Introduction to the law of torts

Dr Nicholas Orago

University of Nairobi

Second year class

Introduction

• Human interactions in the social sphere is bound to create conflicts of interest leading to
injury or losses to other people – road use; use of buildings; seeking professional help, sports
etc.
• When these injuries occur, society should have a mechanism of apportioning blame and
ensuring reparations.

• The law of tort is one such mechanism that has been developed by society to apportion
responsibility for losses that occur in society.

• It is aimed at:

- Preventing losses/injury from occurring – deterrence & injunctions;

- Allocation of responsibility & demand for reparations should loss occur – damages (to place P
in the situation he would have been had the loss/injury not occurred).

• Law of tort is majorly a fault-based system – in determining where loss should lie, the courts
will look at the person at fault.
• Strict liability torts, do still exist though (the Rule in Ryland v Fletcher).

• What is a tort? Derived from the Latin word tortus which meant “twisted”.

• Tort is a French word for “wrong” – borrowed from the Norman French language which was
once the language of the “King’s Courts”. Still used by the French: J’ai tort – I am wrong.
• Broad def. – it is the breach of a general duty fixed by civil law. Breach leads to
compensation/damages if harm/injury is caused.

• It is a private/civil wrong independent of contract for which the appropriate remedy is an

action for unliquidated damages.

• A tort is thus a civil wrong – provides a cause of action through which a person whose
interests are harmed can access a remedy though the civil courts (contradistinguished by
criminal wrongs in criminal law).

• The law of torts (Salmond) – a body of rules establishing specific injuries.

• What is the law of torts made up of? It is made up of disparate sets of causes of action – but
there is essentially a liability principle running through most of the causes of action. No
liability – no redress

• Harry street – the disparate sets of causes of action are linked by 3 basic questions:
- What interests does the law of torts protect? (body, property, reputation)
 - Against what general types of conducts are these interests protected? (malicious, intentional,
negligent or accidental?)

- Are there some special circumstances that provide defences?

• The law of torts thus envisages the balancing of the claimant’s protected interests vis-à-vis
the defendant’s breach of obligations (balancing corrective justice, righting a wrong v
distributive justice, fair allocation of assets & losses – Jolowicz, 5).

• Cane – three aspects of the law of torts: claimant’s protected interests; defendant’s conduct
sanctioned by law; and, a remedy for the wrong.

• An understanding of torts can be borrowed from the French Civil Code which provides for
tortious liability as follows:

- Article 1382: Every act which causes damage to another person obliges the person by whose
fault the damages has been caused to provide reparation;

- Article 1383: A person is responsible for the damage which has been caused not only by his
acts, but also though his negligence or imprudence.

• These generic set of principles & standards provide the judges with judicial discretion when
deciding specific cases (judges are guided by judicial precedents in the application of the
principles).

• Where is the law of torts derived? It is basically case-based (judge-made/common law), it

having defied codification in its entirety. However, certain principles of tort law have been
entrenched in Statutes.

• Therefore, a scholar hoping to understand the law of torts must be a friend of the casebooks.
• What is the law of torts based on?

- The inviolability of the human person, which is protected under international law and
national constitutional law.

- Protection of reputation, dignity & privacy of people;

- The sanctity of title -the protection of land and property (protected under international law
& constitutional law).

Groups & types of torts

• Can be categorised into following groups:

i) Intentional torts: wrongs w/c a person knew or ought to have known would occur through
their actions or inaction – battery, assault, false imprisonment
- Battery: the intentional infliction of a harmful or offensive contact on the person of another
(contact; offensive; harm). Intent to touch is necessary, but intent to harm is not.
- Assault: intentional act of creating apprehension of imminent harmful or offensive contact.
 - False imprisonment: Voluntary act of D with intent to confine P to a specific area, leading to
actual confinement of P (Merchant Privilege Rule – reasonable grounds; reasonable period of
time; reasonable manner).
- Intentional infliction of emotional distress: intentionally or recklessly causing severe
emotional distress to another by extreme & outrageous conduct
- Defence: Consent; self-defence; defence of property; necessity etc.

ii) Negligent torts

• Occurs due to the failure to perform a task with due diligence.

• Negligence: an act or omission that breaches a duty of care & is the actual or proximate
cause of the harm. Elements include:

- Duty: Did D not conform to a standard of care that would have prevented the unreasonable
risk?
- Breach: Did D’s conduct fall below the applicable standard?

- Damages: Did B suffer harm?

- Causation: Did D’s failure to meet the applicable standards of care cause P’s harm?

iii) Strict liability torts

Are torts for which a person is legally responsible for the loss/damage occasioned to another by
his acts or omissions without any culpability (fault) on their part – the rule in Ryland v Fletcher;
product liability.
Entails the imposition of liability without the finding of a fault as against D. All P needs to prove is
that the an injury occurred & it was the D’s responsibility.

Law imposes strict liability to situations it considers to be inherently dangerous – people who
engage in particularly hazardous activities should bear the burden of greater risk of harm to
others (nature of D’s activities).

It requires D to put in place strict measures so as not to injure other people (keeping a tiger in
your home/office – if it escapes & causes injury, you are liable). Discouraging recklessness.

Liability will be imposed even for unforeseeable harm, even if D had taken all reasonable
measures to avoid harm.

Courts do not favour strict liability & rarely hold people accountable for injury that would not
reasonably have been avoided.

Types of torts

• Trespass – to person; to land,

 • assault,

• battery,

• negligence,
• products liability,

• intentional infliction of emotional distress,

• nuisance,

• defamation.

The aims of the law of torts

i) Appeasement – public acknowledgment & accountability for the harm suffered by P (takes
away the need for revenge);

ii) Allocation of responsibilities for losses which are bound to occur in society;

iii) The granting of redress to persons who have suffered injury (damages/compensation);

iv) Prevention of foreseeable injury or the stopping of a continuing act (injunction);

v) Social control & the promotion of good social behaviour – deterrence;

Distinguishing btw torts & contracts

• The law of torts & the law of contract have different aims:

- Main aim of torts: the deterrence of behaviour which is likely to cause harm; & compensation
for harm suffered as a result of a breach of a duty fixed by law.

- Main aim of contracts: support & enforcement of contractual promises; deterrence of

breaches of contract.

i. Rights: Torts protects rights in rem (available against the whole world); while contracts
protects rights in personam (against a particular person). Progression in the law allowing 3rd
parties to enforce contracts made for their benefit.

ii. Remedies: torts aims to protect the status quo requiring P’s position not to be worsened by
D’s conduct. Remedy is thus to restore P to the position he would have been in had the tort
not been committed. Contract protect P’s expectations – D’s liability is for not making P’s
position better through the fulfilment of the contract. Remedy is thus to put P in a position
he would have been in if the contract was fulfilled.

iii. Damages: Unliquidated in torts; liquidated in contracts.

iv. Consent: Tort always inflicted against the consent of a person; contract is often founded on
the consent of a person.
 v. Codification: Law of torts is majorly uncodified; while law of contract is mostly codified.
vi. Fixation of rights & duties: fixed by law in torts; fixed by the parties in contracts (though
Statutes now fix some terms for parties – Sale of Goods Act; Law Society Conditions of Sale).

vii. Defences: necessity is a defence in torts; necessity is not a defence in contracts.

viii. Doctrine of vicarious liability: applies in torts; does not apply in contracts.
ix. Limitation of time: one year in tort; 3 years in contracts.

x. Position of minors: can sue/be sued in tort; mostly cannot sue/be sued (unless for contracts
for basic necessities).

Intersections btw torts & contracts

• There is a considerable overlap btw torts & contracts; & tortious liability can arise in
contractual relationships – concurrent liability for professionals e.g. doctor-patient; advocate-
client; banker-customer etc.

• P can sue under tort of negligence or under an implied contractual term for the exercise of
reasonable care & skill in the performance of the contract.

• In such cases where P is entitled to a remedy both in contracts and in tort, they can choose
the system that is more advantageous:

- Central Trust Co v Rafuse [1986];

- Henderson v Merrett Syndicates Ltd [1994];

- Barclays Bank Plc v Fairclough Buildings Ltd (No. 2) [1995];

- Holt v Payne Skillington [1995]

Central Trust Co v Rafuse [1986]

• Jack Rafuse & Franklyn Cordon were solicitors (lawyers) hired by a company which had
purchased shares in Stonehouse Motel & Restaurant Ltd.
• To finance the purchase, the solicitors were required to take out a mortgage on the assets of
Stonehouse.

• Mortgage was not done properly & 8yrs later, it was declared invalid by the Supreme Court of
Canada.

• P then brought an action against the solicitors for negligence & breach of contract.

• Ds argued that their liability was only in contracts & not in torts; & that the action was barred
by the Statute of limitation.
 • Question for the court: Can a solicitor be liable to a client in tort as well as in contract for
negligence in the performance of the professional services for which the solicitor has been
retained?

• Held: the duty in tort and in contract are two entirely separate duties and can be held
concurrently by a defendant.

Thake v Maurice [1986]

• Mr Thake was a railway guard who had 5 children already & was not comfortable financially.
• They wanted no more babies, but could not afford private sterilisation services for the wife,
there being a long waiting list at public hospitals.

• Mr Thake was advised to consider vasectomy & was introduced to Dr Maurice for the
procedure.

• Dr Maurice assured Thake that the procedure will be irreversible & failed to warn him that
the procedure was not 100% irreversible & could be undone by the natural processes of the
body – re-canalisation.

• The procedure reversed & Mrs Thake conceived, but ignored the signs of the pregnancy, only
discovering after 5 months that she was pregnant, at which appoint it was too late to abort –
leading to the birth of Samantha.

• They brought a case against Dr Maurice in tort (negligence) & breach of contract.

• Held: Failure to warn about the small risk of failure amounted to breach of duty of care
between surgeon and patient.

Distinguishing btw torts & criminal law

• Criminal law is aimed at punishing the offender & vindicating the public interest; while aim of
law of torts is to deter private wrongs & to compensate the victims of private wrong.

• There are however several overlaps btw the two:

- Criminal offences are likely to amount to a tort provided there is a victim who has suffered
damage/injury/loss – assault, battery, false imprisonment, defamation etc.

- Crime & tort can converge at the remedial stage –

a) in tort cases, courts can order exemplary/punitive damages to punish a defendant for
conduct which has caused extreme suffering to the Plaintiff;
b) In criminal cases, the courts may order compensation to the victims of crime in addition to
the sentence to the perpetrator (fine or imprisonment).
 - In some instances, criminal proceedings are auxiliary to tortious proceedings: Prosecution in
traffic offences leading to a civil action in damages with the conviction being evidence of the
negligence.

- Parties: Plaintiff & defendant in torts; Republic & accused in criminal law. (private
prosecution)
- Punishment: Tortfeasors pay damages; criminals go to prison/fines (victim compensation –
ancillary to the criminal process).

- Procedure: Civil procedure in torts; criminal procedure in criminal law.

- Intention: not always relevant in tort; always relevant in criminal law (“mens rea” – intending
mind).

- Defence: Necessity is a defence in torts; not a defence in criminal law ( R v Dudley & Stephens
[1884].

- Compromise: permissible in tort; not permissible in criminal law.

- Proceedings: conducted by injured person in tort; mostly conducted by State in criminal law
(office of the DPP), apart from private prosecutions.
- Codification: torts majorly uncodified; CL always codified ( nullum crimen sine lege – no crime
& punishment without pre-existing penal law).

- Minors: Minors below 7yrs tortuously liable; minors below 7yrs not criminally liable.

Intersection btw tort law and criminal law – Halford v Brookes [1991]

• Some commonalities and overlaps exist between the law of torts and criminal law.

• Claimant sought leave of court to bring an action for damages for the tragic death of her
daughter which happened 12yrs before, 1978.

• The daughter was the girlfriend to the step-son of Mr. Brookes. The girl had been found
murdered (stabbed & strangled) at a canal where she had gone with the boyfriend.

• The boy was charged with murder and confessed to stabbing the girl. He later withdrew the
confession & blamed the stepfather for the killing.

• Although evidence pointed to either the son, stepfather or both being responsible for the
death of the girl, the police only charged the son, the Court was forced to acquit.

• Despite sustained efforts to have the stepfather charged by the DPP & the emergence of new
evidence linking the stepfather to the killing, no action was taken. What next???????

A civil suit for damages

 • Proceedings instituted in a civil case for damages – cause of action: use of generic tort of
“trespass to the person” – intentional or deliberate act causing physical harm to a person.

• At trial, the HC ruled that the stepfather was 100% liable to pay damages for the death of the
girl, while the son had 20% liability (to make 20% contribution) for the damages.

• In hearing the civil case, the court relied on criminal law standard of proof (beyond
reasonable doubt).

• Was justice served – the mother was able to use a civil law cause of action to ensure
accountability for the death of her daughter.

• Advantages: no chance of a nolle; control of proceedings by the claimants; responsiveness to

the needs of the victims (full redress for injury).

A look at Halford using the 4 major components of the law of torts

• Protected interest: protection of physical integrity, including the right to life.

• Conduct sanctioned by law: life & physical integrity are sufficiently important to warrant
protection against malicious, intentional or negligent acts. In strict liability torts, liability is
apportioned for even unintentional or accidental acts.

• Availability of a defence: special circumstances like necessity or self-defence or provocation

• Remedy for the wrong: damages (compensation for loss of earnings; loss of expectation of
life; a claim for aggravated damages – damages for mental distressed caused by the manner
or motive with which the wrong was committed).

Ashley v Chief Constable of Sussex (2008)

• James Ashley shot dead by a police officer in a drug raid in his apartment. He was unarmed.
He and his flatmates were suspected of involvement in large scale drug deals. Only a small
amount of Cannabis was found.

• Officers had been warned that occupants could be armed & dangerous. Ashley was shot as
he approached an officer, unarmed.
• On trial, the officers were found not guilty & acquitted.

• Family brought a civil action on negligence & trespass to the person.

• Chief Constable conceded liability for negligence on a civil claim by the deceased’s family.

• The trespass to the person ground was, however contested by the Chief Constable., who
made an application to strike it out as an abuse of the court process.
 • Application to strike rejected by the majority of the HoL, who held that the family’s purpose
was to obtain a finding that the deceased was not merely a victim of police negligence, but
had been unlawfully killed.

• HoL thus held that they had pleaded a valid cause of action, though they wouldn’t recover
more damages than what they were entitled to under the main cause of action (negligence).

Negligence
Dr Nicholas Orago

University of Nairobi

Second year class

Introduction
• Two different conceptions of negligence:

- Negligence (state of mind): inadvertence by the defendant as to the consequences of his

behaviour;

- Negligence (a tort): the breach of a legal duty to take care which results in damage to the
claimant.

Definition of negligence - Blyth v Birmingham Water Works Co (1856)

- D incorporated by Statute 2 supply water to Birmingham.

- In laying the main water pipes, they were required by Statute to fix fire-plugs in each street &
maintain the same. D got no profits from maintaining the plugs.

- A fire-plug was constructed opposite P’s house using best known technology & with sound
materials in good condition.

- During severe winter (frost) the plug failed, causing flooding that damaged P’s house. P sued
the Water Works for negligence.

- Def. of negligence by Baron Alderson J as follows:

“Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do”.
“The defendants might have been liable for negligence, if, unintentionally, they omitted to do that
which a reasonable person would have done, or did that which a person taking reasonable
precautions would not have done”.

• Held: Severe frost could not have been contemplated by D as it had not occurred in
Birmingham in a long time. They could only be held liable for negligence if they had failed to
do what a reasonable person would do in the circumstances.

Modern definitions of negligence

• Mullis & Oliphant - Negligence consists in falling below the standard of care required in the
circumstances to protect others from the unreasonable risk of harm;

• Legal Information Institute - A failure to behave with the level of care that someone of
ordinary prudence would have exercised under the same circumstances. The behaviour
usually consists of actions, but can also consist of omissions when there is some duty to act.

Importance of the tort of negligence

• Negligence has become the most common area of tort law. It encompasses virtually all
unintentional wrongful conduct that injures others.
• The situations it covers includes: accidents on the road or at work; medical misadventure;
defective premises & professional advise, among others.

• Lord McMillan (Donoghue v Stevenson) – “the grounds of action may be as various & as
manifold as human errancy; and the conception of legal responsibility may develop in
adaptation to altering social conditions & standards. The criterion of judgment must adjust
and adapt itself to the changing circumstances of life. The categories of negligence are never
closed”.

4 Elements of the tort of negligence

• There must be a duty of care imposed by law for the protection of other individuals against
harm. Without the existence of this legal duty of care, a person is not liable in negligence.

- Function of duty – it polices the boundaries of negligence; determines whether the loss suffered is
actionable or not. Also determines protected interests.

• There must be a breach of the duty of care – the conduct of the defendant must fall short of
meeting the standards set by the legal duty of care.
 • Evidence of incurred harm has to be provided by the claimant – mostly bodily injury or injury
to property (courts generally reluctant to remedy economic loss). No harm-no tort (no
liability ‘in the air’).

- Negligence doesn’t impose a duty to act carefully, it is a duty not to inflict harm carelessly. Careless
driving only tortious if injury occurs.
• There must be a proximate causal relationship between the breach of duty and damages
inflicted by it – causation.

• D will not be liable for harm/injury that is different from that which they could reasonable
foresee or anticipate – remoteness of damage (Bourhilll v Young)

• The factor linking the four elements together is the concept of reasonable foreseeability.
(cartwheeling)

Points to prove in a negligence case

1. Does the defendant owe the plaintiff a legal duty of care?

2. Did the defendant breach the standard of care? – concerned w/t the standard of care
that ought to be adopted in the circumstances & whether D’s conduct fell below
those standards. Reasonable man (objective std)

3. Did the defendant’s actions cause the plaintiff’s injury or loss (harm)? Did the
plaintiff actually suffer harm or loss?

4. Was there a direct connection between the defendant’s actions and the plaintiff’s
injury or loss (causation)? Furthermore, was it reasonably foreseeable?
(Remoteness)

1. Duty of care

Defines the legal interests to be protected by the tort of negligence – marks out the boundaries
of what is or is not actionable (limits the situations where a D is liable for the injury caused to the
P).

Whether D has a duty to protect P from harm is a question of law to be determined by the court.

It will depend on the existence of a relationship of proximity between the plaintiff & defendant
(pre-existing relationship can create an affirmative duty to exercise reasonable care to protect
another person from harm – Annetts v Australian Stations Ltd ; Gifford v Strang Patrick
Stevedoring Ltd).

Overtime, courts have developed numerous rules creating & limiting a person’s duty of care to
others (it is now generally accepted that a person has a duty not to harm others or their
property).
Before 1932, there was no generalised tort of negligence; damage could only be awarded in
particular circumstances where the courts had determined that a duty should be owed – road
accidents.

Annetts v Australian Stations Ltd [2002]

• P’s 16yr old son James was employed by D based on assurance that he will be under constant
supervision.
• Employed in August 1986; 7 weeks later sent to work on his own, without supervision in a
remote location; disappeared in December 1986; Blood stained hat found in January; body
found in April 1987 in the desert.

• Parents were informed via phone & they suffered psychiatric illness. They sued D for the
illness.

• Question was, was there a duty of care owed to P’s?

• CJ: “The applicants, on the assumed facts, who themselves had responsibilities for the care of
their son, only agreed to permit him to go to work for the respondent after having made
inquiries of the respondent as to the arrangements that would be made for his safety and, in
particular, after being assured that he would be under constant supervision. Contrary to
those assurances, he was sent to work, alone, in a remote location. In those circumstances
there was a relationship between the applicants and the respondent of such a nature that it
was reasonable to require the respondent to have in contemplation the kind of injury to the
applicants that they suffered.”
• “In the present case, the assurance of the employer gave rise to a duty on its part to
supervise and take care of James so as to avoid inflicting harm on Mr and Mrs Annetts. The
consideration for their consent to his going to Flora Valley and working for the employer was
the assurance that the employer would supervise and take good care of him. They could have
sued in contract, but they elected to sue in negligence under the general law. The result is the
same. The assurance of the employer gave rise to a duty, the breach of which entitled Mr and
Mrs Annetts to sue for any damage suffered that was reasonably foreseeable in a general
way’.

Donoghue v Stevenson – negligence as a separate tort

• Facts: Ms D consumes ginger beer containing a decomposed snail which was not visible as
the bottle was opaque. Both D, her friend who purchased the beer or the shopkeeper were
not aware of the snail’s presence. She could not sue in contract due to the rule of privity.

- Issues: Could a negligent manufacturer of a defective article be liable in tort (owe a duty of
care) for injuries to another person in the absence of any contractual relationship between
them.
Case to be decided in the context of Winterbottom v Wright: where there was a contractual
relationship btw a manufacturer & another person, there would be no liability in tort to a 3 rd
party injured by the negligent performance of that contract, because the 3 rd party would be
seeking to take benefits of a contract that they were not privy (rule of privity of contracts).

• A manufacturer owes a duty to consumers and users of his products not to cause them harm.
“...a manufacturer of products, which he sells in such a form as to show that he intends them to
reach the ultimate consumer in the form in which they left him, with no reasonable possibility of
intermediate examination, and with the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an injury to the consumer's life or property,
o-----wes a duty to the consumer to take that reasonable care.“

• See, Grant v Australian Knitting Mills [1936] – G suffering dermatitis due to chemicals used by
D in the manufacture of woolly underpants. Duty of care owed & D was liable.

• Kenya Breweries Ltd v Godfrey Odoyo [2010] – Consumption of contaminated Tusker Malt
Larger.

The neighbour principle – Lord Atkin

• Lord Atkin – the law should recognise a general unifying principle that we owe a duty of
reasonable care to our neighbours.

“The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyers question, who is my neighbour? receives a restricted reply. You must
take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour [reasonable foreseeability]. Who, then, is my neighbour? The answer
seems to be – persons who are so closely & directly affected by my act [proximity] that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question.

• Reasonable foresight of harm to persons whom it is foreseeable are likely to be harmed by

my carelessness.

• Does the County Governments owe a duty of care to citizens who occupy dangerous houses?
Can they be sued?

Applicability of the “neighbour principle” to all negligence cases

• Home Office v Dorset Yatch Club – 7 Students from a borstal institution had escaped from the
custody of officers of the Home Office (went to sleep), stole a yatch from the Club and caused
damage to that and another yatch in the Club. A suit was brought against the Home Office for
damages for the actions of the students.

• Question: Did the officers & the Home Office owe a duty of care to Dorset capable of giving
rise to liability for damages?
• Court of 1st instance: there was, in law, a duty of care.
• CA (Denning): Home office should not be held liable for damages on grounds of public policy
–

“Many, many a time has a prisoner escaped - or been let out on parole - and done damage. But
there is never a case in our law books when the prison authorities have been liable for it. No
householder who has been burgled, no person who has been wounded by a criminal, has ever
recovered damages from the prison authorities; such as to find a place in the reports. The
householder has claimed on his insurance company. The injured man can now claim on the
compensation fund. None has claimed against the prison authorities. Should we alter all this: I
should be reluctant to do so if, by so doing, we should hamper all the good work being done by
our prison authorities”.

Home Office v Dorset – House of Lords

• Held that the Home Office was liable for the damage caused by the Students.
• Lord Reid: The time has come to regard the neighbour principle as articulated by Lord Atkin
to be applicable in all cases where there was no justification or valid explanation for its
exclusion.

• Applying the neighbour principle to the case, Lord Reid held as follows:

“the taking by the trainees of a nearby yacht and the causing of damage to the other yacht which
belonged to the respondents ought to have been foreseen by the borstal officers as likely to occur
if they failed to exercise proper control or supervision; in the particular circumstances the
officers prima facie owed a duty of care to the respondents”.
• Progressive trend towards regarding the law of negligence as depending on principles & not
on previous case authority.

Affirmation of the neighbour principle – Anns v Merton London Borough C

• Council approved a building plan for the construction of maisonettes. The base wall &
concrete foundation was to be 3 feet deep or more as per approval by the Council. Council
had power to inspect the foundation to bring it in conformity with the bylaws, but was not
under an obligation to do so (notice to be given at commencement & completion of
foundation).
• Maisonettes let out on 999yrs lease, with last conveyance in 1965.

• In 1970, structural defects were noticed leading to cracking of walls, slopping of floors &
other defects.
• In 1972, Plaintiffs claimed against owners & Council due to the inadequate depth of the
foundation (2 feet 6 inches) – damages for negligence against Council for the approval/lack of
inspection.

• 1st instance: case time-barred (cause of action arose on first sale – 6yrs).

• CA- Appeal allowed – cause of action arose when defects were discovered or ought to have
been discovered. Found in favour of tenants.

• Appeal to HL: Q – Was Council under a duty to the tenants to inspect?

• HL unanimously Held: Such a duty did exist & was not barred by limitation.

Lord Wilberforce – two-stage (Anns’ test)

“In order to determine that a duty of care arises in a particular situation, it is not necessary to
bring the facts of the situation within those of previous situations in which a duty of care has
been held to exist. Rather the question has to be approached in two stages:

- One has to ask whether, as between the wrongdoer & the person who has suffered the
damage, there is a sufficient relationship of proximity or neighbourhood, such that in the
reasonable contemplation of the former, carelessness on his part may be likely to cause
damage to the later – in which case a prima facie duty of care arises.

- If the first question is answered affirmatively, it is necessary to consider whether there were
any considerations which ought to negative or reduce or limit the scope of the duty or the
class of persons to whom it is owed or the damages it may give rise to.
• 1. Sufficient relationship of proximity based on foreseeability.

• 2. Reasons why there should not be a duty of care.

Adverse reactions to Anns – Yuen Kun Yeu v AG of Hong Kong (Privy Council)

• Yuen reinterpreted Ann.

• In Yuen, a Statutory Officer – The Commissioner of Deposit Taking Companies registered a
deposit taking company which went into liquidation, sinking the deposits of the claimants.
Allegation that Commissioner knew or ought to have known that the affairs of the Company
were being conducted fraudulently & speculatively, but failed to exercise proper supervision.
The Commissioner shouldn’t have registered the Company or should have revoked the
registration.

• Privy Council held for the Commissioner (no duty of care) b/c:

- Loss was economic in nature;

- Claimants were unascertained members of a huge class of depositors & had no special
relationship with the Commissioner;
- Loss inflicted by a 3rd party & there is no general duty to confer protection against such loss;
- Commissioner had no legal power or resources to control day-to-day running of companies so
as to deter fraud against determined crooks.

Yeun continued

• A court faithfully applying the Anns’ test would have found the existence of a duty of care on
the Commissioner on its first stage analysis, and might have then held that the mentioned
facts limited the duty in the second stage.
• The factors mention above should be taken into account in the first stage of determination of
the existence of duty of care – they were proper factors to be considered in determining
proximity.

• Lord Keith- … “the two stage test formulated by Lord Wilberforce to determine the existence
of duty of care in negligence has been elevated to a degree of importance greater than its
merits. It should be recognised that the two-stage test is not to be regarded in all
circumstances as a suitable guide to the existence of a duty of care. The expression ‘proximity
or neighbourhood’ was intended to be a composite test importing the whole concept of
necessary relationship btw the claimant & defendant described by Lord Atkin in Donoghue”.

Anns as the high water-mark of the neighbour principle

• Peabody Donation Funds v Sir Lindsay Parkinson & Co Ltd – Appellants engaged Respondents
as contractors in a housing development project for 245 houses. The site had a problem –
Clay soil expanded & contracted depending on the seasons, giving rise to movements. Advise
by architects that rigid type of drainage would be unsuitable, & proposed a flexible system of
drainage. Requirement for approval by the London Borough of Lambeth. Drainage were to be
constructed to the satisfaction of the Council & with materials approved by the Council.
• Agents of the Architects & Council (Mitchel & Marlow) agreed to alter some of the drainage
joints from flexible to rigid, but did not inform their principals. Council approved plan with
original flexible drainage. Drainage constructed incorporating the rigid drainage joints.
Drainage failed, necessitating a reconstruction & delay.

• Claim on negligence against council – knowing that rigid joints were being used and not
insisting on the installation of flexible joints to ensure proper drainage.

• 1st instance- Council found liable in negligence for failure to take steps to ensure installation
of flexible drainage as per the approved plan.
• Council appealed & CA reversed the finding of liability.

• Appeals to the HoL by the Peabody.

Peabody Donation Funds v Sir Lindsay Parkinson & Co Ltd

• Question- did council owe a duty to P to warn them that rigid joints were in use, & that this
would cost them economic loss in the foreseeable future?

• Lord Keith – warned against treating Anns’ statements as definitive in determining whether a
duty of care existed.

“The true question is whether the particular D owed a duty to the particular P, a duty of care
having the scope which is contended for, & whether he was in breach of that duty with
consequent loss to P.
- A relationship of proximity must exist before a duty of care arises, but the scope of duty must
be determined taking into account all the circumstances of the case.

- In determining the existence of duty of care, the judge must consider whether it is just &
reasonable to find that the defendant owed such a duty.
• Held: It was not fair & reasonable to impose liability on Council.

• Interesting question – Who was the Council’s duty of supervision owed to?

• HoL: The duty was not owed to the owners of the building to protect them from economic
loss. The provisions were “public health measures” & the purpose of the statutory duty was
to protect occupiers of the buildings and members of the public generally from dangers to
health that may result from defective drainage installations.
“It is sufficient to hold that Lambeth Council owed no duty to Peabody to activate their paragraph
15 powers, notwithstanding that they
might reasonably have foreseen that failure to do so would result
in economic loss to Peabody, because the purpose of avoiding such
loss was not one of the purposes for which these powers were
vested in them”.
The supervisory power subsists, not for the protection of the person in default, but for the
protection of other people.
• Other cases departing from Anns test: Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986];
Curran v Northern Ireland Co-ownership Housing Association Ltd[1987 ]; Murphy v Brentwood
District Council [1991] (overruled Anns).

Elements of duty of care (3-step test) – incremental approach

• Caparo industries plc v Dickman [1990]– Plaintiffs bought majority shares of a company based
on sneakily obtained audit report intended for shareholders (not outsiders) indicating that
the company was in good financial health. The company was actually in poor financial shape.
Plaintiffs sued the auditing firm (Dickman) for negligence in the preparation of the audit
reports.
• HoL held against Caparo – though it was reasonably foreseeable that outsiders might come
across the negligently prepared audit reports, Caparo & Dickman were not in a relationship of
proximity.

• Reasoning: it shouldn’t be the case that anyone who heard & relied on any stupid information
could sue in negligence – this may result in a floodgate of litigation.
i) Reasonable foreseeability of harm;

ii) The relationship of proximity between the defendant and the claimant

iii) The justice, fairness and reasonability of imposing liability on the defendant for his careless
action (public policy).

Cases that have adopted three-stage test for determining existence of duty of care

• Jones v Wright [1991];

• Punjab National Bank v De Bonville [1992];

• Ancell v McDermott & Another [1993];

• Marc Rich & Co. v Bishop Rock Marine [1994];

• Aiken v Stewart Wrightson Members Agency Ltd [1995];

• Chandler v Cape Plc [2012].

i) Reasonable foreseeability

L Atkin (D v S) - "You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour."

A mechanism that helps limit liability to the consequences of an act that could reasonably be
foreseen & not every single consequence that may follow.

Limits the types of plaintiffs & the types of risks/injuries.

Claims for negligence can only be successful if the both the plaintiff & the type of injury were
reasonably foreseeable (likely to occur) to the defendant (Cartwheel example).

Ross v Caunters [1980]; Whites v Jones [1995] – A solicitor giving negligent advise to testator
leading to a negligently written will that disadvantages a beneficiary. The beneficiary can sue the
solicitor because it is reasonably foreseeable that if a will is not properly prepared, a beneficiary
may be disinherited. This generates a duty.

Reasonable foreseeability – example

• A walks into a shopping mall & it is attacked by terrorists leading to A’s injury. Do the owners
owe her a duty & can she claim for damages for the injury?
 - Foreseeability of P: it is reasonably foreseeable that shoppers will come to the mall, so
owners must put in place sufficient measures for their safety & security.

- Foreseeability of risk of terrorist attack: Question, has there been such attacks previously or
threats of such attacks? Was it reasonably foreseeable that such attacks could happen for the
owners to put in place sufficient security measures to prevent it? Westgate taking into
account the Kenyan context?

Reasonable foreseeability: Bourhill v Young

• Y carelessly riding a motorcycle leading to a collision that kills him.

• B was in a tram 50ft from scene of accident & heard the crash, but did not see it. After
removal of Y’s body, B went to the seen of accident. She was 8 months pregnant & gave birth
to a stillborn baby & claimed it was due to nervous shock & stress caused by Y’s accident.
• Q- Did Y owe B a duty of care? Was it reasonably foreseeable to Y that his careless riding
would lead to injury to B?

• HoL denied that B was a reasonably foreseeable claimant.

Bourhill v Young – Lord Russell

“Can it be said that John Young could reasonably have anticipated that a person, situated as was the
appellant, would be affected by his proceeding towards Colinton at the speed at which he was
travelling? I think not. His road was clear of pedestrians. The appellant was not within his vision, but
was standing behind the solid barrier of the tramcar. His speed in no way endangered her. In these
circumstances I am unable to see how he could reasonably anticipate that, if he came into collision
with a vehicle coming across the tramcar into Glenlockhart Road, the resultant noise would cause
physical injury by shock to a person standing behind the tramcar. In my opinion, he owed no duty to
the appellant, and was, therefore, not guilty of any negligence in relation to her”.

Reasonable foreseeability – Haley v London Electrical Board

• Appellant became blind as a result of accident.

• By use of his white stick, he could walk unaccompanied on the streets & avoid all ordinary
obstacles.
• D’s employees dug a trench on the pavement & placed an obstacle that tripped H leading to a
fall & head injury resulting into deafness.

• 1st instance & CA decided against him on a claim of negligence. Appeal to HoL.
 • D authorised by Public Utilities Street Works Act to dig trenches, which were to be
adequately fenced & guarded – no civil liability under the Act for breach of statutory duty.

• Evidence showed that a fence would have prevented the accident.

• HoL: D had a duty to put measures to guard against injury to blind & infirm persons – though
measures sufficiently warned persons with sight as to the trench, it was inadequate to warn
blind persons.

• Was it reasonably foreseeable that a blind person would walk the streets unaccompanied &
that measures were to be put in place to guard against injury to them by the trench?

“In deciding what is reasonably foreseeable one must have regard to common knowledge. We are all
accustomed to meeting blind people walking alone with their white sticks on city pavements. No
doubt there are many places open to the public where for one reason or another one would be
surprised to see a blind person walking alone but a city pavement is not one of them. And a
residential street cannot be different from any other. The blind people we meet must live somewhere
and most of them probably left their homes unaccompanied. It may seem surprising that blind
people can avoid ordinary obstacles so well as they do but we must take account of the facts. There is
evidence in this case about the number of blind people in London and it appears from Government
publications that the proportion in the whole country is near one in 500. By no means all are
sufficiently skilled or confident to venture out alone but the number who habitually do so must be
very large. I find it quite impossible to say that it is not reasonably foreseeable that a blind person
may pass along a particular pavement on a particular day”.

Palsgraf v. Long Island Railroad Co – Summary of facts by Cardozo J

• Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to

Rockaway Beach. A train stopped at the station, bound for another place. Two men ran
forward to catch it. One of the men reached the platform of the car without mishap, though
the train was already moving. The other man, carrying a package, jumped aboard, but
seemed unsteady as if about to fall. A guard on the car, who held the door open, reached
forward to help him in, and another guard on the platform pushed him from behind. In this
act, the package was dislodged, and fell upon the rails. It was a package of small size, about
fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there
was nothing in its appearance to give notice of its contents. The fireworks when they fell
exploded. The shock of the explosion threw down some scales at the other end of the
platform many feet away. The scales struck the plaintiff, causing injuries for which she now
sues.

Palsgraf v. Long Island Railroad Co

• 1st instance & intermediate appeal’s court found for the plaintiff

• Appeal to the NY CA – reversed the finding of liability on part of Ds b/c the relationship btw
the guards’ action & injury to P were too indirect to warrant a duty of care.
Case to be decided in the context of Winterbottom v Wright: where there was a contractual
relationship btw a manufacturer & another person, there would be no liability in tort to a 3 rd
party injured by the negligent performance of that contract, because the 3 rd party would be
seeking to take benefits of a contract that they were not privy (rule of privity of contracts).

• A manufacturer owes a duty to consumers and users of his products not to cause them harm.
“...a manufacturer of products, which he sells in such a form as to show that he intends them to
reach the ultimate consumer in the form in which they left him, with no reasonable possibility of
intermediate examination, and with the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an injury to the consumer's life or property,
o-----wes a duty to the consumer to take that reasonable care.“

• See, Grant v Australian Knitting Mills [1936] – G suffering dermatitis due to chemicals used by
D in the manufacture of woolly underpants. Duty of care owed & D was liable.
• Kenya Breweries Ltd v Godfrey Odoyo [2010] – Consumption of contaminated Tusker Malt
Larger.

The neighbour principle – Lord Atkin

• Lord Atkin – the law should recognise a general unifying principle that we owe a duty of
reasonable care to our neighbours.
“The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyers question, who is my neighbour? receives a restricted reply. You must
take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour [reasonable foreseeability]. Who, then, is my neighbour? The answer
seems to be – persons who are so closely & directly affected by my act [proximity] that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question.

• Reasonable foresight of harm to persons whom it is foreseeable are likely to be harmed by

my carelessness.

• Does the County Governments owe a duty of care to citizens who occupy dangerous houses?
Can they be sued?

Applicability of the “neighbour principle” to all negligence cases

• Home Office v Dorset Yatch Club – 7 Students from a borstal institution had escaped from the
custody of officers of the Home Office (went to sleep), stole a yatch from the Club and caused
damage to that and another yatch in the Club. A suit was brought against the Home Office for
damages for the actions of the students.
• Question: Did the officers & the Home Office owe a duty of care to Dorset capable of giving
rise to liability for damages?
• Court of 1st instance: there was, in law, a duty of care.
• CA (Denning): Home office should not be held liable for damages on grounds of public policy
–
“Many, many a time has a prisoner escaped - or been let out on parole - and done damage. But
there is never a case in our law books when the prison authorities have been liable for it. No
householder who has been burgled, no person who has been wounded by a criminal, has ever
recovered damages from the prison authorities; such as to find a place in the reports. The
householder has claimed on his insurance company. The injured man can now claim on the
compensation fund. None has claimed against the prison authorities. Should we alter all this: I
should be reluctant to do so if, by so doing, we should hamper all the good work being done by
our prison authorities”.

Home Office v Dorset – House of Lords

• Held that the Home Office was liable for the damage caused by the Students.
• Lord Reid: The time has come to regard the neighbour principle as articulated by Lord Atkin
to be applicable in all cases where there was no justification or valid explanation for its
exclusion.

• Applying the neighbour principle to the case, Lord Reid held as follows:
“the taking by the trainees of a nearby yacht and the causing of damage to the other yacht which
belonged to the respondents ought to have been foreseen by the borstal officers as likely to occur
if they failed to exercise proper control or supervision; in the particular circumstances the
officers prima facie owed a duty of care to the respondents”.

• Progressive trend towards regarding the law of negligence as depending on principles & not
 on previous case authority.

Affirmation of the neighbour principle – Anns v Merton London Borough C

• Council approved a building plan for the construction of maisonettes. The base wall &
concrete foundation was to be 3 feet deep or more as per approval by the Council. Council
had power to inspect the foundation to bring it in conformity with the bylaws, but was not
under an obligation to do so (notice to be given at commencement & completion of
foundation).
• Maisonettes let out on 999yrs lease, with last conveyance in 1965.

• In 1970, structural defects were noticed leading to cracking of walls, slopping of floors &
other defects.
• In 1972, Plaintiffs claimed against owners & Council due to the inadequate depth of the
foundation (2 feet 6 inches) – damages for negligence against Council for the approval/lack of
inspection.

• 1st instance: case time-barred (cause of action arose on first sale – 6yrs).

• CA- Appeal allowed – cause of action arose when defects were discovered or ought to have
been discovered. Found in favour of tenants.

• Appeal to HL: Q – Was Council under a duty to the tenants to inspect?

• HL unanimously Held: Such a duty did exist & was not barred by limitation.

Lord Wilberforce – two-stage (Anns’ test)

“In order to determine that a duty of care arises in a particular situation, it is not necessary to
bring the facts of the situation within those of previous situations in which a duty of care has
been held to exist. Rather the question has to be approached in two stages:

- One has to ask whether, as between the wrongdoer & the person who has suffered the
damage, there is a sufficient relationship of proximity or neighbourhood, such that in the
reasonable contemplation of the former, carelessness on his part may be likely to cause
damage to the later – in which case a prima facie duty of care arises.

- If the first question is answered affirmatively, it is necessary to consider whether there were
any considerations which ought to negative or reduce or limit the scope of the duty or the
class of persons to whom it is owed or the damages it may give rise to.
• 1. Sufficient relationship of proximity based on foreseeability.

• 2. Reasons why there should not be a duty of care.

Adverse reactions to Anns – Yuen Kun Yeu v AG of Hong Kong (Privy Council)

• Yuen reinterpreted Ann.

• In Yuen, a Statutory Officer – The Commissioner of Deposit Taking Companies registered a

deposit taking company which went into liquidation, sinking the deposits of the claimants.
Allegation that Commissioner knew or ought to have known that the affairs of the Company
were being conducted fraudulently & speculatively, but failed to exercise proper supervision.
The Commissioner shouldn’t have registered the Company or should have revoked the
registration.
• Privy Council held for the Commissioner (no duty of care) b/c:
- Loss was economic in nature;
- Claimants were unascertained members of a huge class of depositors & had no special
relationship with the Commissioner;

- Loss inflicted by a 3rd party & there is no general duty to confer protection against such loss;
- Commissioner had no legal power or resources to control day-to-day running of companies so
as to deter fraud against determined crooks.
Yeun continued

• A court faithfully applying the Anns’ test would have found the existence of a duty of care on
the Commissioner on its first stage analysis, and might have then held that the mentioned
facts limited the duty in the second stage.
• The factors mention above should be taken into account in the first stage of determination of
the existence of duty of care – they were proper factors to be considered in determining
proximity.

• Lord Keith- … “the two stage test formulated by Lord Wilberforce to determine the existence
of duty of care in negligence has been elevated to a degree of importance greater than its
merits. It should be recognised that the two-stage test is not to be regarded in all
circumstances as a suitable guide to the existence of a duty of care. The expression ‘proximity
or neighbourhood’ was intended to be a composite test importing the whole concept of
necessary relationship btw the claimant & defendant described by Lord Atkin in Donoghue”.

Anns as the high water-mark of the neighbour principle

• Peabody Donation Funds v Sir Lindsay Parkinson & Co Ltd – Appellants engaged Respondents
as contractors in a housing development project for 245 houses. The site had a problem –
Clay soil expanded & contracted depending on the seasons, giving rise to movements. Advise
by architects that rigid type of drainage would be unsuitable, & proposed a flexible system of
drainage. Requirement for approval by the London Borough of Lambeth. Drainage were to be
constructed to the satisfaction of the Council & with materials approved by the Council.
• Agents of the Architects & Council (Mitchel & Marlow) agreed to alter some of the drainage
joints from flexible to rigid, but did not inform their principals. Council approved plan with
original flexible drainage. Drainage constructed incorporating the rigid drainage joints.
Drainage failed, necessitating a reconstruction & delay.
• Claim on negligence against council – knowing that rigid joints were being used and not
insisting on the installation of flexible joints to ensure proper drainage.

• 1st instance- Council found liable in negligence for failure to take steps to ensure installation
of flexible drainage as per the approved plan.

• Council appealed & CA reversed the finding of liability.

• Appeals to the HoL by the Peabody.

Peabody Donation Funds v Sir Lindsay Parkinson & Co Ltd

• Question- did council owe a duty to P to warn them that rigid joints were in use, & that this
would cost them economic loss in the foreseeable future?

• Lord Keith – warned against treating Anns’ statements as definitive in determining whether a
duty of care existed.

“The true question is whether the particular D owed a duty to the particular P, a duty of care
having the scope which is contended for, & whether he was in breach of that duty with
consequent loss to P.
- A relationship of proximity must exist before a duty of care arises, but the scope of duty must
be determined taking into account all the circumstances of the case.

- In determining the existence of duty of care, the judge must consider whether it is just &
reasonable to find that the defendant owed such a duty.
• Held: It was not fair & reasonable to impose liability on Council.

• Interesting question – Who was the Council’s duty of supervision owed to?
• HoL: The duty was not owed to the owners of the building to protect them from economic
loss. The provisions were “public health measures” & the purpose of the statutory duty was
to protect occupiers of the buildings and members of the public generally from dangers to
health that may result from defective drainage installations.
“It is sufficient to hold that Lambeth Council owed no duty to Peabody to activate their paragraph
15 powers, notwithstanding that they
might reasonably have foreseen that failure to do so would result
in economic loss to Peabody, because the purpose of avoiding such
loss was not one of the purposes for which these powers were
vested in them”.
The supervisory power subsists, not for the protection of the person in default, but for the
protection of other people.
• Other cases departing from Anns test: Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986];
Curran v Northern Ireland Co-ownership Housing Association Ltd[1987 ]; Murphy v Brentwood
District Council [1991] (overruled Anns).

Elements of duty of care (3-step test) – incremental approach

• Caparo industries plc v Dickman [1990]– Plaintiffs bought majority shares of a company based
on sneakily obtained audit report intended for shareholders (not outsiders) indicating that
the company was in good financial health. The company was actually in poor financial shape.
Plaintiffs sued the auditing firm (Dickman) for negligence in the preparation of the audit
reports.
• HoL held against Caparo – though it was reasonably foreseeable that outsiders might come
across the negligently prepared audit reports, Caparo & Dickman were not in a relationship of
proximity.
• Reasoning: it shouldn’t be the case that anyone who heard & relied on any stupid information
could sue in negligence – this may result in a floodgate of litigation.
i) Reasonable foreseeability of harm;

ii) The relationship of proximity between the defendant and the claimant
iii) The justice, fairness and reasonability of imposing liability on the defendant for his careless
action (public policy).

Cases that have adopted three-stage test for determining existence of duty of care

• Jones v Wright [1991];

• Punjab National Bank v De Bonville [1992];

• Ancell v McDermott & Another [1993];

• Marc Rich & Co. v Bishop Rock Marine [1994];

• Aiken v Stewart Wrightson Members Agency Ltd [1995];

• Chandler v Cape Plc [2012].

i) Reasonable foreseeability

L Atkin (D v S) - "You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour."

A mechanism that helps limit liability to the consequences of an act that could reasonably be
foreseen & not every single consequence that may follow.

Limits the types of plaintiffs & the types of risks/injuries.

Claims for negligence can only be successful if the both the plaintiff & the type of injury were
reasonably foreseeable (likely to occur) to the defendant (Cartwheel example).
Ross v Caunters [1980]; Whites v Jones [1995] – A solicitor giving negligent advise to testator
leading to a negligently written will that disadvantages a beneficiary. The beneficiary can sue the
solicitor because it is reasonably foreseeable that if a will is not properly prepared, a beneficiary
may be disinherited. This generates a duty.

Reasonable foreseeability – example

• A walks into a shopping mall & it is attacked by terrorists leading to A’s injury. Do the owners
owe her a duty & can she claim for damages for the injury?
 - Foreseeability of P: it is reasonably foreseeable that shoppers will come to the mall, so
owners must put in place sufficient measures for their safety & security.

- Foreseeability of risk of terrorist attack: Question, has there been such attacks previously or
threats of such attacks? Was it reasonably foreseeable that such attacks could happen for the
owners to put in place sufficient security measures to prevent it? Westgate taking into
account the Kenyan context?

Reasonable foreseeability: Bourhill v Young

• Y carelessly riding a motorcycle leading to a collision that kills him.

• B was in a tram 50ft from scene of accident & heard the crash, but did not see it. After
removal of Y’s body, B went to the seen of accident. She was 8 months pregnant & gave birth
to a stillborn baby & claimed it was due to nervous shock & stress caused by Y’s accident.
• Q- Did Y owe B a duty of care? Was it reasonably foreseeable to Y that his careless riding
would lead to injury to B?
• HoL denied that B was a reasonably foreseeable claimant.

Bourhill v Young – Lord Russell

“Can it be said that John Young could reasonably have anticipated that a person, situated as was the
appellant, would be affected by his proceeding towards Colinton at the speed at which he was
travelling? I think not. His road was clear of pedestrians. The appellant was not within his vision, but
was standing behind the solid barrier of the tramcar. His speed in no way endangered her. In these
circumstances I am unable to see how he could reasonably anticipate that, if he came into collision
with a vehicle coming across the tramcar into Glenlockhart Road, the resultant noise would cause
physical injury by shock to a person standing behind the tramcar. In my opinion, he owed no duty to
the appellant, and was, therefore, not guilty of any negligence in relation to her”.

Reasonable foreseeability – Haley v London Electrical Board

• Appellant became blind as a result of accident.

• By use of his white stick, he could walk unaccompanied on the streets & avoid all ordinary
obstacles.

• D’s employees dug a trench on the pavement & placed an obstacle that tripped H leading to a
fall & head injury resulting into deafness.

• 1st instance & CA decided against him on a claim of negligence. Appeal to HoL.
 • D authorised by Public Utilities Street Works Act to dig trenches, which were to be
adequately fenced & guarded – no civil liability under the Act for breach of statutory duty.

• Evidence showed that a fence would have prevented the accident.

• HoL: D had a duty to put measures to guard against injury to blind & infirm persons – though
measures sufficiently warned persons with sight as to the trench, it was inadequate to warn
blind persons.

• Was it reasonably foreseeable that a blind person would walk the streets unaccompanied &
that measures were to be put in place to guard against injury to them by the trench?

“In deciding what is reasonably foreseeable one must have regard to common knowledge. We are all
accustomed to meeting blind people walking alone with their white sticks on city pavements. No
doubt there are many places open to the public where for one reason or another one would be
surprised to see a blind person walking alone but a city pavement is not one of them. And a
residential street cannot be different from any other. The blind people we meet must live somewhere
and most of them probably left their homes unaccompanied. It may seem surprising that blind
people can avoid ordinary obstacles so well as they do but we must take account of the facts. There is
evidence in this case about the number of blind people in London and it appears from Government
publications that the proportion in the whole country is near one in 500. By no means all are
sufficiently skilled or confident to venture out alone but the number who habitually do so must be
very large. I find it quite impossible to say that it is not reasonably foreseeable that a blind person
may pass along a particular pavement on a particular day”.

Palsgraf v. Long Island Railroad Co – Summary of facts by Cardozo J

• Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to
Rockaway Beach. A train stopped at the station, bound for another place. Two men ran
forward to catch it. One of the men reached the platform of the car without mishap, though
the train was already moving. The other man, carrying a package, jumped aboard, but
seemed unsteady as if about to fall. A guard on the car, who held the door open, reached
forward to help him in, and another guard on the platform pushed him from behind. In this
act, the package was dislodged, and fell upon the rails. It was a package of small size, about
fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there
was nothing in its appearance to give notice of its contents. The fireworks when they fell
exploded. The shock of the explosion threw down some scales at the other end of the
platform many feet away. The scales struck the plaintiff, causing injuries for which she now
sues.

Palsgraf v. Long Island Railroad Co

• 1st instance & intermediate appeal’s court found for the plaintiff

• Appeal to the NY CA – reversed the finding of liability on part of Ds b/c the relationship btw
the guards’ action & injury to P were too indirect to warrant a duty of care.
 • Cardozo – there was no way the guards would have known that the package was dangerous &
that pushing the passenger would have caused an explosion.

"there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in
newspaper would spread wreckage through the station. If the guard had thrown it down knowingly
and wilfully, he would not have threatened the plaintiff's safety, so far as appearances could warn
him."

• Without any perception that one's actions could harm someone, there could be no duty
towards that person, and therefore no negligence for which to impose liability.

• Negligent act not directed at her but the other passenger – only negligence you can sue for is
wrongful act that violates your own rights.

ii) Proximity

D definition – nearness in space, time or relationship

Proximity in negligence: D v S – proximity not confined to mere physical/spatial nearness, but

extends to such close & direct relations that the act complained of directly affects a person whom
the duty holder should know would be directly affected by his careless act.
It plays a prominent role in the determination of liability in economic losses occasioned by
negligent misstatements & omissions – for duty to exist, there must be a direct & close
relationship btw the parties.

Yuen – Privy Council: requirements for duty of care were a foreseeability of harm & a close &
 direct proximity. The Commissioner had no day to day contact with the deposit taker & no special
proximity to P. The whole concept of necessary relationship btw P & D was lacking.
It also plays a prominent role in the determination of duty of care in nervous shock or psychiatric
illness cases - Annetts v Australia Stations; Gifford v Grang Patrick Stevedoring Ltd [2003].

Gifford v Grang Patrick Stevedoring Ltd [2003]

• Ds employed Mr Gifford who was killed by a forklift vehicle at work. Negligence for the cause
of death was admitted by the driver of the vehicle & the company.

• Gifford’s children (19, 17 & 14) sued D for negligent infliction of psychiatric injury due to the
death of their father. They had not witnessed the accident, but were informed later on the
same day.
• Issue was whether D owed a duty of care to the children.

• Held: D owed a duty of care to the children – the relationship btw an employer & an
employee and btw an employee & his children were so close as to require the conclusion that
a duty was owed.
Ryan v Graham Barclay Oyster Ltd & Great Lakes Council (2002)
• In 1996 R consumed contaminated Oysters bought by a relative from Barclay & contacted
hepatitis A.
• The contamination was due to heavy rainfall that had polluted lake Wallis, where the Oysters
had been harvested, leading to the cancellation of Oyster harvesting for 4 days.
• R sued Barclay & GL Council (regulatory function including the protection of the environment)
for the harm suffered.

• Question – Did the GL Council owe a duty of care to R?

• It was held that there was no relationship of proximity between R & GL Council in relation to
the wholesomeness of the consumed Oysters – the duty was a general one for the
protection of the environment.
• McHugh J:

“To create a duty, the relationship between the public authority and persons affected by the conduct
of the authority must be ‘so closely and directly affected by its act or omission that it ought
reasonably to have them in contemplation as being so affected’ when it directs its mind to the
relevant conduct in question. In considering whether it should exercise its powers over pollution the
Council was no more concerned with oyster consumers than any other section of the public or
individual. There was no close and direct relationship between oyster consumers and the C bouncil
such that it had a duty to take care for the safety of each and every one of them. In that respect, the
Council stood in a different position from that of the Barclay Companies who had a direct relationship
with the consumers of their product. Here, there was nothing to suggest that the relationship
between the Council and the consumers of Wallis Lake oysters imposed on the Council an affirmative
duty to take reasonable care to protect those consumers from harm caused by eating those oysters.”

No general duty to protect persons from harm caused by 3rd parties – policy consideration based on
economic & social consideration

• For duty of care to be found, there has to be a more substantive relationship btw the parties.

• Home Office v Dorset Yatch Club – the foundation for the duty of the officers was the custody
of the bostal students, thus the vicarious liability of the Home Office.

• No proximity between the police & the victims of crime generally: Hill v Chief Constable of
West Yorkshire

- 20yr old student murdered by Sutcliffe (the Yorkshire Ripper) who had committed a number
of similar offences.
- After his arrest, her estate brought action against the police for negligence in failure to arrest
S earlier & thus prevent her death.

- HoL: Nothing in the case to take it beyond the general rule that there is no duty of care to
prevent injury caused by 3rd parties.

- Police didn’t have S in their custody &there was no special relationship btw the dead student
& the police.
 - Alternative: policy consideration (defensive policing & investigations).

Hill v CC of West Yorkshire – Lord Keith

“Potential existence of such liability may in many instances be in the general public interest, as
tending towards the observance of a higher standard of care in the carrying on of various different
types of activity. I do not, however, consider that this can be said of police activities. The general
sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the
imposition of such liability so far as concerns their function in the investigation and suppression of
crime... In some instances the imposition of liability may lead to the exercise of a function being
carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to
the investigative operations of the police cannot be excluded…… A great deal of police time, trouble
and expense might be expected to have to be put into the preparation of the defence to the action
and the attendance of witnesses at the trial. The result would be a significant diversion of police
manpower and attention from their most important function, that of the suppression of crime”.

Costello v Chief Constable of Northumbria [1998]

• A woman police officer attacked & injured by a prisoner in a cell.

• She sued a senior police officer who was nearby for failing to come to her rescue & the CC
under vicarious liability.
• Question – did the senior police officer owe her a duty of care?

• Held – even though there is no general duty for police officers to aid members of the public, a
police officer has a special duty to come to the rescue of another officer.

‘For public policy reasons, the police are under no general duty of care to members of the public for
their activities in the investigation and suppression of crime But . . circumstances may exceptionally
arise when the police assume a responsibility, giving rise to a duty of care to a particular member of
the public . . Neither the police nor other public rescue services are under any general obligation,
giving rise to a duty of care, to respond to emergency calls . . nor, if they do respond, are they to be
held liable for want of care in any attempt to prevent crime or effect a rescue. But if their own
positive negligent intervention directly causes injury which would not otherwise have occurred or if it
exacerbates injury or damage, there may be liability.’

Carmichele v Ministers of Safety & Security & Justice

• C attacked & viciously injured by Coetzee who had been convicted for attempted murder &
housebreaking & sentenced to 12yrs.

• Coetzee had previous convictions of rape & indecent assault. He had attacked & raped an
acquaintance miss E. He was granted bail & released unconditionally.

• A 3rd party (Mrs Gosling) went to the Police & Prosecutor severally to ask them to detain
Coetzee as he was bound to commit another sexual offence, but neither took any action.

• Carmichele was then attacked by Coetzee at Mrs Gosling’s house, suffering severe knife
injuries.

• She sued the 2 ministers due to the negligent failure of the police to protect her from the
attack (owed a duty of care). Claim thrown out at HC & SCA. Appeal to the Con Court.

• Qn – Did the police & prosecution owe a duty to Carmichele to protect her? Did they
negligently breach that duty? Causation?
Remoteness of damage (Scope of liability)

Dr Nicholas Orago

University of Nairobi, Law School

Law of Torts

Introduction

• Remoteness is based on the logic that no D should be responsible ad infinitum for all the
consequences of their wrongful conduct, however remote in time & however indirect the
process of causation – this will unreasonably hamper human activity. Bourhill v Young [1943];
Cartwheel scenario

• Guiding principle: scope of D’s liability depends on whether the harm caused was a
reasonably foreseeable consequence of his/her negligent conduct.

• Illustration: A teacher throws a whiteboard duster to the roof of the Lecture Theatre – some
injury might occur to one of the sitting students.

 But what type of injury should the teacher be held liable for? What is reasonably
foreseeable?

 The duster bouncing off the roof and hitting a student on the head – a reasonably
foreseeable consequence. What type of injury? psychiatric breakdown?

 The roof catching fire & curving in because of some latent weaknesses of the roof
unbeknown to the teacher – such a consequence is reasonably unforeseeable.

 Taking into account the principle of remoteness of damage, teacher should not be held liable
for the injuries or loss of life resulting from the falling roof. The resulting
injuries/loss/damages are too remote a consequence of the teacher’s conduct of throwing
the duster to the roof. Maingard Packaging Ltd v Hilton Haulage Limited

Two contrasting approaches to remoteness of damage

• There had been two views in relation to remoteness of damage:

 - If a reasonable man would have foreseen any damage as likely to result from D’s negligent
conduct, then D will be liable for any direct consequence suffered whether the type of
damage was reasonably foreseeable or not – Re Polemis [1921];
Reasonable foresight is relevant to the question – was there a legal duty of care owed by D to P to
take care? It is not relevant to the question – if D breached duty of care, was the consequence of this
breach too remote? Soon as duty is breached, D is liable.

- If the specific damage occasioned by D negligent conduct was not reasonably foreseeable, D
will not be liable for the loss suffered – The Wagon Mound [1961]

Reasonable foresight is relevant to the question whether there was a legal duty of care owed; and to
the question of the foreseeability or remoteness of the consequences of his conduct.

Re Polemis [1921]

• A chartered vessel was loading in Casablanca when stevedores, the servants of the
charterers, negligently let a plank drop into the hold.

• Part of the cargo was a quantity of benzine (petrol) in tins. The benzine had leaked and it
caught fire leading to the total destruction of the ship.

• It was not reasonably foreseeable that dropping of plank would cause fire.
• The charterers were held liable for the loss of the ship - £200, 000.

• Reasons: they were responsible for all the direct consequences of the negligence, even
though they could not reasonably have been anticipated/ explosion was reasonably
unforeseeable.

“if the act would or might probably cause damage, the fact that the damage it in fact causes is not
the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly
traceable to the negligent act and not due to the operation of independent causes”.

• In the circumstances of Re Polemis, it was foreseeable that the ship, cargo or workmen might
suffer some damage from the dropping of the plank & the initial breach of duty was there4
established.

Overseas Tankship (UK) Ltd v Morts Dock & Eng. Co Ltd (The Wagon Mound No. 1) [1961]
• OT were charterers by demise of the Wagon Mound which was docked in a Sidney Harbour in
Oct 1951. The crew negligently allowed a large quantity of oil to leak from the ship, and the
oil spread to MD Ltd.'s wharf about 600ft away where another ship, the Corrimal, was under
repair (welding).

• MD Ltd.’s manager stopped the welding & inquired of the other Harbour whether the repairs
could be continued. He was assured that it was safe to continue due to the non-
inflammability of fuel oil in open water. He thus gave a go ahead for the welding to continue,
though with precaution to avoid inflammable material falling into the oil.
 • Two days later, hot metal from the welding fell on floating cotton waste which ignited the oil
in the water.

• MD Ltd brought an action for damages for the negligence of OT’s servants.

• On trial, it was found as a fact that OT did not know & could not reasonably have been
expected to know that the oil was capable of being set alight when spread on water – actual
damage was reasonably unforeseeable. Also, MD Ltd was aware of the presence of the oil &
continued welding (contributory negligence).

• The case set the standard for remoteness of damage, by holding that a party can only be held
liable for damage that was reasonably foreseeable.

Viscount Simonds - The Wagon Mound No. 1

It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to
say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the
defendant, and consequent damage. But there can be no liability until the damage has been done. It
is not the act but the consequences on which tortious liability is founded. ... Who knows or can be
assumed to know all the processes of nature? But if it would be wrong that a man should be held
liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally it
would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could
reasonably foresee the intervening events which led to its being done… It is a principle of civil liability,
subject only to qualifications which have no present relevance, that a man must be considered to be
responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to
demand less is to ignore that civilised order requires the observance of a minimum standard of
behaviour.

Adoption of the foreseeability test in England subsequent to the Wagon Mound decision

• Though Re Polemis was a CA decision (binding as a precedent) & Wagon Mound was a Privy
Council decision (not binding in England), the English courts adopted the reasoning and the
foreseeability test in Wagon Mound in determining issues of remoteness of damage.
• As long as kind/type of damage is foreseeable, it does not matter if it is unusual.

• Hughes v Lord Advocate [1963] – Post Office employees opened a manhole in the street to
repair cables underground & left it open in the evening for their tea break, unattended but
covered by a canvas shelter that was surrounded by 4 paraffin lamps to warn road-users.

- 2 boys 8 & 10 yr. olds went to explore the manhole. They took one of the lamps into the
shelter. The 8 yr. old stumbled & the lamp fell into the manhole.
- A violent explosion occurred, causing H to fall into the manhole, & was badly burnt.

- A case of negligence was brought against the PO workers for leaving the site of work
unattended with the lamps burning, a scenario that created allurement for children. They
owed a duty of care to prevent children from getting into the site. Issue was – Was the
accident foreseeable in nature & were the kind of injuries suffered also foreseeable?
Hughes v Lord Advocate

• Court of 1st instance – though the danger to children was foreseeable, the accident was not of
a foreseeable nature & this limited the D’s liability.

• Appeal to HoL: question, was the presence of children on the road an unforeseeable event? A
quiet road with nearest residences being 400 yards away. Held: presence of children in the
immediate vicinity of the shelter was reasonably to be anticipated. It was D’s duty to prove
that the presence of children was unforeseeable & they had failed to do so.

• 2nd question – was the type of accident foreseeable?

• Lord Guest – “the normal dangers of such children falling into the manhole or being in some
way injured by a lamp, particularly if it fell or broke, were such that a reasonable man would
not have ignored them”.

• Lord Reid – injury from burns being occasioned by a broken paraffin lamp was foreseeable,
even though they were of a higher degree than what may have been anticipated. Degree
does not change foreseeability. If injury was of a different kind than the foreseeable type, D
would have escaped liability. Injury from burns was foreseeable, though the explosion was
unforeseeable (only increased the degree of burns).

Jolley v Sutton London Borough [2000]

• The Council owned a block of flats & managed the common areas.

• In 1987 an old boat was brought to the grounds of the flats & abandoned. it was neither
covered nor fenced off.

• Due to the elements it became rotten & was thus a danger to children who might have fallen
the rotten planks when playing on the boat.

• In Dec. 1988 Council placed a sticker warning people not to touch the boat & that it would be
removed in 7 days unless the owner took it away.

• In Feb 1990, two boys (Justin & Karl) decided to repair & repaint the boat hoping to sail it.
The raised the boat some 2 1/2ft using a car jack & propped it up so as to paint & repair its
underside. They worked for over 6 weeks.

• In April 1990, while Justin was working underneath, the boat came down on him breaking his
back. He became paraplegic.

• A case was filed against the Council under occupier’s liability. Trial court – occupiers had a
responsibility to protect children from dangers from the boat by taking reasonable steps such
as removing it.

Justice Brice – Court of 1st instance

"Did the boat present a trap or allurement to the plaintiff and Karl and one which presented a danger
of physical injury to them? If so, was this state of affairs reasonably foreseeable to the defendants
such that they ought to have taken measure in good time to protect boys such as the plaintiff from
such danger? One must keep well in mind that this case is concerned with boys aged 13 and 14...I
have no doubt that the presence of the boat was something which one ought to anticipate would be
an attraction to children of differing ages. Younger children might simply play on it and in its rotting
condition might suffer injury, perhaps of a quite minor nature… Play can take the form of mimicking
adult behaviour. It was reasonably foreseeable that children including those of the age of the plaintiff
would meddle with the boat at risk of some physical injury….I find that the type of accident and injury
which occurred in this case was reasonably foreseeable (albeit that it involved significant meddling
with the boat by two young teenage boys and that the injuries proved to be very severe) and that the
actions of the plaintiff and/or Karl did not amount to a novus actus. Accordingly, I find the defendants
in breach of their duty to the plaintiff as occupiers and liable to the plaintiff for the injury, loss and
damage which he has sustained."

CA - Jolley v Sutton London Borough

• The CA overturned the decision of 1 st instance court saying that the kind of harm that
occurred was not reasonably foreseeable. Lord Woolf:

“The question which has to be asked is: was this accident of a different type and kind from anything
that a defender could have foreseen?... Even making full allowance for the unpredictability of
children's behaviour, I am driven to conclude that it was not reasonably foreseeable that an accident
could occur as a result of the boys deciding to work under a propped up boat. Nor could any
reasonably similar accident have been foreseen’.

• Appeal to the HoL: Held that the CA was not entitled to reverse the decision of the 1 st court.
Propping the boat, repairing & painting it was not very different from normal children’s play
& so the type of accident that occurred & the injuries sustained were reasonably foreseeable.
Appeal was allowed.

Bradford v Robinson Rentals [1967]

• P required by employer to drive an old van from Exeter to bedford & pick a new van.

• Weather was very cold & advise was not to travel. Van had no heater & windscreen kept
freezing, requiring P to drive with an open window.

• P suffered frostbites & sued.

• Held: It was foreseeable that he would suffer from the cold & so D was liable for the frostbite
even though it was a rare & unusual occurrence.

Gabriel v Kirklees Metropolitan Council [2004]

• P, a 6yr old boy, was walking past a building site owned by D. He was hit by mud thrown by
children playing in the site.

• The site was not fenced at the time.

• The court laid the test for determination of liability in negligence as follows:
- Whether it was reasonably foreseeable that children would go onto the construction site;
- Whether, while on the construction site, it was reasonably foreseeable that children would
play there;

- Whether it was reasonable foreseeable that in playing there, they would through whatever
came to hand.

- Whether in playing with the material on site it was reasonably foreseeable that they might
cause injury to those passing by on the pavement.
Defences in negligence

Types of defences
• Most important defence for D is P’s inability to prove the existence of all the elements of
negligence – duty, breach, harm/loss & causation.

• Should P prove these, D can still rely on the following defences to escape liability or to have it
reduced:

- Voluntary assumption of risk - volenti non fit injuria

- Contributory negligence
- Illegality

- Novus actus intervienens

- Inevitable accident

- Act of God

- Limitation

• D must expressly raise the defence in their pleadings and have the burden of proof on a
balance of probabilities – he who alleges must prove.

1. Contributory Negligence
• Where harm/loss occasioned through negligence can be attributed partly to D’s fault & partly
to P’s fault, the award of damages may be reduced by reason of P’s contributory negligence.

• Under common law, if harm/injury/loss was occasioned to P partly by the negligent conduct
of D & partly by P’s own negligence; the claimant would not be entitled to recover anything –
Contributory negligence was a complete defence, preventing P from recovering from D.
Butterfield v Forrester [1809]:
- P was riding a horse in the evening (around 8 p.m.). Visibility was poor & the lighting was
such that he could only see obstacles within 100 yards.
- P struck a pole that had been placed across part of the road by D for the purposes of making
some repairs to his house. P was thrown off his horse & was injured. He sued D in negligence.

- Witness testified that if P had not been riding hard, he would have seen the post & avoided
it. It was thus held by the court of 1 st instance that P was riding extremely hard & hadn’t
taken ordinary care for his own safety. He could not recover.

- P appealed. Issue was – should P recover for D’s negligence if P was also negligent?

- Answer was no. For P to recover two things must occur: (1) an obstruction on the road due to
D’s fault; and (2) no want of ordinary care to avoid it on P’s part.
Butterfield v Forrester - Lord Ellenborough

“A man is under a duty to use common and ordinary caution for his own good. Even if a party is
observed to be riding on the wrong side of the road, a man of ordinary sense does not ride
against them after seeing them in the wrong. One person being in fault will not dispense with the
requirement that the other must use ordinary care for himself”.

Contributory Negligence – last opportunity rule

• In order to mitigate the harshness of the contributory negligence rule, the courts introduced
the rule of last opportunity which allowed P to recover notwithstanding his/her own
negligence.

• The person whose negligence was last in time, & there4 had the last opportunity to avoid the
accident, was treated as the sole cause of the damage/loss.

• If D had the last opportunity avoid the harm, P was able to recover in full for the injury that
was occasioned.

• Davies v Mann [1842] – P tethered his ass to graze on the side of a public highway, an illegal
act. D’s wagon came down the highway at a fast pace & knocked down the ass, killing it.

- Judge instructed jury that if the proximate cause of the accident was due to lack of proper
conduct by D, an action was maintainable against D. Jury found for P though his conduct was
illegal.
- Issue was – should D be liable for injury caused by his negligence when P’s negligence was
also a cause of the injury? This was answered affirmatively.

Davies v Mann - Lord Abinger

• “Even if the animal was unlawfully in the road, if the Defendant could have avoided injuring
the animal through proper care, but failed to do so, he is liable for the consequences of his
negligence”.

• There4, according to this case, if D had the last clear opportunity to avoid the accident after
the opportunity was no longer available to P, D had a duty to do so or else he will bear the
loss.
• If D did not take the opportunity of using reasonable care to take the last clear chance to
avoid injury, then P’s contributory negligence is not a bar to recovery.

Contributory Negligence – Statutory responses

• Common law rule on contributory negligence & the last opportunity rule caused a lot of
injustices & led to confusion as courts were forced to make arbitrary decisions on causation.
• Statutory intervention to rectify the confusion & injustices commenced with the Maritime
Conventions Act of 1911, which, in s.1, allowed for the apportionment of liability for
contributory negligence at sea to the degree at which each vessel was at fault.

“Where, by the fault of two or more ships, damage or loss is caused to one or more of those
ships, to their cargoes or freight, or to any property on board, the liability to make good the
damage or loss shall be in proportion to the degree in which each ship was in fault, except that if,
having regard to all the circumstances of the case, it is not possible to establish different degrees
of fault, the liability shall be apportioned equally”.

Law Reform (Contributory Negligence) Act of 1945 – UK

• S 1(1) provided for apportionment of liability for contributory negligence as follows:

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 recoverable 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:

Provided that—
(a)this subsection shall not operate to defeat any defence arising under a contract;

(b)where any contract or enactment providing for the limitation of liability is applicable to the
claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not
exceed the maximum limit so applicable.

Law Reform Act, Cap 26 Laws of Kenya

• Provides for apportionment for contributory negligence in s4(1) as follows:

Where any person suffers damage as a 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 recoverable 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:

Provided that—

(i) this subsection shall not operate to defeat any defence arising under a contract;

(ii) where any contract or written law providing for the limitation of liability is applicable to the
claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not
exceed the maximum limit so applicable.

What type of fault lead to a finding of contributory negligence? Scope of the Act

• S 4(7) of the Law Reform Act answers the question as follows:

 For the purposes of this section, “fault” means negligence, breach of statutory duty or other act
or omission which gives rise to a liability in tort or which would, apart from this section, give rise
to the defence of contributory negligence.

The scope of the Law Reform Act in relation to contribution

• The scope is wide as it applies to negligence, breach of statutory duty & other acts or
omissions that would give rise to liability in tort.

• It will thus apply to cases based on nuisance; strict liability & aspects of intentional torts i.e.
battery.
• Barnes v Nayer [1986] – D assaulted & killed P’s wife who, he alleged, had abused him & his
family for years. He was convicted for manslaughter in relation to the death. In a civil action
on trespass to persons, an intentional tort, D raised a defence of contributory negligence on
the ground that he had been provoked. CA held that even though contributory negligence
would have been a defence to the battery, D’s response had been out of proportion to the
alleged provocation.

• Wasson v Chief Constable of the Royal Ulster Constabulary [1987] – concerned injuries to
rioters during the Northern Ireland riots. In a suit against the authorities, the damages
payable were reduced on the basis of contributory negligence. Hutton J: “as a matter of
principle contributory negligence can be pleaded as a defence to an action for intentional
trespass to the person”.

Limits of the Law Reform Act in relation to contribution

• It is not unlimited & there are instances that D cannot use contributory negligence as a
defence:

i) Deceit or other claims based on dishonesty – a fraudster cannot say that his/her victim
should have been more cautious in relying on what he said. Provided D’s deceit was a cause
of the loss suffered by P, P will recover in full even if there are other contributing factors.

Standard chartered bank v Pakistan National Shipping Corp (Nos. 2 & 4) [2003]; Corporacion
Nacional de Cobre de Chile v Sogemin Metals Ltd [1997]

Standard chartered bank v Pakistan National Shipping Corp (Nos. 2 & 4) [2003]

• Oakprime Ltd was the beneficiary of a letter of credit issued by Incombank (a Vietnamese
Bank) & confirmed by SCB.
• Letter of credit was issued for the sale of Iranian Bitumen by Oakprime to a Vietnamese
Company. PNSC were the intended shippers of the bitumen.

• A condition of the letter of credit was that the bitumen had to be shipped by 25 October
1993. There was delay & the bitumen was not shipped.
• Oakprime (through their director Mr Mehra) colluded with PNSC to issue false bills of lading
stating that the bitumen had been shipped by the required date.

• On 9 November, the false documents were handed over to SCB, with a letter stating that they
were correct as per the letter of credit. SCB paid the amount of $1, 155, 772, though the
documents were handed in late.

• SCB then sought reimbursements from Incombank. Incombank noticed other discrepancies &
refused to reimburse.

• SCB then sued Ds for deceit & asked to be reimbursed the money paid. Arguments that any
award to SCB should be reduced as they were liable for contributory negligence in making
payments on the documents.

• HoL held: Contributory negligence is no defence in deceit cases.

Limits of the Law Reform Act in relation to contribution – contracts

ii) Contributory negligence is generally not a defence to breach of strictly contractual duties,
that is: Where liability doesn’t depend on negligence but arises from strict contractual duty which
does not correspond with any common law duty of care – see: Raflatac Ltd v Eade [1999].

- Exceptions: where breach of a contractual duty of care would similarly have led to a breach of
an independent common law duty of care or a statutory duty of care – liability in tort for
negligence independent of the contract; CN will apply.
Vesta v Butcher [1988] - A defendant to an allegation of breach of contract was entitled to a
defence of contributory negligence if his position as a contract breaker was, by reason of the
agreement between the parties, the same as his position as a common law tortfeasor.

- Instances:

 negligent professionals can rely on contributory negligence due to the concurrent duty to
exercise due care & skill that is available in tort as well as well as in the retainer/contract of
service. Rationale: Not allowing contributory negligence if a contract suit is chosen will be
unfair to the D vis-à-vis if tort action was chosen.
Cases: UCB Bank Plc. v Hepherd Winstanley & Pugh [1999]; Platform Homes Ltd v Oyston Shipway
Ltd [1999]; Barclays Bank Plc. v Fairclough Building Ltd (No. 2) [1995]

Contributory negligence & causation of damage/loss/injury

• What is essential for the courts to consider is whether P’s conduct contributed to his/her
loss/damage/injury – not their contribution to the accident which led to the injury.

• Illustration: A is a passenger in a car driven by B. B negligently drives the car causing an

accident in which A is injured. At the time of accident, A was not wearing a safety belt. In a
suit by A against B for damages for the injury resulting from the accident, B can use the
defence of contributory negligence. A’s failure to wear a seat belt contributed to the injury
they suffered during the accident.
- there4, even though A didn’t contribute to the accident, his failure to wear a safety belt
contributed to the injury/loss that he suffered & so his award will be reduced to take account
of his contributory negligence.

- See: Froom v Butcher [1976] – P driving with daughter & wife. All not wearing safety belts. D
was overtaking negligently & collided head-on with P’s car causing some injuries. Evidence
was that wearing a seat belt would have saved him the injuries. Disagreement as to reduction
of damages under the 1945 Act due to failure to wear safety belt.

Froom v Butcher – Lord Denning: Guidance on apportioning damages

“Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence
is a man's carelessness in breach of duty to others. Contributory negligence is a man's
carelessness in looking after his own safety. He is guilty of contributory negligence if he ought
reasonably to have foreseen that, if he did not act as a reasonable prudent man he might be hurt
himself. ….In these seat belt cases, the injured plaintiff is in no way to blame for the accident
itself. It may well be asked: Why should the injured plaintiff have his damages reduced? The
question is not what was the cause of the accident. It is rather what was the cause of the
damage. In most accidents on the road the bad driving, which causes the accident, also causes
the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of
the damage is another. The accident is caused by the bad driving. The damage is caused in part by
the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If
the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own
fault. He must bear some share in the responsibility for the damage: and his damages fall to be
reduced to such extent as the Court thinks just and equitable.….Cont..

Froom v Butcher – Lord Denning: Guidance on apportioning damages

Whenever there is an accident, the negligent driver must bear by far the greater share of
responsibility. It was his negligence which caused the accident. It also was a prime cause of the
whole of the damage. But in so far as the damage might have been avoided or lessened by
wearing a seat belt, the injured person must bear some share. But how much should this be? Is it
proper to inquire whether the driver was grossly negligent or only slightly negligent? or whether
the failure to wear a seat belt was entirely inexcusable or almost forgivable? If such an inquiry
could easily be undertaken, it might be as well to do it. In Davies v. Swan Motor Co. (Swansea)
Ltd. the court said that consideration should be given not only to the causative potency of a
particular factor, but also its blameworthiness. But we live in a practical world. In most of these
cases the liability of the driver is admitted, the failure to wear a seat belt is admitted, the only
question is: what damages should be payable? This question should not be prolonged by an
expensive inquiry into the degree of blameworthiness on either side, which would be hotly
disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great
majority of cases….cont..

….Sometimes the evidence will show that the failure made no difference. The damage would
have been the same, even if a seat belt had been worn. In such case the damages should not be
reduced at all. At other times the evidence will show that the failure made all the difference. The
damage would have been prevented altogether if a seat belt had been worn. In such cases I
would suggest that the damages should be reduced by 25 per cent. But often enough the
evidence will only show that the failure made a considerable difference. Some injuries to the
head, for instance, would have been a good deal less severe if a seat belt had been worn, but
there would still have been some injury to the head. In such case I would suggest that the
damages attributable to the failure to wear a seat belt should be reduced by 15 per cent."

Froom v Butcher – Lord Denning: Final decision

“Everyone knows, or ought to know, that when he goes out in a car he should fasten the seat
belt. It is so well known that it goes without saying, not only for the driver, but also the passenger.
If either the driver or the passenger fails to wear it and an accident happens - and the injuries
would have been prevented or lessened if he had worn it - then his damages should be reduced.
Under the Highway Code a driver may have a duty to invite his passenger to fasten his seat belt:
but adult passengers possessed of their faculties should not need telling what to do. If such
passengers do not fasten their seat belts, their own lack of care for their own safety may be the
cause of their injuries. In the present case the injuries to the head and chest would have been
prevented by the wearing of a seat belt and the damages on that account might be reduced by
25%. The finger would have been broken any way and the damages for it not reduced at all.
Overall the Judge suggested 20% and Mr Froom has made no objection to it. So I would not
interfere. I would allow the appeal and reduce the damages by £100”.

Contributory negligence & failure to wear a crash helmet

• O’Connel v Jackson [1972] - In Jan. 1969 while P was riding his mopped (pedal cycle with a
small engine) to work, D drove negligently causing his car to collide with the cycle. P was
thrown onto the road & he hit his head on the road causing severe & extensive fracture of
the skull.

• Medical evidence indicated that extent of head injury would have been lessened by a crash
helmet, which P was not wearing at time of accident.

• Argument was that P’s injuries were contributed to by his negligence & so the damages
should be so reduced.

• Question – was P liable for contributory negligence? The court adopted the test to determine
this as was set by Lord Denning as follows:

"Just as actionable negligence requires the foreseeability of harm to others, so contributory

negligence requires the foreseeability of harm to oneself. A person is guilty of contributory
negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable,
prudent man, he might be hurt himself; and in his reckonings he must take into account the
possibility of others being careless".

• P should have reasonably foreseen that he might be involved in an accident even if he was
riding carefully. Knowing the risk of accident, it was also reasonably foreseeable that the type
of injury sustained was likely. P part-responsible.
O’Connel v Jackson - Edmund Davis LJ
“It must be borne in mind that, for so much of the injuries and damage as would have resulted
from the accident even if a crash helmet had been worn, the defendant is wholly to blame, and
the plaintiff not at all. For the additional injuries and damage which would not have occurred if a
crash helmet had been worn, the defendant, as solely responsible for the accident, must continue
in substantial measure to be held liable, and it is only in that last field of additional injuries and
damage that the contributory negligence of the plaintiff has any relevance. It is not possible on
the evidence to measure the extent of that field and then apportion that measure between the
blameworthiness and causative potency of the acts and omissions of the parties. We can only
cover the two stages in one stride and express the responsibility of the plaintiff in terms of a
percentage of the whole. Giving the best consideration that we can to the whole matter, we
assess the responsibility of the plaintiff in terms of 15 per cent, of the whole, and allow the
appeal to the extent of reducing the damages to that extent”.
• Read: Capps v Miller [1989]; Smith v Finch [2009].

Contributory negligence & a drunk driver

• If you ride in a car driven by a person who has taken substantial amount of alcohol or in a car
with known defects, you will be held responsible for contributory negligence should injury
occur to you due to an accident resulting from the known circumstances: Owens v Brimmell
[1977]; Green v Gaymer [1999] (P aware D had consumed 5 pints of beer. Motor cycle
accident In which D died & P was injured. CN upheld & award reduced by 20%); Gregory v
Kelly [1978] (P traveling in a car knowing that the footbrakes did not work. He was held liable
for contributory negligence when he suffered injures caused due to the defective brakes).
• Owens v Brimmell [1977] – P & D had both consumed 8-9 pints of beer. D was driving & lost
control of the car colliding with a lamppost & P suffered some injuries. P was not wearing a
safety belt. P sued in negligence & D argued that P was liable for contributory negligence. P
was held liable for 20% contributory negligence & his award of damages so reduced.

Owens v Brimmell - Watkins J

‘… [I]t appears to me that there is widespread and weighty authority for the proposition that a
passenger may be guilty of contributory negligence if he rides with the driver of a car whom he
knows has consumed alcohol in such quantity as is likely to impair to a dangerous degree that
driver’s capacity to drive properly and safely. So, also, may a passenger be guilty of contributory
negligence if he, knowing that he is going to be driven in a car by his companion later,
accompanies him upon a bout of drinking which has the effect, eventually, of robbing the
passenger of clear thought and perception and diminishes the driver’s capacity to drive properly
and carefully. Whether this principle can be relied upon successfully is a question of fact and
degree to be determined in the circumstances out of which the issue is said to arise.’

• If level of drunkenness is not obvious, P will not be liable for contributory negligence: Traynor
v Donovan [1978]; Malone v Rowan [1984]; Booth v White [2003].
Contributory negligence & duty of care

• As we saw in Froom v Butcher a per Lord Denning: Negligence depends on a breach of duty,
whereas contributory negligence does not.

• Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a

man's carelessness in looking after his own safety.

• All that D needs to show is that P failed to take reasonable care of his own safety: Nance v
British Colombia Electric Railway [1951]; Davies v Swan Motor Co. [1949].

• Davies v Swan Motor Co – P was standing on the steps of a moving dust lorry, a dangerous
place. The road was narrow & when a bus attempted to overtake the lorry, P was killed. P was
found1/5 liable for contributory negligence & damages were accordingly reduced. Bucknill LJ
stated:

"when one is considering the question of contributory negligence, it is not necessary to show that
the negligence constituted a breach of duty to the Defendant. It is sufficient to show lack of
reasonable care by the Plaintiff for his own safety."

Contributory negligence & standard of care

• Standard of care expected of P in ensuring his safety in cases of contributory negligence is the
same std. of care expected of D in ordinary negligence case – an objective & impersonal std.
of a reasonable & prudent person.

• Jones v Livox Quarries Ltd [1952] - P worked in D’s Quarry. One lunch break, he hitched a ride
by standing at the tow bar of a traxcavator. Driver was unaware of P’s presence & it was
against the rules to stand at the back of the traxcavator. Another truck, driven recklessly by
another employee crashed into the back of the traxcavator crushing P’s leg leading to an
amputation. D were held liable, but P was equally found liable for contributory negligence for
acting against orders & exposing himself to danger. Damages reduced by 1/5.

• Lord Denning summed up the law as follows:

“Just as actionable negligence requires the foreseeability of harm to others, so contributory
negligence requires the foreseeability of harm to oneself A person is guilty of contributory
negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent
man, he might be hurt himself, & is in his reckonings he must take into account the possibilities of
others being careless”.

• Read: Billings & Sons Ltd v Riden [1958].

Contributory negligence & standard of care – Dilemma to P

• If D’s conduct places P in a dilemma as to choice of action to save himself & P chooses an
action which proves to be the wrong one; provided P acted in a reasonable apprehension of
danger & the method of evasion was a reasonable one, P will not be liable for contributory
negligence.
• Tear gas canister illustration: the subsequent handlers would not have been liable for
contributory negligence if they had suffered some injury by picking the canister to throw it
away instead of running away from the room.

• Jones v Boyce [1816] – P was a passenger in D’s coach. The coach was operated negligently in
such a way that it was in an imminent peril of overturning. P seeing the danger jumped from
the coach & broke his leg. The coach did not in fact overturn.

- Jury directed as follows: If P acted as a reasonable & prudent man would have done, he was
entitled to recover, though he had chosen the more perilous of the two alternatives which
confronted him due to D’s negligence. Award of damages given to P in full.

Graduation of standard of care for special cases – children, the infirm & persons with disability
• Children – like in negligence cases, the age of a child is relevant when determining the
standard of care expected of them for contributory negligence.

• The standard of care is graduated taking into account their age. Gardner v Grace [1858] –
31/2yr old child who ran onto the road not CN; McKinnell v White [1971] – 5yr old who ran
on the road found liable for CN, 50%.

• Yachuk v Oliver Blais Co Ltd [1949] – P, a 9yr old boy accompanied by a 7yr old brother,
bought gasoline from D, falsely stating that her mother wanted it for her car. P was playing
with the gasoline & was badly burnt. P sued & trial judge found both P & D negligent &
apportioned degree of fault, with D getting 25%. P appealed.

• CA of Ontario held that D was fully liable for the injuries. Appeal by D to the Supreme Court
of Canada.

• Held: D was negligent in supplying gasoline to P &but P was equally liable to a reduction of
the award in accordance to the apportionment that was decided by the trial judge as P could
not be taken to be a child of tender years. Appeal allowed.

Yachuk v Oliver Blais Co Ltd – Hudson & Estey JJ

“The evidence supported the finding, as made in effect by the trial Judge, that defendant
negligently placed in the hands of two young boys a dangerous substance, with respect to which
their negligent conduct would be anticipated or foreseen by a reasonably careful person in the
same or similar circumstances. On the other hand, the evidence and the trial Judge’s
opportunities at trial justified acceptance of his findings to the effect that the infant plaintiff
appreciated the possibility of harmful consequences; that, having regard to his capacity,
knowledge and experience, he was not, at the time of the accident, a child of tender years, as
that phrase is understood and applied in law, but a boy beyond tender years, and therefore one
whose conduct might constitute contributory negligence. The conduct of defendant, and that of
the infant plaintiff, each constituted contributory negligence”.

Yachuk v Oliver Blais Co Ltd – Rand J (Dissenting Opinion)

“Defendant should be held solely responsible. The giving of the gasoline to the two children was,
in the circumstances, a negligent act towards them, a foreseeable consequence of which was
injury to the infant plaintiff in the course of ordinary behaviour on his part. Having regard to the
children’s age, understanding, experience and self-control, a child’s natural curiosity and the
fascination for him of fire (in relation to which lies the chief danger of gasoline), they acted as
ordinary children would be expected to act. The usual and expectable conduct in ordinary
children of such years is, in relation to the legal standard of care, equivalent to prudent conduct
in an adult; and just as prudent conduct gives rise to no legal responsibility for injurious
consequences, so the normal conduct of average young children is exempt likewise”.

Calum Langa v Mills [2004]

• P, a 4yr, 4 month, boy was standing with her mother, Mrs MacIsaac & elder sister Carmen at a
pedestrian crossing, ready wanting to cross the road.
• It was raining & the ground was wet, but visibility was good.

• P was struggling with the mother, trying to break free so that he could be the first at school &
ring the nursery school bell. The mother held him by the hand.

• D was traveling at 15mph & was slowing down as she could clearly see the child struggle to
break clear of the mother’s grip.

• Calum moved towards the car & was hit on the foot, causing a fracture.

• No criminal proceedings were contemplated from the occurrence.

• It was shown that P had been instructed on road safety & was aware of the dangers. P sued
through the mom, for the injury on the basis that harm had been caused by negligence of D.

• Court said that D had 4 duties as a driver:

 To drive with reasonable care and attention.

 To take reasonable care for the safety of others including pedestrians to avoid exposing them
to unnecessary risk and injury.

 To keep a good lookout.

 To drive at an appropriate speed to ensure she did not collide with pedestrians such as the
child in this case and injure them.

• Court held that D had not breached any of the four duties & was thus not negligent. The
court said that the fact that an accident had happened doesn’t mean that someone has to
blame for it.

• On contributory negligence (if 1st holding was wrong)- P, a child of 4yrs 41/2months could be
held liable for contributory negligence. Calum could thus be held liable for 60% of injury
because: i) he was being restrained by the mom; ii) he had instructions on road safety & was
well aware of dangers of traffic on the road.
 2. Voluntary assumption of risk – volenti non fit injuria

• It is a voluntary agreement by P to absolve D from the legal consequences of an unreasonable

risk of harm created by D where P has full knowledge of both the nature & extent of the risk
& voluntarily accepts to incur them.
• D can escape liability if they are able to show that P voluntarily and deliberately assumed the
risk from a known danger created by D – placed themselves in such a situation that no duty
arose as towards them.

• One who knows of a danger arising from the act or omission of another, and understands the
risk therefrom, but voluntarily exposes himself to it, is precluded from recovering for an
injury which results from the exposure – Russian roulette.
• Towards a person fully cognizant and appreciative of the danger and risk to which D’s conduct
exposes him, D has no duty of taking care, and therefore is not negligent.

• Effect of defence: P agrees to exempt D from a duty of care that would have otherwise been
owed.
• It is thus a complete defence – if it is proven, P recovers nothing.

Volenti in negligence vis-à-vis consent in trespass to persons

• Consent is a defence to trespass to persons – consent to undergo a medical operation;

consent to contact in sports: consensual battery.

• The consent to treatment does not entail consent to injury or harm occasioned by the
negligent performance of an operation. In giving consent, a patient expects the doctor to
employ due care & skill required of a competent physician.

• If the patient suffers injury due to negligence of doctor; doctor cannot use the defence of
volenti – the patient agreed to the treatment, which was to be conducted with due care &
skill; & did not agree to the injury occasioned by the negligence of the doctor.

• In sports, consent lowers the std. of care expected of the players so long as they play within
the rules of the game. A player who gets hurt due to the negligence of another player in
breach of the rules of the game cannot argue volenti if sued in tort. The player accepted the
normal contact in the game & the injuries resulting from such contact; but did not agree to
injury occasioned through the callous breach of the rules of the game.

• Non-negligent injury – no liability; negligent injury – liability subsists.

Wooldridge v Summer [1963] – No volenti unless negligence is proved

• P was a photographer at a horse show. He worked from a bench within the ring of the
horseshow & not behind the spectators where the other spectators were stationed. He was
sitting on the bench with Ms Smallwood, a director of his company.
 • He didn’t have sufficient experience in relation to horses, & at the particular time, was not
taking sufficient interest in the proceedings.

• During the proceedings, a horse belonging to D came galloping at great speed towards the
bench where they were sitting.

• P got frightened & unsuccessfully attempted to pull Ms S away from the bench. He fell on the
course of the horse which passed a good 3 feet behind the bench & was knocked down.

• P brought an action arguing that the rider was negligent as he had lost control of the horse &
was going too fast. D raised the defence of volenti.

• Case decided on the absence of duty of care on D’s part. Rider was a competent sportsperson
playing within the rules of the game.

• The rider’s failure to control the horse was an error of judgment that did not amount to
negligence. The standard of care owed to a spectator was for the rider not to act with
reckless disregard to a spectator’s safety. Volenti did not thus apply.
• In my opinion a competitor or player cannot in the normal case at least of competition or
game rely on the maxim volenti non fit injuria in answer to a spectator's claim, for there is no
liability unless there is negligence and the spectator comes to witness skill and with the
expectation that it will be exercised. But provided the competition or game is being
performed within the rules and the requirement of the sport and by a person of adequate
skill and competence the spectator does not expect his safety to be regarded by the
participant. If the conduct is deliberately intended to injure someone whose presence is
known, or is reckless and in disregard of all safety of others so that it is a departure from the
standards which might reasonably be expected in anyone pursuing the competition or game,
then the performer might well be held liable for any injury his act caused. 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.

Smoldon v Whitworth and Another [1997]

• A referee in a junior rugby game was sued for failing to enforce the rules of the game as a
result of which a player suffered serious spinal injury.

• Laws had been created by IRFB with clear instructions on how to protect players during
scrummage – engagement sequence: crouch-touch-pause-engage (CTPE).

• Expert witness – if properly applied, these rules would reduce scrum collapse to about 5 in a
game. In the specific game, there were over 20 scrum collapses as the scrums were rushed &
excessive force was being used, an indication that the rules were not being properly applied
to the required standard.

• It was accepted that a duty of care was owed to the players by the referee & that serious
spinal injury was a foreseeable consequence of failure to prevent scrum collapses.
 • D raised the defence of volenti: that P had consented to the risk of injury of the type that he
suffered by voluntarily playing as a front row & participating in scrums.

• Defence of volenti rejected: P had consented to the ordinary incidences of a game, with the
rules designed to protect him & other players in his position. He had not consented to the
breach of duty on the part of the official whose duty it was to apply the rules of the game to
protect players from injury.

• See also: Watson v British Boxing Board of Control [2000].

Elements to be proved for volenti as a defence

• The elements that must be proved in volenti are:

- P must freely & voluntarily incur the risk;

- There must be an agreement, express or implied on the part of P to incur the risks;

- P must have full knowledge of the nature & extent of the risk.

i) Agreement
• There has to be some form of agreement, express or implied, by P to assume the risk of injury
– it must be voluntary & it must be an agreement based on the knowledge of the nature &
extent of the risk. This was affirmed by Lord Diplock in Wooldridge v Summers [1963] as
follows:
“The maxim states a principle of estoppel applicable originally to a Roman citizen who consented to
being sold as a slave… In my view, the maxim, in the absence of express contract, has no application
to negligence simpliciter where the duty of care is based solely on proximity or ‘neighbourship’ in the
Atkinian sense. The maxim in English law presupposes a tortious act by the defendant. The consent
that is relevant is not consent to the risk of injury, but consent to the lack of reasonable care that
may produce that risk and requires on the part of the plaintiff at the time at which he gives his
consent full knowledge of the nature and extent of the risk that he ran”.

Implied agreement to run the risk

• Imperial Chemical Industries v Shatwell [1964] – two brothers were certified & experienced
shot firers employed in ICL’s quarry. Their work included wiring up detonators & checking
electric circuits.
• They voluntarily chose a more dangerous method of work that was outlawed by statutory
regulation & which they had been ordered by the employer not to use.

• There was an explosion & Shatwell was injured.

• He sued the brother for negligence & breach of statutory duty; & the employer vicariously for
the negligence & statutory breach of the brother.
 • HoL held that P was volens as the two were experts & had freely & voluntarily assumed the
risk involved in the choice of method of work employed. There was no pressure from any
source & they had specifically been warned against using the dangerous method.

• Defence of volenti applies if there is true & free consent to risk.

• But if P comes across a dangerous situation created by D’s negligent conduct & acts
unreasonably in relation to that danger, it can be assumed that he has agreed to run the risk.

• Illustration: P comes across a large hole negligently dug by D on a pavement & instead of
going around it decides to jump across it. If P in the process injures himself, it can be said that
he had by his actions voluntarily agreed to assume the risk with the full knowledge of the
nature & extent of the risk. He had a choice to go around the hole but freely chose not to do
so.

Dann v Hamilton [1939]

• D had driven P & her mother to London to see the coronation lights. They visited several
public houses & D’s ability to drive was clearly impaired.

• One passenger decided that D was too drunk to drive & got out of the car. P said she would
take the risk of an accident happening.

• An accident actually happened & P was injured. P sued & D raised the defence of volenti.

• Held: P was not volens & could recover.

• Asquith J:

“There may be cases in which the drunkenness of the driver at the material time is so extreme and so
glaring that to accept a lift from him is like engaging in an intrinsically & obviously dangerous
occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. It is
not necessary to decide whether in such a case the maxim of volenti would apply, for in the present
case I find as a fact that the driver’s degree of intoxication fell short of this degree”.

• See: Morris v Murray [1990] – flight with a drunken pilot.

ii) Free & voluntary assumption of risk

• P must have a genuine choice whether to assume the risk or not & free choice predicates full
knowledge of the nature & extent of the risks involved.
• Illustration: A is an employee of company C dealing in radio active material. C has consistently
failed to provide protective clothing to its staff & has also generally failed to make the work
place safe. A has a family of 7 & is the sole breadwinner. A has no prospects of employment
anywhere else should he quite his job. Due to the continued exposure to the radio active
material, A contracts cancer. Can it be said that A freely & voluntarily assumed the risk of
cancer by continuing to work in company C.
Smith v Baker & Sons [1891]

• P was employed in the construction of a railway. His job was to hold a drill in position while 2
of his workmates hit it with a hammer.

• Adjacent to his workstation was another group of employees involved in using a steam crane
to move stones & the crane swung over P’s workstation. Both P & employer knew of danger
of stones falling on him.
• P was injured when a stone fell from the crane & hit him on the head.

• D raised the defence of volenti, asserting that P knew that it was a dangerous practice & had
complained about the danger, but nevertheless continued to work.

• At trial, the defence of volenti was rejected & P awarded for the injury suffered.
• D appealed & CA reversed the finding of liability saying that P was precluded from recovering
as he had willingly accepted the risk.

• P appealed to the HoL & the appeal was allowed: P might have been aware of the danger of
the job, but had not consented to a lack of care on D’s part. He was thus entitled to recover
damages.

Smith v Baker & Sons – Lord Watson

"In its application to questions between the employer and the employed, the maxim as now used
generally imports that the workman had either expressly or by implication agreed to take upon
himself the risks attendant upon the particular work which he was engaged to perform, and from
which he has suffered injury. The question which has most frequently to be considered is not whether
he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall
him, the risk was to be his and not his masters. When, as is commonly the case, his acceptance or
non-acceptance of the risk is left to implication, the workman cannot reasonably be held to have
undertaken it unless he knew of its existence, and appreciated or had the means of appreciating its
danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his
continuing at his work, with such knowledge and appreciation, will in every case necessarily imply his
acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent
upon the nature of the risk, and the workman's connection with it, as well as upon other
considerations which must vary according to the circumstances of each case."

Bowater v Rowley Regis Corporation [1944]

• P was employed by D as a carter to collect road sweepings.

• He was ordered by the foreman to use a horse that had on two occasions run away when
being used by a colleague. This fact was known to both P & the foreman.
• P protested but the foreman informed him that it was an order of D’s surveyor.
 • Some weeks later, the horse ran away causing P to be thrown from the cart & he suffered
physical injuries.

• P sued & D argued that P had voluntarily assumed the risk of injury in using the horse.

• Should the defence of volenti absolve D from the consequences of the injury suffered by P?

Bowater v Rowley Regis Corporation –Scott LJ

… With regard to the doctrine ‘volenti non fit injuria’ I would add one reflection of a general kind.
That general maxim has to be applied with specially careful regard to the varying nature of human
affairs & human nature in any particular case just because it is concerned with the intangible factors
of mind and will. For the purpose of the rule, if it be a rule, a man cannot be said to be truly ‘willing’
unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge
of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose
wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with
the freedom of his will. Without purporting to lay down any rule of universal application, I venture to
doubt whether the maxim can very often apply in circumstances of an injury to a servant by the
negligence of his master.

Voluntariness and a rescuer

• There is a recognised duty of care towards rescuers & there4 if a rescuer is injured through
negligence in the context of a rescue operation, the defence of volenti cannot be used to
deny liability.

• Rationale: a rescuer acts on compulsion of a moral, social or legal duty & so their actions are
not truly voluntary.

• Hynes v Harwood [1935]; Baker v TE Hopkins & Sons Ltd [1959]

Hynes v Harwood [1935]

• D’s servant brought a 2 horse carriage into a residential neighbourhood & left it unattended
on a street next to a police station.

• Playing children upset the horses & they bolted & were on a path to injure people.
• P, a police officer saw the situation & attempted to stop the horses so as to protect members
of the public from injury. In the process, one of the horses fell & injured him.
• P sued D & was unsuccessful at trial. He appealed.

• Question on appeal: when someone knowingly puts him/herself in danger to protect others,
is the negligent party liable for the harm suffered in the protection effort?
 • Appeal allowed, with the court asserting that volenti did not apply in such circumstances.

• The court affirmed that if someone acts to help those in danger as a result of a person's
negligent actions, that person is liable for damages resulting from their actions as long as
they are reasonable in the circumstances. Taking risk upon yourself is not applicable in rescue
circumstances.
• Rationale: The doctrine of the assumption of risk does not apply where the plaintiff has,
under exigency caused by the defendant’s wrongful misconduct, consciously and deliberately
faced a risk, even of death, to rescue another from imminent danger of personal injury or
death, whether the person endangered is owed a duty of care by the plaintiff or not.

iii) Knowledge of the nature & extent of risk

• P must have full knowledge of the nature & extent of the risk that they put themselves in:

- Wooldridge v Summer [1963]; Morris v Murray [1990]

• Test for determining knowledge is subjective, not objective.

- Smith v Austin Lifts Ltd [1959]; Lachford v Spedeworth Int. Ltd [1983]

• This, therefore, means that constructive knowledge is not enough – if P did not know of the
risks, but ought to have reasonably known about it, P will not be volens, but can be held
contributorily negligent – Dixon v King [1975].

Wooldridge v Summer [1963]

• P was a photographer at a horse show.

• He worked from a bench within the ring of the horseshow & not behind the spectators where
the other spectators were stationed. He was sitting on the bench with Ms Smallwood, a
director of his company.

• He didn’t have sufficient experience in relation to horses, & at the particular time, was not
taking sufficient interest in the proceedings.

• During the proceedings, a horse belonging to D came galloping at great speed towards the
bench where they were sitting.

• kP got frightened & unsuccessfully attempted to pull Ms S away from the bench. He fell on
the course of the horse which passed a good 3 feet behind the bench & was knocked down.

• P brought an action arguing that the rider was negligent as he had lost control of the horse &
was going too fast.

• D raised the defence of volenti.

• Case decided on the absence of duty of care on D’s part. On volenti, the court said that
consent to the risk of injury was insufficient – consent must be made with full knowledge of
the nature & extent of the risk.

Wooldridge v Summer – Lord Diplock

“The maxim in English law presupposes a tortious act by the defendant. The consent that is
relevant is not consent to the risk of injury but consent to the lack of reasonable care that may
produce that risk, and requires on the part of the plaintiff at the time at which he gives his
consent full knowledge of the nature and extent of the risk that he ran”.

Morris v Murray [1991]

• P & M had been drinking the whole day & they were extremely drunk (M had 3 times the
alcohol allowed for a car driver – equivalent of 17 whiskies).
• M owned a light aircraft & offered to give P a flight on the aircraft & P accepted, knowing that
M was heavily intoxicated. P drove them to the airfield.

• The conditions were bad & club flights had been cancelled as it was windy & rainy – the
runway was wet.
• The flight took off & crashed shortly afterwards, killing D in the process & seriously injuring P.

• P sued D’s estate for the injury occasioned to him.

• D’s estate raised the defence of volenti.

• Defence of volenti allowed. P’s actions in accepting a ride in an aircraft from an obviously
heavily intoxicated pilot was so glaringly dangerous that he could be taken to have voluntarily
accepted the risk of injury and waived the right to compensation.

Morris v Murray – Fox LJ

“If the plaintiff had himself been sober on the afternoon of the flight it seems to me that, by
agreeing to be flown by Mr Murray, he must be taken to have accepted fully the risk of serious
injury. The danger was both obvious and great . . None of [the facts] suggests that his facilities
were so muddled that he was incapable of appreciating obvious risks . . I think he knew what he
was doing and was capable of appreciating the risks. . . I think that in embarking upon the flight
the plaintiff had implicitly waived his rights in the event of injury consequent on Mr Murray’s
failure to fly with reasonable care”.
Illegality – Ex Turpi Causa

Dr Nicholas Orago
University of Nairobi, School of Law

Law of Torts, LLB II, Evening

Introduction- Foundations of illegality as a defence

• Ex turpi causa non oritur actio – From a dishonourable cause an action does not arise. Based
on this maxim, P will be unable to pursue legal remedy if it arises in connection with his own
illegal act.

• The doctrine was developed in the law of contract by Lord Mansfield in Holman v Johnson
[1775] as follows:

The objection, that a contract is immoral or illegal as between P & D, sounds at all times very ill in D’s
mouth. It is not for his sake, however, that the objection is ever allowed; but it is founded in general
principles of policy, which D has the advantage of, contrary to the real justice, as between him and P,
by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No
court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If,
from P's own standing or otherwise, the cause of action appears to arise ex turpi causa, or the
transgression of a positive law of this country, there the court says he has no right to be assisted. It is
upon that ground the court goes; not for D’s sake, but because they will not lend their aid to such a
plaintiff.

Ex turpi causa in the law of torts

• It can be used in 2 ways, with almost similar results:

- As a bar to the existence of a duty of care – based on the just, fair & reasonable strand of the
3-part test propounded in Caparo v Dickman ;

- As a defence after the proof of negligence.

• The guiding principle in both instances is public policy: If an action is founded on an illegal
act, public policy will prevent P from recovering for injury sustained during the act.

Public policy considerations in the use of illegality in the law of torts

• According to the Law Commission, where a claim is based wholly or partly on an illegality, the
courts are required to look at the following policy consideration to determine whether or not
the defence of illegality is justified:

- Whether denial of the claim will further the purposes of the rules which the illegal conduct
has infringed – Pitts v Hunt [1990];

- Maintaining the integrity of the legal system;

 - Ensuring consistency in the application of the defence - Thackwell v Barclays Bank Plc [1986]
– public conscience;

- Ensuring that P does not benefit/profit from his own wrongdoing;

- Deterrence.

Pitts v Hunt [1990]

• P (18) & D (16) were friends. They had been out drinking & D had consumed was over twice
the legal limit for drinking.

• D owned a trial motorcycle, but had no licence to ride on the road & also did not have
insurance.

• He gave P a lift on the motorcycle & he was riding fast, erratically & recklessly in a zigzag
manner on the road in order to scare other road users, with the encouragement of P.

• When riding at speed on the wrong side of the road, D hit an oncoming car & was killed, with
P sustaining serious injuries.

• P brought a case against D’s estate for the injuries & the estate raised the defence of ex turpi
causa; volenti & contributory negligence.

• On ex turpi causa, it was held that the maxim operated to exclude the imposition of a duty of
care.

• Public policy – to enhance safety on the roads.

Integrity of the legal system: Gray v Thames Trains Ltd [2009]

• P was involved in a train crash caused by negligence of D & suffered psychiatric trauma.

• 2yrs later, under the trauma, he killed a person in a “road rage” incident & was convicted for
manslaughter on account of diminished responsibility & was sentenced to indefinite
detention in hospital.

• Criminal court held that he was sane in the legal sense when the incident happened & the
diminished responsibility only reduced the charge from murder to manslaughter.
• P brought a case against D to recover for lost earnings during detention, as D’s negligence
was the cause in fact of his detention.
• HoL held that he was not entitled to recover lost earnings from the time of detention due to
public policy entailed in the maxim ex turpi causa.

Gray v Thames Trains Ltd -Lord Hoffmann, para. 40

• Quoting Samuel JA in the case of State Rail Authority of New South Wales v Wiegold (1991)
stated as follows:
"If the plaintiff 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, both direct and indirect. If the law of negligence
were to say, in effect, that the offender was not responsible for his actions and should be
compensated by the tortfeasor, it would set the determination of the criminal court at nought. It
would generate the sort of clash between civil and criminal law that is apt to bring the law into
disrepute”.
"Tort law has enough on its plate without having to play the criminal law's conscience"

“there is no dispute that there was a causal connection between the tort and the killing. The evidence
which the judge accepted was that but for the tort, Mr Gray would not have killed. But the rule of
public policy invoked in this case is not based upon some primitive psychology which deems mental
stress to be incapable of having a connection with subsequent criminal acts. . . the case against
compensating Mr Gray for his loss of liberty is based upon the inconsistency of requiring someone to
be compensated for a sentence imposed because of his own personal responsibility for a criminal
act”.

Integrity of the legal system - Hall v Hebert [1993]

• Affirmed that illegality can be used as a defence where P is seeking to profit from illegal
conduct or where a tort action is being used to circumvent or negate criminal penalty.
• P & D had been drinking together. They were driving in D’s car when the car stalled. P asked
to drive the car to jump-start it.

• P lost control of the car, which went down a steep slope & flipped over, with P suffering
serious injuries.

• P sued & trial judge found P 25% negligent & D 75% negligent.

• D appealed & the issue was whether ex turpi was a complete defence.

• Held: Illegality can bar recovery in tort in limited circumstances, where the integrity of the
legal system is threatened by the claim, such as where P is attempting to profit from his illegal
conduct or when a tort claim is being used to circumvent, negate or subvert a criminal
penalty.

Hall v Hebert – Canadian Supreme Court

“To allow recovery where a claim arises from P’s illegal conduct would be to allow recovery for what
is illegal. It would put courts in the position of saying that the same conduct is both legal, in the sense
of being capable of rectification by the courts, & 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 – contracts, torts, criminal law – must be in essential
harmony. For the courts to punish conduct with 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 the integrity of the legal system”.
Precluding benefits from illegality & deterrence: Hardy v Motor Insurers’ Bureau [1964]

• P, a security officer, was injured when a driver of a stolen van drove off at speed injuring him
(he had stopped the driver to question him).

• Driver was convicted of several offences, including driving when uninsured & causing
grievous bodily harm.
• P sued & obtained judgment against the driver, who was unable to pay. P then sued D to
recover the damages from D.

• D’s defence was that the driver intended to cause harm to P & such behaviour was not
covered by 3rd party compulsory insurance.
• CA found for P, stating that even though the driver himself couldn’t have recovered from his
insurers due to his illegal conduct (rule of public policy), where he fails to pay damages, an
innocent victim should not be precluded from recovering from his insurers. Where there was
no insurance, as in the instant case, it was D’s duty to compensate.

• Pearson LJ: “The rule of public policy should be applied so as to exclude from benefit the
criminal & all claiming by him, but not so as to exclude alternative or independent rights”.

Hardy v Motor Insurers’ Bureau - Lord Denning

“... no person can claim reparation or indemnity for the consequences of a criminal offence where his
own wicked and deliberate intent is an essential ingredient in it… It is based on the broad rule of
public policy that no person can claim indemnity or reparation for his own wilful and culpable crime.
He is under a disability precluding him from imposing a claim”.

Hardy v Motor Insurers’ Bureau - Diplock LJ

“It is well settled that if a man commits murder or committed felo de se [suicide] in the days when
suicide was still a crime, neither he nor his personal representatives could be entitled to reap any
financial benefit from such an act…This was because the law recognised that, in the public interest,
such acts should be deterred and moreover that it would shock the public conscience if a man could
use the courts to enforce a money claim either under a contract or a will by reason of his having
committed such acts…The court has to weigh the gravity of the anti-social act and the extent to
which it will be encouraged by enforcing the right sought to be asserted against the social harm
which will be caused if the right is not enforced... The rule ex turpi causa means that the courts will
not enforce a right which would otherwise be enforceable if the right arises out of an act committed
by the person asserting the right … which is regarded by the court as sufficiently anti-social to justify
the court’s refusing to enforce that right.’

Precluding benefits from illegality: Marcel Beller Ltd v Hayden [1978]

• P took out an insurance policy on an employee which covered the employee’s death.
• The policy had exclusion clauses which would operate if death resulted from the employee
deliberately exposing himself to danger or if death was as a result of the employees own
criminal act.
• Employee died in a motor accident when driving with alcohol levels in his blood above the
legal limit.

• On a suit to enforce the policy, the court held that even though the employee had not
deliberately exposed himself to danger, the claim failed on the ground that he had committed
the criminal offence of drink-driving.

A. Illegality as a bar to existence of duty of care

Entails a public policy analysis of whether it is just, fair & reasonable to impose a duty of care on
D for harm caused to P during an illegal undertaking.

Application of illegality as a bar to existence of duty of care was affirmed by Sir Murray Stuart-
Smith in Vellino v CC of Greater Manchester Police [2001] as follows:

“It is common ground that if the facts are such that the maxim ex turpi causa is applicable, it
does not matter whether the correct legal analysis is that the defendants owed no duty of
care, because the third limb of the test in Caparo Industries pic v Dickman, namely that it is
just fair and reasonable to impose a duty of care, is not satisfied, or that the maxim affords a
freestanding reason for holding that the cause of action does not arise or cannot be
pursued”.

This use of illegality is more stringent & is aimed at reducing the amount of judicial discretion –
proof of illegality automatically excludes liability. Proportionality will not be a consideration here,
while proportionality is a consideration if illegality is used as a defence – see Revill v Newberry
[1996]

Ashton v Turner [1981]

• P was a passenger in a get-away car driven negligently by D after a burglary in which both
were involved. D had been drinking prior to the burglary. D crashed the car & P sustained
injuries, and sued D.
• The case was dismissed with the court holding that as a matter of public policy the law would
not recognise a duty of care owed by one participant in a crime to another. Ewbank J stated
as follows:
“The conclusion I have come to is that the law of England may in certain circumstances not
recognise the existence of a duty of care by one participant in a crime to another participant
in the same crime, in relation to an act done in connection with the commission of that
crime. That law is based on public policy, and the application of the law depends on a
consideration of all the facts. Having regard to all the facts in this case I have come to the
conclusion that a duty of care did not exist between the first defendant and the plaintiff
during the course of the burglary and during the course of the subsequent flight in the get-
away car …”.
 Vellino v CC Greater Manchester [2001]
• P, a known offender with a string of convictions, jumped out of a 2 nd floor window to escape
after being arrested. He suffered serious injury in the process (fractured skull, brain damage
& tetraplegia).
• The police were aware that he might try to escape, having done so on several previous
occasions. They did not prevent him from jumping.
• P sued the police arguing that having arrested him, they owed him a duty of care to prevent
him from injuring himself.
• D denied owing a duty of care & also raised the defence of ex turpi causa in that it was a
criminal offence for an arrested person to try to escape.
• Trial judge held that ex turpi causa excluded the imposition of a duty of care. It was not just,
fair & reasonable to impose a duty of care on the police to prevent P injuring himself by his
own unlawful act.
• P appealed & the appeal was dismissed. As a matter of legal policy, there was no reason to
permit a person to recover damages against the police if he hurt himself in the process of an
escape attempt (part of an illegal enterprise).

Vellino v CC Greater Manchester – Sir Murray Stuart-Smith, para. 70

• He identified some principles relating to the maxim of ex turpi causa:
1. The operation of the principle arises where the claimant's claim is founded upon his own
criminal or immoral act. The facts which give rise to the claim must be inextricably linked with
the criminal activity. It is not sufficient if the criminal activity merely gives occasion for
tortious conduct of the Defendant.
2. The principle is one of public policy; it is not for the benefit of the Defendant. Since if the
principle applies the cause of action does not arise, the Defendant's conduct is irrelevant.
There is no question of proportionality between the conduct of the Claimant and Defendant.
3. In the case of criminal conduct, this has to be sufficiently serious to merit the application of
the principle. Generally speaking a crime punishable with imprisonment could be expected to
qualify. If the offence is criminal, but relatively trivial, it is in any event difficult to see how it
could be integral to the claim.

Vellino v CC Greater Manchester – Sir Murray Stuart-Smith, para. 71

Applying these principles it is common ground that the Claimant has to rely on his criminal
conduct in escaping lawful custody to found his claim. It is integral to the claim. The crime of
escape is a serious one; it is a common law offence for which the penalty is at large. It is
almost invariably punished by a sentence of imprisonment, although the length of the
sentence is usually measured in months rather than years. In my judgment it is plainly a
sufficiently serious offence for the purpose of the application of the maxim.

Vellino v CC Greater Manchester –Schiemann LJ

“Second, he was engaged in a criminal act, namely attempting to escape from lawful custody.
As a matter of legal policy, I see no reason to permit a man to recover damages against the
police if he hurts himself as part of that illegal enterprise. The basis of such recovery must be
either an allegation of a breach of duty owed to him not to let him escape, or of a duty owed
to him to take care that he does not hurt himself if he tries to escape. I see no reason to
create such duties owed to him. It is common ground that the policy of the law is not to
 permit one criminal to recover damages from a fellow criminal who fails to take care of him
whilst they are both engaged in a criminal enterprise. The reason for that rule is not the law's
tenderness towards the criminal defendant, but the law's unwillingness to afford a criminal
plaintiff a remedy in such circumstances. I see no reason why that unwillingness should be
any the less because a defendant is a policeman and not engaged in any crime”.
• See: Sacco v CC of South Wales Constabulary [1998].

B. . Illegality as a defence in negligence

• When illegality is used as a defence, the judges have discretion to look at the quality of P’s
actions (degree of gravity of P’s conduct) vis-à-vis D’s actions causing harm – the courts weigh
& balance to determine if the illegality should preclude P from recovering.
• Nicholls LJ stated the requisite balancing in Tinsley v Milligan [1992] as follows: the court has
to weigh or balance the adverse consequences of granting relief against the adverse
consequences of refusing relief.
• T & M were lovers & they together purchased a property, but it was registered in the name of
T alone. This was to allow M to fraudulently claim for social security benefits which would go
into their joint bank accounts.
• Relationship broke down & T sought possession claiming full ownership.
• CA applied the public conscience test & held that it would be an affront to public conscience
to allow T to claim all the full interest in the house.
• Appeal to HoL: M didn’t have to rely on the illegality to assert her claims, it was sufficient that
she had made contributions to the purchase price.

Illegality in the law of torts

• For the defence to apply, there must be some connection between the illegal act & P’s claim.

• But there is no water-tight test to determine when the defence will apply – mere fact of
wrongful conduct will not lead to the success of the defence.

• According to Lord Asquith in National Coal Board v England [1954]:

“But it seems to me in principle that the plaintiff cannot be precluded from suing simply because the
wrongful act is committed after the illegal agreement is made and during the period involved in its
execution. The act must, I should have supposed, at least be a step in the execution of the common
illegal purpose. If two burglars, A and B, agree to open a safe by means of explosives, and A so
negligently handles the explosive charge as to injury B, B might find some difficulty in maintaining an
action for negligence against A. But if A and B are proceeding to the premises which they intend
burglariously to enter, and before they enter them, B picks A’s pocket and steals his watch, I cannot
prevail on myself to believe that A could not sue in tort … The theft is totally unconnected with the
burglary”.

Proportionality as a guide: Revill v Newberry [1996]

• Proportionality of D’s conduct leading to harm vis-à-vis P’s illegal act may hep the courts
determine application of the defence.
 • D, a 76yr old man, owned an allotment with a shed where he kept some valuable items. The
shed had been subject to frequent break ins & vandalism, so he took to sleeping armed with
a 12 bore shot gun.
• P & another man tried to break into the shed at around 2.00 am. Do woke up & fired the gun
through a small hole in the door to the shed. P was hit in the arm with the bullet passing
through to his chest.

• Both parties were prosecuted for the criminal offences, with P pleading guilty & D being
acquitted for wounding.

• P brought civil action against D for injuries suffered & D raised the defence of ex turpi causa &
contributory negligence.

• Held: Defence of ex turpi causa not accepted because D had employed excessive force out of
all proportion to P’s conduct (P’s damages reduced by 2/3).

Revill v Newberry – Millett LJ

For centuries the common law has permitted reasonable force to be used in defence of the person or
property. Violence may be returned with necessary violence. But the force used must not exceed the
limits of what is reasonable in the circumstances. Changes in society and in social perceptions have
meant that what might have been considered reasonable at one time would no longer be so
regarded; but the principle remains the same. The assailant or intruder may be met with reasonable
force but no more; the use of excessive violence against him is an actionable wrong. It follows, in my
opinion, that there is no place for the doctrine ex turpi causa non oritur actio in this context. If the
doctrine applied, any claim by the assailant or trespasser would be barred no matter how excessive
or unreasonable the force used against him.
Trespass to land

University of Nairobi, School of Law

Law of torts: LLB II, Evening

Dr. Nicholas Orago

Introduction

• Trespass to land entails the unauthorised interference with a person’s possession of land. No
need for the land to be enclosed: Blackstone “every man’s land is in the eyes of the law
enclosed & set apart from his neighbour’s”.
• It occurs where a person directly, voluntarily and deliberately (intent) enters (an affirmative
action) upon another's land without permission (express or implied) or some other lawful
justification; or remains upon the land where initial entry was lawful but the licence has been
revoked (Kelsen v Imperial Tobacco); or places or projects any object upon the land of
another without permission (Building cranes & Rigby).

• Implied consent – Lowery v Walker [1920]: For 30yrs local people had used a short-cut over
D’s land & D had not taken any action against them b/c most of them were customers for his
milk. One day, D without notice let loose into the field a savage horse which then mauled P
when he was using the short-cut. P sued D.

- HoL held: People passing through were licensees & not trespassers.

• Entry into restricted public land also constitute trespass – Game Parks.

Kelsen v Imperial Tobacco [1957]

• In April 1946, P acquired a lease of shop where he conducted a tobacco business.

• Adjacent to the shop was a 3-story building which was occupied by D. D displayed 3
advertising signs which protruded 4 inches into P’s airspace (above P’s shop).
• In 1948 & 1950, D sought & obtained consent from P’s landlord to mount a bigger advert
sign.

• A new sign was thus erected in 1950 with P’s knowledge & it protruded 8 inches into P’s
airspace.
• From time to time, D’s servants made repairs & maintenance of sign through P’s shop & with
P’s knowledge.

• In Dec 1953, a business dispute arose btw P & D, & P asked D to remove the sign. After the
resolution of the dispute, P allowed the sign to remain.

• Further disputes arose & P again asked D to remove the sign & instituted a suit in trespass for
D’s failure to remove the sign.
• Held: Airspace above the shop was part of the premises leased to P. P’s conduct of allowing
the sign to remain on his airspace did not in any way estop him from subsequently requiring
 it to be removed. The invasion of P’s airspace thus amounted to trespass & a mandatory
injunction was issued for D to remove the sign. See also: Plenty v Dillon (1991); Halliday v
Nevill (1984).

Per se actionability for trespass to land

• Trespass to land, as an intentional tort, is actionable per se & P doesn’t have to prove harm to
the land – interference with rights to land is injury enough to establish liability.

• loss/injury will determine amount of compensation/damages: no harm = nominal

damages.
• Rationale for per se actionability – trespass likely to lead to breach of peace if self-help is
allowed/encouraged.
• Significance/ social functions of trespass to land as a tort:

i) means of maintaining the privacy of one’s home against unwanted intrusion;

ii) Maintenance of public order - Lessens temptation to resort to violence (only a person in
actual & exclusive possession sues).
iii) settling boundary disputes with neighbours (quieting titles & preventing the acquisition of an
easement by a prescriptive user).

iv) Compensation for the direct material damage/loss occasioned by the direct & intentional act
of another – loss = higher awards.

Intention to enter, not to trespass

• Ignorance or mistake are no defences to an action for T2L, so long as there is voluntary entry.
See: Basely v Clarkson [1681] – mistaken mowing.
• Intention relates to the voluntary entry of D into P’s land, & not D’s intention to trespass
(even if D innocently but voluntarily enters into P’s land, he will be liable for trespass to land).
• Rogers (Winfield & Jolowicz) – I intend to enter upon your land if I consciously place myself
upon what proves to be your land, even though I neither knew nor could not reasonably have
known that it was not mine”.

• Deliberate entry is sufficient, it doesn’t matter that D didn’t know that they were entering P’s
land or believed that their entry was authorised (lack of knowledge of the trespass not a
defence).
• Illustration: If A fraudulently sells a piece of land K to B, though the land legally belongs to C.
If B deliberately/voluntarily enters the land K, C can sue B for trespass to land even though B
thought he was entering upon his own land.

Costello v City of Calgary [1997]

 • In 1968, the City came up with a roadway plan for the building of a traffic interchange which
was to be partially located on P’s land.

• Ps who used their land for motel business had plans to expand their business & duly
submitted their expansion plan to the City in 1971.

• Realising that the subject land had been earmarked for road expansion, the City tried to
purchase the land from P, but P refused.

• The City tried to expropriate (compulsorily acquire) the land, but did not properly serve the
notice of intention to expropriate on one of the owners of the land – Mrs Dickhoff.

• Costello applied to have the expropriation declared invalid & the Supreme Court of Canada
affirmed that the expropriation was void for lack of sufficient service – overturning the 1 st
court & CA.
• In October 1983, by order of the SC, the Costellos were again registered as the owners of the
land.

• The Costellos then sued the City for trespass to land in relation to their possession of the land
between 1974-1983 (9yrs).

• 1st instance court: Notwithstanding its honest & reasonable belief that it had expropriated the
land, the City had committed a trespass by occupying the land between 1974-1983. This was
because there was no consent by the Costellos either to the expropriation or the occupation.
Award of $572, 265 & interest of $1, 354, 796.

• The City appealed the decision arguing that they did not intend to commit a trespass (a tort).

• CA of Alberta Held: There is a long line of authorities that recognise that trespass occurs if an
authority takes possession of land pursuant to an expropriation that subsequently is
determined to be invalid (para 6).
• Para 7- Trespass does not depend upon intention. If I walk upon my neighbour’s land, I am a
trespasser even though I believe it to be my own. On the basis of the authorities, then, I am
compelled to the view that a trespass occurs, regardless of consciousness of wrongdoing, if
the defendant intends to conduct itself in a certain manner and exercises its volition to do so.
The City’s possession of the Ranch Site clearly falls within that definition.

Involuntary intrusion & trespass

• Involuntary intrusion not intentional & thus not actionable – Smith v Stone [1647]: D was
forcibly carried into P’s property involuntarily. P instituted a suit for trespass. D wasn’t on the
property voluntarily & was thus not liable. The element of volition must exist.
• Public Transport Comm v Perry (1977): P while waiting for a train suffered an epileptic fit &
fell unconscious onto the track & was hit by a train. Perry sued & the jury found that the train
driver had failed to keep a proper lookout & take all reasonable care while driving the train.

- This was appealed & it was argued that she was a trespasser & who was only owed a limited
duty.
 - Held: Perry’s fall was involuntary & she was thus not a trespasser. Her fall did not absolve the
company from its duty to take reasonable care for her safety.

• If after the involuntary intrusion the person is asked to leave but refuses to do so, it becomes
trespass (excusable entry but unlawful refusal to leave).

Negligent entry can be actionable

• Negligent entry can be actionable: League Against Cruel Sports v Scott [1986] – D had been
forbidden from allowing their hounds to enter into P’s property, a deer sanctuary. D had
recklessly allowed the hounds to trespass into P’s land & was held liable for the trespass by
the hounds.

- Court said: in going hunting with a pack of hounds, if they enter P’s property, the master of
the hounds is liable if he intended the hounds to enter P’s land or if, knowing that there was a
real risk that they would enter, their entry was caused by his failure to exercise proper control
of them.

Ways in which trespass may occur

1. Trespass on the surface of the land:

- walking into the land without permission: Basely v Clarkson [1681] – D when mowing his land
by mistake mowed some grass from P’s adjoining land. Liable for trespass though P only got 2
shillings contemptuous damages;

- or refusing to leave when the permission has been withdrawn;

- If a licence has been granted, going above what is permitted (Hillen v ICI (Alkali) Ltd [1936] –
next slide),

- or throwing objects onto the land ( Rigby v CC of Northamptonshire [1985]) – firing a teargas
canister into P’s premises so as to flush out a dangerous psychopath (Defence of necessity a
possibility & it applied here to defeat the action on trespass).

- or placing object in contact with P’s property (Rubbish against the wall – Gregory v Piper
[1829]; ladder against P’s wall – Westripp v Baldock [1938]).

Hillen v ICI (Alkali) Ltd [1936]

• Stevedores were lawfully on a barge (flat-bottomed boat used for transportation of heavy
goods ) for the purpose of discharging it. They stepped on a hatch cover (small door) which
was not adequately supported.

• They knew that they were not authorised to use the hatch cover for purposes of discharging
the barge.

• Since it was unauthorised for them to use the hatch cover for the purposes of discharging the
barge, they were effectively trespassers.
‘So far as he sets foot on so much of the premises as lie outside the invitation or uses them for
purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be
determined accordingly.’

Ways in which trespass may occur

2. Trespass to airspace – Limited to the height at which intrusion to the airspace will interfere with
the reasonable use & enjoyment of the land i.e. flying an airplane at an unreasonably low level on P’s
property or putting up signposts that protrude into P’s land.

• Bernstein v Skyviews Ltd [1978] – In August 1974, D took an aerial photograph of P’s house &
later offered them to P for sale. P sued alleging that in taking the aerial photo, D had
trespassed their airspace. In deciding the case, Griffiths J said: “I can find no support in
authority for the view that a landowner's rights in the air space above his property extend to
an unlimited height."
“The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the
general public to take advantage of all that science now offers in the use of air space. This balance is
in my judgment best struck in our present society by restricting the rights of an owner in the air space
above his land to such height as is necessary for the ordinary use and enjoyment of his land and the
structures upon it, and declaring that above that height he has no greater rights in the air space than
any other member of the public”.
• No trespass.

Trespass to the airspace

• Kelsen v Imperial Tobacco [1957] D required by a mandatory injunction to remove a signpost

that was protruding 8 inches into P’s property;

• Wandsworth Board of Workers v United Telephone Co [1884] – unauthorised telephone wire

above P’s land was held to be trespass;

• Anchor Brewhouse Developments Ltd v Barkley House (Docklands Developments) Ltd [1987] –
a building crane swinging over P’s land is trespass.

• Woollerton and Wilson v Richard Costain [1970] – Ds had installed a high crane to help with
construction. From time to time, 50 feet of the crane extended into P’s land. Held that D’s
had committed trespass.

Woollerton and Wilson v Richard Costain – Stamp J

“It is in my judgement well established that it is no answer to a claim for an injunction to restrain a
trespass that the trespass does no harm to the plaintiff. Indeed, the very fact that no harm is done is
a reason for rather than against the granting of an injunction; for if there is no damage done the
damages recovered in the action will be nominal and if the injunction is refused the result will be no
more nor less than a licence to continue the tort of trespass in return for the nominal payment.”
Ways in which trespass may occur
• 3. Trespass to the subsoil beneath the surface of P’s land – the principle propounded in
Bernstein will also apply to use of the subsoil:

The rights of the owner of the surface extend downwards sufficiently to enable the owner to enjoy
the surface and prevent it being undermined.
• Bulli Coal Mining Co v Osborne [1899] - D mined from their land through to P’s land. This
was held to be trespass to subsoil.

• Cox v Mousley [1848] –D was held liable for trespass to the subsoil when he drove a stake
into the subsoil in P’s land.

Continuing trespass
• If an object is unlawfully placed on a person’s land, it is not only the initial placement that will
be actionable, failure to remove it will constitute a continuing trespass – P can continuously
litigate until the object is removed, or ask for mandatory injunction to order its removal.

• Continuing trespass will give rise to a new cause of action each & everyday that it lasts –
Holmes v Wilson & Others [1839]: D unlawfully entered P’s land & built buttresses to support
a road. They were found liable for trespass & paid damages, but they failed to remove the
buttresses. In further action on trespass, they were found liable as they had failed to remove
the trespassing buttresses.

• If the original placement of an object into P’s land was lawful (licenced), but the licence is
later withdrawn, the continued existence of the object in P’s land is a continuing trespass
(putting signpost & the consent being withdrawn later) - Kelsen v Imperial Tobacco [1957].

Konskier v Goodman Ltd [1928]

• An owner of a premises gave D (firm of contractors) licence to use the roof of his premises
while carrying out demolition work on adjoining property. They were to make repairs of any
damage done to the roof after completion.
• During demolition, some debris fell on inaccessible parts of the roof & were thus not
removed after completion.
• After this, P took lease from owner. There was a rainstorm that caused the debris to block
drainpipes resulting in flooding that damaged P’s goods.

• In trespass action, D said that they had a licence and were not liable for trespass.

• Court said that the continuance of the debris on the roof after the licence ended constituted
trespass, and P would be successful by proving that the continued stay of the debris on the
roof was a continuing trespass.
Who can sue in trespass?

• Trespass to land is a wrong to possession, not ownership & so only the person in
immediate & exclusive possession can sue. This was affirmed by Hodges J in Rodrigues v
Ufton [1894]:

‘An action of trespass is an action for the disturbance of possession and…the persons who can
maintain it are those whose possession is disturbed.’

- Issue in the case was whether a landlord could sue for trespass in land in which there was a
tenant. It was held that a landlord could sue for trespass only if they either i) have rights to
minerals on or under the surface; ii) are in possession; iii) their reversionary interests will
be affected. Ward v Macaulay [1791]; Jones v Llanrwst UDC [1911].

• Possession connotes the occupation or physical control of the land and the right to exclude
others (possession must be immediate & exclusive).

• So an owner occupier, tenant, subtenant or adverse possessor (not against owner until
12yrs have elapsed) has requisite occupation interests to sue.

• Persons with easement rights can also sue– Nicholls v Ely Beet Sugar Factory [1931].

Can mere use entitle a person to sue in trespass (Licensee)

• The mere use of land without exclusive possession is not sufficient i.e. licensee doesn’t
have proprietary rights to exclude – a lodger; hotel guest etc.
• Hill v Tupper [1863] – The Basingstoke Canal Co. had gave H exclusive contractual licence to
hire pleasure boats out in their canal. T started hiring boats out in the same canal & H
wished to stop T from operating on the grounds of trespass.

- held: H did not have sufficient possessory interests to stop T from operating & that could
only be done by the Canal Co.

• Georgeski v Owners Corporation Strata Plan 49833 – P had a licence from the crown over a
riverbank where they build a jetty & slipway.

- D held an easement from the edge of P’s land to the riverbank. P sought a declaration from
the courts over her right to the jetty & slipway & an order forbidding D from trespassing on
them.

- D argued that P had no proprietary rights over the jetty & slipway, but a mere licence from
the Crown to enjoy them.
- Held: A licence doesn’t qualify as proprietary interest & so a licensee does not have a right
of possession. A license only grants a right in personam which means a licensee can only
sue the person who gave him that right if his right is breached. He cannot sue the rest of
the world for trespassing. P failed.

Allan v Liverpool Overseers [1874]

 • Court asked to determine whether a steamship co. was liable to be rated in respect of its
occupation of sheds in the Dock which it occupied under a licence from Mersey Docks &
Harbour Board.

• Liability for rates only fell on those who had exclusive possession. The court stated as
follows:
“ ‘The poor-rate is a rate imposed by the statute on the occupier, and that occupier must be the
exclusive occupier, a person who, if there was a trespass committed on the premises, would be the
person to bring an action of trespass for it. A lodger in a house, although he has the exclusive use of
rooms in the house, in the sense that nobody else is to be there, and although his goods are stored
there, yet he is not in exclusive occupation in that sense, because the landlord is there for the
purpose of being able, as landlords commonly do in the case of lodgings, to have his own servants
to look after the house and the furniture, and has retained to himself the occupation, though he
has agreed to give the exclusive enjoyment of the occupation to the lodger. Such a lodger could not
bring ejectment or trespass, the maintenance of the action depending on the possession; and he is
not rateable.”

Justifications/defences for trespass to land

1. Licence (consent)

- Trespass entails unjustified entry, so authorised entry cannot amount to trespass so long as
the authorisation subsists.

- Licence is a personal permission or consent, granted with/without consideration, to enter,

traverse over or be present upon the land of another. It renders lawful a person’s entry into
another’s land, but without passing any interests in the land.
- A licensee is thus not a trespasser – but can be a trespasser if they exceed their licence; or
remain in the land after the licence has expired or been effectively revoked. Wood v
Leadbitter [1845].

- After expiry or revocation of the licence, the licensee must be given reasonable time to
leave & remove his goods – Robson v Hallett [1967]; Minister of Health v Bellotti [1944].

- If the licence is for a specific purpose & the purpose is not yet completed (watching a match
or play) & the licensee is acting within the confines of the licence, the licence cannot be
revoked without liability in damages against the licensor – Hurst v Picture theatres Ltd
[1915]; Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948].

2. Estoppel – if by their conduct P acquiesced to D’s trespass – the circumstances must be that it is
unconscionable for P to be permitted to assert their legal rights when they encouraged D to do
something to D’s detriment.

- D must show some positive conduct of P, mere delay in P asserting their rights against the
trespass is not sufficient to constitute acquiescence – Jones v Stones [1999].
3. Rights of entry – easements/servitudes/rights in re aliena: right of way by common law, Statute,
prescription or by contract.
 - Common law power of the police to enter a premises to stop a breach of the peace which is
imminent – Mcleod v Commissioner of Police of the Metropolis [1994]

4. Necessity. D must show that necessity did not arise due to their negligence – Rigby v CC
Northamptonshire (throwing of teargas canister into a gunsmith shop to flush out a psychopath
resulting in fire that damaged the shop. Necessity accepted as a defence to trespass. However,
homelessness does not constitute necessity in a trespass action – Southwark LBC v Williams [1971];
publicity campaign against GMOs does not constitute necessity – Monsanto PLC v Tilly [1999].

Remedies
• Can either be damages, injunction or both.

• Where trespass causes no harm or trivial harm, damages will be nominal & the court may
refuse injunction – Armstrong v Sheppard & Short Ltd [1959]; Llandudno UDC v Woods
[1889].

• Where trespass leads to physical harm to land, damages will be measured in relation to the
diminution of the value of the land: it is restitutionary & is aimed at preventing D’s unjust
enrichment (not compensatory) – Lodge Holes Colliery Co Ltd v Wednesbury Corporation
[1908]; Heath v Keys [1984]
• Other remedies:

- Action for recovery of land (ejectment) – if P has been unlawfully deprived of possession of
land (exists before the expiry of the 12yr limitation period). Countryside Residential Ltd v
Tugwell [2000]
- Action for mesne profits – action against a person ejected from property that did not
belong to them to recover for the loss occasioned to the property by the ejected person
during the period of possession or to recover any profits they may have made while
wrongfully in possession of the said property.

- Right of re-entry (self-help): use of reasonable force to re-possess.

Intentional Torts

University of Nairobi, School of Law

LLB II Evening, Law of Torts

Dr. Nicholas Orago

Introduction

• The mental state of the tortfeasor is always relevant in the categorisation of tort actions –
careless inadvertence or recklessness will lead to negligence; while a tortious act
committed intentionally/with intent will lead to “intentional torts”.

• An intentional tort is the deliberate interference with a person’s legally recognised interest
or right (mind-set of D is relevant).
• Generally people have a right to dignity, privacy, reputation, bodily integrity, emotional
tranquillity, seclusion from public scrutiny & dominion over property – there is a general
duty that other people do not intentionally infringe on or violate these fundamental rights.

• If A knowingly runs B over with his car; C purposefully slaps D without consent; E
intentionally builds his house in such a way that part of the house rest in F’s land etc., they
have committed a trespass.
• Intentional torts can be divided into trespass to persons (assault, battery, false
imprisonment, intentional infliction of emotional distress, malicious prosecution & invasion
of privacy); trespass to property (land, chattels, conversion) & defamation (Slander & libel –
quasi-intentional as it is not always necessary to establish D’s mind-set).

• Due to the intentional state of mind, damages are usually broader & more generous – to
create order in society & deter people from attacking each other (preserve individual well-
being & overall social welfare).

Elements of intentional torts

• Elements – action & intention: the state of mind must occur simultaneously with the
misconduct.

• P must prove that D acted with the specific intent to perform the act which was the actual
cause of P’s injuries/harm (D acted purposefully to achieve the tortious result or had
knowledge with substantial certainty that the act would lead to tortious results).

• D must desire to bring about the harmful consequences to P & should be substantially
certain that such consequences will follow (reckless or wanton behaviour is not sufficient).

• Illustration: B & C work in a quarry. During work, B tosses a stone out of a hole & its strikes
C on the head. Since B had no intention of hitting C, no battery takes place. If C then in
anger thinks of throwing the stone back at B, but walks away without doing it, C will not be
liable for assault. There has to be a misconduct accompanied by the requisite state of mind
– intention.
 • A purposefully touches B’s body inappropriately in a bus, A will be liable for trespass; if the
bus sways & A unintentionally brushes B, no trespass.

• Intent in relation to children & insane persons: infancy & insanity are not a defences to
intentional torts. However, intent is subjective & it has to be shown that D actually desired
or was substantially certain that the elements of the tort would occur.
- There4, if D has extreme mental impairment or is too young, they many not possess the
requisite intent.

- In relation to children, the court will consider what a child of that age knows & would have
thought - & how far the conduct of the child is from children of that age.
• Possibility of transfer of intent – if A intended his conduct to harm B, but instead it is C who
is harmed.
• Intentional torts are mostly actionable per se – there is no need for P to prove that they
suffered loss/injury as a result of the tortious act.

• As a matter of public policy, most intentional torts are uninsurable – D must pay damages
out of their own pockets.

Trespass to persons

• Trespass to persons– is the direct or intentional interference with a person’s body or liberty.
It has to be committed by direct means.
• Derived from the ancient writ of trespass which had 2 distinctive features:

- it was actionable per se (without proof of damage);

- It had to be a direct result of D’s act.

• There are 3 forms of trespass to persons:

- Assault: intentional act of creating apprehension of imminent harmful or offensive contact.

- Battery: the intentional infliction of a harmful or offensive contact on the person of another
(contact; intent; offensive). Intent to touch is necessary, but intent to harm is not.

- False imprisonment: Voluntary act of D with intent to confine P to a specific area, leading to
actual confinement of P (Merchant Privilege Rule – reasonable grounds; reasonable period
of time; reasonable manner).
- The three also constitutes crimes & are mostly dealt with under criminal law. Few civil
cases of intentional torts filed: power of criminal courts to order compensation; fear of the
risks of civil litigation (contemptuous damages, costs & mental stress); if D is not worth
pursuing for purposes of compensatory damages.

- Motivation to sue in tort: lower burden of proof than in criminal law; damage as a right in
civil cases, but discretionary in criminal cases; possibility of large damages due to the
vicarious liability of a 3rd party (battery by servant in the course of employment, payment
by insurance policy); possibility of asking for an award of exemplary damages.
 - Intention important in determining whether the conduct of D leads to liability in trespass:
Lord Denning MR – If the nature of D’s conduct is intentional, an action lies in trespass; if
the conduct was unintentional, then the action lies in negligence. Not possible to commit
trespass to the person negligently – Letang v Cooper [1965]. See: Wilson v Pringle [1986].

Assault

• Is an attempt or threat to do a corporeal hurt to another, coupled with the intention to do

the act.

• Aimed at the protection of bodily integrity & protection of individuals from fear or
apprehension of unwelcome bodily contact.

• Three elements must be established for liability in assault to subsist:

- Apprehension of immediate or imminent physical contact (little or no opportunity for

intervening acts). Fear for physical safety in anticipation of unconsented harmful or
distasteful contact;

- The apprehension has to be reasonable – fear must be rational given the perceived threat –
D must have the means of carrying out the threat (threats from a toddler or threats from a
distance that cannot be fulfilled physically don’t amount to assault);

- D’s act of interference must be intentional (D intended the resulting apprehension).

- Stephens v Myers [1830]: D threatened P & moved towards him with a clenched fist, but
was restrained from reaching P. D liable for assault as P had reasonably apprehended the
infliction of immediate & unlawful force on their person by D.
- Herbert v Misuga [1994]: D intentionally & deliberately steered towards P with an intention
to scare, but not to hit him. Since P did not know that D had no intention of hitting him, D
was still liable for assault.

- If threats cannot practically be executed, no assault – Thomas v National Union of

Mineworkers [1958]: Violent gestures by picketing miners to working miners in a passing
vehicle with picketing miners held back by police. No assault.

Thomas v National Union of Mineworkers [1958]:

• P were members of a branch of NUM.

• In March 1984, NUM voted to undertake a strike against the mineworkers’ employer & the
strike commenced in May.

• There was continued picketing by member of each branch of NUM in their respective area.

• In November, Ps decided to return to work, but were faced with abusive & violent
language, which made it necessary that the working miners be taken to the mines in
vehicles & for the police to protect them from any harm from the picketing minors.

• Ps brought an action for interlocutory injunction against NUM on many grounds, one of
them being that the picketing at the gate of the mines was actionable assault.
 • Held: Picketing at the gate was not actionable assault since the working miners were
brought in & taken out of the mines in vehicles & there was always police to hold the
picketers back. There was therefore no overt against the working minors.

Can mere words or silent phone calls lead to liability for assault?

• R v Ireland – D made a series of silent phone calls to three different women over a period of
3 months. He was convicted & appealed contending that silence cannot amount to assault .
Conviction upheld & HoL affirmed that silence can amount to assault.

• Lord Steyn:
“It is to assault in the form of an act causing the victim to fear an immediate application of force to
her that I must turn. Counsel argued that as a matter of law an assault can never be committed by
words alone and therefore it cannot be committed by silence…. The proposition that a gesture may
amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said
is also a thing done. There is no reason why something said should be incapable of causing an
apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying
"come with me or I will stab you." I would, therefore, reject the proposition that an assault can
never be committed by words."

R v Constanza [1997]

• D mounted a campaign of hate against an ex-work colleague over a period of 20 months.

• He sent over 800 threatening letters, would follow her home, made silent phone calls,
wrote offensive words on her front door, stole items from her washing line etc.

• As a result, she suffered clinical depression.

• D was convicted of assault causing actual bodily injury & appealed arguing that words
alone couldn’t amount to an assault & that the letters couldn’t also amount to assault as
there was no immediacy.

• CA Held: words on their own can amount to assault & immediacy of the apprehended
violence is measured from the time the victim has the fear of the violence. Appeal
dismissed.

Words and actions in assault

• Words may negative the threatening nature of D’s actions, making him not liable in assault
e.g. B brandishing a knife at C and stating “if it was not Christmas, I would have finished
you”. Though the action is threatening, the words remove the requirement of imminence
or immediacy of physical harm & thus negatives assault.

• Tuberville v Savage [1669]- S made some insulting comments to T & T put his hand on his
sword and stated, 'if it were not assize-time, I would not take such language from you'. S
responded with force, causing T to loose an eye. T sued for assault & battery; & S pleaded
provocation by T’s statement & action. The court held that a conditional threatening
 statement, without an imminent threat of harm, does not constitute an assault. T’s words
& conduct could not amount to assault, and S’s defence fell away & T succeeded in his
action.

Assault & battery

• Possible for an assault to lead to battery: spitting towards a person (assault), when the spit
reaches them (battery); throwing water (assault), when water lands on the person
(battery); deliberately driving a car towards a person threateningly (assault), actually
hitting them with the car (battery).
• Possible to have battery without assault – someone struck from behind or when sleeping.
Example: Pulling a chair away when someone is about to sit – Hopper v Reeve [1817]

Battery

• Concept of the inviolability of the human person – you cannot touch a person without their
consent or some lawful justification. Any contact to the contrary, no matter how trivial, if
committed intentionally amounts to battery.

• Battery is thus the intentional & direct application of physical force on another person.

• Cole v Turner [1704] – the least touching of another person in anger is battery.

• D’s actions leading to the battery must be voluntary and intended to get contact with P (A
pushes B who bumps into C – B not liable for battery as against C).

• No requirement for ill intentions, unwarranted touching, fondling without consent amounts
to battery.

• Battery not only aimed at protection from physical injury, but is also aimed at protecting P’s
dignity from physical molestation.

“Hostility” requirement in battery

• Liability in battery will require some form of “hostility” – it must be the type of contact
that P might object to due to its offensive nature.

• “Hostility” doesn’t require that D shows ill will or malice - a doctor treating a patient
without their consent is battery, though the doctor is not guided by any ill will.

• Wilson v Pringe [1987]: P & D were involved in an incident in school which led to P’s fall. D
had pulled P’s bag from behind causing P to fall & hurt his hip.

• P sued on trespass to persons & demanded a remedy. D admitted that he had been
involved in horseplay with P.

• On the basis of the admission, P sought summary judgment.

 • Court of 1st instance held that the admission in the absence of any express or implied
consent as defence amounted to an admission of battery & thus an unjustified trespass to
the person.

Wilson v Pringe

• D appealed to the CA on the ground that essential ingredients to T2P were deliberate
touching; hostility & intention to inflict injury. Since there was no intention to inflict injury
in horseplay, it did not amount to T2P.

• Held:
- An intention to injure was not an essential element of T2P since it was the mere trespass by
itself that was the offence. It was the act rather than the injury that had to be intentional.

- Liability depended on whether the boys actions had been hostile, and that hostility was a
necessary element of actionable battery. Any hostile touching was enough to constitute
battery. Hostility was a question of fact to be determined in each case.

- Since D hadn’t admitted a hostile act, they were entitled to a judicial trial to determine the
T2P & not a summary judgment.

Re F (Mental Patients Sterilisation) [1990]

• F a 36yr old mental health patient with verbal capacity of a child of 2yrs & mental capacity
of a child of 4yrs. She had sexual relations with another patient & family were worried of
her ability to cope with pregnancy & raise a baby.

• Family sought a declaration for her sterilisation as she couldn’t give consent.

• Held, it would be lawful for the doctor to sterilise without her consent, declaration granted.
• Lord Goff: objectionable battery constitutes “the deliberate touching of another’s body,
beyond the bounds of acceptable everyday conduct in the absence of lawful excuse”.

Lord Goff – Re F

"It is well established that, as a general rule, the performance of a medical operation upon a person
without his or her consent is unlawful, as constituting both the crime of battery and the tort of
trespass to the person. Furthermore, before Scott Baker J. and the Court of Appeal, it was common
ground between the parties that there was no power in the court to give consent on behalf of F. to
the proposed operation of sterilisation, or to dispense with the need for such consent…. If such
treatment administered without consent is not to be unlawful, it has to be justified on some other
principle. Upon what principle can medical treatment be justified when given without consent? We
are searching for a principle upon which, in limited circumstances, recognition may be given to a
need, in the interests of the patient, that treatment should be given to him in circumstances where
he is (temporarily or permanently) disabled from consenting to it. It is this criterion of a need which
points to the principle of necessity as providing justification."
Transferred intent

• Transferred intention – A intends to strike B, but misses & strikes C. A liable for battery
against C.

• Livingstone v Ministry of Defence [1984] – P was injured when a soldier fired a baton round
(rubber bullet) after some soldiers were attacked by rioters.

• The round had been deliberately fired, but it was not meant to strike P.
• P sued in negligence, assault & battery.

• Trial court dismissed the claim on negligence, but made no decision on battery.

• P appealed & the CA allowed the appeal & ordered a new trial. The court rejected D’s
argument that there can be no battery because P was not the chosen target.

Livingstone v Ministry of Defence

In my judgment when a soldier deliberately fires at one rioter intending to strike him and he misses
him and hits another rioter nearby, the soldier has ‘intentionally’ applied force to the rioter who
has been struck. Similarly if a soldier fires a rifle bullet at a rioter intending to strike him and the
bullet strikes that rioter and passes through his body and wounds another rioter directly behind
the first rioter, whom the soldier had not seen, both rioters have been ‘intentionally’ struck by the
soldier and, assuming that the force used was not justified, the soldier has committed a battery
against both.

Haystead v CC Derbyshire [2000]

• D punched W twice on her face while she was holding a child & as a direct result of that,
the baby fell from her harms & hit his head on the floor. D was sued for battery on the
baby.
• D argued that to be liable for battery of the child, he must have used force directly on the
person of the child & had direct physical contact with the child – direct punch on the child.

• Held:

“The movement of W whereby she lost hold of the baby was entirely & immediately the result of
D’s action in punching her. There is no difference in logic or good sense between the facts of this
case and one where D might have used a weapon to fell the child to the floor. An act by an assailant
could constitute battery where it indirectly, through the medium of a third party, caused injury to
the victim”.

E
xceptions to battery

• If all form of contact was actionable, life would be difficult.

 • Normal reasonable contact consequential of social interactions (implied consent) –
bumping on the streets/bus/train . Collins v Wilcock [1984]: A police woman held another
lady’s arm to stop here from walking away when being questioned. The lady scratched the
officer’s hand & was charged with assaulting a police officer when on duty. Held – police
officer’s actions amounted to battery & lady was entitled to use self defence.
• Lord Goff: implied consent existed where there was jostling in crowded places,
handshakes, back slapping, tapping to gain attention provided no more force was used than
is reasonably necessary in the circumstances. There was no consent given for the grabbing
of the arm.

False (erroneous/wrong) imprisonment

• The unlawful restraint of someone which affects the person’s freedom of movement.

• Voluntary act of D with intent to confine P to a specific area, leading to actual confinement
of P without justification or consent (Restraint not expressly or impliedly authorised by
law).

• It applies to private as well as governmental detention.

• If a person is not allowed to leave a place such as a hospital or a hotel or even the family
home when the person so desires to leave, it amounts to false imprisonment.

• False imprisonment was defined in Meering v Grahame White Aviation Co. [1919] as:

“[T]he restraint of a man’s liberty whether it be in the open field, or in the stocks or cage in the
street, or in a man’s own house, as well as in the common goal. And in all these places the party so
restrained in said to be a prisoner, so long as he hath not his liberty freely to go at all times to all
places wither he will, without bail”.

• To prevail under a false imprisonment claim, a plaintiff must prove: (1) wilful detention; (2)
without consent; and (3) without authority of law.

• Detention may either be actual/physical (laying a hand upon the person) or constructing
(by show of authority – the detaining person commanding the detained to accompany
him/her - Meering).

• Though false imprisonment often involves use of physical force, this is not a requirement;
threat of the use of force or a belief on the part of the detained that force will be used is
sufficient.

Knowledge of P – must P know that they are being detained?

• Though knowledge of detention is important, judicial authority assert that imprisonment
can occur even without the knowledge of P so long as there is detention.

• Rationale: the importance of the right to personal liberty to the extent that interference
with it must be deterred even where there is no consciousness or harm.
 • Meering v Grahame White Aviation Co. [1919]: P suspected of stealing a keg of varnish
from D (employer) & was asked by 2 policemen to accompany them to D’s offices. He
assented & even showed the policemen a short-cut to the office.
• At the office he was taken to wait at the waiting room, the two policemen remaining in the
neighbourhood.

• On a claim for false imprisonment, D argued that P had been free to leave and go wherever
he wanted during that time.

• Held: from the moment he was asked to accompany the policemen, P was not a free man &
the CA found by majority that D were liable for false imprisonment.

Meering v Grahame White Aviation Co. - Atkin LJ

“It appears to me that a person could be imprisoned without him knowing it. I think a person can
be imprisoned while he is asleep, while he is in a state of drunkenness , while he is unconscious
and while he is a lunatic… Of course the damages might be diminished & would be affected by the
question whether he was conscious of it or not”.

Murray v Ministry of Defence [1988]

• P suspected of committing offences of collecting money for the IRA in Northern Ireland. 6
armed soldiers went to her house at 7 a.m. to arrest her. Between 7 & 7.30, the soldiers
searched the house, having detained all the occupants in one room. P was only formally
arrested at 7.30 a.m.

• P alleged that between 7 & 7.30 a.m. she had been unlawfully detained because at that
point she had not been informed that she was under arrest.

• The claim was dismissed by trial & appeal courts.

• HoL: Where a person was detained or restrained by a police officer and knew that he was
being detained or restrained, that amounted to an arrest even though no formal words of
arrest were spoken by the officer.

• Approving the Dicta of Atkin LJ in Meering, the HoL stated per curium (opinion of the whole
court): “False imprisonment is actionable without proof of special damage and thus it is not
necessary for a person unlawfully detained to prove that he knew that he was being
detained or was harmed by his detention”.

Completeness of restraint

• For liability to hold for false imprisonment, the restraint of P must be complete (restrained
in every direction), if they have a way out, it is not imprisonment.
• Bird v Jones [1845] – D wrongfully enclosed a road, put seats on it for spectators of a boat
race on the river & charged admission.
 • P insisted on using the footpath & climbed over the fence of the enclosure without paying
charges. D refused to let him go forward but he was free to go back and use the other
unenclosed part of the bridge. P refused to go back & remained in the enclosure for half an
hour.

• On a suit for false imprisonment, D were held not to be liable as there had been no
imprisonment. P’s freedom was not totally restricted as he had options to use the other un-
enclosed sections of the road. False imprisonment must involve boundaries that cannot be
crossed.

Bird v Jones

“There was no imprisonment. To call it so appears to me to confound partial obstruction and

disturbance with total obstruction and detention. A prison may have its boundary large or narrow,
visible and tangible, or, though real, still in the conception only; it may itself be moveable or fixed:
but a boundary it must have; and that boundary the party imprisoned must be prevented from
passing; he must be prevented from leaving that place, within the ambit of which the party
imprisoning would confine him, except by prison-breach”.

Defences to trespass to persons

• Consent

• Self-defence

• Defence of another
• Defence of property

• Necessity

• Inevitable accident v mistake

1. Consent

• If P gives genuine, prior, voluntary & informed consent to the trespass, D will have a
complete defence.

• Consent can be express (explicit) or implied (implicit in P’s conduct or from the
circumstances).

• Deliberately cutting up someone is battery, but if consent is given in the context of a

medical procedure/operation (signing consent form), the cutting does not amount to
battery. Medical surgery without consent is battery. See: Chatterton v Gerson [1981].

• Scope of consent: If A consents to one procedure & doctors goes ahead & performs another
procedure – the second operation will be outside the scope of the consent & would be
unlawful battery.
 • If the mental capacity of the patient wont allow them to consent to medical treatment, a
doctor can rely on the defence of necessity to provide treatment, if the treatment is for the
benefit of the patient: F v West Berkshire Health Authorities [1990] (Re F).

Re F (Mental Patients Sterilisation) [1990]

• F a 36yr old mental health patient with verbal capacity of a child of 2yrs & mental capacity
of a child of 4yrs. She had sexual relations with another patient & family were worried of
her ability to cope with pregnancy & raise a baby.

• Family sought a declaration for her sterilisation as she couldn’t give consent.
• Held, it would be lawful for the doctor to sterilise without her consent, declaration granted.
Sterilisation based on necessity, also a defence trespass to the person.

Lord Goff – Re F
"It is well established that, as a general rule, the performance of a medical operation upon a person
without his or her consent is unlawful, as constituting both the crime of battery and the tort of
trespass to the person. Furthermore, before Scott Baker J. and the Court of Appeal, it was common
ground between the parties that there was no power in the court to give consent on behalf of F. to
the proposed operation of sterilisation, or to dispense with the need for such consent…. If such
treatment administered without consent is not to be unlawful, it has to be justified on some other
principle. Upon what principle can medical treatment be justified when given without consent? We
are searching for a principle upon which, in limited circumstances, recognition may be given to a
need, in the interests of the patient, that treatment should be given to him in circumstances where
he is (temporarily or permanently) disabled from consenting to it. It is this criterion of a need which
points to the principle of necessity as providing justification."

Implied consent in sports

• When you agree to take part in a sport, you are consenting to the normal contact that is
allowable within the rules of the sport.

• D must act within the scope of the consent given for the defence to be available. Rules
determining legitimate contact & acceptable occasions for making it will be relevant in
determining the scope of consent.

• See: Macnamara v Duncan [1979]; Condon v Basi [1985]; R v Billinghurst [1978].

Condon v Basi [1985]

• P suffered a broken leg due to a late, dangerous & foul tackle by D in the course of a
football game.

• P sued. D raised the defence of consent.

• The question for the court to answer was the standard of care expected of a football player.
 • Held: Whilst a participant can be taken to accept the risks of injury inherent to such
sporting activities they do not accept the risk of injury which occurs outside the rules of the
game.

• If a player fell below the normal and expected standards he should expect to be held liable.
There was an obvious breach of the defendant’s duty of care because he showed a reckless
disregard of the plaintiff’s safety and his conduct fell far below the standards which might
reasonably be expected of anyone playing the game.

R v Billinghurst [1978]
• B punched another player on the face during a rugby match in an unprovoked attack,
breaking their jaw.
• The punched player did not have the ball at the time of the attack.

• B was charged with causing grievous bodily harm under criminal law. B raised consent as a
defence.

• Prosecution argued that public policy imposes a limit on the violence that a rugby player
can consent to & that whereas he is taken to consent to vigorous physical contact on the
ball, he is not deemed to consent to any deliberate physical contact off the ball.

• In the direction to the jury, the judge said that a rugby player has no unlimited licence to
use force & there must be cases that go over what is normally consented to by players. The
judge then asked the jury to distinguish between force used in the course of play and force
used outside the course of play.
• B was convicted by a majority verdict of 11 to 1.

Consent – voluntary fights

• If you take part in a voluntary fight, you are taken to have consented to the battery.
• In Lane v Holloway [1968] – P a retired gardener aged 64, came home drunk & provoked an
argument by calling D’s wife a “monkey-faced tart” & striking D on the shoulder.

• D responded with a blow to P’s eye which caused a wound requiring 9 stitches.

• P sued & D raised the defence of consent.

• Held: Even though there is no action of battery available to those who take part in ordinary
fist fights because P would be taken to have consented to the battery, consent did not
apply to the circumstances of the case because D’s response was disproportionate to P’s
action.

• Even though P’s conduct was trivial, D’s savage blow was out of proportion to the incident.

2. Self-defence will be a complete defence if the force used to repel D is reasonable &
proportionate to the threat in the circumstances.

The force used must not be excessive – responding to a slap with a bazooka.
Cockroft v Smith [1705] – P, a clerk of the court ran his forefinger towards D’s eyes during a scuffle
in court, & D bit off the finger.

- Question was whether self-defence was applicable in the circumstances.

- Held: A person may use reasonable force in self-defence, but D’s actions were
disproportionate in the circumstances.

- Holt LJ: hitting a man with a stick on the shoulder is not reason for him to draw a sword and
cut the other.

Self-Defence/Defence of another/ Defence of property

• The onus of proving self-defence or defence of another is on D. He must prove that (Ashley v
CC of Sussex Police [2008]):

- There was a threat of imminent attack on his person or the person of another or on his
property;

- The reasonableness of the belief that there was a threat of imminent attack. If D’s belief is
unreasonable & mistaken, he will not be able to rely on the self-defence.

• Read carefully: Ashley v CC of Sussex Police [2008] paragraphs 16-20; 50-55; 76.

3. Necessity

• Employed in instances where D acts for the purpose of protecting P’s own health or safety.
See: Re F (Mental Patients Sterilisation) [1990].
• If the life of a person is in danger, a trespass to their person may be necessary to save them –
A lifeguard may be able to knock down a swimmer in order to save them from drowning.

• Leigh v Gladstone [1909]: A prisoner on hunger strike was forcibly fed by prison staff. She
sued for trespass to the person & the defence of necessity was used, with prison authorities
saying that only the minimum necessary force was used to feed her. Held: it was lawful for
prison authorities to intervene as they had the duty to preserve the life & health of prisoners
in their custody.

• In an emergency where someone is in critical condition & is not able to give consent to
treatment, necessity might be a defence to a surgical operation undertaken to save them –
the operation must be for the best interest of the person & the emergency must be real.

• Real emergency: P’s life is immediately threatened & they will perish if the procedure is not
undertaken – in that context, the necessity to save a life overrides the requirement for
consent.

4. Inevitable accident v mistake

• Inevitable accident is a defence while mistake is not a defence in trespass to persons.
 • Inevitable accident negatives the intent requirement – if D did not intend (did not purpose or
desire) the consequences of his/her act.

• If A has no intention of coming into contact with B, but slips & falls on B, there is no battery.

• But if D intends to undertake an activity that constitutes a tort, it is no defence that D mistook
the ID of the property or person or believes incorrectly that there is a privilege to undertake
the activity.

• But if A intended to come into contact with B, but makes a mistake as to the ID of B & instead
comes into contact with C, that type of mistake is not a defence in battery – there was a
deliberate act which led to offensive or harmful contact with another person without their
consent – the intent is transferred from B to C.

• If police officer A has an arrest warrant for B, but apprehends C instead, believing that C is B,
that mistake does not excuse officer A from liability for trespass to the person of C. intent is
there (deliberate act of arresting C with the purpose or desire to restrain C).
• It a doctor treats a patient without their consent, but did so under a mistaken belief that the
patient had consented, the mistaken belief does not constitute a defence to the battery.

• If A trespasses into B’s property mistakenly believing that it is his own property, the mistaken
belief does not excuse A from the trespass & B can sue A for trespass to property. So long as
A voluntarily intended to enter the said property, the mistaken ID of the owner is irrelevant.

• The aim of the mistake doctrine is deterrence – it requires that Ds take reasonable care not to
interfere with other persons body or property – as this may cause societal tensions &
conflicts. It can also prevents the unjust enrichment by D (mistakenly harvesting P’s produce).

Nuisance

University of Nairobi, School of Law

2nd Year, Law of Tort

Dr Nicholas Orago

Introduction
• Noun: A person or thing causing inconvenience or annoyance.

• Legal definition: “Anything that unlawfully worketh hurt, inconvenience, or damage”.

• “That class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a
person of his own property, either real or personal”.
• Nuisance mostly applicable in the following instances:

- Protection of private rights in the enjoyment of land;

- Obstruction of access to roads.

- Protection of the environment – redress to pollution by oil or noxious fumes; offensive smells
from animal farms; noise from industrial installations or entertainment joints etc.

• Nuisance under common law has been supplemented by Statutory enactments such as
EMCA; Traffic Act etc – provides for criminal offences; not civil liability.

• Main reason for nuisance litigation is to prevent the continuance of the offending
situation/conduct - "as every man is bound to look to his cattle, as to keep them out of his
neighbour's ground; so he must keep in the filth of his house or office, that it may not flow in
upon and damnify his neighbour”.

Two categories of nuisance

• Public/common nuisance – where the defendant's actions materially affects the reasonable
comfort and convenience of life of a class of citizens who are within the neighbourhood of its
operation.
• Private nuisance - where the actions of the defendant are causing a substantial and
unreasonable interference with a plaintiff’s land or his use or enjoyment of that land.

• To prove negligence, P must show that D’s conduct caused an interference that was
unreasonable (Nuisance based on the concept of live and let live; mutual reciprocity of
neighbourliness).

• Difference btw the two:

- Public nuisance is a crime prosecuted by DPP; while private nuisance is a civil wrong litigated
by Plaintiff. Individual litigation for Pub. N is possible.

- Public nuisance allows P to claim for personal injury; while private nuisance does not allow
claims for personal injury.
• Though the 2 categories are different – a conduct can amount to both public & private
nuisance – Road block by noxious lorry.
2. Public nuisance

• It is aimed at protecting members of the public & not a specific individual. Is thus majorly
dealt with as a crime & is prosecuted by the State on behalf of the affected class of citizens.

• Definition given by Romer LJ in Attorney-General v PYA Quarries Ltd [1957] as: “any act or
omission which materially affects the reasonable comfort and convenience of life of a class of
Her Majesty's subjects”.

• The injury has to affect a class of people – Denning LJ - AG v PYA Quarries: “whether the
nuisance is so widespread in its range or so indiscriminate in its effect that it would not be
reasonable to expect one person to take proceedings on his own responsibility to put a stop
to it, but that it should be taken on the responsibility of the community at large”.

• The question whether the affected constitutes a class of persons is to be determined on a

case by case basis – it must be proven that a representative cross-section of the population
has been affected for an injunction to issue.
• The test for proving public nuisance is the reasonableness of D’s conduct .

Attorney-General v PYA Quarries Ltd [1957]

• An action by the AG on behalf of the residence to stop Ds from emitting large quantities of
dust from their quarry as this interfered with the enjoyment of adjacent properties.

• At trial, an injunction was issued to stop D from conducting its quarry business in a manner as
to occasion a nuisance to her Majesty’s subjects by dust or by vibrations.

• D appealed challenging the injunction.

• CA held:

- a public nuisance is proved by the cumulative effect which it is shown to have had on the
people living within its sphere of influence. In other words, a normal and legitimate way of
proving a public nuisance is to prove a sufficiently large collection of private nuisances.
- It was possible for D to reduce the level of vibration & the amount of dust from the quarry,
but had not put in place sufficient measures to do so & had shown a lack of concern taking
into account the many complaints by the residents & the local authorities that had been
directed its way.

- The injunction had been rightly granted & the appeal was dismissed.

Attorney-General v PYA Quarries Ltd – Romer LJ

• In making the determination, Romer LJ defined public nuisance as follows:

“I do not propose to attempt a more precise definition of a public nuisance than those which emerge
from the textbooks and authorities to which I have referred. It is, however, clear, in my opinion, that
any nuisance is “public” which materially affects the reasonable comfort and convenience of life of a
class of Her Majesty’s subjects. The sphere of the nuisance may be described generally as “the
neighbourhood”; but the question whether the local community within that sphere comprises a
sufficient number of persons to constitute a class of the public is a question of fact in every case. It is
not necessary, in my judgment, to prove that every member of the class has been injuriously affected;
it is sufficient to show that a representative cross-section of the class has so been affected for an
injunction to issue.”

Attorney-General v PYA Quarries Ltd – Denning LJ

“What is the difference between a public nuisance and a private nuisance? The classic statement of
the difference is that a public nuisance affects Her Majesty’s subjects generally, whereas a private
nuisance only affects particular individuals. But this does not help much. The question: “When do a
number of individuals become Her Majesty’s subjects generally” is as difficult to answer as the
question: When does a group of people become a crowd? Everyone has his own views. Even the
answer “Two’s company, three’s a crowd” will not command the assent of those present unless they
first agree on “which two”. So here I decline to answer the question how many people are necessary
to make up Her Majesty’s subjects generally. I prefer to look to the reason of the thing and to say that
a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect
that it would not be reasonable to expect one person to take proceedings on his own responsibility to
put a stop to it, but that it should be taken on the responsibility of the community at large.”

Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993]

• In 1982, the Chatham Dockyard began to close, threatening the economic stability of the
Chatham area.

• The Council granted Ds a planning permission to redevelop the Dockyard into a 24hr
commercial port, noting that this would have adverse noise impact on locals, but that the
economic benefits will far outweigh any adverse problems.

• The ports activities required many heavy duty vehicles operating around the clock (750 per
day) causing a huge amount of noise to the residents.

• P, on behalf of the locals, brought an action against D in public nuisance.

• D argued that only an illegal could amount to public nuisance & that the planning permission
had authorised the nuisance.
• Held: it is not only illegal acts that amount to public nuisance, even legal acts can amount to
public nuisance if they cause unreasonable interference with the public’s enjoyment of rights.
- Ds activities were, however, not public nuisance as the planning permission had changed the
character of the area, & Ds’ use was not unreasonable.

Gillingham Borough Council v Medway (Chatham) Dock Co Ltd – Buckley J

"Parliament has set up a statutory framework and delegated the task of balancing the interests of
the community against those of individuals and of holding the scales between individuals and the
local planning authority. There is the right to object to any proposed grant, provision for appeals and
inquiries, and ultimately the minister decides. There is the added safeguard of judicial review. If a
planning authority grants permission for a particular construction or use in its area it is almost certain
that some local inhabitants will be prejudiced in the quiet enjoyment of their properties. Can they
defeat the scheme simply by bringing an action in nuisance? If not, why not? It has been said, no
doubt correctly, that planning permission is not a licence to commit nuisance and that a planning
authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its
development plans and decisions, alter the character of a neighbourhood. That may have the effect
of rendering innocent activities which prior to the change would have been an actionable nuisance…
where planning consent is given for a development or change of use, the question of nuisance will
thereafter fall to be decided by reference to a neighbourhood with that development or use and not
as it was previously".

Public nuisance & individual claims

• An individual person can only recover damages if they prove some special injury to
themselves over & above the ordinary injury suffered by other citizens of the same class.
• Rationale: to prevent a multiplicity of suits which might lead to harsh results to D.

• Winterbottom v Lord Derby [1876]: P delayed in passing along a highway due to D’s
obstruction & thus had to use, as any other member of the public who would have attempted
to use the road, a more circuitous route. Though he had been inconvenienced, no special
financial or personal damage could be shown.

Kelly CB: “The substantial point for our decision in this case
is whether this action is maintainable. The rule of law on the
subject, which is well laid down in the case of Packet v. Metropolitan Railway Company… is, that in
order to entitle a plaintiff to maintain an action, he must show
a particular damage suffered by himself over and above that suffered by all the Queen's subjects…I
am of opinion that the true principle is, that he, and he only, can maintain an action for an
obstruction who has sustained some damage peculiar to himself, his trade, or calling. A mere passer-
by cannot do so, nor can a person who thinks fit to go and remove the obstruction. To say that they
could, would really in effect be to say that any of the Queen's subjects could”.

Tate & Lyle Industries Ltd v Greater London Council [1983]

• P operated a sugar refinery on the banks of river Thames. They had a Jetty to offload raw
sugar & to load refined sugar.
• D constructed ferry terminals in the Thames causing silting which obstructed large vessels
from accessing P’s Jetty.

• P had to spend £540, 000 in dredging operation.

• P brought a claim in negligence & nuisance, & both claims in negligence & private nuisance
failed. Claim in private nuisance was dismissed b/c the Jetty itself was unaffected & they did
not have private property rights on the river bed.
• The claim succeeded under public nuisance, as the silting had also interfered with the public
right of navigation which P enjoyed together with other river users. Held: Dredging
expenditure was damage well over & above what was suffered by the other river users and P
were thus entitled to bring a public nuisance suit.
Proposed test – G Fridman: Definition of particular damage in nuisance

• Whether the plaintiff suffered some new kind of injury, however slight, not shared by
everybody else;

• Mere inconvenience can never be such new kind of injury, since all persons in the vicinity are
inconvenienced by a public nuisance, otherwise it would be neither public nor a nuisance;

• The only proper basis for determining whether such new kind of injury was suffered is
whether the plaintiff has incurred pecuniary loss.

Private nuisance

• Scott LJ in Read v Lyons [1945] described private nuisance as “unlawful interference with a
person’s use or enjoyment of land, or some right over, or in connection with it”.

• Bamford v Turnley [1862] defined it as “any continuous activity or state of affairs causing a
substantial and unreasonable interference with a plaintiff’s land or his use or enjoyment of
that land”.
• Conditions & activity causing interference with use & enjoyment of land must be continuous,
substantial & unreasonable.

• It is only in rare circumstances that a one-off activity or conduct would amount to actionable
nuisance.

• The core concern of nuisance is with D’s deliberate activities which interfere with P’s use &
enjoyment of their land – it mostly has a prospective look (future), looking to prevent the
interference in future & thus injunctions or orders of abatement are the most relevant
remedies. Damages can be awarded for past interference.

Types of interferences that may amount to nuisance

• Hunter v Canary Wharf [1997], Lord Loyd: It takes 3 forms: encroachment on a neighbour’s
land; direct physical injury to the land; interference with the enjoyment of the land.
- Encroachment on claimants land e.g. by tree branches or roots (Smith v Giddy [1904]; Davey
v Harrow Corporation [1958])

- Physical damage to P’s land or property on it e.g. by flooding (Sedleigh-Denfield v

O’Callaghan [1940]); collapse of neighbouring building (Wringe v Cohen [1940]); damage to
vegetation by noxious fumes (St Helens Smelting Co v Tipping [1865]).

- interference with P’s comfort & convenience e.g. through smells (Bone v Seal [1975]);
vibration (Sturges v Bridgman); Noise (Halsey v Esso Petroleum [1961]); using premises as a
brothel (Thompson-Schwab v Costaki [1956]); or as a sex shop (Laws v Florin place Ltd
[1981]).
Private nuisance – balancing conflicting but legitimate interests

• It attempts to balance two legitimate but conflicting rights: the right of one occupier in using
their land as they see fit; & the right of the neighbour to a quiet possession & enjoyment of
their own land – Sturges v Bridgman [1879] (Physician & Confectioner).

• Sic utere tuo ut alienum non laedas (no person is allowed to use their property in such a way
as to injure others) – it does not adequately reflect the doctrine of private nuisance: not all
use of property that injures a neighbour is actionable – there is a requirement of the
unreasonableness of the conduct. Bamford v Turnley , Bramwell B: “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”.

Bamford v Turnley [1860]

• D burned bricks in a kiln which sent noxious fumes to surrounding property affecting various
neighbours. They sued to stop it.

• 1st instance: brick smoke was reasonable as D was only using the kiln to build a home.
• Appeal: D had to pay compensation as there was no public benefit in his actions.

• Principle: “those acts necessary for the common and ordinary use and occupation of land and
houses may be done, if conveniently done, without subjecting those who do them to an
action… It is as much for the advantage of one owner as of another; for the very nuisance
the one complains of, as the result of 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. The convenience of such a rule may be indicated by calling it a rule of give
and take, live and let live”.

Bamford v Turnley - Bramwell B on balancing public interests:

“The public consists of all the individuals in it, and a thing is only for the public benefit when it is
productive of good to those individuals on the balance of loss and gain to all. So that if all the loss and
all the gain were borne and received by one individual he, on the whole, would be a gainer. But
whenever this is the case — whenever a thing is for the public benefit, properly understood — the
loss to the individuals of the public who lose will bear compensation out of the gains of those who
gain. 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 it would be right to take an individual’s land without
compensation, to make a railway. It is for the public benefit that trains should run, but not unless they
pay their expenses. If one of these 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 that they should if the wood is not their own. If, though the wood were their own,
they still would find it compensated them to run trains at the cost of burning the wood, then they
obviously ought to compensate the owner of such wood, not being themselves, if they burn it down
in making their gains”.
Reasonableness & nuisance

• The central issue in private nuisance is the reasonableness of D’s conduct.

• Reasonableness is used differently in nuisance contrary to its use in negligence:

- Reasonableness std in negligence: if you drive a car carelessly on the streets, you are bound
to injure another person (reasonable foreseeability) & if you do so, you will be liable at all
times (if all elements of negligence are proven).

- Reasonable std in nuisance: Not all noise that irritates your neighbour will lead to liability in
nuisance, for otherwise life will be intolerable (such a rule is unworkable). Such minor
intrusion is the inevitable price of living in organised society in proximity to our neighbours.
Ordinary reciprocal discomforts of neighbourliness of a trifling character are not actionable –
live & let live/ give & take.
- Hitting a pedestrian when driving carelessly is a tort simpliciter(in or by itself); making a noise
that irritates your neighbour is a tort sub modo (subject to condition or qualifications).
Liability in negligence is conduct-based; in nuisance, it is fairness-based.

Reasonableness is a question of fact – no precise universal formula for det.

• Reasonableness in nuisance signifies what is legally right between the parties taking into
account all the circumstances of the case (fairness-based).

• Some of the factors that the Court will take into account when determining whether a
conduct constitutes nuisance are:

- Abnormal sensitivity of the P or their property;

- Time & place of its commission (locality);

- The seriousness of the harm (trivial harms not actionable);

- The manner of committing it - Whether it is done maliciously or in the reasonable exercise of

rights.

Factors in determining liability for nuisance

- Any ‘abnormal sensitivity’ of P’s property – if D’s conduct wouldn’t have caused damage but
for the abnormal sensitivity of P, no liability (Robinson v Kilvert [1889] – D manufactured
paper boxes in his cellar & it needed heating. D leased his upper floor to P. P stored very
delicate quality brown paper. Due to the heat, P’s paper was damaged. P couldn’t succeed as
his trade was too sensitive & D’s use of the cellar was reasonable by all standards.

- The nature of the locality where the nuisance takes place (Sturges v Bridgman) – an activity
out of place with the locality likely to be held unreasonable (this will depend on the extent &
degree of D’s activities in light of what is customary in the specific area). However, where D’s
activities cause physical damage to P’s property, the locality of the activity is not a factor in
determining the unreasonableness – St. Hellen’s Smelting Co v Tipping;
St. Hellen’s Smelting Co v Tipping [1865]

• T owned a manor house in a 1300 acres of land situated a short distance from St. H’s copper
smelting business.

• T brought an action in nuisance in relation to the damage caused by the smelting works to
their crops, trees & foliage.
• The smelting works was based in an industrial area & St. H argued that the activities were
reasonable taking into account the locality & that the smelting works existed before T bought
their property (coming to the nuisance).

• Held: where there is physical damage to property, the locality principle has no relevance. It is
no defence that P came to the nuisance.

St. Hellen’s Smelting Co v Tipping – Lord Westbury

“[I]n matters of this description it appears to me that it is a very desirable thing to mark the
difference between an, action brought for a nuisance upon the ground that the alleged nuisance
produces material injury to the property, and an action brought for a nuisance on the ground that the
thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter,
namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's
personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether
that may or may not be denominated a nuisance, must undoubtedly depend greatly on the
circumstances of the place where the thing complained of actually occurs. … But when an occupation
is carried on by one person in the neighbourhood of another, and the result of that trade, or
occupation, or business, is a material injury to property, then there unquestionably arises a very
different consideration. I think, my Lords, that in a case of that description, the submission which is
required from persons living in society to that amount of discomfort which may be necessary for the
legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the
immediate result of which is sensible injury to the value of the property.”

Factors in determining liability for nuisance

- The time & duration of the nuisance – an activity may be reasonable when undertaken during
a particular time of day, but not another time of day e.g. Halsey v Esso Petroleum [1961]–
filling oil tankers at 10am held to be reasonable; but filling them at 10pm held to be
unreasonable. The remedy in such situations is to grant an injunction limiting the time of the
activity.
- On duration, nuisance almost always entails a continuous or recurring activity. This was
affirmed by Denning LJ in Attorney-General v PYA Quarries Ltd as follows:

“I quite agree that a private nuisance always involves some degree of repetition or continuance. An
isolated act which is over and done with, once and for all, may give rise to an action for negligence or
an action under the rule in Rylands v. Fletcher, but not an action for nuisance”.

Exceptions: see British Celanese v AH Hunt Ltd; De Keysers Royal Hotel v Spicer.
 - The conduct of the Defendant – motive & reasonableness of D’s conduct: if the conduct of D
is malicious, then it would most likely be found unreasonable

 Christie v Davey – P & D were neighbours. P taught music, which annoyed D. D intentionally
made noise to disrupt P’s lessons. D liable to pay damages;

 Hollywood Silver Fox Farm v Emmett [1836] – D, with malice against P, instructed his son to
fire a gun near P’s farm to encourage P’s vixens to miscarry and this did happen. D liable b/c
act, though lawful, was malicious.

Requirements for proof of claim of private nuisance

• P must show that D’s conduct has caused an interference with their use or enjoyment of their
land. Interference is almost always the product of a continuing or recurring event rather than
a one-off incident.

• Interference may be the physical invasion of land; noise or smell.

• P must also prove that D’s interference has caused damage – physical damage, emotional
distress, discomfort or inconvenience. See: Fay v Prentice [1845]; Nicholls v Ely Beat Sugar
Factory [1936].

• If damage is remote – the action for private nuisance will not be successful. The test of
determining remoteness is: reasonable foreseeability - Cambridge Water Co Ltd v Eastern
Counties Leather plc [1994]

Private nuisance – who can sue?

• Private nuisance is fundamentally a tort against land, & so P must have some proprietary
interest in land (ownership, leasehold, easement etc.). No protection for personal injury.

• Proof of diminution of value of land– capital or amenity. Malone v Laskey [1907] – family
members of occupier did not have locus to sue.
- A Co.'s manager resided in a house as its licensee. M, his wife was injured when vibrations
from an engine in an adjoining property caused a bracket to come loose & the cistern to fall
on her in the lavatory.

- She sued in nuisance & she was unsuccessful as she did not have proprietary interests in the
house.

- Her husband couldn’t sue either as he was a mere licensee through his employment as a
manager & so did not also have substantive proprietary interests in the house.

Khorasandjian v Bush [1993]

• P, 18yrs, was being harassed by D, 23yrs. He had threatened her with violence, behaved
aggressively when he saw her, shouted abuse at her & would make incessant phone calls to
her at her parents & grandparents house.
 • He had spent time in prison for threatening to kill her. She sued & an injunction was issued to
stop him from harassing her. He appealed saying the injunction was not lawful as the judge
had no jurisdiction to issue it: harassing or pestering did not constitute any tort known to law.

• Harassing & pestering amounted to nuisance, but she had no proprietary interest in the
houses where the harassment had occurred.
• The CA upheld the injunction & dismissed the appeal. Dillon LJ said:

“To my mind, it is ridiculous in this present age the law is that the making of deliberately harassing &
pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls
happen to have the freehold or a leasehold proprietary interest in the premises in which he or she
has received the calls”.

Hunter v Canary Wharf Ltd [1998]

• 690 claims made against D for the erection of the Canary Wharf Towers which had interfered
with Ps TV reception.
• A second action, by 513 people, was in relation to the excessive amount of dust created
during the construction of the tower.

• Some Ps were owners & tenants, but majority had no proprietary interests at all (children
living with parents, relations, lodgers, spouses of tenants or owners etc.).

• 2 issues for determination:

- Whether interference with TV reception was capable of giving rise to actionable nuisance;

- Whether proprietary interest was required to bring an action in nuisance.

• Held: there is no right of action in interference with TV reception.

- An interest in property is required to bring an action in nuisance. The HoL argued that to
allow persons without interest to claim under nuisance will transform it from a tort to the
land to a tort to the person.

Hunter v Canary Wharf Ltd – Lord Hoffman

“In this case, however, the defendants say that the type of interference alleged, namely by the
erection of a building between the plaintiffs' homes and the Crystal Palace transmitter, cannot as a
matter of law constitute an actionable nuisance. This is not by virtue of anything peculiar to
television. It applies equally to interference with the passage of light or air or radio signals or to the
obstruction of a view. The general principle is that at common law anyone may build whatever he
likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his
misfortune. The owner's right to build can be restrained only by covenant or the acquisition (by grant
or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining
land.”
Who can sue

• Prof Newark: Nuisance might have a tendency to expand beyond its intended boundaries, in
particular by failure to appreciate that private nuisance was fundamentally a tort to land
which should not be available as a remedy for personal injury.

• Lord Goff in Canary Wharf: Prof Newark’s assertions ought to be nailed to the doors of the
law courts and defended against all corners.

• Owner occupier – Delaware Mansions Ltd v Westminster CC [2001].

• Lease holder –Pemberton v Southwark LBC [2001].

• A person who owns reversionary interests – if they can show a likelihood that some
permanent injury will be caused to the property e.g. vibration causing permanent structural
damage to a rented house, the landlord can sue in private nuisance.

• Adverse possessor – possessory rights - Forster v Warblington UDC [1906].

• A person with an easement right– right in re aliena – Nicholls v Ely Beet Sugar Factory Ltd
[1936].

Who can be sued?

1. The creator of the nuisance – they need not have any form of proprietary interest from the
land on which the nuisance emanates:
- Thompson v Gibson [1841];

- Cambridge Waters Co v Eastern Counties Leather Plc [1994];

- Southport corporation v Esso Petroleum [1953];

- Sedleigh-Denfield v O’Callaghan [1940]

2. Occupiers of the land from which the nuisance emanates if they adopt or continue the nuisance –
this is because they have the power to take measures that are necessary to prevent or eliminate the
nuisance – LE Jones Ltd v Portsmouth CC [2002]

2. Occupiers

• Adoption – Occupier makes use of it for his own purposes;

• Continuance – If he knows or ought reasonably to have known of its existence and fails to
take reasonable steps to abate it.
• Sedleigh-Denfield v O’Callaghan [1940] – D occupied land with a ditch in which a pipe with
grating designed to prevent leaves was laid by a trespasser. Grating was not properly placed &
led to flooding when heavy rainstorm occurred, flooding P’s land.

- Flooding occurred 3 yrs after grating was erected & D’s servant used to clean it.
 - Held: Servant ought to have realised the danger of flooding caused by the obstruction. D
found liable.

Occupier’s liability for acts of nature: Goldman v Hargrave [1967]

• A 100 foot red gum tree on D’s land was struck by lightning & caught fire.

• The next morning, D contacted a tree feller to cut down the tree & saw it into sections. The
wood was still smouldering but D failed to douse it with water to eliminate the risk of fire.

• Over the subsequent days, the whether became very hot & re-ignited the fire which spread
to P’s neighbouring property. P sued in nuisance.

• Held: D liable for the naturally occurring danger that arose on his land as he was aware of the
danger & failed to act with reasonable prudence to remove the hazard.

• In such instances, however, the court must look at the D’s position & abilities in relation to
the act of nature that he has to respond to – only what is reasonable is expected by the law.

Lord Wilberforce – Goldman v Hargrave

“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 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 neighbour’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”.

3. Landlords

• General rule – a landlord who leases property is not liable for nuisance created after the
occupier takes control of the land.

• Exceptions to the general rule:

- Where lease is granted for purposes which constitute nuisance (he has expressly or impliedly
authorised the nuisance i.e. leasing land for pig rearing in a residential area) – Tetley v Chitty
[1986], Harris v James [1876];
 - Where nuisance is caused by landlord’s failure to repair the premises - Wringe v Cohen
[1940];

- Where nuisance existed before the land was let and he knew or ought to have known about it
– Brew Bros Ltd v Snax (Ross) Ltd [1970]

3. Defences for nuisance

• Prescription (private nuisance) – if the nuisance continues for a stated duration of time (20yrs
in the UK) with P’s knowledge, it becomes legal by prescription. Waterfield v Goodwin [1957].

- Limitation period commences when the activity becomes a nuisance – Sturges v Bridgman
[1789]: Doctor & confectionary business.

• Statutory authority (public & private nuisance) – when the activity is authorised by
legislation. Allen v Gulf Oil Refining.

- Tate & Lyle Industries v GLC [1983]– defence of statutory authority could not be maintained
as D could not show that it had taken all reasonable care in the design of the ferry terminals.

4. Remedies for nuisance

• Injunctions – requiring D to stop the activity causing the nuisance – can be perpetual or
partial.

• Damages – monetary sums paid to P to compensate for the loss of enjoyment or physical
damage to property; or to the person in public nuisance.

• Abatement – gives P the authority to directly end the nuisance – e.g. Cutting off the branch of
a tree protruding into their compound.