewison was distinguished on the ground that she
could frame her claim for the injury prior to entry to the RAF on the basis of ‘‘loss of value
in the labour market’’ and her earnings in the service were merely evidence of that so that
the deception to gain entry was causally irrelevant to the loss.)
163
The Times, April 5, 2000; Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009]
A.C. 1391 at [23].
164
Gray v Thames Trains Ltd [2009] UKHL 33; [2009] A.C. 1339 at [54] per Lord
Hoffmann.
165
Hall v Woolston Hall Leisure Ltd [2001] 1 W.L.R. 225; Finnis v Caulfield [2002] EWHC
3223 (QB). The damages recoverable would be net of tax, so there is no question of the
claimant benefiting from his wrongdoing.
166
Lord Hoffmann’s example in Gray at [53]. See Kelly v Churchill Car Insurance [2006]
EWHC 18 (QB); [2007] R.T.R. 26.
1160 Defences
167
[1954] A.C. 403 at 429.
168
[1991] 1 Q.B. 24.
169
Volenti was inapplicable because of what is now the Road Traffic Act 1988 s.149
(para.25–10, above), contributory negligence would have led, at the most, to a 50 per cent
reduction in C’s damages.
170
[1996] Q.B. 567. See para.9–27, above.
171
See also Marshall v Osmond [1983] Q.B. 1034. The suggestion by Lord Denning M.R. in
Murphy v Culhane [1977] Q.B. 94 that even if a burglar is deliberately shot by a
householder acting beyond the bounds of self-defence he has no claim clearly goes too
far.
Public Policy. Illegality 1161
can be made from the point of view of policy that given the
provisions of the Occupiers’ Liability Act 1984 governing liability
to trespassers the claimant should not be made an outlaw for partici-
pation in such an offence.172 It is true that people generally would
probably be startled to be told that a householder could be liable to
a burglar who injured himself on the householder’s rotten ladder
while gaining entry but the flexibility of the formula in the 1984 Act
probably means that this result could generally be avoided without
recourse to illegality. Sometimes it has been suggested that one
should look at the question of proportionality between the illegal
conduct and the harm suffered by the claimant173 but in other cases
the issue has been put in terms of disproportion between the fault of
the claimant and the defendant,174 though this, too, has been
denied.175
At one time there was a tendency to deal with the matter by
asking whether recovery by the claimant would ‘‘shock the con-
science of the court’’. This was disapproved by the House of Lords
in the context of contract and title to property in Tinsley v Milli-
gan.176 It is not wholly clear how far it survives in the context of
tort. It was subsequently referred to in a tort context by the Court of
Appeal in Reeves v Metropolitan Police Commissioner177 where it
was held that the deceased’s suicide in custody did not bar a claim
in respect of his death; a decision in favour of the claimant would
neither encourage others down the same road nor shock the con-
science. However, later cases indicate that it has gone for all pur-
poses.178 Nevertheless, while it may be the case that there is no true
‘‘discretion’’ about illegality, which is a matter of law with an all or
nothing effect upon the claim, it is hard to escape the feeling that the
imprecise nature of the present law might very well be described as
a principle of ‘‘public conscience’’.
Common sense would seem to indicate that the degree of gravity 25–24
of the misconduct must be an important factor but it is very difficult
172
In NSW damages cannot be awarded to a person who suffers injury while committing an
offence punishable by six months’ imprisonment if his conduct ‘‘contributed materially’’
to his injury: Civil Liability Act 2002 (NSW) s.54. Presumably the conduct of the claimant
in Revill satisfied this?
173
Saunders v Edwards [1987] 1 W.L.R. 1116 at 1134; Hewison v Meridian Shipping Services
Pte Ltd [2002] EWCA Civ 1821; [2003] I.C.R. 766 at [86]
174
Revill v Newbery [1996] Q.B. 567 and see Lane v Holloway [1996] 1 Q.B. 379.
175
Vellino v CC Greater Manchester [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218 at [70]:
‘‘there is no question of proportionality between the conduct of the claimant and defen-
dant’’ (injury during escape attempt from police custody).
176
[1994] 1 A.C. 340.
177
[1999] Q.B. 169. The point was not pursued in the HL: [2000] 1 A.C. 360. For facts see
para.6–41, above.
178
Hewison v Meridian Shipping Pte Ltd [2002] EWCA Civ 1821; [2003] I.C.R. 766; Stone
& Rolls Ltd v Moore Stephens [2008] EWCA Civ 644; [2008] 3 W,L.R. 1146. In the latter
case in the HL it is impliedly rejected at [2009] UKHL 39; [2009] A.C. 1391 [97] and
[129]. No mention of it has been traced in Gray v Thames Trains Ltd.
1162 Defences
3. MISTAKE184
179
The cases are reviewed in Griffin v Uhy Hacker Young & Partners [2010] EWHC 146
(Ch).
180
Vellino v CC Greater Manchester above, fn.175, at [70].
181
Standard Chartered Bank v Pakistan National Shipping Corporation [2000] 1 Lloyd’s Rep
218 (non-criminal fraud); on appeal on other issues [2002] UKHL 43; [2003] 1 A.C. 959;
Safeway Stores Ltd v Twigger [2010] EWHC 11 (Comm). In Stone & Rolls Ltd v Moore
Stephens, above, fn.178, the criminal liability of the claimant company (as opposed to Y)
must have been purely theoretical.
182
L.C.C.P. No.160 (2001).
183
L.C.C.P. No. 189 (2009).
184
Trindade (1982) 2 O.J.L.S. 211.
Mistake 1163
4. INEVITABLE ACCIDENT
185
Consolidated Co v Curtis [1892] 1 Q.B. 495, see para.17–22, above.
186
Chatterton v Gerson [1981] Q.B. 432 at 443.
187
See also para.25–30, below.
188
Pollock, Torts, 15th edn, p.97.
1164 Defences
189
Fardon v Harcourt-Rivington (1932) 146 L.T. 391 per Lord Dunedin.
190
‘‘I do not find myself assisted by considering the meaning of the phrase ‘inevitable
accident’. I prefer to put the problem in a more simple way, namely has it been established
that the driver of the car was guilty of negligence?’’: Browne v De Luxe Car Services
[1941] 1 K.B. 549 at 552 per Greene M.R. This should not be understood to mean that the
defendant in an action for negligence need never bring any evidence to exculpate himself.
The claimant’s evidence may raise a presumption or prima facie case which, if nothing
more appears, will entitle the court to infer that the defendant was negligent, but the legal
burden of proof remains with the claimant and when all the evidence has been heard the
court must decide, whether it has been discharged: Brown v Rolls-Royce Ltd [1960] 1
W.L.R. 210 at 215–216 per Lord Denning.
191
See para.5–89, above and the previous note.
192
See para.4–33, above.
193
(1868) L.R. 3 H.L. 330, Ch.15, above.
194
It is still occasionally used as a description of an accident which could not have been
prevented by the exercise of care (e.g. Arnott v Sprake [2001] EWCA Civ 341 at [50]) but
nothing seems to turn on the point.
Act of God 1165
5. ACT OF GOD
6. PRIVATE DEFENCE
195
See Ch.15, above.
196
Including defence against an unlawful arrest: ‘‘If a person is purporting to arrest another
without lawful warrant the person arrested may use force to avoid being arrested, but he
must not use more force than necessary’’: R. v Wilson [1955] 1 W.L.R. 493 at 494 per Lord
Goddard C.J.; Kenlin v Gardiner [1967] 2 Q.B. 510.
197
Pollock, Torts, 15th edn, pp.135–136.
198
Criminal Law Act 1967 s.3; R. v Duffy [1967] 1 Q.B. 63.
199
Dale v Wood (1822) 7 Moore C.P. 33.
200
Lord Lyndhurst C.B. in Moriarty v Brooks (1834) 6 C. & P. 684.
1166 Defences
B. Defence of Property
25–31 Actual possession (whether with a good title or not), or the right
to possession of property is necessary to justify force in keeping out
(or, for that matter, expelling) a trespasser. Thus, in Holmes v
Bagge,205 the claimant and defendant were both members of the
committee of a cricket club. During a match in which the defendant
was captain and the claimant was a spectator, the defendant asked
the claimant to act as substitute for one of the eleven. He did so, but
being annoyed at the tone of the defendant in commanding him to
take off his coat, he refused either to remove the garment or to leave
the playing part of the field. He was then forcibly removed by the
defendant’s direction. The defendant, when sued for assault, pleaded
possession of the ground, but the plea was held bad because posses-
sion was in the committee of the club. Note, however, that a person
who does not have possession of the land may use reasonable force
against persons thereon who obstruct him in carrying out statutory
powers,206 and it may be that if the defendant in Holmes v Bagge
had pleaded that he removed the claimant for disturbing persons
lawfully playing a lawful game he would have been justified.207
201
Cockroft v Smith (1705) 2 Salk. 642; Lane v Holloway [1968] 1 Q.B. 379; but the law
should not grade the levels of permissible response to an assault with too much nicety:
Cross v Kirkby, The Times, April 5, 2000. In NSW damages are not to be awarded in
respect of a disproportionate response unless the case is exceptional and refusal of
damages would be ‘‘harsh and unjust’’; and even then there can be no damages for non-
pecuniary loss: Civil Liability Act 2002 (NSW) s.53.
202
The Criminal Justice and Immigration Act 2008 s.76 restates the law on this basis but it
was the common law.
203
Ashley v CC Sussex [2008] UKHL 975; [2008] 1 A.C. 962.
204
See at [20], [55] and [90]. See also Hepburn v CC Thames Valley [2002] EWCA Civ 1841.
The claimants in Ashley did not advance this view of the law. Compare the law of arrest
where, subject to the rule in Walters v W.H.Smith, a reasonable mistake of fact is clearly
a defence to an action for false imprisonment and, presumably, for any associated and
necessary assault or battery: para.4–24, above.
205
(1853) 1 E. & B. 782; see also Dean v Hogg (1834) 10 Bing. 345 and Roberts v Taylor
(1845) 1 C.B. 117.
206
R. v CC Devon and Cornwall, Ex p. C.E.G.B. [1982] Q.B. 458.
207
[1982] Q.B. 458 per Lord Denning M.R.
Private Defence 1167
defence, for I cannot ‘‘defend’’ myself against one who has done me
no unlawful harm. It would seem that the true principles applicable
are that I committed no tort if I did not intend to harm and was not
negligent, and that I may rely on the defence of necessity216 if I did,
but this does not mean that whatever I may do is justifiable under the
one head or the other. Provided I acted reasonably I am excused, and
not otherwise.
In Scott v Shepherd,217 D threw a lighted squib into a crowded
market house. It fell upon the gingerbread stall of Yates. A
bystander, Willis, to prevent injury to himself and the wares of
Yates, instantly picked up the squib and threw it away. It fell upon
the gingerbread stall of Ryal, who, to save his own goods from
injury threw the squib farther. It struck C in the face, exploded and
blinded him in one eye. Now it was held without any difficulty,
except as to the exact form of action, that D was liable to C for
trespass and assault. No proceedings were taken against Willis or
Ryal, but supposing that they had been sued by C, would they have
been liable? Two of the judges thought not, because they acted,
‘‘under a compulsive necessity for their own safety and self-preser-
vation’’. No exact technicality was attached by the judges to
‘‘necessity’’ or ‘‘self-preservation’’,218 but one difficulty is the ques-
tion whether Willis and Ryal really did behave as reasonable men
would have done. Willis, it will be noted, acted to prevent injury to
himself as well as the wares of Yates, and it must be recollected that
a person may well act reasonably even if he shows no great presence
of mind. A cooler person would have stopped the danger by putting
his foot on the squib, but perhaps Willis did all that the lawyer, if not
the moralist, could expect of him; Ryal, on the other hand, appears
to have acted merely to preserve his goods, and we may doubt
whether a man of ordinary presence of mind would throw a squib
into a crowd to save his gingerbread from ruin.
7. NECESSITY
25–33 This negatives liability in tort, provided, of course, that the occasion
of necessity does not arise from the defendant’s own negligence,219
though the authority on it is fairly scanty. It differs from private
defence in that in necessity the harm inflicted on the claimant was
216
See below.
217
(1773) 2 W.Bl. 892.
218
(1773) 2 W.Bl. 892 at 900 per De Grey C.J., at 898 per Gould J.
219
Southport Corp v Esso Petroleum Ltd [1954] 2 Q.B. 182 at 194 per Singleton L.J., at 198
per Denning L.J.; Esso Petroleum Ltd v Southport Corp [1956] A.C. 218 at 242 per Lord
Radcliffe. For a case where there was no negligence in creating the occasion so that
necessity applied but the defendants’ conduct in responding to the necessity was negligent,
see Rigby v CC Northamptonshire [1985] 1 W.L.R. 1242.
Necessity 1169
220
For a useful summary of common law rights of entry to land in case of necessity, see Dehn
v Att Gen [1988] 2 N.Z.L.R. 564 at 580 (on appeal on damages only, [1989] 1 N.Z.L.R.
320).
221
Southwark LBC v Williams, above, where the Court of Appeal was concerned that the
defence of necessity should not become a ‘‘mask for anarchy’’. In John Trenberth Ltd v
National Westminster Bank (1979) 39 P. & C.R. 104, the defendants were liable in trespass
although entry to the neighbouring land was the only way of repairing their ruinous
building, but see now the Access to Neighbouring Land Act 1992, para.13–11, above.
222
Monsanto Plc v Tilly [2000] Env L.R. 313.
223
Shelley arguendo in Y.B. Trin. 13 Hen. 8, f.15, pl. 1, at f.16a; Kingsmill J. in Y.B. Trin.
21 Hen. 7, f.27b, pl. 5; Saltpetre Case (1606) 12 Rep. 12 at 13; Sirocco v Geary (1853)
3 Cal. 69.
224
Dewey v White (1827) M. & M. 56 (A, whose adjoining house was inevitably damaged had
no remedy).
225
Mouse’s case (1609) 12 Rep. 63. It should be noted that this case took place on an inland
waterway. The position as to jettison at sea may be affected by the principle of general
average.
226
Milman v Dolwell (1810) 2 Camp. 378. Defendant lost his case because he did not plead
necessity. Cf. Romney Marsh v Trinity House (1870) L.R. 5 Ex. 204.
227
See Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1965] A.C. 75 at
164–165.
228
‘‘The safety of human lives belongs to a different scale of values from the safety of
property. The two are beyond comparison and the necessity for saving life has at all times
been considered a proper ground for inflicting such damages as may be necessary upon
another’s property’’: Esso Petroleum Ltd v Southport Corp [1956] A.C. 218 at 228 per
Devlin J.
229
(1876) 1 Ex.D. 55.
1170 Defences
230
[1912] 1 K.B. 496.
231
Home Brewery Plc v William Davis & Co (Leicester) Ltd [1987] Q.B. 339; cf. Green v
Somerleyton [2003] EWCA Civ 198; [2004] 1 P & C.R. 520.
232
Nield v L & NW Ry (1874) L.R. 10 Ex. 4 at 7 per Bramwell B.
233
Maxey Drainage Board v GN Ry (1912) 106 L.T. 429.
234
R. v Pagham (1828) 8 B. & C. 356
235
Gerrard v Crowe [1921] 1 A.C. 395 at 400 per Viscount Cave.
236
Hurdman v NE Ry (1878) 3 C.P.D. 168; Maxey Drainage Board v GN Ry, above, fn.233;
Gerrard v Crowe, above, fn.235.
237
(1884) 13 Q.B.D. 131.
Necessity 1171
‘‘[B]ut after the danger is over, the trenches and bulwarks ought
to be removed, so that the owner shall not have prejudice in his
inheritance’’;
245
Under s.4B (inserted by the Mental Health Act 2007) deprivation of liberty is only justified
under a court order or while a court order is being obtained if necessary to give life-
sustaining treatment or to prevent serious deterioration in the person’s condition.
246
(1606) 12 Rep. 12 at 13 per the justices consulting in Serjeants Inn.
247
[1965] A.C. 75.
248
The whole passage in 12 Rep. 12–13 is rather confused and the earlier authorities do not
support Coke, who reported the case. See, e.g. Maleverer v Spinke (1538) Dyer 35b at 36b,
para.40.
Necessity 1173
‘‘[T]he skier who is lost in a snow storm may enter your cabin for
shelter without liability. But if he burns the furniture to stay warm
he must pay for its destruction’’.253
8. DURESS
‘‘[F]or one cannot justify a trespass upon another for fear, and the
defendant hath remedy against those that compelled him.’’
249
See Burmah Oil (above, fn.247), at 164–165 per Lord Upjohn. Lord Reid at 99 conceded
that there might be occasions when a subject is entitled to act on his own initiative in
defence of the realm, particularly if there is no one in authority there to direct him, but he
thought it impossible that any subject could have been entitled to carry out the major
demolitions with which the case was concerned.
250
Deprivation of property is justified, ‘‘in the public interest and subject to the conditions
provided for by law’’ but it seems that a lawful taking without any compensation would
be exceptional: Holy Monasteries v Greece (1994) 20 E.H.R.R. 1.
251
[1965] A.C. 218 at 227.
252
An example put by Lord Mansfield in Hambly v Trott (1776) 1 Cowp. 371 at 375 is
consistent with the suggestion. The American Restatement of Restitution, s.122, is to the
like effect and applies the rule also where A harms B’s property in order to preserve C or
C’s property, for, ‘‘a person is not entitled to be a good samaritan at the expense of
another’’. Section 122, however, exempts A from any obligation to make restitution to B
if A’s act appeared reasonably necessary to avert a public catastrophe.
253
Dobbs, Torts (2000) §107.
254
(1647) Aleyn 35.
1174 Defences
9. STATUTORY AUTHORITY
255
Smith v Stone (1647) Style 65; dictum in Weaver v Ward (1616) Hob. 134.
256
R. v Howe [1987] A.C. 417 at 429. In the criminal law context necessity is sometimes
labelled ‘‘duress of circumstances’’ (as opposed to duress by threats).
257
Farnworth v Manchester Corp [1929] 1 K.B. 533 at 556 per Lawrence L.J. For proceed-
ings in the House of Lords, see [1930] A.C. 171, but the question would seem to be one
purely of statutory construction and as such not to involve questions of the burden of proof
at all. The point is that unless the clearest language is used it is to be assumed that
Parliament did not intend an encroachment upon the liberties of the subject: Att Gen v
Nissan [1970] A.C. 179 at 229 per Lord Pearce.
258
See Marriage v E Norfolk Catchment Board [1950] 1 K.B. 284 and para.14–34, above.
259
See para.14–34, above. One must bear in mind that the European Convention on Human
Rights now figures in the picture.
CHAPTER 26
EXTINCTION of liability in tort may take place in several ways, some 26–1
of them by act of the parties, others by operation of law.1
1. WAIVER
1
For extinction of liability by death, now more the exception than the rule, see para.23–2,
above.
2
See the standard works on contract.
1175
1176 Extinction of Liability in Tort
3
See para.26–3, below.
4
Valpy v Sanders (1848) 5 C.B. 886; Morris v Robinson (1824) 3 B. & C. 196.
5
Burns v Morris (1834) 4 Tyrw. 485; Lythgoe v Vernon (1860) 5 H. & N. 180.
6
Verschures Creameries Ltd v Hall and Netherlands SS Co [1921] 2 K.B. 608.
7
See United Australia Ltd v Barclays Bank Ltd [1941] A.C. 1 at 29–30.
8
United Australia, above, fn.7; Tang v Capacious Investments Ltd [1996] A.C. 514 (not a
tort case).
9
Island Records Ltd v Tring International Plc [1996] 1 W.L.R. 1256.
10
See para.22–13, above.
11
‘‘The purpose of ordering an account of profits . . . is to prevent an unjust enrichment’’: My
Kinda Town Ltd v Soll [1982] F.S.R. 147 at 156.
12
See Lord Atkin in United Australia [1941] A.C. at 28.
Waiver 1177
13
[1941] A.C. at 21.
14
Peytoe’s Case (1611) 9 Rep. 77b. It is most important to note that since the claim will be
for unliquidated damages an accord and satisfaction will be effective even though a court
might have awarded more or less in the way of damages. ‘‘The agreed sum is a liquidated
amount which replaces the claim for an illiquid sum. The effect of the compromise is to
fix the amount of his claim in just the same way as if the case had gone to trial and he had
obtained judgment.’’: Jameson v C.E.G.B. [2000] 1 A.C. 455 at 474 per Lord Hope. It is
also possible for the parties, by an agreement falling short of full accord and satisfaction,
to limit the issues between them, as in Tomlin v Standard Telephones and Cables Ltd
[1969] 1 W.L.R. 1378, an action for damages for personal injuries, where it was agreed
that the defendants would pay 50 per cent of the claimant’s damages, leaving only the
amount of those damages to be determined.
15
See D&C Builders Ltd v Rees [1966] 2 Q.B. 617.
16
British Russian Gazette, etc. Ltd v Associated Newspapers Ltd [1933] 2 K.B. 616 per
Scrutton L.J.; at 650 per Greer L.J.
17
Lee v L&Y Ry (1871) L.R. 6 Ch. 527; Ellen v GN Ry (1901) 17 T.L.R. 453; North British
Ry v Wood (1891) 18 R. 27, HL. On the effect of an agreement with D1 where C also has
a claim against D2 see Jameson v C.E.G.B. [2000] 1 A.C. 455, para.21–3, above.
1178 Extinction of Liability in Tort
B. Release
26–5 Closely akin to accord and satisfaction is release of tortious
liability given by the injured party. In fact, there seems to be little
difference between the two except that a release is usually, but not
necessarily, embodied in a deed and the necessity for consideration
is thus avoided.20 Release is apparently effective whether it is given
before or after an action against the tortfeasor is commenced.
18
Although the agreement will usually be contained in ‘‘without prejudice’’ correspondence,
which means that the correspondence cannot be used in evidence, this correspondence can
be produced to the court if the question is whether a binding agreement has actually been
reached between the parties (Tomlin v Standard Telephones and Cables Ltd [1969] 1
W.L.R. 1378) and, presumably, also when a question of the interpretation of the agreement
has to be decided.
19
On the position in such a case regarding a claim against another tortfeasor see Jameson v
C.E.G.B. at [2000] 1 A.C. 481 per Lord Clyde.
20
Phillips v Clagett (1843) 11 M. & W. 84.
Judgment 1179
3. JUDGMENT
4. LIMITATION
Whether a person’s claim is based upon tort or upon any other form 26–7
of injury, he will lose his remedy if he falls asleep on it. The reasons
for this are twofold. In the first place, no one ought to be exposed to
the risk of stale demands of which he may be quite ignorant and
which, owing to changed circumstances, he may be unable to
satisfy. Secondly, it may have become impossible or difficult, owing
to the loss of documents or the death of witnesses, to establish a
defence which would have negatived the claim if it had been
presented more promptly. These considerations point to a short,
definite time limit for the presentation of claims, but they have
always been counterbalanced by other considerations of justice to
the victim of the tort—suppose, for example, he is suffering from a
disability which renders him unable to pursue his claim, or he is
unaware of the damage he has suffered (which may or may not be
because the wrongdoer has concealed it)? Further, considerations of
justice to defendants may be less compelling now than in former
times since in the great majority of cases the ‘‘real’’ defendant will
be a liability insurance company with large resources and the ability
to keep extensive records. In fact, the recent trend of law has been
towards the softening of rigid time limits and the use of greater
discretion in allowing the presentation of old, but meritorious
21
Provisional damages (para.22–23, above) are a practical, if not theoretical, qualification of
this.
22
It is in the interest of society that there should be an end to litigation and no one should
face the risk of being sued more than once for the same wrong. Bower, Res Judicata
(1924), pp.1–2. Even a technically separate cause of action may now be barred by
judgment if it could, with reasonable diligence, have been asserted in the original proceed-
ings: para.22–3, above.
1180 Extinction of Liability in Tort
31
Reeves v Butcher [1891] 2 Q.B. 509 at 511 per Lindley L.J. The day on which the cause
of action arose is excluded: Marren v Dawson, Bentley & Co Ltd [1961] 2 Q.B. 135. If the
last day of the period is one when court offices are closed the claimant has until the first
following day when they are open (Kaur v S. Russell & Sons [1973] 1 Q.B. 336) and
proceedings are started when the claim form is received in court even if there is delay in
its issue: Barnes v St Helens MBC [2006] EWCA Civ 1372; [2007] 1 W.L.R. 879.
32
Preston and Newsom, Limitation of Actions, 3rd edn, p.4, citing Lord Dunedin in Board
of Trade v Cayzer, Irvine & Co Ltd [1927] A.C. 610 at 617. Or in terms of pleading,
‘‘Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the court’’: Read v Brown (1888) 22 Q.B.D. 128 at 131
per Lord Esher M.R.
33
Our theory of judicial decisions may have a curious impact here. Suppose D is negligent
in advising C in 1995, at a time when the settled view of the law is that D is immune from
suit in such a case. In July 2000 the HL departs from this view. C issues proceedings in
May 2006, just within the six-year period from July 2000, and argues that the immunity
was removed from July 2000 and that was the first point at which C could sue D. C’s claim
is dismissed on the basis that the limitation period expired in 2001: the basic rule is that
when the court ‘‘changes’’ the law it declares that the ‘‘new’’ law it states has always been
the law: Awoyomi v Radford [2007] EWHC 1671; [2008] Q.B. 793. A claim under the
Francovich principle for failure by the UK to implement a EU Directive arises at the time
of the relevant injury to the claimant, even though the failure may not be apparent until his
rights against the wrongdoer prove illusory: Spencer v Secretary of State for Work and
Pensions [2008] EWCA Civ 750; [2009] Q.B. 358.
34
Preston and Newsom, Limitation of Actions, 3rd edn, p.4, referring to dicta of Vaughan
Williams L.J. in Thomson v Clanmorris [1900] 1 Ch. 718 at 728–729.
35
Sevcon Ltd v Lucas CAV Ltd [1986] 1 W.L.R. 462 (sealing of patent necessary before
action could be brought).
36
Pratt v Swaine (1828) B. & C. 285. The principle was laid down in Murray v East India
Co (1821) 5 B. & Ald. 204, which, however, was not an action in tort.
37
Musurus Bey v Gadban [1894] 2 Q.B. 352.
38
Rhodes v Smethurst (1838) 4 M. & W. 42; (1840) 6 M. & W. 351.
1182 Extinction of Liability in Tort
B. Latent Damage
26–9 When the tort is actionable per se, as in trespass and libel, time
begins to run, in general, at the moment the wrongful act was
committed, whether the injured party knows of it or not, provided
there is no fraudulent concealment.43 This applies though the result-
ing damage does not occur or is not discovered until a later date, for
such damage is not a new cause of action, but is merely an incident
of the other.44 On the other hand, where the tort is actionable only
upon proof of actual damage, as in nuisance, deceit and negligence,
time runs from the damage.45 If, therefore, you were injured by
drinking my negligently manufactured ginger beer more than three
years after it was made you could bring an action against me without
asking the court to exercise its special dispensing powers for per-
sonal injury cases, because no cause of action would have accrued
to you until you drank. This rule of negligence contrasts with that
applicable to actions for breach of contract, where time runs from
the date of the breach, so that a claimant whose contractual claim is
time-barred may yet save himself by asserting a concurrent right of
action for tortious negligence. So, if a defective part is supplied for
a chemical plant time starts to run for the purpose of the Sale of
Goods Act as soon as the part is delivered even though its defective
condition is then unknown. However, for the purposes of a claim in
negligence it does not run until the part fails and causes damage to
the plant.46 Damage may, however, be suffered, even for the pur-
poses of tort, before it is apparent to the claimant. In Bell v Peter
39
R.B. Policies at Lloyd’s v Butler [1950] 1 K.B. 76.
40
See para.26–18, below.
41
Leaving aside those cases, like continuing trespass, where there is a continuing wrong and
a fresh cause of action arises each day. For an example from another context see
Phonographic Performance Ltd v DTI [2004] EWHC 1795; [2004] 1 W.L.R. 2893.
42
Khan v R.M. Falvey & Co [2002] EWCA Civ 400; [2002] P.N.L.R. 28. On this basis, in
a case of negligence in not proceeding with a claim time may begin to run before the claim
is struck out for delay once it becomes at risk of suffering that fate.
43
Granger v George (1826) 5 B. & C. 149.
44
Howell v Young (1826) 5 B. & C. 259.
45
Backhouse v Bonomi (1861) 9 H.L.C. 503.
46
See Nitrigin Eireann Teoranta v Inco Alloys Ltd [1992] 1 W.L.R. 498.
Limitation 1183
Browne & Co47 a husband and wife upon the breakdown of their
marriage in 1978 agreed that the matrimonial home should be
transferred into the wife’s name but that the husband’s interest in the
proceeds of sale should be protected by some legal mechanism. No
steps were in fact taken by the husband’s solicitors to effect this
protection and eight years later the wife sold the house and spent all
the proceeds. Even on the basis that the husband had concurrent
claims in contract and tort against his solicitors, time began to run
for the tort claim at the latest when, after the completion of the
transfer, a competent solicitor would have taken steps to protect the
husband’s interest, as by lodging a Land Registry caution against the
property. It was true that the situation was remediable until sale of
the property, but the ability to remedy it depended upon knowledge
of the problem on the part of the husband and this was more
theoretical than real.
However, there must be a present loss, not merely the con- 26–10
tingency of one at some time in the future. In Bell v Peter Browne
the claimant failed to get what he bargained for when the defendants
failed to put the protective mechanism in place, even though the loss
of his money when his wife spent the proceeds was a contingency
which had not then occurred. In Law Society v Sephton & Co,48 on
the other hand, the defendant between 1988 and 1995 wrongly
certified to the claimants compliance by a solicitor with the accounts
rules, which led to the claimants paying compensation to clients.49
The first claim on the compensation fund was made in July 1996 but
proceedings were issued in in May 2002, within six years of the first
claim but more than seven years after the last certification. The
House of Lords held that time did not begin to run until the first
claim on the compensation fund was made. Even though it was true
that had the claimants known the truth they would have exercised
their statutory powers of intervention in the practice and prevented
misappropriation of funds, there had been no transaction changing
the claimants’ legal position or diminishing their assets. Similarly,
time would not begin to run in respect of advice given on a personal
guarantee (as opposed to one secured on the guarantor’s property50)
until the lender made a call on the guarantee,51 though it is hard to
see why the guarantor who gives no security should be in a better
47
[1990] 2 Q.B. 495.
48
[2006] UKHL 22; [2006] 2 A.C. 543 at [45]. See also Wardley Australia Ltd v Western
Australia (1992) 175 C.L.R. 514.
49
For the cause of action see Law Society v KPMG Peat Marwick [2000] 1 W.L.R. 1921,
para.11–25, above. Strictly, the payment of compensation in Sephton was a public law
matter but nothing turns on this.
50
Forster v Outred & Co [1982] 1 W.L.R. 86.
51
Axa Insurance Ltd v Akther & Darby [2009] EWCA Civ 1166 at [17]; Wardley Australia
Ltd v Western Australia, above, fn.48.
1184 Extinction of Liability in Tort
position against his adviser than one who does not.52 The line is of
course hard to draw. In Knapp v Ecclesiastical Insurance Group Plc
it was held that where a policy of insurance was voidable for non-
disclosure because of the broker’s negligence the cause of action
arose when the policy was effected, not at the later stage when it was
repudiated53 and this was approved in Sephton; but in Nykredit
Mortgage Bank Plc v Edward Erdman Group Ltd54 a valuer was
responsible for the claimant having made a loan on the basis of an
inadequate security. The issue was not limitation but when the cause
of action accrued for the purposes of interest on damages and on the
facts the borrower defaulted immediately and the cause of action in
respect of the inaccurate valuation was held to arise from the time of
the transaction or very soon thereafter. However, the House of Lords
was of the view that in general the question whether the lender had
suffered a loss could not be determined without taking account of
the value of the borrower’s covenant to repay. That might be
worthless (as on the facts); it might be of some, though uncertain,
value; or it might be perfectly adequate to protect the lender’s
interests. It seems that at least in the last case there would be no loss
at the time of the transaction even though the lender did not ‘‘get
what he paid for’’ from the valuer. Indeed if the borrower continued
to pay until the loan was discharged there never would be a loss.
Tempting though it is to equate these cases with that where a buyer
has received sub-standard goods for his money, this result shows
that the analogy cannot be pressed too far.55 The difficulty of
untangling the current concepts is demonstrated by Axa Insurance
Ltd v Akther & Darby.56 The assumed facts for the purposes of the
preliminary issue were that the defendants were in breach of duty to
NI (which had assigned its claims to Axa) in assessing the prospects
of success of legal claims for the support of which NI issued ATE
policies.57 Seven thousand-odd of these policies leading to £19
million of loss58 were issued more than six years before proceedings
were started. The majority of the Court of Appeal held that the cause
of action accrued when the policies were issued and that this was not
a case of a contingent liability.
52
‘‘Within the bounds of sense and reasonableness the policy of the law should be to
advance, rather than retard, the accrual of a cause of action. This is especially so if the law
provides parallel causes of action in contract and in tort in respect of the same conduct. The
disparity between the time when these parallel causes of action arise should be smaller,
rather than greater’’: Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd [1997] 1
W.L.R. 1627 at 1633..
53
[1998] P.N.L.R. 172.
54
[1997] 1 W.L.R. 1627.
55
Law Society v Sephton, above, fn.48, at [45].
56
[2009] EWCA Civ 1166.
57
See para.1–27, above.
58
The total size of the claim was £65 million: [2009] EWHC 635 (Comm); [2009] P.N.L.R.
25 at [3].
Limitation 1185
Unlike Sephton, this was a case where the claimants had entered into
a transaction as a result of information provided by the
defendants.
‘‘The most that can be said . . . is that the loss suffered by the
claimant insurers is contingent upon the claim, which is (ex
hypothesi) likely to fail, actually failing. But that does not make
the case a case of a ‘mere contingent liability’ because the
claimants have entered into a flawed transaction which they ought
not to have entered into. To my mind that is the damage which the
claimants have suffered and that occurred at the time of the
inception of the policies.’’60
59
At [61] per Arden L.J.
60
At [82] per Longmore L.J. See also Shore v Sedgwick Financial Services Ltd [2008]
EWCA Civ 863; [2008] P.N.L.R. 37; Pegasus Management Holdings v Ernst & Young
[2010] EWCA Civ 181.
61
At [160]. It may be observed that if the Law Commission’s proposals (para.26–26, below)
were implemented these problems would disappear because the base period of limitation
would run from the discoverability of the claim. Now there is an alternative, secondary
period on that basis which may or may not be available depending on the facts: see
below.
62
[1991] 1 A.C. 398, para.9–33, above.
1186 Extinction of Liability in Tort
been held to run before the loss was discoverable and it is arguable
that taking over a building at the end of construction is analogous to
entering into the transaction in cases like Bell v Peter Browne. On
the other hand, the Privy Council on an appeal from New Zealand
(where common law liability for defective buildings is more exten-
sive than it is here) accepted that classification of the loss as
economic pointed towards time running from the point where the
defect became apparent to an ordinarily observant owner,76 for it is
not until then that the value of the property is depreciated. However,
the decision is expressly made only in the context of the New
Zealand law governing defective buildings.77
26–13 Another provision of the Latent Damage Act 1986 may be yet
more flotsam left behind by the wreck of the earlier building cases
in Murphy. Property may be disposed of during the limitation period
and before the defect is discovered. In Pirelli the House of Lords
introduced the novel concept of ‘‘class limitation’’ whereby if time
began to run against an owner it also continued to run against his
successors in title. The House of Lords was not, however, directly
concerned with the question of whether such successors had claims
at all. If, after Murphy, the original owner’s claim has to be based
upon Hedley Byrne v Heller one would have thought that would be
a serious obstacle to a claim by a successor in title.78 However,
s.3(1) of the Latent Damage Act provides that:
‘‘[W]here—
(a) a cause of action (‘‘the original cause of action’’) has
accrued to any person in respect of any negligence to
which damage to any property in which he has an interest
is attributable (in whole or in part) and
(b) another person acquires an interest in that property after the
date on which the original cause of action accrued but
before the material facts about the damage have become
known to any person who, at the time when he first has
knowledge of those facts, has any interest in the
property;
a fresh cause of action in respect of that negligence shall accrue79
to that other person on the date on which he acquires his interest
in the property.’’
76
Invercargill CC v Hamlin [1996] A.C. 624.
77
Note, however, that Lord Nicholls, sitting as a judge of the Hong Kong Court of Final
Appeal (albeit dissenting) in Bank of East Asia Ltd v Tsien Wui Marble Factory Ltd 2000–1
H.K.C. 1 regarded Pirelli as outdated.
78
See para.11–25, above; but cf. Bryan v Maloney (1995) 128 A.L.R. 163.
79
Emphasis added. By s.3(2)(a) such a fresh cause of action, ‘‘shall be treated as if based on
breach of a duty of care at common law to the person to whom it accrues’’.
Limitation 1189
D. Fiduciary Obligations
26–15 We have seen that the law of limitation has been a fertile source
for the presentation of concurrent claims in contract and tort.94
87
Section 32(2). See Preface for complex case of two losses, one concealed, the other not.
88
Clearly a defendant can only conceal something he knows. As to whether there may be
concealment by failure to disclose see Williams v Fanshaw Porter and Hazelhurst [2004]
EWCA Civ 157; [2004] 1 W.L.R. 3185 at [29] and AIC Ltd v ITS Testing Services (UK)
Ltd [2006] EWCA Civ 1601; [2007] 1 Lloyd’s Rep 555 at [319].
89
Cave v Robinson Jarvis & Rolfe [2002] UKHL 18; [2003] 1 A.C. 184.
90
Sheldon v R.H.M. Outhwaite (Underwriting Agencies) Ltd [1996] A.C. 102. Logically this
applies even if the claim was statute-barred before the concealment took place.
91
It is assumed in this discussion that the wrongful dealing does not amount to theft. If it
does, time does not run because of the provisions of s.4: see below. Section 32 is not
applicable in the normal case of theft where the thief is unknown or untraceable: R.B.
Policies at Lloyd’s v Butler [1950] 1 K.B. 76.
92
This is an extension of the previous proviso: see the remarks of Lord Denning M.R. in
Eddis v Chichester Constable [1969] 2 Ch. 345 at 358.
93
It seems, therefore, that where a custodian knowingly commits conversion by sale to
innocent C and conceals this from the owner, C does not get the benefit of the proviso since
his purchase is contemporaneous with the fraud or concealment.
94
See para.1–8, above.
Limitation 1191
95
See para.1–11, above.
96
[2001] 1 W.L.R. 112.
97
The judge below held that the facts allegedly concealed by the defendants could have been
discovered by the claimants for the purposes of s.32 of the 1980 Act.
98
See also Coulthard v Disco Mix Club Ltd [2000] 1 W.L.R. 707.
99
There is a major international dimension to this in terms of art: see Law Commission
Consultation Paper No.151 (1998) §13.47.
1192 Extinction of Liability in Tort
to someone else, once six years have elapsed from the taking, not
only have I lost the right to sue either you or the person who bought
the goods from you, but he is in a position to deal with them as
absolute owner notwithstanding that at the time of the sale to him
you had no title which you could pass on to him. However, the Law
Reform Committee was troubled at the prospect of time running in
favour of a thief or receiver and we now have the further and rather
complicated provisions of s.4 of the 1980 Act. The effect of the
section is that time does not run against the owner in respect of the
theft100 of his chattel or any conversion ‘‘related to the theft’’, which
latter phrase means any subsequent conversion other than a purchase
in good faith.101 Thus if property is stolen and then sold by the thief
to X (who is aware of its origin) and then given by X to Y, the
owner’s rights of action against the thief and X and Y continue
indefinitely and his title will never be extinguished. However, the
occurrence of a good faith purchase starts time running against the
owner in favour of the good faith purchaser (and any converter from
him). After six years the owner will no longer be able to sue the
good faith purchaser or anyone who subsequently dealt with the
goods102 and his title to the goods will be extinguished. However, he
retains his right to sue the original thief and other converters who
preceded the good faith purchaser.103
F. Disabilities
26–17 One of the longest standing derogations from standard limitation
periods occurs where the claimant is under disability. If, on the date
when the right of action accrued, the person to whom it accrued was
under a disability, time does not begin to run until he ceases to be
under a disability or dies (whichever first occurs).104 For these
purposes, the law now recognises only two forms of disability,
infancy and lack of mental capacity (formerly unsoundness of
mind).105 Infancy presents no difficulty, for it means simply a person
under the age of 18.106 The question whether a person has the mental
100
Which includes fraud and blackmail: s.4(5)(b).
101
Any conversion following the theft is presumed to be related to the theft unless the
contrary is shown: s.4(4). A purchase in good faith may itself give the purchaser a good
title, but will by no means necessarily do so: para.17–22, above.
102
If this person is a thief, all the provisions of the section will apply over again vis-a-vis the
good faith purchaser, who is now the owner.
103
Section 4(1): ‘‘ . . . but if his title . . . is extinguished under section 3(2) . . . he may not
bring an action in respect of a theft preceding the loss of his title, unless the theft in
question preceded the conversion from which time began to run for the purposes of section
3(2).’’
104
Section 28(1).
105
Section 38(2).
106
In O’Driscoll v Dudley HA [1998] Lloyd’s Rep. Med. 210 the problems arose because of
the family’s mistaken belief that the age of majority was 21.
Limitation 1193
107
See para.4–9, above.
108
Section 28(1), (2). If the claimant is immediately mentally incapable by the tort itself he
is disabled when the cause of action accrues, for the law takes no account of parts of a day:
Kirby v Leather [1965] 2 Q.B. 367. Aliter if the incapacity, though caused by the tort,
comes on some days later. However, that might be a pointer towards the court’s exercising
its discretion under s.33 of the Act, para.26–20, below. Nor, if the right of action accrues
to disabled C1 who then dies and it passes to disabled C2 is any further extension of time
allowed in respect of C2’s disability: s.28(3).
109
This is the effect of s.28(1), which refers to the claimant’s ceasing to be under a disability.
See also Borrows v Ellison (1871) L.R. 6 Ex. 128.
110
Even where a claim is not time barred because of one of the qualifications discussed below
to the basic rule that it must be brought within three years of the accrual of the cause of
action, there may be an issue of which, if any, liability insurer is on risk. A common form
of cover applies to injury ‘‘occurring during the currency of the policy’’. In Bolton MBC
v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50; [2006] 1 W.L.R. 1492 G was
exposed to asbestos during the 1960s, when Bolton was insured by CU. G became fatally
ill around 1981, though malignancy was not apparent until 1990, at both of which times
Bolton was insured by MMI. MMI was liable to indemnify Bolton but CU was not—the
cause of the injury occurred during its cover but not the injury itself.
111
The 1975 Act was based upon the 20th Report of the Law Reform Committee, Cmnd. 5630
(1974). There is a review of the history of this matter in AB v MoD [2009] EWHC 1225
(QB).
112
It seems that this can now only refer to public nuisance: para.14–3, above. There may be
special periods for particular contexts. Thus claims by air accident passengers are subject
to a fixed two-year period under the Carriage by Air Act 1961 and associated legislation:
see Laroche v Spirit of Adventure (UK) Ltd [2009] EWCA Civ 12; [2009] 3 W.L.R.
351.
1194 Extinction of Liability in Tort
For a long while it was held that these words did not include
actions for intentional trespass to the person,115 and in this case the
basic six-year period of s.2 applied. As we shall shortly see,
although the basic period under the personal injury provisions is
shorter, the fact that the claim fell under s.2 was by no means
necessarily to the claimant’s advantage, because there could be no
extension of the period.116 However, in A v Hoare117 the House of
Lords reversed this view of the law so that the provisions of ss.11 to
14 and 33 now apply to trespass.118 The personal injury provisions
also include a case where the owner of a car is sued for allowing an
uninsured person to drive, even though he has not caused the
accident.119 The expression ‘‘personal injuries’’ includes any disease
and any impairment of a person’s physical or mental condition.120
This covers a claim based on failure to diagnose and treat learning
difficulties such as dyslexia121 and an unwanted pregnancy and
113
Consider the following Machiavellian plan. C, a litigant in person, sues for property loss
(extending over more than three years) and for personal injury on the basis of a tort for
which personal injury damages are not in fact recoverable. D submits to judgment for
damages to be assessed and then contends that his liability for the property loss is limited
to a three-year period: Vukelic v Hammersmith & Fulham LBC [2003] EWHC 188
(TCC).
114
If, therefore, the claimant claims damages for personal injuries and damage to property in
the same action both claims are governed by s.11.
115
Stubbings v Webb [1993] A.C. 498..
116
See s.33 (below).
117
[2008] UKHL 6; [2008] 1 A.C. 844. To similar effect (though divided): Stingel v Clark
[2006] HCA 37; 228 A.L.R. 229.
118
Presumably not to cases of purely technical battery where there is no harm at all beyond
the invasion of rights. The decision does not fit the words of the statute very well but the
law had got itself into a mess in the context of child abuse. If D was the employer of X,
who abused C, then under the previous regime D’s liability would be governed by the fixed
six-year period; hence C often sought to establish defects in D’s system of supervision to
turn the claim into one for negligence. In A v Hoare itself, however, the claim was a direct
one against a rapist, who had won a fortune on the National Lottery shortly before the end
of his sentence. The claimant’s case was allowed to proceed under s.33: [2008] EWHC
1573 (QB).
119
Norman v Ali [2000] R.T.R 107. For this liability see para.7–9, above; but it seems that a
claim against a solicitor for failure to pursue his client’s personal injury action is not
generally within the three-year period (though see Bennett v Greenland Houchen & Co
[1998] P.N.L.R. 458—solicitors’ negligence alleged to have caused depression).
120
Section 38(1). Where the injured person dies without commencing an action before the
expiry of the three-year period, then the period applicable to a claim by his estate under
the Law Reform (Miscellaneous Provisions) Act 1934 is three years from (1) the date of
death or (2) the date of the personal representative’s knowledge (see below) whichever is
the later.
121
Adams v Bracknell Forest BC [2004] UKHL 29; [2005] 1 A.C. 76.
Limitation 1195
131
Section 14(2). It follows that even a quite minor injury with no long-term effects of which
the claimant is then aware may justify the institution of proceedings: Albonetti v Wirral
MBC [2008] EWCA Civ 783.
132
Similarly with the closely comparable Irish legislation: Gough v Neary [2003] 3 I.R.
92.
133
[1997] P.I.Q.R. P235. See also Haward v Fawcetts [2006] UKHL 9; [2006] 1 W.L.R. 682
on the similar s.14A. Spargo has been said to be consistent with Haward: AB v MoD
[2009] EWHC 1225 (QB).
134
Griffin v Clwyd HA [2001] EWCA Civ 818; [2001] P.I.Q.R. P31; Corbin v Penfold
Metallising [2000] P.I.Q.R. P247.
135
Sniezek v Bundy (Letchworth) Ltd [2000] P.I.Q.R. P213.
Limitation 1197
‘‘I respectfully think that the notion of the test being partly
objective and partly subjective is somewhat confusing. Section
14(2) is a test for what counts as a significant injury. The material
to which that test applies is generally ‘subjective’ in the sense that
it is applied to what the claimant knows of his injury rather than
the injury as it actually was. Even then, his knowledge may have
to be supplemented with imputed ‘objective’ knowledge under
section 14(3). But the test itself is an entirely impersonal stan-
dard: not whether the claimant himself would have considered the
injury sufficiently serious to justify proceedings but whether he
would ‘reasonably’ have done so. You ask what the claimant
knew about the injury he had suffered, you add any knowledge
136
Broadley v Guy Clapham & Co [1994] 2 All E.R. 439; Dobbie v Medway HA [1994] 1
W.L.R. 1234, but if the defendant is charged with negligence by omission, the claimant
cannot have knowledge until he knows something could have been done: Forbes v
Wandsworth HA [1997] Q.B. 402.
137
Section 14(3).
138
Marston v BRB [1979] I.C.R. 124.
139
See McCafferty v Metropolitan Police Receiver [1977] 1 W.L.R. 1073.
140
[2008] UKHL 6; [2008] 1 A.C. 844 at [34]–[35]. The shift had in fact occurred earlier as
a result of Adams v Bracknell Forest BC [2004] UKHL 29; [2005] 1 A.C. 76: see e.g.
McCoubrey v MoD [2007] EWCA Civ 17; [2007] 1 W.L.R. 1544.
1198 Extinction of Liability in Tort
A reason for this shift is that even if the claimant fails on the date
of knowledge issue it has since 1975 been open to the court to
override the limitation period under s.33 and that is the right place
to deal with, for example, the question of the impact of the injury on
what the claimant could reasonably be expected to have done,143
though it should not, ‘‘be supposed that the exercise of the court’s
section 33 discretion will invariably replicate’’ the position that
prevailed under the former interpretation of s.14.144
If the claim is under the Fatal Accidents Act 1976 in respect of a
death caused by the defendant’s tort the time limit is found in s.12
of the 1980 Act. First, no action can be brought under the Fatal
Accidents Act unless the deceased himself could have maintained an
action at the date of his death.145 Subject, therefore, to the court’s
power to override the time limit,146 any potential right of action
under the Fatal Accidents Act will disappear three years after the
141
Cf. Baroness Hale, who had doubts on this issue, at [58]: ‘‘This does not deprive the word
‘reasonably’ of all meaning, because the test is still what the reasonable outsider would
expect of the claimant rather than what the claimant would expect of himself.’’
142
Section 14(3) dealing with the knowledge which the claimant might reasonably be
expected to acquire is, however, to some extent different: ‘‘You do not assume that a
person who has been blinded could reasonably have acquired knowledge by seeing things’’
(at [39]).
143
See at [45].
144
At [87] per Lord Brown.
145
Section 12(1).
146
See below. The court can override the time limit if the deceased’s own claim is barred by
s.11 but not if it was barred by any other statute, e.g. Carriage by Air Act 1961 Sch.1,
art.29 (two years from intended date of arrival at destination).
Limitation 1199
1. the length of, and reasons153 for, the delay154 on the part of the
claimant;
2. the effect of the delay upon the evidence in the case;
3. the conduct of the defendant after the cause of action arose,
including his response to the claimant’s reasonable request for
information;
4. the duration of any disability of the claimant arising after the
accrual of the cause of action155;
147
Section 11. By s.12(1): ‘‘where any such action by the injured person would have been
barred by the time limit in section 11 . . . no account shall be taken of the possibility of
that time limit being overridden under section 33.’’ Claimants under the Fatal Accidents
Act must therefore ask the court to override the time limit under s.33 if three years have
elapsed since the injury or the deceased’s knowledge.
148
Section 33(1).
149
Section 12(2). The question whether the injury was ‘‘significant’’ naturally has no applica-
tion for the purposes of the dependant’s knowledge.
150
Section 13. This is less significant than it might seem, because the dependants will
normally include children, against whom time would not run until majority.
151
Section 33(1). The actual term used in the Act is ‘‘disapply’’. ‘‘Parliament has now decided
that uncertain justice is preferable to certain injustice’’: Firman v Ellis [1978] Q.B. 886 at
911 per Ormrod L.J.
152
See para.26–18, above.
153
Which may include not only the express reasons given by the claimant, but also the
subconscious factors which may have prevented him from litigating: McCafferty v Metro-
politan Police Receiver [1977] 1 W.L.R. 1073.
154
Which means the delay after the primary limitation period has expired: Thompson v Brown
[1981] 1 W.L.R. 744 at 751; Donovan v Gwentoys Ltd [1990] 1 W.L.R. 472; McDonnell
v Walker [2009] EWCA Civ 1257; but prior delay is part of the ‘‘circumstances of the
case’’.
155
Cf. Kirby v Leather, para.26–17, above.
1200 Extinction of Liability in Tort
Furthermore:
156
Which means actual knowledge, not the deemed knowledge which may arise under s.14,
above: Eastman v London Country Bus Services, The Times, November 23, 1985.
157
Section 33(3). Legal advice is privileged, but the claimant may be interrogated as to
whether the advice was favourable or unfavourable: Jones v G.D. Searle & Co [1979] 1
W.L.R. 101.
158
Cmnd. 5630, paras 38, 56 and 57. What Griffiths J. (a member of the Committee)
described in Finch v Francis (Unreported, July 2, 1977) as ‘‘the occasional hard case’’.
159
[1978] Q.B. 886.
160
Thompson v Brown [1981] 1 W.L.R. 744; Horton v Sadler [2006] UKHL 27; [2007] 1 A.C.
307.
161
Walkley v Precision Forgings Ltd [1979] 1 W.L.R. 606 held that if the claimant issues
proceedings in time but fails to serve them or the claim is dismissed for want of
prosecution there is no discretion under s.33 because he is not then prejudiced at all by the
primary limitation provisions of the Act but by his dilatoriness or that of his advisers. But
Walkley was departed from in Horton v Sadler, above, fn.160. The primary limitation
periods do prejudice him in respect of his second action, which is what counts.
162
Donovan v Gwentoys Ltd [1990] 1 W.L.R. 472; Horton v Sadler, above, fn.160.
163
Nash v Eli Lilly & Co [1993] 1 W.L.R. 782.
164
Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419 at [9].
165
Robinson v St Helens MBC [2002] EWCA Civ 1099; [2003] P.I.Q.R. P128 at [33]; Adams
v Bracknell Forest BC [2004] UKHL 29; [2005] 1 A.C. 76.
Limitation 1201
‘‘[T]he court should never lose sight of the public policy con-
siderations underlying the legislative regime governing limitation
periods. Public authorities, as well as commercial entities and
individuals, should not remain exposed indefinitely to the threat
of litigation based upon historic allegations. Fairness requires a
balancing of all relevant factors and their interests have to be
taken into account. There is a public interest in certainty and
finality and such considerations must not be lightly discounted,
especially not on the basis of sympathy for an individual liti-
gant—even where there is, or might be, a strong case on liability
and causation.’’166
166
TCD v Harrow Council [2008] EWHC 3048 (QB) at [35], where the proceedings were
commenced in 2006 and the last act complained of occurred in 1981; Kamar v Nightingale
[2007] EWHC 2982 (QB). The CA gave guidance on the exercise of the s.33 discretion in
child abuse cases in AB v Nugent Care Society [2009] EWCA Civ 827; [2010] P.I.Q.R.
P3.
167
Even though the ‘‘delay’’ referred to on s.33(3) is that occurring after the expiry of the
limitation period (fn.154, above) delay before then is relevant in determining the prejudice
to the defendant. ‘‘A defendant is always likely to be prejudiced by the dilatoriness of the
plaintiff in pursuing his claim . . . The fact that the law permits a plaintiff within prescribed
limits to disadvantage a defendant in this way does not mean that the defendant is not
prejudiced. It merely means that he is not in a position to complain of the prejudice he
suffers. Once a plaintiff allows a prescribed time limit to elapse, a defendant is no longer
subject to that disability’’: Donovan v Gwentoys Ltd, above, fn.162, at 479 per Lord Oliver.
Compare Thompson v Brown, above, fn.160, where, although the writ was issued outside
the limitation period, the claim had been notified at an early stage and negotiations
pursued.
168
Above, fn.165.
1202 Extinction of Liability in Tort
proceedings after the expiry of the limitation period will have had no
effect on his ability to defend.169 Although the fact that the defen-
dant is insured is a relevant consideration, it is wrong to take the line
that an insured defendant cannot establish prejudice, because only
his insurers will suffer and they are not parties to the action. The
correct approach is to treat the defendant and his insurers as a
composite unit: insurers should not be penalised by being made to
fight claims that an uninsured defendant would not be held bound to
fight.170 The fact that the claimant has a claim171 for professional
negligence against his solicitors in failing to issue proceedings172 is
a highly relevant circumstance,173 and prima facie it is the claimant,
and not the defendant, who should bear the consequences of their
default,174 though the court must bear in mind the difficulty, delay
and expense which may be caused to the claimant by having to
change horses in midstream175 and the fact that the solicitor will
have a greater knowledge of the weaknesses of the case than will the
defendant.176
26–22 ii. Maritime cases. The Merchant Shipping Act 1995177 fixes two
years as the period of limitation for damage to a vessel, her cargo,
freight or any property on board her, or for damages for loss of life
or personal injuries suffered by any person on board caused by the
fault of another vessel. The court may, however, extend this period
to such extent and upon such conditions as it thinks fit,178 but the
Act only applies to actions brought against ships other than that on
which the damage actually occurred, and, accordingly, where an
169
Cain v Francis [2008] EWCA Civ 1451; [2009] Q.B. 754. In such a case the limitation
defence is sometimes referred to as a ‘‘windfall’’. Cain is an extreme case: liability was
quickly admitted, interim payments were made and proceedings were issued only one day
late.
170
Kelly v Bastible (1996) 36 B.M.L.R. 51.
171
Cf. Das v Ganju [1999] P.I.Q.R. P260.
172
Donovan v Gwentoys Ltd, above, fn.162. Not every error is negligence, but the inference
arising from allowing a limitation period to expire is difficult to rebut. A solicitor must be
taken to know the simpler limitation provisions ‘‘off the cuff’’.
173
Thompson v Brown, above, fn.160, at 752; McDonnell v Walker [2009] EWCA Civ
1257.
174
Horton v Sadler [2006] UKHL 27; [2007] 1 A.C. 307 at [53] doubting Das v Ganju, above
on this point.
175
Thompson v Brown, above, fn.160, at 750; Firman v Ellis, above, fn.159. As has often been
pointed out, the real issue in such a case is not whether the claimant will recover damages,
but which liability insurer will pay them.
176
Hartley v Birmingham City DC [1992] 1 W.L.R. 968.
177
See s.190, re-enacting the Maritime Conventions Act 1911 s.8. A number of other statutes
provide their own periods of limitation, e.g. Carriage by Air Act 1961, Nuclear Installa-
tions Act 1965, Carriage by Railway Act 1972, Carriage by Road Act 1974.
178
Section 190. For a case on the exercise of the discretion, see The Alnwick [1965] P.
357.
Limitation 1203
179
The Niceto de Larrinaga [1966] P. 80.
180
See Ch.10, above.
181
Where property damage alone is sued for the limitation period is three years, not the usual
six: Limitation Act 1980 s.11A(4), inserted by the Consumer Protection Act 1987 Sch.1
Pt I para.1. The Latent Damage Act 1986 does not apply because this is not an action for
negligence, but by s.5(5) of the 1987 Act time runs from the date when the damage
occurred or the earliest time at which a person with an interest in the property had
knowledge of the material facts (as to which see subss.(6) and (7)).
182
This means the moment when it leaves the production process and entered a marketing
process in which it was offered to the public for use or consumption: O’Byrne v Sanofi
Pasteur MSD Ltd [2006] 1 W.L.R. 1606 (ECJ).
183
See Limitation Act 1980 ss.11A(3), 28(7) and 32(4A), all inserted by the Consumer
Protection Act 1987 Sch.1 Pt I.
184
This is modelled on s.33 and s.32A(2) directs the court to have regard to certain factors
comparable to those listed in s.33(3). See Steedman v BBC [2001] EWCA Civ 1534;
[2002] E.M.L.R. 17.
1204 Extinction of Liability in Tort
193
Reaffirmed in Trendtex Trading Corp v Credit Suisse [1982] A.C. 679.
194
Some reasons formerly given for the rule are either unconvincing or obsolete. Thus it was
said in argument in Anon. (1600) Godbolt 81 that damages in the assigned action are too
uncertain at the date of assignment, or that the assignee, ‘‘may be a man of great power,
who might procure a jury to give him greater damages’’.
195
See para.19–15, above.
196
Laurent v Sale & Co [1963] 1 W.L.R. 829.
197
For statutory transmission on death, see Ch.23, above. A liability to pay damages for
personal injuries passes under the Transfer of Undertakings legislation: para.8–9, above.
198
Ellis v Torrington [1920] 1 K.B. 399.
199
[1920] 1 K.B. 399 at 412–413 per Scrutton L.J.
200
See the comments of Lord Denning M.R. in the Court of Appeal in Trendtex Trading Corp
v Credit Suisse [1980] Q.B. 657.
201
[1982] A.C. 679; Brownton Ltd v Edward Moore Inbucon Ltd [1985] 3 All E.R. 499,
another contract case; but see Lloyd L.J. at 509, whose statement of the principle of the
Trendtex case applies to contract and tort alike. In 24 Seven Utility Services Ltd v Rosekey
Ltd, February 18, 2004 (QB) an assignment of a property damage claim by the owner to
its maintenance contractor was upheld; and see Khan v R.M. Falvey & Co [2002] EWCA
Civ 400; [2002] P.N.L.R. 28 at [28].
1206 Extinction of Liability in Tort
B. Judgment
26–29 No such problems arise with regard to the assignment of a
judgment in an action for tort. If the judgment has already been
given, the rights of the creditor are assignable like any other debt.207
Similarly, a person may assign the fruits of an action yet to be
commenced for this is no more than the assignment of property to be
202
The action was an attempt by the assignor to set aside the assignment, when a settlement
of the assigned claim produced some 10 times what the assignor had sold it for. The
agreement was in fact champertous because its purpose was not merely to enable the
assignees to recoup their losses in financing the abortive deal made by the assignors with
the contract breaker, but to allow them to sell the claim to a third party and divide the
spoils. On the facts, however, the proper law of the agreement was Swiss.
203
There are essentially the facts of the Trendtex case with a change in the cause of action and
the removal of the champertous element; but suppose the claim is for fraudulent mis-
representation? Cf. Turner L.J. in De Hoghton v Money (1866) L.R. 2 Ch.App. 164 at 166.
No objection seems to have been made to the assignment of the tort claim in Axa Insurance
Ltd v Akther & Darby [2009] EWCA Civ 1166, though it seems that the assignor insurer
had been owned by Winthertur, which was acquired by Axa. See also Auckland City
Council as Assignee of Body Corporate 16113 v Auckland City Council [2008] 1 N.Z.L.R.
838.
204
Grovewood Holdings Plc v James Cappel & Co Ltd [1995] Ch. 80 at 86; Norglen Ltd v
Reeds Rains Prudential Ltd [1999] 2 A.C. 1.
205
Ramsey v Hartley [1977] 1 WLR 686. There is a full review of the law in Empire
Resolution Ltd v MPW Insurance Brokers Ltd, February 23, 1999 (TCC).
206
Lord Roskill in the Trendtex case at 702 refers to the principle that, ‘‘causes of action
which were essentially personal in their character, such as claims for defamation and
personal injury, were incapable of assignment’’ but he is speaking in terms of the law 80
years ago and his general point is that the law of maintenance was then more severe. In the
Court of Appeal in the Trendtex case ([1980] Q.B. 629) Lord Denning M.R. and Oliver J.,
who would have abandoned the ‘‘bare right of action’’ approach altogether, would have
maintained a rule against the assignability of ‘‘personal tort’’ claims. It seems that if A
makes a voluntary payment to B to compensate B for loss caused by C, A may take a valid
assignment of B’s claim in tort against C: Esso Petroleum Co Ltd v Hall Russell & Co Ltd
[1988] 3 W.L.R. 730 at 738.
207
Carrington v Harway (1662) 1 Keb. 803; Goodman v Robinson (1886) 18 Q.B.D. 332.
Assignment of Right of Action in Tort 1207
C. Subrogation210
The commonest example of subrogation in this connection is in 26–30
the law of insurance. An insurance company which has compen-
sated a policyholder under an indemnity insurance policy stands in
his shoes with regard to his claims against the person who caused
the injury. Hence if A by negligent driving of his car damages B’s
car, and the X company, with whom B is insured, compensates him,
the X company can exploit B’s action for negligence against A.211
The payment by the insurer under the policy does not provide the
tortfeasor with a defence to a claim by the insured,212 but if the latter
recovers damages they are subject to a proprietary lien or charge in
favour of the insurer.213
6. INSOLVENCY
A. Insolvency of Defendant
The original rule was that a claim for unliquidated damages in tort 26–31
was not provable as a bankruptcy debt so that the claim remained
alive against the bankrupt (who might acquire assets after his dis-
charge) and liability did not pass to his trustee.214 A similar principle
applied to the winding-up of an insolvent company, though since the
company would generally then cease to exist there was no equiva-
lent to the personal liability of the individual bankrupt. Now, by the
208
[1912] 3 K.B. 474.
209
Cohen v Mitchell (1890) 25 Q.B.D. 262 can also be supported on this ground, although
other reasons were given for the decision.
210
For a statement of the principle, see Castellain v Preston (1883) 11 Q.B.D. 380 at 387 per
Brett L.J.; Burnand v Rodocanachi (1882) 7 App. Cas. 333 at 339 per Lord Blackburn;
Morris v Ford Motor Co [1973] Q.B. 792.
211
See para.1–20, above, for the former ‘‘knock for knock’’ agreement. In Lister v Romford
Ice and Cold Storage Co Ltd [1957] A.C. 555 the action was in fact brought by the
employer’s insurers, and the employers themselves were not consulted about the action:
[1956] 2 Q.B. 180 at 185 per Denning L.J. Normally the action is brought in the name of
the insured, but if there has been an assignment which complies with the requirements of
the Law of Property Act 1925 s.136, the insurer can bring the action in his own name:
Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 Q.B. 101 at
121–122 per Roskill J. Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1988] 3 W.L.R.
730 at 738 per Lord Goff.
212
See para.1–19, above.
213
Lord Napier and Ettrick v Hunter [1993] A.C. 713.
214
Tort claims became provable against the insolvent estate of a deceased person by the Law
Reform (Miscellaneous Provisions) Act 1934 s.1(1)(b).
1208 Extinction of Liability in Tort
215
Replacing equivalent provisions of the Insolvency Act 1985.
216
See s.382. By subs.(2): ‘‘in determining . . . whether any liability in tort is a bankruptcy
debt, the bankrupt is deemed to become subject to that liability by reason of an obligation
incurred at the time when the cause of action accrued.’’
217
Which may be on order of the court or by mere passage of time (now generally one
year).
218
Law Society v Shah [2007] EWHC 2841 (Ch); [2009] Ch. 223. The Third Parties (Rights
Against Insurers) Act 2010 will replace the 1930 Act and among other things will enable
the claimant to bring proceedings directly against the insurer in which he may establish the
insured’s liability.
219
Section 281(5). See also Road Traffic Act 1988 s.153.
220
To a very large extent the Rules correspond closely with the provisions for individual
insolvency in the Insolvency Act.
221
Potential future claims are not provable: Re T & N Ltd [2005] EWHC 2870 (Ch); [2006]
1 W.L.R. 1728 (potential asbestos claims).
222
Subject to a power in the court to restore the company to the register within six years:
Companies Act 2006 s.1030.
223
This will change under the 2010 Act, since liability can be established directly against the
insurer. Cf. Law Society v Shah, above, fn.218.
224
Neatly illustrated by Firma C-Trade SA v Newcastle Protection and Indemnity Association
[1991] 2 A.C. 1 (‘‘pay to be paid’’ clause in rules of Marine P. & I. Club).
225
Generally within six years but no time limit where a claim for personal injuries is brought:
Companies Act 2006 s.1030.
Insolvency 1209
B. Insolvency of Claimant
Under the Insolvency Act the bankrupt’s property226 forms, with 26–32
certain exceptions, his estate, available for distribution among credi-
tors. If the injury is a purely personal one, like general damages for
libel, the right of action for it remains exercisable by the injured
party himself and does not pass to his trustee in bankruptcy but
when the tort is to property, for example conversion of goods, then
the right to sue for it passes to the trustee, who can sell or assign it
to anyone as he, in his discretion thinks fit. In some cases the claim
is a ‘‘hybrid’’ one, for example a case of personal injury may involve
damages for loss of amenity and for loss of earnings. Since there is
only one cause of action and it includes a claim for ‘‘property’’, the
whole claim passes to the trustee227 but if the latter brings proceed-
ings he holds any damages representing the purely personal loss on
trust for the bankrupt.228
226
Defined in s.436 to include ‘‘things in action’’.
227
In the case of statutory discrimination claims the claimant may pursue the personal
element of the claim in his own right: Khan v Trident Safeguards Ltd [2004] EWCA Civ
624; [2004] I.R.L.R. 961.
228
Ord v Upton [2000] Ch. 352. For an example of the practical difficulties facing the
bankrupt in these circumstances see Kaberry v Freethcartwright [2003] EWCA Civ 1077;
[2003] B.P.I.R. 1144. It should not be assumed that in all circumstances a claim for
financial loss is non-personal: Mulkerrins v Price Waterhouse Coopers [2003] UKHL 41;
[2003] 1 W.L.R. 1937.
INDEX
1211
1212 Index
Defamation—cont. Defamation—cont.
jury trial, 12–70 reference to claimant
justification (truth) class, defamation of, 12–21
generally, 12–26—12–29 generally, 12–19—12–21
pleading, 12–28 identification, 12–19
proof, 12–28 Reynolds privilege
Rehabilitation of Offenders Act 1974, difference from classical common law
12–30 privilege, 12–54
true in substance, 12–27, 12–28 generally, 12–53—12–55
libel reportage, 12–55
distinction from slander and requirements, 12–53
consequences, 12–4, 12–5 remedies, 12–68—12–71
limitation, 26–24 slander
malicious falsehood, and, 12–77 distinction from libel and
meaning of words consequences, 12–4
abuse, 12–17 exceptional cases actionable per se,
generally, 12–11—12–17 12–6—12–10
innuendo, 12–15, 12–16 generally, 12–3—12–9
judge and jury, function, 12–13 imputation of criminal offence, 12–7
‘‘ordinary sensible reader’’, 12–14 imputation of disease, 12–8
persons generally, 12–12 imputation of unchastity to female,
‘‘right thinking persons’’, 12–11 12–9
reputations protected, 12–18 imputation of unfitness or
misuse of private information, incompetence, 12–10
relationship with, 12–87 summary procedure, 12–70
Defective products
offer of amends
common law
Defamation Act 1996, 12–67
burden of proof, 10–6
generally, 12–66, 12–67
extension of subject-matter, 10–5
privacy and, 12–78,12–87
generally, 10–2—10–11
privilege
intermediate examination, 10–8
see Absolute privilege; Qualified
nature of loss, 10–9—10–11
privilege
persons liable, 10–3, 10–4
procedure, 12–68—12–70 possibility of alternative cause, 10–7
publication Consumer Protection Act 1987
distributors, 12–23 contributory negligence, 10–26
generally, 12–22—12–24 damage, 10–17
repetition, 12–24 defect, 10–18—10–22
qualified privilege defences, 10–23—10–25
see also Reynolds privilege development risks defence, 10–23
agents, malice and, 12–65 exclusion of liability, 10–27
common law, 12–47—12–59 generally, 10–12—10–28
Defamation Act 1996, Sch. 1, importance of, 10–29
12–60—12–62 instructions, 10–22
duty, 12–47—12–55 limitation, 10–28
generally, 12–45—12–65 non-standard products, 10–19
interest, 12–47—12–55 products, 10–16
malice, 12–63—12–65 standard products, 10–20, 10–21
media, and, 12–53—12–55 warnings, 10–22
public interest, and, 12–53— 12–55 who is liable, 10–14, 10–15
range of publication, 12–52 generally, 10–1—10–29
reality of interest and duty, 12–49 personal injury, 10–1
relevance, 12–51 Defence of property
statements privileged subject to generally, 25–28
explanation or contradiction, Defences
12–62 act of God, 25–28
statements privileged without assumption of risk
explanation or contradiction, see Volenti non fit injuria
12–61 consent, 25–2—25–5
statute, 12–60—12–62 duress, 25–37
trade protection societies, 12–50 false imprisonment, 4–19—4–31
1216 Index
Negligence—cont. Nuisance—cont.
omissions defences—cont.
see Duty of care no defence that it is due to many,
psychiatric harm 14–31
see Psychiatric harm twenty years’ prescription, 14–32
public bodies usefulness not a defence as such,
see Duty of care 14–30
trespass to the person and, 4–1, easements, 14–5
4–33—4–35 European Convention on Human Rights,
volenti non fit injuria 14–1, 14–15
see also Volenti non fit injuria generally, 14–1—14–44
generally, 25–6—25–13 highways
Negligent misstatement access to and from highway, 14–39
advice informally given, 11–24 actionable obstructions, 14–38
agents, 11–22 condition of, 14–42—14–44
contract relations, 11–21 damage from premises adjoining
contributory negligence, 11–31 highway, 14–40—14–41
damage
generally, 14–37—14–44
physical, 11–28
legislation and common law of nuisance,
disclaimers, 11–30
14–1
failure to speak, 11–23
parties
generally, 11–16—11–35
history, 11–16 acts of nature, 14–20—14–22
immunities, 11–29 creator of nuisance, 14–17
Lord Tenterden’s Act, 11–32 generally, 14–15—14–27
professionals, 11–18 landlord, 14–24
public bodies, 11–20 landlord covenanted to repair or has
public officers, 11–20 right to enter and repair, 14–27
purpose of communication, landlord has authorised nuisance,
11–25—11–27 14–25
range of persons to whom duty owed, landlord knew or ought to have known
11–25 of nuisance before letting, 14–26
reliance nuisances created by trespasser,
generally, 11–31 14–20—14–22
injury to persons not relying on occupier, 14–15, 14–18
statement, 11–33—11–35 persons lawfully on premises, 14–19
special relationships, 11–17 predecessor in title, 14–23
voluntariness, 11–19 private nuisance, 14–15
New Zealand public nuisance, 14–16
accident compensation, 1–40 ‘‘person aggrieved’’, 14–1
Nominal damages personal injuries, 14–3, 14–15
generally, 22–7 private nuisance, 14–4
Non natural user protection of the environment, 14–1
Rylands v Fletcher liability, public nuisance
15–10—15–11 action for damages, 14–3
Non pecuniary loss generally, 14–2—14–3
see also Damages
reasonableness
damages, 22–19—22–22
abnormal sensitivity, 14–9
Nuclear industry
strict liability, 15–24 extent of harm, 14–7
Nuisance generally, 14–6—14–12
abatement, 22–47 limits to protection, 14–10
damage, 14–3, 14–28 malice, 14–12
defences nature of locality, 14–7
coming to nuisance no defence, 14–29 temporary injury, 14–11
conduct permitted by statute, utility of defendant’s conduct, 14–8
14–34—14–35 standard of liability, 14–13—14–14
consent of claimant, 14–36 statutory nuisance, 14–1
contributory negligence, 14–36
generally, 14–29—14–36 Obligations, law of
jus tertii, 14–33 generally, 1–14
Index 1221