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TORT LAW CONTENTS
TERM 1
1
...


TRESPASS TO THE PERSON; trespass and fault

3
...


ASSAULT

5
...


INTENTIONAL INFLICTION OF HARM WILKINSON V DOWNTON

7
...


DEFENCES TO TRESPASS TO THE PERSON; consent, illegality, necessity, use of force

9
...
DEFENCES TO TRESPASS TO LAND; consent, statutory authority, license, necessity, reasonable force
11
...
RYLANDS V FLETCHER
13
...
DEFENCES TO RYLANDS V FLETCHER
15
...
PRIVATE NUISANCE
17
...
TRESPASS TO GOODS; CONVERSION
19
...
MALCIOUS PROSECUTION
21
...
OCCUPIER’S LIABILITY 2
23
...
VICARIOUS LIABILITY 2
25
...
DEFENCES TO TORTS; consent, illegality, contributory negligence
27
...
INTRODUCTION TO NEGLIGENCE; formation of the principle, elements
29
...
DUTY OF CARE 2
31
...
PSYCHIATRIC INJURY; primary and secondary victims
33
...
PSYCHIATRIC INJURY 3
35
...
OMISSIONS; general rules, relationship with proximity, acts vs
...
OMISSIONS 2
38
...
BREACH OF DUTY 2; statutory protection for socially desirable activities
40
...
CAUSATION AND REMOTENESS OF DAMAGE; causation, intervening acts
42
...
DEFENCES TO NEGLIGENCE; contributory negligence, volenti, exemption clauses, illegality
44
...
DEFENCES TO NEGLIGENCE 3


EXAM



3hours (100%)
PART A: Problem question (60%)
- Large problem question CAN draw on any of the Torts/courses of action we have studied (NOT defamation/privacy)
PART B: Essay - Choice of 4 (40%)
- Defamation and privacy
- Answer one question out of the four choices

Introduction to the Law of Torts
DEFINE; a collection of different wrongs/ways you can harm someone else
- A branch of private law or the law of obligations
- Creates standards of conduct between persons > when these are not met, those affected have the right to bring an action in their own name
for a remedy (usually damages)
- ALL civil obligations that don’t arise out of contract
- ALL Torts have a set of criteria

‘The breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on
his or her own account rather than as a representative of society as a whole’
Peter Birks in ‘The Concept of a Civil Wrong’ (1995)

The Purposes of Tort Law
- Not just compensation
...
While compensation does often loom large, focusing solely
on compensation misses a number of important points
...
Such torts include, for example, trespass and defamation
...
This acts to restrain either a threatened tort or the continuation of a current tort
...
In some circumstances it is more important to prevent harm than to seek compensatory
damages later
...

- Other purposes
...
We shall take each in turn
...
In Ashley v Chief Constable of Sussex Police, the plaintiffs were allowed to proceed with their claim that the shooting of the
victim had been a battery, rather than merely negligent, so as to vindicate their contention that the victim had been unlawfully killed
...

Economic efficiency: those who subscribe to theories of law and economics tend to make two claims
...
There is also the prescriptive claim that tort law should use liability to secure
economic efficiency
...
If it benefits from being able
to impose some of its costs on other people (what economists call “externalities”), the market is distorted because the activity appears cheaper than it
really is
...
’
Deterrence: liability in tort law is said to deter certain types of undesirable behaviour
...
Assault

2
...
C sought damages on the basis of trespass to the person, as a claim in negligence was timebarred (it was more than three years later, so the rules on limitation of actions provided that actions for ‘negligence, nuisance, or breach of duty’ were barred after three years
while other tort actions were barred after six years(
HELD: C could not recover damages on this basis, as D’s actions were accidental
...
They thought
that if an act was negligent, it would lead to negligence (not trespass) liability
...
BUT in academic terms, we still cannot
conclusively assert that trespass has no relevance where negligence conduct is relied on - there may still be cases where C perceives there to be an advantage to be
gained from framing a claim in trespass rather than in negligence
...
D intended only to act in the way that he did
2
...
Intentional use of force
Letang v Cooper [1965] 1 QB 232
HELD: use of force must be intentional
* In this caese, Lord Denning draws an important distinction between battery and negligence > D cannot be liable for both battery and negligence on the basis of the same facts
...
Direct application of force by D
- There can be no battery unless there is a positive act by D
...
Equally, there can be no battery unless there is contact with C
...

- The courts have interpreted this concept broadly:

- Third party intervention:

**Scott v Shepherd (1773) 3 Wils KB 403


HELD: This concept can be stretched > D was liable where a third party intervened and continued the act he started




- Contact made indirectly:
Pursell v Horn (1838) 112 ER 966



HELD: D was liable where he threw water over C despite the indirect nature of the contact




- Direct contact with the wrong person:
Livingstone v MoD [1984] NI 356 (CA)





- Level of force:
- No requirement that battery causes harm, so level of force may be very low
Cole v Turner (1704) 6 Mod 149; 90 ER 958

HELD: the doctrine of transferred malice applied was used to establish D’s liability for battery where he fired at a rioter and missed striking C

HELD: ‘the least touching in anger is battery’ > Intentional touching in an unreasonable and violent manner is considered battery

Innes v Wylie (1844) 174 ER 800

POL: The reference to anger has been interpreted to mean that conduct must be ‘hostile’

** Collins v Wilcock [1984] 1 WLR 1172
HELD: A police officer was liable for battery where she held a suspects arm, but did not arrest her
...


Wilson v Pringle [1986] 2 All ER 440
HELD: children’s horseplay was not considered battery as the court held hostility was a necessary element of battery


3
...
contact sport, tattoos, and medical treatment
- That which constitutes a valid consent is often a fundamental issue, especially in cases of trespass in the medical context - there may be question of
exactly what the patient consented to, or indeed, whether he was competent to give consent in the first place
Medical treatment:
In re T (Adult: Refusal of Treatment) [1993] Fam 95
FACTS: woman admitted to hospital following a road accident > her mother’s JW faith was against blood transfusions and she was also given strong drugs
HELD: refusal can be ignored due to the influence of drugs or alcohol (leading to the patient not thinking properly) and undue influence > a doctor can go to court to obtain
consent to go ahead with medical treatment

* Re F [1990] 2 AC 1
HELD: where a mental patient was incapable of giving consent, a decision was made on the basis of the patient’s best interest
Mental Capacity Act 2005 ss 4- 6 determines whether a person has a capacity to consent to medical treatment and, if not, what treatment would be their best interest
...
Therefore, damages can be awarded even if C suffers no tangible harm (Ashley v CC Sussex)
- Furthermore, it seems also that once the tort is proved, consequential loss in respect of gods, as well as the personal damage sustained, can be
recovered (Glover v London and South Wester Rly Co (1867) LR 3 QB) AND the courts can also award damages on account of insult or injury to feelings in
respect of a battery that has caused harm (BUT there are doubts as to whether such damages are available in cases where the battery does not occasion
any physical harm) (London v Ryder [1953] 2 QB 202)

B) Assault
An act, which causes another to apprehend immediate, unlawful force (Collins v Willcock [1984])
- Any act of D that directly and intentionally (or negligently) causes C reasonably to apprehend the imminent infliction of a battery
- The commission of an assault will often occur just before the commission of a battery
- Assault is similar to the law of battery, BUT in assault, a reasonably held apprehension of contact (rather than contact itself) must be established

ELEMENTS
1
...
Reasonable fear
- Reasonableness according to C’s perceptions of D’s actions (R v St George (1840) 9 C&P 483)
*Stephens v Myers (1830) 172 ER 735
HELD: assault due to reasonable apprehension of imminent battery where during a council parish meeting disagreement, someone was asked to leave and walked as though to
push C out of their chair, but someone intervened

* R v Ireland [1998] AC 147
FACTS: D made silent telephone calls to C
HELD: In dealing with the issue of silence as an assault, the HL tackled the issue of words as an assault, stating the proposition that ‘words can never suffice’ for the basis of an
assault is unrealistic
...
Total loss of freedom
- Requires a total restraint of C’s movements > it is not enough that D cannot go where he wants provided that he can go somewhere
- If there is reasonable means of escape, there is no false imprisonment
- Restraint need not be physical > a person who is told not to leave and complies with the instruction suffers a total loss of freedom
*Bird v Jones (1845) 115 ER 668
POL: it must be total, not partial (as in this case) restriction of movement

- MUST be total restraint of the person > preventing a man from crossing a bridge except by making a detour around part of the area of the bridge which
has been closed off is not false imprisonment
...
5(1) ECHR, if a mental patient is ‘technically’ free to leave a mental hospital, but in reality is constantly monitored and subject to
immediate and subject to immediate compulsory detention should he try to leave (HL v United Kingdom (2005) EHRR 32
CONFINED WHERE?
- It is well established that although confinement must be total, it need not be in a prison
...
Knowledge:
- There is no requirement that V should be aware of detainment at the time: Murray v Ministry of Defence [1988] 1 WLR 692 (HL)
HELD: HL held there was no such requirement, but if a person is unaware he has been falsely imprisoned and has suffered no harm, he can normally expect to recover no more
than nominal damages (per Lord Griffiths)


- Imprisonment is NOT the same as failing to release
*Iqbal v Prison Officers’ Association [2010] QB 732
HELD: prison officers have no obligation to release prisoners from their cell

Herd v Weardale Steel 1913

HELD: no false imprisonment where employers refused to lift a coal miner to the surface
...
His whole life is regulated by the regime
...
His liberty to do anything is governed by the prison regime
...
Administration of Justice
...
We will sell to no man, we will not deny or defer to any man either Justice or Right
...
if broken leg, must cut off jeans = new jeans

- Aggravated = emotional damages eg
...
> aims to punish the civil officer that has done wrong

Aggravated Damages
- An additional compensatory amount by way of aggravated damages was at one time available for the humiliation, distress and indignation that are
likely to arise upon the commission of an intentional tort against the person
...

- THUS, aggravated damages should now only be awarded in a ‘wholly exceptional case’ of assault and battery

Additional Defences
In addition to general defences…
- Reasonable condition for release: If D’s detention of C is dependent on the performance of a reasonable condition eg
...
Also individuals suffering from particular contagious diseases mat be detained against their will according to the Public Health
(Control of Disease) Act 198

D) Intentional infliction of harm; Wilkinson v Downton
- This tort arose from the case of: *Wilkinson v Downton [1897] 2 QB 57 (First established the tort of intentional infliction of physical/psychological harm)
FACTS: C was told by D, who knew it to be untrue, that her husband had been seriously injured in an accident
...
Driving a motor vehicle at high speed through a
residential area is an intentional act even if injuring people or property on the way is not a result actually intended
...
It involves the indirect infliction of harm to another individual,
so satisfies the requirement of interference with personal integrity that categorises these torts BUT it does require that actual harm be suffered, which is
inconsistent with the rule that trespass is actionable per se (without the need for harm or damage)
Wong v Parkside Health NHS Trust 2001 (Clarified requirements for liability)
TEST: Must cause harm, must be physical/ regognized psychiatric injury: not mere distress

Wainwright v Home Office [2004] 2 AC 406 (L&O p 69)
HELD: harm must be intended/caused through acts where intention can be imputed, D must have acted intentionally, and the conduct must be of such a degree that it is
calculated to cause harm so that D cannot say he did not mean to cause it
...
The injunction was not allowed
...
A conduct element
- This requires "words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the
claimant
...
A mental element
Requires an "intention to cause physical harm or severe mental or emotional distress" This overruled the CA judgment in this case that held recklessness to
be sufficient
...
A consequence element
- Requires evidence of physical harm or recognised psychiatric illness but was not relevant in this case























































E) Harassment
Deliberate course of unreasonable and oppressive conduct, calculated to and does cause alarm, fear or distress (*Hayes v Willoughby [2013] 1 WLR 935)
- Protection from Harassment Act 1997 legislation prohibits a course of conduct amounting to harassment of another and the victim of such conduct is
granted the ability to sue in tort for either damages or an injunction
*HOWEVER: the act is not entirely straightforward
...

- The introduction of a statutory tort of harassment under S
...

S
...
The test is
purely objective (Banks v Ablex Ltd [2005]) - no account is taken of any mental deficiency on D’s part (A schizophrenic who sends
threatening letters to a local MP is not exempt: R v Colohan [2001])
- The victim of such harassment, be it actual or apprehended, is granted a right to sue in tort, either for damages or an injunction - s
...
A ‘course of conduct’ (s
...
7(3) to mean conduct on at least 2 occasions
...
7(4) states this may include speech

2
...
7)
- S
...
D must know, or ought to know, that his conduct amounts to harassment (s
...
1(2) provides a person ought to know that their conduct would amount to harassment if a reasonable person in possession of the same information
would consider that the conduct amounted to harassment


* NO requirement that C suffers physical or psychological harm as a result of the harassment > the tort is satisfied if C experiences alarm or distress as a
result of D’s actions (this will vary according to the character of the victim)

Difference between:
- Conduct, which is unattractive or unreasonable
- Conduct, which is oppressive
*Ferguson v British Gas [2009] EWCA Civ 46
FACTS: D had sent C a series of bills and letters warning of a variety of consequences if she did not pay
...
D applied for the claim to be struck out, arguing that i) its alleged conduct did not amount to harassment under the Act and ii) even if harassment was shown, as a
corporation, it could not be liable in the circumstances
...

HELD: CA held C had an arguable case under the Protection from Harassment Act 1997 that D’s alleged conduct was of sufficient gravity to constitute harassment
...
He claimed his manager bullied and harassed him, in breach of section 1 of the Protection from
Harassment Act 1997
...
The judge held there was no cause of action because section 3 created no statutory tort for which an
employer could be vicariously liable
...



Remedies to Harassment (s
...
3(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment
...
taking days off work and losing income due to harassment
- Injunction (breach can lead to arrest > contempt of court)

Additional Defences
- If you have engaged in a course of conduct for the purpose of preventing or detecting crime OR that it was reasonable in the circumstances (s
...
Consent volenti non fit injuria
- A person who consents to harm or to an activity, which carries a risk of harm should not be able to hold the person who caused that harm liable in tort
...
C had knowledge of the risk involved
- Requires more than a vague awareness of danger but of a more specific knowledge of the type of risk involved in a particular activity > subjective test
Morris v Murray [1991] 2 QB 6
HELD: C was aware of the risk he was taking where he agreed to go on a joyride in a friends aircraft following a night of drinking, that resulted in the pilot’s death and serious
injury to C
...
C willingly consented to accept that risk
- D must prove C freely consented to run the risk of injury > knowledge of the risk is not the same as consent to running it
- This will not succeed where C had no choice: Smith v Charles Baker & Sons [1891] AC 325
OR where lacking competence to agree: Gillick v West Norfolk and Wisbech AHA [1986] AC 112
Condon v Basi 1985 HELD: a deliberate, vicious tackle, which aimed to cause injury, was not consented


2
...
2 thieves on their way to commit a burglary and one
punched another; there would be no defence of illegality to prevent a claim in tort for trespass to the person because the attack was unconnected with the
planned criminal enterprise
Cummings v Granger [1977] QB 397
HELD: A burglar bitten by a guard dog had no claim due to illegality

Vellini v Chief Constable of Greater Manchester Police [2002] 1 WLR 218
HELD: a claim for negligence against the police for injuries sustained by a prisoner whom they failed to prevent from jumping out of a window was rejected on the basis of
illegality

- Despite there being a number of cases that show C’s have been unsuccessful because of illegality, there have been cases in which the courts have been
reluctant to allow illegality to defeat the claim for damages:
Revill v Newbery [1996] QB 567 (shot burglar)
FACTS: D shot burglar who sustained serious injuries
HELD: C should not be deprived of a claim on the basis of illegality saying that it was too ‘far-reaching to deprive C even of compensation for injury which e suffers and which
otherwise he is entitled to recover at law’


3
...
Use of force
- Where reasonable (proportionate) and necessary
- Must have an honest and reasonable belief in using force: Ashley v Chief Constable of Sussex Police 2008
HELD: must be an honest and reasonable belief that you are acting in self-defence



Available:
i
...
Defence of property
iii
...
3 Criminal Law Act 1967


5
...
The action may be
defeated by proof of a licence to be on the land or by some other justification
- Concerned with the prevention of interference with the possession of land
- Trespass to land is actionable per se (without proof of damage) and can be easily established
- Can be an easy way of establishing tortious liability if other avenues fail
- The law offers a wide degree of protection for those in possession of land - that is, to those with both exclusive occupation of that and the intention to
exclude the world at large

Title to sue
- Person with possession, or right to possession > not necessarily the owner
- Possession: the possessor of the surface of land is in deemed possession of all the substrata directly below it and of the airspace directly above it in so
far as the latter is necessary for the use and enjoyment of the land and any structures upon it
- The owner can only sue if it affects his reversionary interest
- NO defence that C is a trespasser himself > if you are making use of the land, or in possession of it, the court does not care if this is legal or illegal

Actionable per se
= no requirement for harm or damage (Entick v Carrington (1765) 2 Wils KB 275)
- BECAUSE it is a tort which protects land against interference by allowing the owner to exclude other people and property rather than compensating for
damage caused to property

ELEMENTS
1
...
someone stepping on the land, putting a ladder against the wall, going into a garden to retrieve a football
- This differentiates between trespass to land and other torts such as nuisance and negligence
- If it was indirect = nuisance
Gregory v Piper (1829) 9 B & C 591

HELD: it was held to be trespass where rubbish was placed near land and blown onto it due to natural forces > considered a direct interference
> IF something similar - consider both torts - demonstrates that
2
...
The defendant need not be aware they are trespassing > may be Negligent
- Mistake is no defence to trespass Letang v Cooper
- Although entry to land must be voluntary, there is no requirement D is aware he is trespassing by doing so > this gives rise to potential
innocent trespass Conway v George Wimpey & Co [1951] 2 KB 266
League Against Cruel Sports v Scott [1986]
FACTS: League bought plots of land in areas where traditionally hunts have taken place, aim to disrupt hunts by buying enough land, hunt led by Scott, multiple
times the dogs went onto the land owned by the League, the League sued Scott, Scott claimed it was the dogs not them
HELD: this is a case of trespass it has happened too many times to claim this,
POL: suggested intention can be inferred AND negligence may be a factor

4
...
Mark places a ladder on Dawn’s land
...


Manifestations of trespass to land
- Can be satisfied in 4 ways:
1
...
Remaining on land after permission is revoked
3
...
Placing or projecting objects onto the land

Key Concepts
1
...
Civil Aviation
Act 1982: States planes can fly over your land and you cannot complain about it BUT the plane is strictly liable for any damage caused as a result

Trespass underground:
* Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380
FACTS: Someone drilling for oil about 2000 ft under property
HELD: This was trespass
2
...

- If there is a division between ownership and possession (i
...

AG Securities v Vaughan [1990] 1 AC 417 (HL)
FACTS: AG securities had a long lease over a building and had licensed each of 4 rooms to separate individuals at different times under independent agreements
ISSUE: could the licensees claim that they collectively held a lease over the building and therefore claim that they were entitled to protection under landlord and tenant
legislation?
HELD: No > this case highlighted that those with licences eg
...


3
...
Consent
- A person who has permission to enter is not a trespasser
...


2
...
police officer
making an arrest * Police and Criminal Evidence Act 1984, sections 8 and 17
* Lord Hanningfield v Chief Constable of Essex Police [2013] EWHC 243 (QB)
FACTS: C said he had been unlawfully arrested and detained after an allegation of assault from a pupil
...

HELD: The arrest was unlawful
...
There is simply no evidence as to whether and if so why PC Downie considered it necessary to arrest the C
...
License
- Such as payment of an entry fee or purchase of tickets for an event
- License may be implied eg
...
invite someone to your house

- Is express permission revocable?
Hurst v Picture Theatres [1915]
FACTS: Hurst bought a cinema ticket, can the cinema revoke his permission to be there and throw him out?
HELD: Once ticket bought, the cinema cannot throw Hurst out during the duration of the film > some form of contract that must come to an end > bound so that permission is
not revocable


4
...
It does not matter if the threat is real provided the D believes that it is
real
...
Reasonable Force
Hemmings v Stoke Poges Golf Club [1920] 1 KB 720 FACTS: Hemmings had a job at the golf club, his job came to an end
HELD: The golf club could kick him out of the house they provided him within the golf club despite him having a pregnant wife who was also living there
BUT since then, ECHR: Right to Family Life, which may change the decision today

Wood v Leadbitter (1845) 13 M & W 838
FACTS: C purchased a ticket granting him a licence to watch horse racing from a stand
...
Injunction
- Injunctions, even of the interim variety are available in the case of continuing trespasses to restrain the trespasser (Patel v WH Smith (Eziot) Ltd [1987]
1 WLR 853) and mandatory injunctions can be obtained in order to require a trespasser to restore the land to its former state (Nelson v Nicholson (2001)
Independent, 22 January)
League Against Cruel Sports v Scott [1986] QB 240
FACTS: League got an injunction against the hunt on their land
- Injunctions have to be very precisely worded, because the result of breach is so serious BUT…

Hampshire Waste Services v Persons Unknown [2004]
FACTS: Hampshire waste services = Incinerator, worried because a group had declared a global day of action against incinerators where people would protest against the
environmental harm of them, aimed to go to court to take an injunction against ‘person entering or remaining without the permission of claimants…
...
Damages
- C is entitled to full reparation for his loss
...

- Occassionally though, C can also recover special damages such as the cost of replacement premises, or business profits
...
land worth less money as a result of trespass

- Cost of cure: how much it will cost to repair damages to land

- Hypothetical licence fee: two parties did not agree trespass = hypothetical
London Borough of Enfield v Outdoor Plus Ltd [2012] EWCA Civ 608
FACTS: hording intruding over the airspace of C’s land
HELD: Hypothetical licence fee > how much should the company pay to hire out that amount of airspace > court awarded the Claimants thousands of pounds a year
due to this trespass
- CAN claim both hypothetical licence fee and injunction at the same time: hypothetical licence fee for trespass they have already committed and injunction to prevent it happening again




- Mesne profits (ie rents) claimants out of pocket losses and the defendants gain - wrongful occupation of land
- Generally assessed in terms of the reasonable rental value of the land during the time of D’s occupancy
...

- The C’s were entitled to compensation for the wrongful use of their property regardless of whether they had suffered any actual loss from being deprived the use
of that property or whether the D’s had in fact benefitted from their wrongdoing
...
> aims to punish the civil officer that has done wrong) > may also in very rare
cases be available eg
...
Ejection/self help
- An established rule of common law that the person entitled to possession may use reasonable necessary force to remove a trespasser (Hemmings v
Stoke Poges Golf Club)
...
e
force cannot be used to evict squatters
- Can also be used to remove objects placed on land, eg
...
Possession orders/recovery of land
- If a trespasser has full possession of land, an order for possession must be obtained to restore the land to its rightful owner
- In order to succeed, C must demonstrate the relative weakness of D’s possessory rights i
...

Prior to this, however, protestors had occupied the woods
...

- BUT, despite doubts expressed it has continued to survive as a separate base of tortuous liability

The principle
* Rylands v Fletcher (1866) LR 1 Exch 265
FACTS; D employed independent contractors to build a reservoir on their land
...
The person who owned the land hadn’t done anything wrong, the independent contractor had, you are not liable for this, they are
...

HELD; If D brings onto its land, in a non-natural use of that land, something likely to do mischief if it escapes, if it does escape, then D is liable for all damage which
is the natural consequence of the escape
> SO… D had brought onto their land all of the water, water is liable to do mischief, in this case it did, so D liable


Who may be sued?
‘the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is
prima facie answerable for all the damage which is the natural consequence of its escape’ per Blackburn J @ 279 (this was approved on appeal to the HOL where Lord Cairns
described the required use of land as ‘non-natural use’ @ 339)


Who may sue?
- A landowning claimant suing in respect of damage to land
- BUT what about those that suffer no damage to property, but instead suffer personal injuries?
1
...
In this case, a tenant of a stall at a
fair suffered personal injuries as the result of an escape of D’s chair-o-plane
...
What of the C who suffers personal injury, but has no such proprietary interest?
- Here, the law is less clear, both in relation to the general question of whether such persons have a right to sue at all AND in relation to the
narrower question of whether they may sue in respect of personal injuries
...
ALSO there was nothing in Blackburn J’s judgment in the case to prohibit such a
possibility
...
BUT in Ryeford
Homes v Sevenoaks District Council, the possibility of recovery for pure economic loss was not ruled out
...

This view is thought to be correct and is entirely consistent with Blackburn J’s judgment in Rylands v Fletcher


ELEMENTS
1
...
(Leicestershire) Ltd (1918) 34 TLR 500 (CA)
FACTS: explosives were collected and kept on D’s land in relation to his quarrying business but it was the rocks freed by the explosion that escaped from the land


2
...

POL: MUST BE extraordinary and unusual use (in that time and place) OR something brought onto the land which poses an exceptional risk of danger
Lord Hoffman noted damage to property caused by leaking water was a risk against which insurance was available which supported the conclusion that it did not meet the
requirements
- HOL clarified the position in this case on how non-natural use should be interpreted - the most recent authority
- Lord Bingham ‘the rule…engaged only where D’s use is shown to be extraordinary and unusual…at one time or in one place…the question is whether the D has done something out
of the ordinary in the place and at the time when he does it’


3
...
in Rylands, the water was not dangerous
but it was when it escaped




4
...
BUT, since then, it has been made clear that it is the former that is required - Lord Bingham in Transco: ‘he
ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an
escape may have been thought to be’



















































Defences to Rylands v Fletcher
- Once all the elements of Rylands v Fletcher have been established, must consider if D has a defence that will allow him to avoid or reduce liability:

1
...
by failing to take proper precautions against the sort of harm which occurred, any award of
damages may be reduced to reflect this
Dunn v Birmingham Canal Navigation Co (1872) LR 7 QB 244
FACTS: where Cs worked at a mine under the canal of D and had good reason to know that they would thereby cause the water from the canal to escape into this mine, it was
held the Cs could not invoke this rule when the water actually escaped and damaged their mine > Cockburn CJ ‘the plaintiffs saw the danger and may be said to have courted it’
@ 260

Ponting v Noakes [1894] 2 QB 281
FACTS: a mans horse died whilst in filed when it ate from the yew tree in the neighboring field
HELD: NO ESCAPE so tort not engaged because the tree did not escape the land, the horse went to the tree

- BUT may still have some claim if it was negligent

2
...
C’s lit a match and threw it into the petrol tank of the coach causing an explosion,
which left the claimant with severe burns
...

HELD: D not liable because the escape was caused by the deliberate action of a third party

Negligence vs
...
Such reasoning has nothing to do with the rule in Rylands v Fletcher
...
The distinction between negligence and the rule in Rylands was highlighted by the HOL in Smith
v Littlewoods Organisation Ltd [1987] 1 All ER 710

3
...
Consent
- If C expressly or impliedly consented to the collecting and keeping of the thing that escaped, he cannot then hold D liable for the consequences of the
escape
- If C has permitted D to accumulate the thing the escape of which is complained of, then, he cannot sue if it escapes
- Implied consent will clearly suffice for the purposes of this defence - thus, a person becoming the tenant of business premises at a time when the
condition or construction of adjoining premises is such that an escape is likely to ensue s deemed to have consented to the risk of such an event actually
happening: Kiddle v City Business Properties Ltd
- ALSO if the accumulation benefits both C and D, this is a key element in deciding whether C is deemed to have consented (Peters v Prince of Wales
Theatre (Birmingham) Ltd [1943])

6
...
SO if the reason for the escape is D’s negligence, the presence of a statutory duty to
perform the hazardous activity will not afford a defence

7
...

- HOWEVER, it is probably better to treat such cases as trespass cases in which raising the defence of necessity is well established
- In the case of: Rigby v Chief Constable of Northamptonshire [1985], it was suggested that trespass would be the appropriate cause of action
FACTS; Police chasing down violent criminal, held himself up in a gun shop, police fired in gas canisters, gun shop went up in flames, wanted to sue
HELD; court held they didn’t disapprove of the police’s actions, but given that the canisters are flammable, the police should have had the fire service standing ready > police to
pay damages for what wouldn’t have happened if they had fire brigade on standby





The Relationship between Nuisance, Negligence and Rylands:
- Sometimes argued Rylands does not play a useful role in modern tort law because it doesn’t cover any situation not already covered by other torts:
Cambridge Water Lord Goff commented that Rylands was a species of private negligence

Rylands v Fletcher
Negligence
Private Nuisance
Trespass to Land
Who can claim?

A person whose land or
property is harmed by the
escape of a dangerous thing

Who is liable

The person responsible for
the land from which the
dangerous thing escaped

Type of interference?

Direct or indirect harm
caused to land or property on
the land

Harm and/or fault
required?

Traditionally seen as strict
liability but foreseeability
requirement stated in
Cambridge Water
...

Covers harm to
person and
property

A person with a
proprietary interest in
land who has suffered
interference with the
quiet and enjoyment of
land
The person in control of
the land from which the
nuisance emanates

A person in possession of
land who suffers unjustified
and direct interference with
that land

Indirect harm in terms of
interference with quiet
enjoyment of land

Any direct intrusion onto
land by a person or
property

Requires unreasonable
use of land, which
resembles a fault
requirement
...


The interference with land
must be intentional
...


The person who interferes
with the land affected by
the trespass

- Would be fair to say that Rylands covers a narrow band of conduct that is not covered by the other torts but that this has been limited even further by
the foreseeability requirement stated by the HOL in Cambridge Water
- SO… Rylands imposes liability for harm caused by something emanating from the defendant’s land that was brought there by them and which has the
potential to cause harm if it escaped
- Cambridge Water adds the requirement that the risk of escape and damage was foreseeable

*VERY IMPORTANT if asked to consider the place of Rylands in current law
Nuisance vs
...

- BUT there are a number of grounds upon which this understanding can be contested:
1
...
Whilst the escape must be from D’s land in Rylands,, there is no requirement in nuisance that D be an occupier of land
3
...
A use of land may be artificial (and therefore non-natural, so as to fall within the rule in Rylands) without being unreasonable (so as to
satisfy the unreasonable user test in nuisance)
...
The occupier of land is readily made liable under Rylands, for the accumulation and escapes caused by independent contractors BUT in
nuisance, the liability for independent contractors is markedly less extensive













































Private Nuisance



















- 2 types: Nuisance may be private (affecting an individual or property) OR public (impacting a wider group of people)
- Private nuisance protects 3 types of interest:

1
...
Rights in the enjoyment of land

3
...
Protection of land or property AND


2
...
flats
- Nuisance must come from land rather than buildings, so it is possible for natural features eg
...
if the subsidence of the residential property affects the commercial property, this may be actionable nuisance
- Nuisance may involve land with no residential premises eg
...
SO, fundamental that a person could only enjoy the protection of this tort if he
had right to exclusive possession of the land e
...

- Someone with an interest in the land affected
- USUALLY the person entitled to exclusive possession > not necessarily the owner but the person with exclusive control over the land OR the reversioner
(if damage to reversionary interest) Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145
- BUT this placed limitations on the availability of an action in private nuisance, as visitors, lodgers and family members were not entitled to claim …SO,
the principle was challenged in the courts
Malone v Laskey [1907] 2 KB 141
FACTS: C was the wife of the leaseholder so was not entitled to exclusive possession in her own right
...

HELD: Claim rejected as she lacked a proprietary interest in the land
POL: C must have a proprietary interest in land to bring an action in Nuisance

Khorasandijan v Bush [1993] QB 727
FACTS: The daughter of the property owner was harassed by D
...
Some C’s were homeowners whereas others were family members,
lodgers and other without a proprietary interest in the property affected
HELD: CA had ruled that occupation of a home was a sufficient basis for a claim but this was reversed by the HOL who reinstated the requirement of proprietary interest stated
in Malone v Laskey (with the amendment that a wife’s beneficial interest in the family home conferred a proprietary right upon her)

- This decision restated private nuisance as a tort concerned with property rights and not one which protected against nuisance caused to
individuals independently as it can only be brought by a person with rights to exclusive possession of the property such as an owner or tenant (or nonresident landlord if the nuisance is likely to cause permanent damage to his property)

Who can be sued?
- The person who occupies or controls the land from which the nuisance emanates…if they are responsible for the nuisance…
Forms of nuisance
- Occupier who creates the nuisance eg
...
invites friends around to play trombone, or has regular parties which make a lot of noise
- A state of affairs eg
...
Unreasonable use of land
- An actionable nuisance requires that the use of the land which is the source of the nuisance, is unreasonable - - Foreseeability = an element of
unreasonableness SO that interference with the C’s quiet enjoyment of land that is a foreseeable result of D’s use of his/her own land will be
unreasonable
Walter v Selfe [1851]
POL: interference must be more than merely fanciful > must have a reasonable margin of tolerance for your neighbor > BUT if people are going beyond this, that is something
that can be complained about

- BUT what goes beyond reasonable bounds?
Andreae v Selfridge & Co [1938]
FACTS: building work (always disruptive but this cannot be complained about BUT this does not mean anything - as a builder you must act within reasonable bounds)
HELD: went beyond reasonable bounds so it could be complained about

- What does not go beyond reasonable bounds?
Baxter v Camden LBC [2001]
HELD: cannot complain about noise above in flat where woman was walking around in high heels > technically complaining about the sound proofing - SO
...
loss of sleep or loss of enjoyment of
property, such as smells that make it unpleasant to sit in the garden
Lawrence v Fen Tigers Ltd [2014]
POL: cannot say ‘we have always been here, we can always make this much noise’ BUT you can say this locality has a certain amount of character

- BUT if the nuisance causes physical damage, the character of the neighbourhood is irrelevant: St Helen’s Smelting Co v Tippings (1865)
POL: ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’: Sturges v Bridgeman (1879)
Sensitivity of the claimant
- The existence of nuisance is determined by considering its effect on a reasonable person and ordinary land use
- SO if C was unusually sensitive or was using his own land an unusual purpose that made it particularly sensitive to disruption, he will not be able to rely
on nuisance unless the action complied of would have disturbed a reasonable person
Robinson v Kilvert [1889] SENSITIVITY OF C
POL: the reasonable use of land would not become unreasonable merely because it affected someone with a particular sensitivity unless ‘it interferes with the ordinary
enjoyment of life, or the ordinary use of property for the purpose of residence or business’

Walter v Selfe [1851]
POL: interference must be more than merely fanciful > must have a reasonable margin of tolerance for your neighbor > BUT if people are going beyond this, that is something
that can be complained about

Duration of the nuisance
- To be actionable nuisance, a nuisance must be continuous
...
noise from building works every night OR smell from a weekly market
Public benefit
- The greater the general utility of D;s actions, the less likely it is that it will amount to an actionable nuisance
...
building works that benefit the
community may disturb residents in the immediate vicinity BUT the public benefit of the work will outweigh the inconvenience to individuals unless other
factors make the nuisance unreasonable, such as failure to take reasonable measures to minimize the interruption to others
Andreae v Selfridge & Co [1938]
FACTS: building work (always disruptive but this cannot be complained about BUT this does not mean anything goes - as a builder you must act within reasonable bounds
HELD: went beyond reasonable bounds so it could be complained about
POL: ‘Their duty is to take proper precautions and to see that the nuisance is reduced to a minimum’ Sir Wilfred Greene MR

Malice
- If D acts out of hostility or spite, his actions are likely to fall within private nuisance even though they would not otherwise amount to an unreasonable
use of land
- It has been held that it is not ‘a legitimate use of the D’s house to use it for the purpose of vexing and annoying his neighbour’: Christie v Davey [1893]
Hollywood Silver Fox Farm v Emmett [1936]



FACTS: D persistently fired his shotgun to disrupt the breeding of foxes on a neighbouring farm as he felt the fur farm devalued his own land which he was trying to sell
HELD; whilst it was not unreasonable for a farmer to fire a shotgun on his own land, the fact that D did so with the aim of disrupting the lawful activities of his neighbour
changed the character of his actions and rendered them unreasonable and an actionable nuisance
EXAM TIP: try to look for evidence of Ill-will or malice that motivates D’s actions
...
If the facts are
ambiguous, remember to present both sides of the argument and note the difference in outcome raised by an adverse motive

Damage
- Private nuisance is not actionable per se, C must suffer some harm, injury or damage in order to succeed with a claim
...
Enroachment onto neighbour’s land


eg
...
Physical injury to land



eg
...
D hired machinery to demolish a workshop in his garden, it veered out of control and smashed through the side of C’s house

3
...
The Dr who owned the
adjacent house was unable to use his newly built consulting room because of the noise and vibration
HELD: this was an actionable nuisance that was not negated by prescription because the nuisance only started once the consulting room was built - the time period commences
not from the start of the act in general but from the start of it becoming a nuisance

Statutory Authority
- If D’s conduct was authorised by statute, it is likely to provide a defence against claims of nuisance

…BUT No defence where:
- C came to the nuisance
Lawrence v Fen Tigers Ltd [2014]
FACTS: Lawrence moved next door to a motor racing stadium


Remedies to Private Nuisance
Damages
- Available to compensate a C for physical damage to his land and in relation to personal discomfort and inconvenience
- Can get money compensation for past inconvenience as long as it was foreseeable at the time
Bone v Seale [1975]
FACTS: pig farm creating a bad smell > this had continued for 12 years
HELD: After 12 years they received £1000 in compensation ALSO an injunction

Injunction
- Generally an injunction will not be granted if damages are awarded
Dennis v Ministry of Defence [2003]
FACTS: Lived next-door to military land who got new fighter jets
HELD: damages instead of injunction > £1 million > essentially bought out of his house

- Given the need to balance the interest of C and D an injunction may reflect this by limiting the nuisance rather than prohibiting it entirely
Kennaway v Thompson [1981]
HELD: court granted an injunction limiting the times at which D could hold watersports events




Trespass to Goods

Direct and intentional interference with goods in C’s possession

ELEMENTS
1
...
Possession
(1) Actual
- Actual control, and an intention to control: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30
(2) Immediate right to re-possess: Wilson v Lombank [1963] 1 All ER 740

Examples of Trespass to Goods
Vine v Waltham Forest LBC [2000] 1 WLR 2383
FACTS: woman had just learnt she required an urgent medical operation, in a state of distress, pulled car on side of road and threw up, when she came back to the car, it had
been clamped > is this a trespass to the car? Yes - it remained in the woman’s possession had she consented to this? There were signs where she had parked about clamping -
this can be enough for consent if you can prove the person saw it
HELD: no consent, so this was trespass

Wright v Ramscot (1667) 1 Saund 84
FACTS: One man beating another mans dog
HELD; trespass to goods because a dog is in ownership and the law views it as goods

Kirk v Gregory (1876) 1 Ex D 55
FACTS: at a wake, dead body downstairs, lots of drinking, one relative thought it would get out of hand, moved jewellery for safekeeping, which disappeared
HELD: not convicted of theft no evidence for this, but evidence for trespass > a direct and intentional interference with goods that belonged to another (motive doesn’t matter)


Conversion
The civil equivalent of theft
- Intentional dealing with goods, which is inconsistent with C’s possession
- Concerned with protecting C’s control of the goods

- Conversion doesn’t cover damage to goods, except: if a person damages goods, it is not conversion because C is still in possession of the goods


- Destruction


- Cause loss of identity
eg
...
Was this conversion of the data?
HELD: this was not conversion > you cannot convert something intangible, you may only convert tangible things



Torts (Wrongful Interference with Goods) Act 1977
- Applies to (s
...
8)
- Co-ownership is no defence where D destroys goods, or disposes of their full title, without the other’s authority (s
...
11)
Remedies (s 2):
- Order to deliver up goods (at the court’s discretion)
- Order to deliver up, alternatively to pay damages (D’s choice)
- Damages
- C’s interest in the goods is only extinguished upon payment (s
...
if someone has your car and they become insolvent, everything you own gets
liquidated > not the car because its not yours

Damages for conversion:
- Usually the value of the goods (‘compensatory’)
- If D keeps goods too long, may have to pay ‘hire’ (‘restitutionary’): Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246





Maliciousness; Malicious falsehood, Malicious prosecution:



- Maliciousness - Starting to die out - being squeezed by defamation and privacy and the law of confidence


A) Malicious Falsehood

DEFINE; malicious statements - typically used in the context of comparative advertising
- Operates to protect interests in goodwill and economic reputation
...
J
...
Robertson [1991] F
...
R
...
67:
“The essentials of this tort are that the defendant has published about the plaintiff …
...
published maliciously,
and that …special damage has followed as the direct and natural result of their publication”
TEST:
i
...
The words were malicious
iii
...
False statement
- C has the burden of establishing that the disparaging statement was untrue
...
Publication
- The falsehood must be published to persons other than C: Malachy v Sopper (1836)
- Whether a negligence or accidental publication is sufficient is undecided

3
...
252
FACTS: C was acting as an agent of a tyre maker - he was renting premises from D, D tried to have him removed from the premises > Actions of D to be considered > he did
things to try and push C out
- While he was still in occupation D’s falsely informed the tyre makers that his tenancy had ceased, returned his mail to the post office, and informed telephone inquirers
(including the association) that he was ‘not available
...


- Since malice is always required to ground liability in this tort, it naturally follows that good faith on the part of D will always be a good defence (Spring v
Guardian Assuarance plc [1994])
EXAMPLES:
De Beers Abrasive Products v International General Electric [1975] [1975] 1 W
...
R
...
If it was shown that the words were calculated to cause
damage and that a defendant knew that the words were false then malice could be inferred

4
...
if you can identify a malicious statement that has resulted in a specific type of damage, it is likely to fulfill the requirements

- HOWEVER some situations in which it is not required (exception)
Exception
Defamation Act 1952, section 3
“3
...

(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage—
(a) if the words upon which the action is founded are calculated to cause to the plaintiff d in writing or other permanent form;
(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of
the publication
...
”

- If you are dealing with slander in this situation, (intent to cause pecuniary damage) THEN you do no need to prove special damage
- If falls under this exception > more likely to bring action under Defamation

General rule of special damage
White v Mellin [1895] AC 154
HELD: An action will not lie for a false statement disparaging a trader's goods where no special damage is proved
...
252
HELD: can use set of correlated steps to identify special damage > close link between malice and special damage as once malice is established, it is easier to establish special
damage

Greers v Pearman (1922) 39 RPC 406
POL: Suggest that special damage follows as a consequence of malice

How “special damage” should be identified
Tesla Motors Ltd v BBC [2013] EWCA Civ 152
HELD: Claims put forward by Tesla were insufficiently particularised > not a close enough link between statements and alleged damage
- Couldn’t prove special damage - general damage will not suffice
...

Generally:
Howarth v Chief Constable of Gwent [2011] EWHC 2836 (QB)
FACTS: The court dismissed a claim for malicious prosecution brought by a solicitor's employee following his acquittal of an offence of perverting the course of justice
...
Proceedings had been instituted by D

Martin v Watson
FACTS: proceedings terminated in C’s favour > D had acted without reasonable and probable cause

2
...
It was inappropriate
to extend the scope of the tort of malicious prosecution to disciplinary proceedings because of their diverse nature
...
To extend the limits of malicious prosecution to such
a category and leave it to the courts to determine on a case by case basis which proceedings fell within its scope would create a risk of uncertainty

Malice and Lack of Reasonable and Probable Cause
Hicks v Faulkner
FACTS: tenant and landlord > tenant said he had given the key back to the landlord, landlord said he had not recieved the key > witness prosecuted for
perjury
- Tenant trying to say malicious prosecution affected him













































Occupier’s Liability
- Occupiers have an obligation to ensure that their land is not hazardous to others
- This obligation is governed by statute law as the Occupiers’ Liability Act 1957 was introduced to clarify the common law position
- It was supplemented by the Occupiers’ Liability Act 1984 which covers injuries caused to trespassers
- Occupiers liability is an important topic because the scope of the tort is so immense - all occupiers have a duty to ensure that you are not injured on
their land and that your property is not damaged

Occupier’s liability
- A specific instance of negligence
- Duty of reasonable care owed to:
- Visitors – Occupiers’ Liability Act 1957
- Non-visitors (eg trespassers) – Occupiers’ Liability Act 1984


Occupiers’ Liability Act 1957: Visitors
- Prior to this statute, the extent of liability owed by an occupier depended upon the nature of the relationship with the person injured
...
1(1) the purpose of the act is to ‘regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or
to things done or omitted to be done on them’

Who is an occupier?
- No statutory definition
- A person who exercises an element of control over premises: Wheat v Lacon & Co [1966] AC 552
FACTS a pub and a couple who were running it > they were made licensees of the premises and lived upstairs, but the brewery who made them licensees reserved themselves
a right to come onto the premises to inspect and make repairs
HELD 2 occupiers - those living there but also the brewery > not there all the time in person but have this right reserved SO when someone fell down the stairs could
potentially sue either person > held premises were fine, no one was to blame here
POL: As there are varying degrees of control that can be exercised, this means that there can be more than one occupier > this includes physical and legal control of premises

- Occupier of premises owes common duty of care to all visitors (s 2(1))
- Visitor: someone invited or permitted to be on the premises (s 1(2)) (can be implied permission eg
...
1(3)(a) OLA 1957 - this has covered:

- a ship in dry dock: London Graving Dock v Horton [1951]

- aircraft: Fosbroke v Hobbes v Airwork Ltd [1937]

- scaffolding and ladders (moveable structures) Wheeler v Copas [1981] 3 All ER 405
HELD court even prepared to consider a ladder as premises > seems simpler to sue for negligent supply of a faulty ladder RATHER THAN saying the ladder is
premises that they did not take care of


Who is a visitor?
- Three categories of people that are considered lawful visitors

- Those with express permission
- Relatively straightforward
...
the postman
- Implied permission is also subject to limitations which, if exceeded, render the person a trespasser BUT it can be more complicated to determine the
boundaries of implied permission
...
a delivery person may have implied permission to enter the reception area but not to wander around the gardens



- Those with a right to enter
- The law gives right of entry to certain categories of people which render them within the definition of lawful visitor irrespective of the wishes of the
occupier of the land e
...
To take such care as in all the circumstances of the case is reasonable

…to see that the visitor will be reasonably safe

…
...
An occupier is empowered by statute to determine the boundaries of his liability
...
2(1) OLA 1957 provides that an occupier may extend, restrict, modify or exclude his duty to visitors by agreement or otherwise
- As the occupier controls the extent of the permission to enter, a visitor who acts in a manner contrary to that permission becomes a trespasser
- The duty is to ensure that the visitor is not injured whilst on the premises
...
2(3)(a) OLA 1957


Glasgow Corp v Taylor [1922] 1 AC 44




FACTS built a playground, around it they planted poisonous berries which a child ate and died
HELD the plants did not present an obvious risk of danger so the council should have taken measures to draw attention to the concealed danger that
they represented
...
2(3)(b) OLA 1957
- The law expects skilled visitors who’s expertise gives them greater awareness of risks of harm than the ordinary visitor to take precautions to protect
themselves
...
1(3)) (the property they bring with them to your premises)

Warning signs

s
...
The pond was one of five ponds in the area
...
However, with regards to the pond in which the fatality occurred, NT had done nothing to prevent visitors using the pond and it
was common for visitors to use the pond for paddling and swimming during the warm summer months
...
The risk to swimmers in the pond were perfectly obvious
...



Defences
- Volenti non fit injuria: this asserts that the visitor consented to the risk of injury as he knew of and understood and accepted the risk of injury: s
...
BUT any attempt to exclude liability will be governed by:
Unfair Contract Terms Act 1977 > s
...
60 of the National Parks and Access to the Countryside Act 1949 and ‘right to roam’ legislation
- The scope of the protection is narrower than the 1957 act in relation to lawful visitors as according to s
...
1
...
The occupier is aware of the danger or has reasonable grounds to believe that it exists (subjective)

2
...
The risk is one against which, in all the circumstances, he may reasonably be expected to offer some protection (objective: based on the
reasonable occupier)
- Duty to take such care as is reasonable in all the circumstances to see that non-visitor does not suffer injury by reason of the danger (s 1(4))
- May be sufficient to give warning of danger (s 1(5))






































Vicarious Liability
Third Party Liability for Someone Else’s Tort
- Finding someone else liable
- Employers liability

- Personal liability: duty owed to Employees

- Breached a statutory duty they might owe: duty owed to Employees

- Vicarious liability: liability because of the employee - employee has committed a tort
- These are all distinct
- Third party liability can be achieved via 3 main mechanisms:

1
...
Vicarious liability (KEY)



3
...
Employee has committed a tort (any tort)
2
...
Tort committed ‘in the course of employment’
- eg
...
Existence of Employer / Employee Relationship
- 5 things that can be considered to determine this relationship:
1
...
s ‘contract for services’ (which is more likely to be an independent contract agreeing to do
some work for someone - self-employed SO no vicarious liability)
Substance of the contract:
- Substance of the relationship might contradict the wording > wording might say yes independent contractor BUT looking more closely at relationship may suggest they have
a relationship

Ferguson v Dawson [1976] 1 WLR 1213
* This is not a vicarious liability claim
FACTS: C fell off the roof whilst working for D - C suing for breach of statutory duty - case still hinged on the relationship - whether independent contractor OR employee
...
’
HELD: C was held to be an employee and therefore able to claim damages
- This decision was based on the substance of the relationship and how it panned out
...
Control
- The degree of control exercised over the employee
- The second thing that may be considered in establishing such relationships - this was much more important historically

Market Investigations v Minister of Social Security [1969] 2 QB 173

POL: Cooke J ‘the most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor’




3
...
e employment OR provision of
services
HELD: Cooke J looked at the fact that employers had extensive control over employees, workers had limited discretion over when and where they worked and they were
limited in ability to work for others during term of work SO it was held to be employment
- Established a distinction between employee and self-employed
TEST: ‘is the person who has engaged himself to perform these services, performing them as a person in business on his own account’ I
...
If the answer is no, then it is a contract OF service’
- Therefore, control is part of it, but this is the key question
Ready Mixed Concrete (South East) Ltd
...
Relationship ‘Akin’ to Employment
- Policy based idea
- Relationship isn’t strictly employment as we would expect it
Various Claimants v Catholic Child Welfare Society [2012] UKSC 56
FACTS: Catholic priests doing teaching - residential school AND institute who provided teachers to the residential schools > the priests provided by the institute were teaching
at the school
...
VL claim against the institute of brothers who had provided the teachers
Q: was there an employment relationship between the teachers and the institute? ISSUE: priests received a salary which they gave to the institute
- Traditionally - would argue no relationship
- Brothers mission was to teach - not paid by institute - BUT argument they are running a business to provide teachers - teachers had no contract, just taught there BUT the
brothers were expected to provide teaching and conduct themselves under the institute’s rules
Held: this was akin to employer/employee relationship
- Policy based decision - wanted some kind of remedy for the C’s
Policy reasons:
Confirmed in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56:
- Lord Phillips gave 5 reasons:
- Employer’s greater ability to compensate
- Tort committed as result of activity on behalf of employer
- Employee’s activity likely part of employer’s business activity
- By employing person, employer created the risk of tort
- Employee to greater or lesser degree under employer’s control


4
...
Strang under supervision of subcontractor’s employee
...
’
- Says this seems fair because both employers are using the employee for the benefit of their work - he is an essential element of both businesses SO it is only fair that there is
this vicarious liability




3
...
Obstruction caused crash and C’s bus overturned
- Yes in the course of employment but not allowed to do that
HELD: VL claim successful - although not acting as they were supposed to - it was an unauthorized way of doing what they were employed to do
- This may be explained by policy reasons though - ‘deeper pocket’ theory carries a lot of weight here

Rose v Plenty [1976] 1 WLR 141
FACT: driver of milkfloat - was given express instructions not to give lifts on his milkfloat OR allow children to assist him
...
assault, theft and fraud are also torts AND VL may apply to these
- ‘Close connection’ between the tort and the ordinary activities of the business or the work the tortfeasor was employed to do
...
’ (para
...
’
para
...
employers DOC to employees, the rule in Rylands v Fletcher, liability for works on the highway
Woodland v Essex CC [2013] UKSC 66
FACTS school contracted out swimming lessons, 10 y/o girl was brain damaged after falling into difficulties
Q is there responsibility here - how far is the school liable?
HELD school owed a DOC to the children - this was part of the curriculum - child didn’t have any control over who was in charge of her lesson so duty to ensure lessons were
safely conducted

POL: 5 criteria to identify non-delegable duties
(i) C is patient, child, or otherwise vulnerable and dependent on protection of D
(ii) pre-existing relationship between C and D independent of the tort which


(a) put C in D’s custody or care, and

(b) From which can impute D’s assumption of responsibility
(iii) C had no control over way D discharged duty
(iv) D delegated some function that was core to his/her duty to a third party
(v) Third party was negligent in performing that function





































Defences to Torts

- Once all the elements of any of the torts have been established, D may escape liability by relying upon a defence
...
Consent: volenti non fit injuria > ‘there can be no injury to one who consents’
= a person who consents to harm or consents to an activity which carries a risk of harm should not be able to hold the person who caused the harm liable
in tort
...
C had knowledge of the risk involved (the nature and extent of the risk)
- Requires more than a vague awareness of danger but of a more specific knowledge of the type of risk involved in a particular activity A subjective test
Murris v Murray [1991]
FACTS: C went drinking
...
They crashed
...
An autopsy showed the first was
more than 3 times the legal alcohol limit for driving
...

HELD: court applied a subjective test - held C was aware of the risk he was taking and therefore his claim against the deceased’s estate was barred by the defence of consent
EXAM TIP: as with any subjective test, you must find evidence of what the C know or was thinking
...
The C willingly consented to accept that risk (a voluntary acceptance of the risk as C’s free choice)
- D must prove that C freely consented to run the risk > knowledge is not the same as consent to running it
- Free consent implies C must have had a choice as to whether or not to accept the particular risk SO the defence will not succeed where C had no choice
but to accept the risk: Smith v Charles Baker & Sons [1891]
OR where they lack the mental competence to agree: Gillick v West Norfolk and Wisbech AHA [1986]

2
...
e if C was knowingly engaged in an unlawful enterprise at the time he was injured, it would be contrary to
public policy to allow his claim to succeed
- There must be a close connection between the injury sustained by C and the criminal enterprise in which he was involved eg
...
D shot in panic when C started to enter the shed and C sustained serious injuries
HELD: C should not be deprived of a claim on the basis of illegality saying it was too ‘far-reaching to
deprive [the C] even of compensation for injury which he suffers and
which otherwise he



3
...
C has suffered damage
- C must have suffered damage - this includes death and personal injury, damage to property and economic loss

2
...
C was sat on the back of one of the vehicles at the time of the collision, without the drivers knowledge and in
contravention of the explicit prohibition on doing so
HELD: this amounted to CN as C ‘ought to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself’

3
...
Standard of care is that of the reasonable prudent person

- A defence in CN will succeed if it can be established that C failed to recognise that he was jeopardizing his own safety if this would have been obvious to
the reasonable person

Children
- There is an exception to this in relation to children as the courts have acknowledged that children are less likely to recognise the risks
inherent in their conduct than adults
Gough v Thorne [1966]




FACTS: the 13 y/o C was struck by a car as she was crossing the road
...
Unfortunately a car swerved past the lorry and struck C
ISSUE: whether damages should be reduced on the basis of CN
HELD there was no CN as C had done all that could be expected of a child her age
POL: ‘a very young child cannot be guilty of CN
...
A judge should only find a child guilty of CN if he or she is of
such an age as reasonably to be expected to take precautions for his or her own safety, and then he or she is only to be found guilty if blame is to be attached to him or
her’ Lord Denning
Rescuers

- The objective SOC is also modified in relation to rescue situations where it becomes the standard of the reasonable rescuer: only if a rescuer
has shown ‘wholly unreasonable disregard for his or her own safety’ will there be a finding of CN: Baker v TE Hopkins & Son Ltd

Emergencies
- A person acting in ‘the agony of the moment’ is not expected to take time to weigh up the risk of his action and
this is taken into account
in relation to CN
...
C’s damages will then be reduced by that percentage
Stapley v Gypsum Mines Ltd [1953]
HELD: 2 factors to be considered when deciding how to apportion blame:


1
...
Culpability: the relative blameworthiness of C and D for the injuries sustained by C

Seatbelts
Froom v Butcher [1976]
FACTS: C was injured when the car in which she was a passenger was struck by an oncoming vehicle, driven dangerously by D
...
Injuries were caused partly by Ds dangerous driving and partly by C’s failure to wear a
seatbelt

- CA went on to establish a scale of reductions based upon failure to wear a seatbelt


- injuries would have been avoided altogether: 25% - injuries would have been less severe: 15% - injuries would have been the same: 0%


Remedies to Torts

- Two main remedies available in tort: damages and injunctions


A) Damages

- The primary remedy in tort
- The principle is that the award of damages should return C to the position they would have been had the tort not occurred
- This is not always straightforward as some tortious harms are less amenable to quantification than others
- In addition to the difficulties of calculating the value of certain kinds of damage, there are also other factors to take into account such as C’s duty to
mitigate their loss and situations in which the courts award damages that go beyong mere recompense for loss

Mitigation of loss
- A C who suffers loss as a result of D’s tort is entitled to an award of damages to ensure they are not ‘out of pocket’
- HOWEVER, a C must take reasonable steps to ensure that the losses that they are claiming are kept to a minimum eg
...
General and special damages
Special
Those capable of being calculated at the time of trial and which are presented to the
court in a form of calculation
Loss of earnings before trial
Medical expenses prior to trial
Damage to property eg
...
Nominal damages

General
Those which are not capable of being calculated at the time of trial so are left to the
court to quantify
Loss of future earnings
Cost of future medical expenses
Pain and suffering

- Awarded when C’s rights have been infringed but little harm has been caused > frequently awarded in relation to torts which are actionable per se and cases in which the
primary aim of C was to obtain an injunction


3
...
They differ from nominal damages in that the court feels that the action should not have been brought (even though C has
been successful in establishing the elements of a tort)
- To reflect the courts view, an award of such damages is extremely low: 1p damages


4
...
The
court held that aggravating features ‘can include humiliating circumstances…or any conduct of those responsible…Which shows that they had behaved in a high-handed, insulting,
malicious or oppressive manner’


5
...



6
...
Eg
...
Between the accident and the trial 2
...
a strong possibility of substantial damage in the future
2
...
e damages would be inadequate
3
...
the injunction must be capable of reflecting exactly what D was compelled to dO

NEGLIGENCE
Introduction to Negligence
- Negligence has grown to become the largest area of tort law
- In everyday terms, negligence means failure to pay attention to what ought to be done or take the required level of care
...


DEFINE; Negligence as a tort, is a breach of a legal duty to take care which results in damage to the claimant
(Rogers, Winfield and Jolowitz on Tort 18th edn, 2010)

Formation of the principle
- Historically, there was no separate tort of negligence to impose liability
...

- There existed merely a list of situations where the victims of careless conduct might recover damages
...
It is now the most common and most important tort
...
The injured party must establish that D owed him a duty to take reasonable
care to protect him from the kind of harm suffered, that he was in breach of that duty and that it was D’s breach of duty that caused the duty
...
”
KEY: imposed a duty on manufacturers in respect of the production of certain types of goods i
...

Reasonable foreseeability
2
...

Was the harm reasonably foreseeable by the defendant at the time of his/her act?
2
...

Is it fair, just and reasonable to decide that there is a duty of care?
- This case effectively redefined the neighbour principle > adds the requirement that there must be a relationship of sufficient proximity and that the
imposition of a DOC must be fair, just and reasonable

ELEMENTS
1
...
There was a breach of that duty of care
- Sets standards
- Established a DOC but there will be no liability if D meets the standards the law requires of them
3
...
The damage suffered was not too remote
- Foreseeability of a certain type of harm
- If it is too remote and it was impossible for D to have seen it, there will be no LEGAL causation and therefore no liability (the damage is too remote)




















 Duty of Care
- D owed C a duty of care
...

- Because of this, the DOC has been used by the courts as a control mechanism - a way of limiting liability in negligence - and is the first resort of the court
if they way to disallow a certain type of claim
- It is not a general DOC: “It is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind
which he has in fact sustained
...

- 2 ways in which a DOC may be established:

1
...
Outside of these situations, according to the principles developed by case law

Established Duty
- A number of situations in which the courts recognise the existence of a DOC
...

Manufacturer : user/consumer of product (Donoghue v Stevenson)
Road user: road user (Nettleship v Weston) owe one another a DOC
Doctor: patient (Barnett v Kensington and Chelsea HMC) (once Dr has accepted them as a patient - BUT Dr has no obligation to
intervene in public)
Employer: employee (Wilsons & Clyde Coal v English)
Occupier: visitor (Wheat v Lacon)
School: pupil (Woodland v Swimming Teachers Association)
Sports participant: sports participant (Condon v Basi)
Referee: players (Evans v Vowles)
Land owner: neighbouring land owner (Goldman v Hargrave)
Parent: child (Carmarthenshire County Council v Lewis)

The principles in case law
- Outside of these categories, a DOC will be determined on the basis of individual circumstances
- The neighbour principle, established by Lord Atkin in Donaghue v Stevenson [1932] AC 562 (HL), was initially used to determine whether a duty of care
existed between D and C
...
As Lord Macmillan said in Donaghue v Stevenson, ‘the categories of negligence are never closed’
SO, in theory, the courts can develop new categories of negligence to reflect the current social view and make decisions based on consideration of public
policy
...


- The basic concept of the neighbour principle, was however reformulated almost 60 years later in:
Caparo Industries PLC v Dickman [1990] 2 AC 605
- Lord Bridge established a three stage test for the existence of a duty of care:
1
...
Is there proximity between the parties?
3
...
Reasonable foreseeability of injury to a class of persons including C
- An objective test
...
A sufficient relationship of proximity between C and D
- This test is concerned with whether there existed, prior to D’s failure to take care; sufficient factual links between the parties so as to establish
proximity (in the sense of ‘neighbourhood’ or ‘closeness’) such as would support the imposition of a duty of care
...
manufacturer and consumer)
ANALYSIS
- A relationship between two parties, which makes it fair, just and reasonable that one should owe the other a DOC > thus, it is not separate/distinct from
the other criteria
- Has been used as a way of restricting the scope of DOC - judicial reluctance to recognise a DOC in these contexts is expressed in legal terms by a finding
of no proximity

3
...
In determining whether or not
to do so, it may assess various mid-level ‘policy’ issues that argue in favour of and/or against the imposition of a duty of care
- The court considers external factors - whether it is fair, just and reasonable to impose a duty for society as a whole
- Courts will explicitly take into account public policy reasons:
3 principle factors:
1
...
Because
it would result in the restriction of certain socially useful activities, which come to be seen as carrying a risk of excessive liabilities)
- Not to be confused with;

2
...
Liability in an indeterminate amount for an indeterminate time to an indeterminate class:" Ultramares Corporation v Touche (1931) 174 N
...
441, 444 (Cardozo J)
...
Public interest
ANALYSIS
- Alan Beever has argued there is no need for this limb of the test, suggesting the duty inquiry is fact-based

- The courts have invoked the notions of fairness, justice and reasonableness to limit the circumstances in which a duty will be imposed


Cases where NO DOC found
Sutradhar v Natural Environment Research Council [2006] UKHL 33
FACTS: A geological survey of Bangladesh showed the presence of large amounts of ground water BUT does not reveal high arsenic concentrations in ground water
...
The neighbour kills the person who complained about him
...
A woman is killed
...
The claimant is injured in a road traffic accident;
ISSUE: Does the council owe a DOC?
HELD: No DOC > the fact they had a power to do it, does not mean they have a duty to do it - even if they had a duty to do it, this does not mean they have a DOC to members of
the public

Marc Rich v Bishop Rock Marine [1996] AC 211
FACTS: A ship surveyor passes a ship as fit to sail
...
Is there a DOC?


- TO DO THIS:


- Look at the relationship between D and C


- Try to find some precedent, if there is a precedent, no further inquiry is required


- IF THERE IS NO PRECEDENT:


- A DOC may arise if:
i) The imposition of such a duty meets the Caparo test AND it is an incremental development of an existing duty; or



ii) The defendant has assumed responsibility for the claimant ; or



iii) There is a ‘special relationship’ between claimant and defendant
...
The expansion of the Duty of Care
the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion
...
C
...

1
...
If so, there will be a duty of care unless there is a reason not to impose such a duty
...



Junior Books v Veitchi [1983] 1 AC 520
FACTS: floor fitted negligently and caused loss
- A period where the court found a DOC wherever it was needed
- This is notorious for being a real outlier in the tort of negligence
- That C succeeded in claiming damages in circumstances they wouldn’t nowadays


Murphy v Brentwood District Council [1991] 1 AC 398
FACTS: Decided the tort was expanding too much in 1991
...
No further expansion of the tort > there has been no
evidence that there has been a change in this

The trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from a person (preferably
insured or a public authority) whose act or omission can be said to have caused it
...
Stovin v Wise [1996] A
...
923,
949 (Lord Hoffman)

Caparo Industries plc v Dickman [1990] 2 AC 605
Three stage test:
- Foreseeability;
- Proximity;
- Fair, just and reasonable
...
Restrictions and limitations on the basic test in Caparo


- Omissions (failure to act)


- Acts of Third Parties


- Misstatements


- Economic Loss


- Psychiatric harm


- Special claimants and defendants
1
...
if you see someone in peril, you are not obliged to try to rescue them
EXAM TIP; in a problem question where someone fails to act and loss or damage results, be careful to establish whether or not a special
relationship exists
...
While there is no obligation to prevent a
stranger from drowning in a pond, the situation would be quite different in the case of a parent who watched their child drown and did
nothing
...
Acts of Third Parties
- No general DOC in relation to the acts of third parties, unless there is a special relationship with that third party
Stansbie v Troman
POL: a DOC existed where ‘the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened’
FACTS: a decorator was entrusted with the key to a house that he was painting
...

HELD: The decorator was liable

…
...
The work wasn’t completed and the cinema remained empty
...
C’s sued on the basis that their losses had
been caused by the negligence of D’s/
HELD: Failed
...



3
...
AND to establish a claim in negligent misstatement, particularly with
regard to the ‘special relationship’, C must prove that D must have known that:

- the statement would be communicated to C

- the statement would be made specifically in connection with a particular transaction

- C would be very likely to rely upon it in deciding whether or not to proceed with the transaction


4
...
if a lorry crashes into an electricity substation as a result of negligent driving and the electricity to an industrial estate is cut off for eight hours, the ectent
of the financial losses would be immense
...
Most cases turn on whether or not the loss suffered is pure economic loss
...
Damage to property

2
...
Damage to property
- Economic loss which is a direct consequence of physical damage is an exception to the general rule that economic loss is not recoverable in
tort
Spartan Steel v Martin & Co DIFF
FACTS C’s manufactured stainless steel alloys at a factory 24 hours a day
...
They damaged the electrical supply cable
to the factory
...
C claimed for damages for a ‘melt’ they had scrapped due to the cut off, the £400 profit they would
have made from that melt and £1767 on another four melts which would have been put into the furnace
...
The damage to the melt in progress was physical and the loss of profit was a direct consequence
...
The foundations were too shallow
...
(This has since been overruled by Caparo v Dickman)
- Very easy to show a duty of care
...
Is the relationship between defendant and claimant such that damage is foreseeable?
2
...


Junior Books v Veitchi [1983] 1 AC 520 concerns: expansion of DOC, economic loss
FACTS Cs were having a factory built
...
D negligently laid floor, which had to be
replaced
...

HELD Even though Cs suffered no physical damage, successfully recovered all the heads of loss claimed, despite all being economic
...

- A period of expansion > notorious for being a real outlier in the tort of negligence - C succeeded in claiming in circumstances that they
wouldn’t nowadays
- The HOL clarified the situation in:
Murphy v Brentwood District Council [1991] 1 AC 398 concerns: restriction of the tort, economic loss
FACTS A council approved plans for a concrete raft upon which properties were built
...
The default position is
that he is not
...
C
...

DEFINE; Psychiatric Injury a mental illness caused by the negligence of another > must be medically recognised:
Medically recognised
Not medically recognised
Post-traumatic stress disorder (Leach v Chief Constable of Gloucestershire
Constabulary 1999)
Pathological grief (Vernon v Bosley (No
...
1) 1997)
Emotional upset (Hicks v Chief Constable of the South Yorkshire Police 1992
(Lord Bridge))
“It is perfectly clear law that fear by itself, of whatever degree, is a normal human
emotion for which no damages can be awarded
...
All had suffered psychiatric illness following the Hillsborough disaster
...
Some went to the ground, where they
identified the body of their relative, although none saw the body in the immediate aftermath of the disaster
...

HELD: On appeal by the plaintiffs to the House of Lords, none was allowed
...
It
has yet to include psychiatric illness caused by the accumulation over a period of time more gradual assaults on the nervous system’
- The HOL laid down 3 factors to be considered in determining whether a DOC is owed in psychiatric injury cases:
1
...
Proximity: there must be temporal and spatial proximity of C in relation to the accident and
3
...


- In doing so, they identified 2 types of victim: primary and secondary victims

Primary and Secondary victims
- Primary victims = those who have suffered or been at risk of suffering physical illness
...

Primary victims
- Those directly involved in the incident
- Reasonable fear for your own safety even if not actually injury but suffer psychiatric injury as a result of it
Page v Smith [1996] AC 155
FACTS: Page involved in a minor road traffic accident, in which no-one was hurt, he suffered from chronic fatigue syndrome (ME) after caused by the trauma from this accident
> the court accepted this
HELD: succeeded as a primary victim - doesn’t matter that he had a history of psychiatric problems (take your victim as you find them - thin skull rule)

Rescuers
- In Alcock, rescuers were also placed in the class of primary victims
...
B
...
someone being killed in a road traffic incident BUT the court
consider this not foreseeable and therefore this cannot be recovered
- BUT it is foreseeable that someone who sees something with their own eyes will suffer psychiatric injury, so they can recover for this

- There was expansion of this principle however in:
McLoughlin v O’Brian [1983] 1 AC 410 (HL)
FACTS: child killed BUT mother doesn’t see it > she wasn’t in the car but was at home, when she was told she went to the hospital, saw her family covered in oil and blood, one
blurted out that her daughter was dead, suffered psychiatric injury
HELD: claim allowed > expanded the tort - IF you see the accident OR its immediate aftermath, someone close to you, and this is the means by which the shock is caused, you
can also claim

- Secondary victims must satisfy the tests laid down in Alcock for a claim to be successful:

1
...
Proximity in time and space

- Must be sufficiently close to the accident OR its immediate aftermath

- On the scene - not hear about it or see it on TV
- Shock must be caused by a single shocking event or its aftermath: McLoughlin v O’Brian HELD the claimant need not be present at the time of the
accident to satisfy the requirement of proximity, but must come upon the immediate aftermath

3
...
In Alcock, it was held that shock communicated by live TC broadcasts was not
sufficient as it did not show recognisable or identifiable individuals suffering
Hillsborough
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310


FACTS: HOL, 10 plaintiffs
...
One – who lost his brother – was at the match; the others saw the events
unfolding on live TV, although no pictures were shown of the Leppings Lane end after it became apparent that lives were being lost
...
Nine of the plaintiffs had succeeded at first instance, but had the
judgements reversed by the Court of Appeal
...

None of the plaintiffs were able to establish that their psychiatric illness was foreseeable within the parameters set by McLoughlin v O’Brian: they were either not closely
enough related; or they did not witness the ‘immediate aftermath’ – i
...
see the body of their relative within the two hour window allowed in McLoughlin v O’Brian
...

- In the case of those who had seen events folding on TV, it was noted that there were no scenes of people dying; and the coverage lacked the immediacy required to make
psychiatric illness foreseeable
...



Special claimants and defendants
Bystanders
- In Alcock, some members of the House did, obiter, suggest that it was not out of the question that a bystander might have a claim, in the event of a
particularly horrific accident; and that watching an incident on live television might also, in some circumstances, found a claim by a relative
...


Attia v British Gas [1988] Q
...
304
FACTS: coming home, having a boiler fitted by British gas, as she got home, saw her house in flames
HELD: able to claim for posttraumatic stress

North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792
FACTS: a child due to medical negligence (misdiagnosed) suffered brain damage from an epileptic fit > mother saw child die, suffered psychiatric injury
ISSSUE: was there a single shocking event? > The court said nothing in the case law said a single shocking event had to be instantaneous > nothing to suggest it was limited in
time - the single 36 hour experience was shocking
HELD: claim successful


Unwilling participants
- Another type of secondary victim: people not scared for their own safety BUT traumatised by someone elses danger > where someone feels reasonable
for killing or seriously injuring someone else > where C believes he has caused another’s death or injury
- This further category of primary victims was established in Dooley v Cammelll Laird and Co Ltd [1951] 1 Lloyd’s Rep 271 and Wigg v British Railways
Board (1986) 136 NLJ 446 (QBD)
- This would only succeed if the claimant was actually present when the death or injury occurred
- BUT this was removed in White v Chief Constable of South Yorkshire Police where it was held that only persons in actual danger of physical harm can be
classified as primary victims
Monk v PC Harrington [2008] EWHC 1879 (QB)
HELD: the belief that the claimant had caused the accident had to be reasonable
...
This common law position is only applicable to children born
prior to 22 July 1976, when the Congenital Disabilities (Civil Liability) Act 1976 came into force
...
Cas
...

(1887) 13 App
...
222, 226 (Sir Richard Crouch)
Dulieu v White [1901] 2 K
...
669
FACTS: carriage crashed through front of a pub and scared the barmaid who suffers physical symptoms from the shock
HELD: first successful claim for ‘nervous shock’ caused by dear for own safety (first primary victim)

- PC not binding on an English court
- Floodgates argument brushed aside and the C here was able to recover
Hambrook v Stokes Brothers [1925] 1 K
...
141
FACTS: woman sending children off to school > a runaway lorry (breaks had failed) whilst her children were walking
ISSUE: she is not scared for her own safety BUT is very scared for her children > she suffers a nervous breakdown and had a miscarriage as a result - dropped dead 11 weeks
later - can she claim for this despite being a secondary victim?
HELD: the reason she dropped dead was a delayed response to this shock - husband brought claim and she was able to claim

- Duty of care extends
- If you have a duty of care to a child and they are injured, parent or guardian sees and suffers psychiatric - the DOC extends to them
I should find it difficult to explain why the duty was confined to the case of parent or guardian and child, and did not extend to other relations of
life also involving intimate associations; and why it did not eventually extend to bystanders
...
158-9 (Atkin LJ)
Owens v Liverpool Corporation [1939] 1 K
...
394 (CA)
FACTS: Funeral, car carrying coffin overturned, revealed corpse, family suffered psychiatric injury
HELD: family able to claim

Bourhill v Young (Hay v Young) [1943] AC 92 (HL)
FACTS: woman getting off tram, hears but does not see a traffic accident
ISSUE: why shouldn’t bystanders be able to recover? It is foreseeable that some people who have seen the accident may suffer psychiatric injury?
HELD: HL denied the claim - the motorist at fault did not owe a DOC - was not in the reasonable contemplation > application of the neighbour principle > D did not owe a DOC
to C - not in the reasonable contemplation


As a result of trespass to the person?
- Psychiatric injury arising as a result of trespass to the person is recoverable
...
)
- The bill widens the scope of the close tie of love and affection for secondary victims; removes the need for proximity in time and space; and removes the
need for there to be a single shocking event
...
2 – right to life
Art
...
8 – the right to respect for private and family life, home & correspondence
Art
...
13 – right to a remedy for breach of the convention rights (before the HRA came into effect)
...
6 Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right
...
7 Proceedings
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act
...
W
...
R
...
B
...

HELD: Police had assumed responsibility for informants safety (operational) >

Michael v Chief constable of South Wales Police [2015] UK SC 2
FACTS: Michael killed by ex-partner
...

ISSUE: did the police owe a duty of care
HELD: Majority judgment (5-2) dismissed the negligence claim
...
Case will now proceed to trial under the Human Rights Act

Where policy reasons preclude existence a duty of care
- The courts have found that there is no general duty of care owed by the police to any particular individual
Hill v Chief Constable of West Yorkshire [1989] AC 53
POL: the duty of the police is to the public at large
FACTS: Peter Sutcliffe - the Yorkshire Ripper
...

ISSUE: did they owe a DOC to the daughter? > cannot detect everyone due to insufficient proximity between police and victim
- Policy grounds – concern about defensive practices
HELD: HOL held that the police owed no duty of care towards her daughter to protect her from the ripper on the basis that if such claims were allowed, the police would be
inhibited in the exercise of their professional judgment and that a significant amount of police resource would be diverted from investigating crime to the defence of civil cases
brought against them
Lord Keith at p
...
- It was held in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 that in most
instances an action in negligence against a PA carrying out its delegated powers would fail
X (Minors) v Bedfordshire County Council [1995] 2 AC 633
FACTS: 5 appeals:
- 1st group: alleged local authority negligence failed to take children into care or wrongly decided to take into care
...

- Complete denial of DoC – but inconsistent with Art 3 ECHR (“inhumane or degrading treatment”)
“the local authority cannot be liable in damages for doing that which Parliament has authorised
...
” (Lord Browne-Wilkinson at p
...

HELD: Violation of Arts
...
NO violation of Art
...

HELD: HL agreed with CA: DoC owed to children by public bodies when exercising their child welfare functions
...
if you see someone in peril, you are not obliged to try to rescue them
Smith v Littlewoods Organisation Ltd [1987] A
...
241
FACTS: Littlewoods had bought a disused cinema, whist they were doing that, vandals broke it and caused damage/fire
ISSUE: who was responsible? How can you be responsible for something you didn’t know?
POL: “Why does the law not recognise a general duty of care to prevent others from suffering loss or damage caused by the deliberate wrongdoing of third parties? The fundamental
reason is that the common law does not impose liability for what are called pure omissions
...
271)

Stovin v Wise,
POL: Lord Hoffmann justified the rule against liability for pure omissions: ‘it is less of an invasion of an individual’s freedom for the law to require him to
consider the safety of others in his actions than to impose upon him a duty to rescue or protect’
- SO… a person, who sees a child drowning in shallow water, is not under a legal obligation to save the child and will incur no liability for their failure to
do so
...

- This rule can be seen as operating harshly in many situations it could be argued that there may well be a moral obligation to act and there is a need for
the law to reflect this

Relationship with proximity
- Where there is no prior relationship between the parties, an omission to act will not constitute actionable negligence, however readily foreseeable the
harm to the claimant and despite physical proximity between the parties
- A passer-by who stands and watches a child drown in a shallow pool is under a negative DOC not to harm the child
- BUT this will not be the relevant issue in an omissions case
- The issue here is whether there is a positive duty to act and save the child from drowning - here the law is quite clear that the passer-by is not liable for
failing to intervene to save her, even though he could do at so minimal risk to himself

Acts vs
...
It is another matter to require a person, who is doing nothing, to take positive action to protect others from harm for which
he is not responsible’ (Stovin v Wise)
- BUT when a defendant’s prior act creates a duty to take care, the fact that an omission is the immediate cause of harm will not prevent the defendant
from being liable eg
...
The Defendant has a special relationship with the Claimant
A) The Claimant dependant on the Defendant:
- Parents (also foster parents) looking after the child who falls in the puddle or runs into the road
- Schools failing to safeguard pupils against injury or meet educational needs (Carty v Croydon London Borough Council [2005], cf
...
I
...
R
...
Subsequently,
when C used the mats with a friend, without supervision, he suffered a serious injury
...
Where the only connection between the acts of C and D is the
fact that D made it possible for C to harm himself, C’s acts are taken to be the sole cause of the harm
...
They failed to do either; and then compounded their failure by providing unrestricted access to the crash mat, thereby encouraging him to
use it to practice what he had been taught, without warning him that he must on no account do so without supervision’

Barret v Ministry of Defence [1995] 1 W
...
R
...
MOD appealed, arguing a DOC cannot arise to prevent a person from
becoming intoxicated
HELD: The MOD were liable, not through breach of a DOC to prevent him becoming dangerously intoxicated BUT once the senior officer assumed a responsibility for him by
ordering the Petty Officer to look after him, a DOC did arise
...


Stansbie v Troman [1948] 2 KB 48
FACTS: A decorator was left alone under his contract by C
...
While he was out, thieves stole
property from C’s house
HELD: DOC found
...



2
...
One night the Borstal officers retired for the evening leaving
the boys unsupervised
...

HELD: The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm
would result from their inaction
...
The Defendant has created the danger that is sparked off by a Third Party
Haynes v Harwood [1935] 1 KB 146
FACTS: D left horses unattended in street, boy threw stone, and they bolted, C injured trying to save people from being injured
...
The Defendant fails to take reasonable steps to abate a danger created by a Third Party
- General rule – no duty of care to prevent others from causing damage:
Smith v Littlewoods Organisation Ltd [1987] AC 241
FACTS: Disused cinema à vandals à 2 small fires (not reported) à fire damaging neighbouring property

Endorsed in Mitchell v Glasgow City Council 2009] UKHL 11
- No liability in either case
However: Clark Fixing Ltd v Dudley Metropolitan BC [2001] EWCA Civ 1898
FACTS: A building left (almost the same as Smith) > Known trespassers on vacant development site à fire à damaged neighbouring properties
HELD: D should have removed combustible material from the site
...
‘In our judgment
the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so
...
’

- Coast guard: O
...
L
...
A coastguard owed no DOC to those in distress even in giving a negligent mis-direction to non-employees
...
It had thereby assumed responsibilities to
the public for the execution of search and rescue missions in coastal waters
...
These submissions were rejected
...

‘as there were no circumstances which made it unfair or unreasonable or unjust that liability should exist, there is no reason why there should not be liability if the arrival of the
ambulance was delayed for no good reason
...
On the findings of the judge it was delay which caused the further
injuries
...
C
...

FACTS: individual hung themselves in the cell
HELD: police liability for omission to make the cell safe - the prisoner was a known suicide risk
...


Critique
‘These decisions are troubling because of a sense we have that rescue services ought to be responsible if they do not do their job properly
...
’
Conaghan and Mansell (1999, 40-50)

EXAM TIP; in a problem Q where someone fails to act and loss or damage results, be careful to establish whether or not a special relationship
exists
...
W
- While there is no obligation to prevent a stranger from drowning in a pond, the situation would be quite different in the case of a parent who
watched their child drown and did nothing
...
e whether D has not come up to the standard of care required by law
- A defendant who owes a claimant a duty of care will not be liable for any harm suffered by the claimant unless the defendant has breached that duty: it
is possible for there to be a duty of care and for the claimant to have suffered harm without negligence
...

- Negligence is, in general, considered in objective terms: a person is not in breach of their duty if they act as a reasonable person would in the
circumstances
...
the foreseeability of harm to C (or class to which C belongs) should care not be taken

ii
...
compare the conduct of D with the expected standard of care to see whether D met the standard or fell below it



- The existence of a DOC does not mean D is automatically liable for any harm suffered, UNLESS D has breached that duty
- What is the standard?

- DOC is not general, nor all encompassing

- A claim in negligence > must show D breached the standard of care applicable
- When it comes to negligence, the intention of D is not really relevant to the question of breach, An honest, but incompetent D who is not acting
recklessly, may still be liable in negligence
...
if you are involved in a traffic accident, it is no defence to say you are inexperienced OR a learner driver > standard = the average reasonable driver -
EVERYONE is held to the same standard because it is objective

The Reasonable Person test
- The conduct of D will be measured against that of the reasonable person
...
In deciding whether a defendant has breached the DOC, the court applies an objective test
...
This test was established in: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
HELD: The test is the standard of the ordinary skilled man exercising and professing to have that special skill
...

[H]e is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that
particular art
...




- This test has been held to apply to other professionals in general
- BUT it has been criticized for being too protective of professionals, suggesting it allows practitioners to set their own standards,
rather than having those standards set by the courts
- Where D has a particular lack of skill
- The general SOC in negligence is an objective test, judged against the standards of the reasonable person
...
The SOC required of all motorists is the same: that of the reasonably competent driver






- The same principle has been held to apply in relation to junior doctors:
Wilsher v Essex Area Health Authority [1987] QB 730
POL: Junior Drs are required to meet the standard of the reasonable competent doctor of the same rank

- Where a person undertakes an activity requiring specialist skills, they are required to reach the standard of a person reasonably
competent in that skill
- Where D is a child
- Children are held to a standard appropriate to their age
...
The
standard is that of a ordinary child of the same age as D
...
for a child to be held culpable the conduct must be careless to a very high degree and where a child of 13 is partaking in a game within a play area,
not breaking any rules, and is not acting to any significant degree beyond the norms of that game, he or she will not be held culpable
...




- Very young children are of course, less likely to foresee that their acts might cause harm to others
...


Bolton v Stone [1951] AC 850



Glasgow Corporation v Taylor [1922] 1 AC 44
FACTS a park with a play area for children, close by a fenced of area containing botanical specimens > child found and ate the berries and died
HELD D was liable - owe a duty as an occupier to all people using their premises > play area, > reasonable foreseeable therefore that a child may eat the
berries

FACTS someone hit a cricket ball out of the ground, which injured a passer by who suffers injury and sues
ISSUE was there a breach of duty?
HELD No breach of duty
...
The cricket ground
had been there for 90 years without injury and provided a useful service for the community
...
, 858 (Lord Porter)
...

ISSUE: what was the standard of care expected of a football player
...
D was in breach of duty as the tackle was reckless even with regards the
standard expected of a local league player
...

Sir John Donaldson MR: The standard is objective, but objective in a different set of circumstances
...




-Vulnerable people (as claimants)
- Where c has a disability or vulnerability that makes them more likely to be injured, the question is whether a reasonable
defendant, in the same circumstances, would have taken that disability into account








- In some circumstances, it may be unforeseeable that a particular vulnerability would make the claimant more susceptible to injury;
but if it is foreseeable, then the duty to take care includes the duty to take particular care for those vulnerable individuals
...
[1951] A
...
367, 385-6 (Lord Morton)
...
If this accident had occurred in a commercial enterprise without any emergency, there could be
no doubt that the servant would succeed
...
[1954] 2 All ER
368, 371 (Denning LJ)
...
Test: ‘the test is
the standard of the ordinary skilled man exercising and professing to have that special skill’ …
...


Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 DIAGNOSIS

FACTS: D decided that the most likely diagnosis of C was tuberculosis, and carried out a procedure which bore a small risk of nerve damage, even if carried out
without negligence
...
It was later discovered that the C was not suffering from tuberculosis
...
It is not enough to show that subsequent events show that the
operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion
would have accepted it as proper
...

Sidaway v Governors of the Bethlem Royal Hospital [1985] A
...
871 INFORMED CONSENT
FACTS: A patient underwent an operation on her spine, which, although it was carried out without negligence, caused her permanent disability
...

HELD: In these circumstances, the appellant's expert witness's agreement that the non-disclosure complained of accorded with a practice accepted as proper by a
responsible body of neuro-surgical opinion afforded the respondents a complete defence to the appellant's claim
...


BUT the Bolam test has been criticized for being too favourable to the medical profession and, by delegating the decision as to what was
acceptable to the profession, rather than requiring that the court make that decision, too deferential
...

- If you are a hero, you are exempt from claims in negligence > Good Samaritan claim eg
...
262)
...
Other factors include:
The magnitude of the risk:
- This is determined by the likelihood of it occurring and the seriousness of the potential injury
Likelihood:
Miller v Jackson [1977]
POL: a greater risk of damage than normal increases the SOC required by a potential D
...
C slipped on part of the floor not covered with sawdust
POL: the only way to remove the risk would have been expensive and disproportionate to the relatively small risk of injury (close the affected part of the factory)

- SO… the greater the risk of injury, the more a D has to do to reduce the risk, even if it is costly
...

Social value:
- Where D’s behaviour is in the public interest is likely to require the exercise of a lower SOC: Daborn v Bath Tramways Motor Co Ltd [1946]
What would the reasonable person have foreseen?
- The SOC is predicted upon what the reasonable person would have foreseen
...
A D must take care to
avoid ‘reasonable probabilities, not fantastic possibilities’ (Fardon v Harcourt-Rivington [1932]

Proving breach of duty
- The legal burden of proof is on the C
- This must be established on the balance of probabilities
- There are certain circumstances where C may have some assistance:

- Where the maxim res ipsa loquitur applies:
- ‘The thing speaks for itself’ > in certain circumstances the couts will be prepared to find a breach of duty against D without hearing
detailed evidence
...
the thing causing the damage is under the control of D or someone whose negligence the D is responsible


2
...
the accident is such as would not normally occur without negligence
- If this is raised, it raises a prima facie presumption of negligence against D
...
If D succeeds C must try to prove D’s negligence
...

- Civil Evidence Act 1968, S
...

- If D has been convicted of an offence which includes negligent conduct, then the BOP shifts to D to prove that there was no negligence: eg
careless and inconsiderate driving, gross negligence manslaughter



























Causation and Remoteness of damage
- Causation and remoteness provide the link between D’s negligent conduct and the harm suffered by C
- Causation: requires that there is a link between D’s negligence and C’s injury (did D cause the harm?)
- Remoteness: eliminates causes that are too distant from the original negligence to be recoverable (is there a strong enough link between the negligence
and the damage?)

Legal principles
To render D liable:
- D must cause the harm
- There must be no intervening act
- The harm must not be too remote

Causation
- C must show a causal link between D’s act or omission and the loss or damage suffered - the chain of causation
Factual Causation
- The breach of duty must be the factual cause of the damage
...
But for/would the harm have occurred anyway?
- This is incredibly inclusive
...
SO, the courts
have been forced to develop a number of alternative tests in order to resolve them
...
D only liable if probably to blame

- Applying the standard of proof

- Did D probably cause the harm? Yes = liable BUT if he didn’t = not liable

- BUT this can have surprising consequences
Hotson v East Berkshire Area Health Authority [1987] AC 750
FACTS D fell from tree, injured, taken to hospital, not diagnosed properly
HELD hospital not liable - lost 25% chance of recovery - but harm probably cause by him falling out the tree in the first place

Gregg v Scott [2005] 2 AC 176
FACTS C went to GP who misdiagnosed, didn’t refer him to hospital quickly enough, he had cancer, if he had been referred in time had a 42% of recovery, now less
HELD GP not liable - on the balance of probabilities still going to get cancer - still only 42%

2
...
D liable for material increase in risk (which then occurred):
McGhee v National Coal Board [1973] 1 WLR 1
FACTS D worked at brickworks, covered in brick dust everyday, no showers at work, had to cycle home covered in brick dust
HELD in breach of health and safety at work - breach of DOC > the extra time spent cycling home covered in brick dust meant they materially increased the chance of him
suffering from dermatitis
...
of employees exposed to asbestos at work - contracted a disease > it only takes one asbestos fibre to give this disease PROBLEM - don’t know where this
fibre has come from
HELD get around this problem - especially in this context > hold all employees liable - have materially increased the risk SO jointly liable



Barker v Corus UK Ltd [2006] UKHL 20



HELD Fairchild slightly unfair, all liable BUT not jointly, severally - can only be sued for their proportion of the risk
- This case caused uproar in the media > s 3 Compensation Act 2006 - reverted back to the law in Fairchild - can sue any one of the D’s and they are liable for the
full amount (limited to asbestos)


Intervening acts; Novus Actus Interveniens
- An intervening act may break the chain of causation between D’s breach of duty and the loss or damage suffered by C
- If the act is sufficient to break the chain, D may not be liable, despite being in breach of the DOC
...
D’s negligence allows a third-party to cause injury
- The act of a third party CAN break the chain of causation

Topp v London County Bus [1993] 1 WLR 976
FACTS parked with keys in ignition, 3p drove dangerously down the street, hit someone
...
He injured his back which caused him to reduce his earning

capacity to 50% of what it was
...
The trial judge
applied Baker v Willoughby and held that the claimant was entitled to recover damages beyond the onset to the back condition
...

Held: The House of Lords distinguished Baker v Willoughby and stated where the victim is overtaken before trial by a wholly unconnected and disabling illness, the
decision had no application
...


(3) Subsequent medical negligence
- Usually the court will say there is only a break if subsequent medical negligence is gross or egregious: Wright v Cambridge Medical Group [2011] EWCA
Civ 669
- If merely negligent, of course the hospital is responsible for its share when D’s fight it out amongst themselves BUT medical negligence IS just one of
those things that happens - does not excuse the original D - still liable if it gets worse due to medical negligence
- OR if medical negligence marks a clean break:
R v Jordan (1956) 40 Cr App R 152
FACTS: C taken to hospital with stab wound which had pretty much recovered BUT gave him an intravenous supply of liquid, as a result of which, he died
HELD: the person who stabbed him didn’t kill him, what the hospital did was utterly unrelated

(4) Act by C
- C can break chain of causation - meaning that C is responsible for his own damage
McKew v Holland [1969] 3 All ER 1621
FACTS: As a result of D’s negligence, C suffered a leg injury
...
He
did not seek assistance in climbing the stairs
...
The court held this act broke the chain of causation and therefore D was not liable for his second injury

- BUT not always:
- In order for that act of C to be an intervening act, it must be entirely unreasonable in all the circumstances:
Corr v IBC Vehicles [2008] UKHL 13
FACTS: the deceased had suffered a serious accident at which his employer had admitted had been caused by his breach of duty
...
His depression worsened and six years later he died by suicide
...
The
employers were held liable and his deliberate act in taking his own life was not an intervening act
...

- In this case, C had not taken a voluntary, informed decision as an adult of sound mind
...
THEREFORE, it was not unfair
to hold IBC responsible for the consequences of its breach of duty
...
C was aware that the motorcyclist was neither licensed to ride a
motorcycle nor insured
...
This conduct eventually led to a collision with an oncoming car in which C was severely injured
...



Remoteness
- The final element required in establishing negligence is the extent of the damage suffered by C which should be attributable to D
...
en for how much of C’s
loss should D be responsible?
- Remoteness is sometimes referred to as ‘legal causation’ OR ‘causation in law’

The test of remoteness
The Wagon Mound (No 1) [1961] AC 388
FACTS oil spill, carried water to C’s slip yard, caught fire and did serious damage
HELD at that point in time it was reasonably foreseeable it might cause contamination damage BUT not foreseeable that oil on water would catch fire and burn down the yard >
D liable for contamination but NOT fire because this type of harm not reasonably foreseeable
POL: only liable for harm that is reasonable foreseeable

- The manner of harm, and extent, need not be reasonably foreseeable:
Hughes v Lord Advocate [1963] AC 837
FACTS left man hole exposed, boy thought it looked interesting, went inside, picked up lamp and tripped down the hole, lamp caused fire, boy burnt
HELD D still liable, unattended lamp - it is foreseeable someone may be burnt on it - doesn’t matter the way he suffered burns was not foreseeable


Thin Skull Rule
- If the type of injury is foreseeable, but the severity of the injury is not, due to some pre-existing special condition on the part of C, then D remains liable
for all the losses
- If V has a weakness cannot say it was not foreseeable so cant be liable for it
Smith v Leech Brain & Co [1962] 2 QB 405
FACTS C got burn on lip at work, triggered cancer from which C died
HELD Some form of harm from the burn was foreseeable, although the particular type of harm in the particular circumstances was not
...


- SO… this rule means that D’s must take their victims as they find them
- This rule also applies in cases of psychiatric harm




Defences to Negligence
- Once you have established someone is liable in negligence > what can D do?
- 4 types
1
...
Volenti Non Fit Injuria



- Short hand = volenti
- C has taken on that risk
- Complete defence

3
...
Illegality
- Of C not D


1
...
Even if harm suffered which was due to negligence of D, if any part of the harm suffered by C was attributable to C’s
negligence, no liability for D whatsoever
- NOT ideal SO law changed: Law Reform (Contributory Negligence) Act 1945 s
...
Finding that D has been negligent
- D may then wish to argue contributory negligence

2
...
not wearing a seatbelt when there is an accident
- DOC?

- What kind of fault?

- Standard of behaviour required?

3
...
Apportionment
- Reduction of damages of C’s contribution


1
...
4
‘Negligence, breach of statutory duty, or other act or omission, which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence
...
CAN include the breach of a Statutory Duty
- Seatbelts > if you are not wearing one, this is a breach of statutory duty: Road Traffic Act 1988
Froom v Butcher [1976]
HELD a standardised rule to reduce damages was established: Lord Denning: 25% would have prevented injury, 15% injury would have been less severe

- Helmets
ii
...
and his reckonings must
take into account the possibility of others being careless
...
’



- Different standards of care > reasonable person
- Adjustments may be made for different types of people
Children
Gough v Thorne [1966]
FACTS: 13 ½ y/o girl
...
A judge should only find a child
guilty of contributory negligence if he of she is of such an age as reasonably to be expected to take precautions for his or her own safety
...
emergency situations from the subjective view of the innocent party
Jones v Boyce (1816)
FACTS: someone on horse drawn coach which THEY FELT was out of control, and broke their leg
HELD: deemed to be reasonable based on their perception of the situation

iii
...
Had attempted suicide earlier that day in magistrate’s cells
...
Seen by Dr at police station
on arrival
...
57pm Custody officer checked him & left hatch open
...
05 pm found: used shirt as a ligature secured by open hatch
...



…SO must always show C is at fault in some way (one of 3 ways as above)

…
...
Link between fault and harm
Ÿ Causal link between the FAULT and the HARM
(note: NOT between the fault and the accident!)
Jones v Livox Quarries [1952] 2 QB 608
POL: ‘Foreseeability is not the decisive test of causation …[but] is often a relevant factor
...
His dangerous position on the vehicle was one of the causes of his damage…’

Froom v Butcher [1976]
POL: Denning MR: ‘The question is not what was the cause of the accident
...
Some reductions must be made
...

- The apportionment provision directs the courts to reduce C’s damages as they think ‘just and equitable having regard to the C’s share in responsibility for
the damage’

‘If the plaintiff was to blame in not wearing a seatbelt, the damages is in part the result of his own fault
...
’
Considerations:
1
...
The extent to which own negligence contributed to the harm
- Decisions on apportionment will generally be reached on a common-sense basis
...
The authorities
are roughly evenly divided
...
However, if C’s damage is entirely his own fault the question of CN cannot arise for consideration
...
The definitional elements of the action in negligence will be incomplete
...
VOLENTI NON FIT INJURIA voluntary assumption of risk
- An absolute defence BUT rarely used
- A D will be able to avoid liability if he proves C voluntarily assumed the risk of injury
- Not fully understood how it operates

(i) waives DOC altogether?
...
C must have known of the risk of injury or damage
Neeson v Acheson [2008] EWCA Civ 1185
FACTS a lady who over a number of months became familiar with her friends dog, bitten on the face, volenti argument, you knew the risk BUT she had no reason to expect this -
there is a level of subjectivity
HELD: defence inapplicable because she had no reason to foresee this risk

2
...
Must be given freely
Morris v Murray [1991] 2 QB 6
FACTS: alcohol, took out plane, was C negligent > how drunk was C? C had driven to air field, wasn’t too drunk to drive, was able to do this AND also made the suggestion that
they radioed in before they took off
HELD Fox LJ C was ‘certainly not ‘blind drunk’’
...
’ Hence ‘he
knowingly and willingly embarked on a flight with a drunken pilot
...
’
- CONSIDERING the level of awareness of C > if more drunk, would not have been able to voluntarily accept the risk, how drunk he was, was decisive in his ability to do this

Dann v Hamilton [1939] 1 KB 509
FACTS lady travelling in car, driver had consumed some alcohol, not too drunk to start with, but became more drunk, C in this case was irresponsible, she had a chance to leave
the car when another passenger did, she has taken on the risk therefore, she was being slightly reckless - Contributory negligence was not argued > it would have been a
complete defence at the time - Would have got the same result at this point in history BUT went straight for volenti

HELD volenti claim failed

CAUTION! Volenti is NOT now available as a defence for motor accidents s
...
2 brothers given a lot of training on new rules including
statutory regulation
...
Both brothers knew all of this and were aware of all the risks
...
Blew each other up
...

Lord Reid: ‘If the plaintiff invited or freely aided and abetted his fellow servant’s disobedience, then he was volens in the fullest sense
...
EXEMPTION CLAUSES
1
...
By notice
Unfair Contract Terms Act 1977 s
...
’

- Limits the exclusion or restriction of ‘business liability’ only
...
2(1) are subject to reasonableness requirement of loss or damage: s
...
2(2) states that in the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or
notice satisfies the requirement of reasonableness
...

whether the parties were of equal bargaining power
2
...

the complexity of the task which formed the subject of the disclaimer
4
...
Both the act and the regulations require further judicial elaboration

4
...
Joint Enterprise: D and C both engaged in the same illegal activity
- Where D injured C while engaged in criminal enterprise jointly with him
Pitts v Hunt [1991] 1 QB 24

FACTS person driving underage, not insured, over the limit, went for a drive, the boy driving was killed, the other was injured and tried to sue his friends estate
HELD: In the circumstances the plaintiff could not recover; he played a full and active part in encouraging the young rider to commit offences which, if a death other than that
of the young rider himself had occurred, would have amounted to manslaughter by the commission of a dangerous act
...
Due to the nature of the joint illegal activity, impossible for the court to determine a standard of care: Balcombe LJ
2
...
e
...
It is contrary to public policy and an affront to public conscience to compensate the claimant: Beldam LJ

Joyce v O’Brien [2014] 1 WLR 70
FACTS ladders didn’t fit into van, one driving as getaway, the other trying to hold ladders in, D was driving, swerved round the bend, his friend fell out the van
...
’

2
...
Although his apartment was situated two floors above street level, C would frequently attempt to escape by
jumping out of one of the windows
...
On this occasion C was catastrophically injured by
the fall
...
Sanction-shiftingcases: C is suing D claiming that D’s negligence caused his/her (C’s) criminal sanction
Gray v Thames Trains [2009] UKHL 33
FACTS Mr Gray (C) involved in train crash – resulted in psychiatric illness
...
C then sued D for losses stemming from his criminal conviction
...
The law cannot at one and the same time incarcerate someone for his criminality and
compensate him civilly for the financial consequences
...
INTRODUCTION; definition, The Defamation Act 2013, who may be defamed?, meaning of defamatory
words
46
...
ELEMENTS OF DEFAMATION 2
48
...
ELEMENTS OF DEFMATION 4
50
...
DEFENCES TO DEFAMATION 2; public interest
52
...
ANALYSIS OF THE DEFAMATION ACT; key development
54
...
ANALYSIS OF THE DEFAMATION ACT 3
56
...

- We have a right not to have people to make untrue assertions about us that will damage our reputation > orally/written
- The law provides the tort of defamations as a remedy
- A successful claim = damages/injunctions
- Based on the law upholding the true state of someone’s reputation BUT, the law will not protect a true statement - TRUTH is ALWAYS a defence

The Defamation Act 2013
- The Defamation Act 2013 came into force 1ST January 2013 - consider the law as it was prior to the act and also the main changes since its enactment
- The Defamation Act did not fundamentally change the law relating to defamation: does not change the nature of what is a ‘defamatory’ statement or the
legal rules relating to the true meaning of words and whether they would lower the claimant in the eyes of ordinary persons
...
In particular, the common law defences of justification, fair comment and the Reynolds defence have
now been put on a statutory footing and the common law rules abolished
...


Who may be defamed?
- Defamation is a tort, which can be relied upon by any individual, BUT many cases involve high-profile public figures in conflict with the media
...
8 ECHR) and the media’s right to
freedom of expression (Art
...
The involvement of these conflicting rights has led defamation to become more prominent as a topic for
consideration since the enactment of The Human Rights Act 1998
...
1(2))
- Non trading bodies (eg
...

- You can defame a group, but only if your words refer to every individual in the group concerned:
Barron MP v Collins MEP HELD: capable of defaming all three MP’s
- Public authorities: Derbyshire CC v Times (1993) POL: Claim thrown out by HOL stating governmental bodies cannot be defamed
- Political parties: Goldsmith v Bhoyrul (1998)

- For the same reason as government bodies, cannot claim for defamation
BUT individual politicians CAN bring claims
Galloway v Telegraph HELD: Galloway slated in Telegraph Group, calling him a traitor, Galloway able to bring a claim despite being an MP and he won




- Claims must be bought within 12 months: s
...
8 Defamation Act 2013
- No public funding for defamation, SO tort favours those who can afford to protect their reputations > this may explain the high volume of cases
involving high-profile public figures in conflict with the media

Meaning of defamatory words
DEFINE; A statement, whether oral, written or otherwise, is defamatory if it has the effect of exposing another to ‘hatred, ridicule or contempt’; or lowering
the claimant in the estimation of right thinking members of society
...

TEST
- Does the statement lower the claimant in the eyes of ‘right thinking people’? > Sim v Stretch (1936) ‘I do not intend to ask your Lordships to lay down a formal
definition, but after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking
members of society generally? @ 1240 (Lord Atkin)
...


- A statement may also be defamatory if it causes other people to ‘shun or avoid’ C, even no reasonable person would think any the worse of the C
...

Youssoupoff (1934) @ 587 (Slesser LJ)
...

HELD: claim failed because C was doing the right thing as a citizen > right thinking people have a sense of moral rectitude that others don’t
Implication:
- No defence to claim the words are literally true or do not actually defame C, if they there are inevitable conclusions that a reasonable person would
draw
...

Monson v Tussauds POL: placing a waxwork near a ‘Chamber of Horrors’ was defamatory
...

Cassidy v Daily Mirror FACTS: Cassidy at the races with a young woman, photographer asked Cassidy if they could post the picture and who they should call the woman in
the photo > he said his fiancé

HELD: it was defamatory to his wife > Mr Cassidy had a fiancé and was therefore unmarried - the woman passing herself off as Mrs Cassidy was not his wife but someone living
in a state of sin
Lord McAlpine v Bercow FACTS: Sally Bercow, former wife of the speaker of the HOC John Bercow, twitter account > news night was making some vague allegations of
peodophillier to an unnamed politician, tweeted something to do with this referring to Lord McAlphine > Lord McAlphine claimed this was her suggesting it was him
HELD: Lord McAlphine won and the court accepted his meaning, not hers

THE TORT
ELEMENTS OF DEFAMATION
1
A statement, by way of printed or spoken words or otherwise;
2
Which causes or is likely to cause serious harm to the reputation of the claimant OR serious financial loss to a commercial organisation
...
A statement, by way of printed or spoken words or otherwise
- Any ‘statement’ is capable of founding a claim > it need not be in words
- Statements may be verbal or non-verbal AND temporary or permanent

Two types of defamation
1
...

Slander = temporary - spoken
- As a general rule, written words will found a claim in libel, whereas spoken words will found a claim in slander
- A claim in slander is generally more difficult for C to make out
* This is not an absolute rule - it just tends to be this way

Slander v Libel: The difference
- Both forms of defamation that differ in 2 ways:

1
...
The consequences that are required before damages are paid
Libel:
Means of publication: statement must be in permanent form
...

Basis of damages: libel = actionable per se, means it is the conduct that is wrong, irrespective of whether or not any harm is caused to C as a result
Slander:
Means of publication: the statement must be in a non-permanent form, which generally involves spoken words (not if they are broadcasted as that is within
libel), a gesture may suffice
Basis of damages: slander requires special damage: C must establish some loss or harm that is quantifiable in financial terms, such as a loss of job or damage
to business interests
- Main difference = slander to be proved must cause ‘special damage’ > Libel = actionable per se

Criticism of the distinction
- In Thorley v Lord Kerry CJ Mansfield found no principle justification for the distinction between libel and slander – as a rule slander is taken less
seriously, hence the requirement of special damages
...
If all slander were actionable per se, the scope for trivial but costly
litigation might be enormously increased…A change in the law in England and Wales at the present date would, we think, be likely to encourage frivolous
actions’
...
The Committee contended that the distinction had come about for purely historical reasons and "during a period when methods of communication
were simple and unsophisticated"
...

- In concluding that abolition was a good idea, the report states:-
- "it [the distinction] renders this part of the law unreasonable and unnecessarily complicated and refined, carrying a host of rules and exceptions, derived
partly from precedent and partly from statute, which are illogical, difficult to learn and in certain applications it must be added unjust"1

Libel
- In addition to written words, courts have found that other forms of communication may be libellous:
- Music: Cosmos v BBC
FACTS: Film about holiday camp run by Cosmos, tone of which was that it was not a good place to stay, over the segment they played the music of TV show Colditz (about a
prisoner of war camp)
...
Won claim – music can be defamatory
...
On the basis that the film suggested that, by reason of her identification
with ‘Princess Natasha’, she had been seduced by Rasputin
HELD: she was awarded £25,000 damages
...

- Waxworks: Monson v Tussauds Ltd
FACTS: Everyone believed C to be a murderer and Madame Tussauds placed his waxwork next to the House of Horrors where murderers were kept
...

- Made the test of libel one that looks to the permanence or transience of a ‘statement’
- LJ Lopes: ‘Libels are generally in writing or printing, but this is not necessary; the defamatory matter may be conveyed in some other permanent form
...
But as he appeared in advert and held to not taken any payment for this
...
Would lower an amateur sportsperson if they believed
he’d taken money for the game
...


- These cases showed words aren’t necessary > in particular Cosmos and Monson v Tussads
Statutory provisions for when spoken words are delivered to a large audience:
Broadcast words and words spoken: Broadcasting Act 1990 s
...
Someone’s writes a play – written form
...
4(1)
- For the purposes of the law of libel and slander
...



Slander


1 Mavrky Law Blogs, Introduction to Defamtion, January 2007



- Refers to words spoken, or in a transitory form
...

- Special damage must have an economic value: that people might shun or ostracise C is not special damage; the society of others has no economic value
...
1 Defamation Act 2013), but does not need to have an
economic or material value
...

HELD: This is clearly defamatory; and would cause serious harm to the reputation of the person defamed
...
Serious accusation,
suggesting they’re a prostitute causing right thinking people to think the less of her, causing serious harm to her defamed reputation but see Cockurn CJ’s quote below
...

The repeater of the libel is liable; and the original maker of the statement is also liable if the repetition is foreseeable
...
(Lord Wensleydale)
...
A
reasonable person could have foreseen this, meaning she had to pay the owner for his business
...


“I would suggest further that if a jury were to conclude that a reasonable person in the position of the defendant should have appreciated
that there was a significant risk that what she said would be repeated in whole or in part in the press and that that would increase the
damage caused by the slander, it is not unjust that the defendant should be liable for it
...
” Per Waller LJ
...
Court disagreed – this was foreseeable and the BBC were liable for anyone who repeated the
statements/ libel they made
...
Asquith J in Kerr v
Kennedy [1942] explained the rationale of these exceptions
...

- A sexually transmitted disease certainly falls within this exception, Bloodworth v Gray
- although a statement that C had previously had such a disease is not actionable per se, Taylor v Hall
- The status of other forms of contagious disease is uncertain
...
2 Defamation Act, 1952
...

4) Statements relating to a woman's chastity
...
In the case of Kerr v Kennedy, Ashquith J considered whether an accusation of
lesbianism against C fell within the Act
...
14:
(1) The Slander of Women Act 1891 is repealed
...


- It is no longer actionable per se to impute that a person has an infectious or contagious disease; or to impute unchastity or adultery to a
woman (Slander of Women Act 1891 is repealed)
...
Criminal Offences:
- To state that a person has committed a criminal offence punishable by imprisonment is actionable per se
...
I know enough to put you there”
HELD: to imply that C had committed an offence punishable by imprisonment
...
Sufficient
the offence is punishable by imprisonment SO,,, here Webb could prove the claim without having lost any money by virtue of the statement
...
To state that any person is unfit or incompetent to carry on their profession, business or calling is actionable per se:
- This is the most commonly invoked of the actionable per se categories
...
2 extends the scope of the cause of action:
‘In an action for slander in respect of words calculated to disparage the claimant in any office, profession, calling, trade or business held or carried on by him at the time
of publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the claimant in the way of his office, profession,
calling, business or trade
...
Which causes or is likely to cause serious harm to the reputation or good name of C OR serious financial loss to a commercial
organisation
s
...
1 Defamation Act 2013: Serious harm

(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant
...

- The requirement that the statement causes ‘serious harm’ or ‘serious financial loss’ has been introduced by the 2013 Act
...

- Defamation Act 2013 s,1: states there must be serious harm to the reputation of a body that trades for profit which must cause the body ‘serious
financial loss’
- Protective of free speech BUT protection of reputation where serious harm is caused - prevents trivial claims succeeding AND claimant friendly
E
...
Mcdonalds suing the couple handing out defamatory leaflets – this would now be thrown out of court as Mcdonald’s could not prove serious financial loss
...

- Special damage must have an economic value: that people might shun or ostracise C is not special damage; the society of others has no economic value
...
1 Defamation Act 2013), but does not need to have an
economic or material value
...

DEFINE: Innuuendo: ‘a derogatory implication…might not be detected at all, except by a person who was already in possession of some specific
information
...
D, without the C’s knowledge or consent, published adverts showing the C and his caddy each with bars of the D’s chocolate
protruding from their back pockets
...
Evidence showed that D had considered this result before issuing the adverts, and that people had made just that inference
...

Held: The picture was capable of bearing the meanings suggested
...
A barrister called Artemus Jones was tamely teased by his
colleagues for this and brought an action over defamation
...

ANALYSIS: Described as the ‘most famous case in the law of libel’ and the ‘most controversial’ by Denning
...
Has introduced, ‘negative checking’ – seems to run too far into ‘compensation culture’
...

Look-a-likes cannot be defamatory
- BUT only applies where a name is used: not to look-alikes, even if reasonable people took the photo to be of the claimant
...
It went on to make it clear the images were computer generated with the actors faces super-imposed onto porn models
HELD: Doctrine of bane and antidote said sting only made out if you only read that part of the article > reasonable person who read the full article, came to the
conclusion she was a victim, this would not be defamatory > claim failed
BUT, headline alone?
But the proposition that the prominent headline, or as here the headlines plus photographs, may found a claim in libel in isolation from its related text, because some
readers only read headlines, is to my mind quite unacceptable in the light of the principles discussed above
...

- The article have been ‘deeply offensive and insulting’ but as a whole was not defamatory – one must consider whether the text has ‘neutralised’ the headline/
pictures
...

- Bane (headline and part of article) and antidote (words that contradict or explain) > if there is bane and antidote, it is not defamation

Vulgar Abuse
- It is commonly held that mere vulgar abuse or jokes at a person’s expense are not defamatory BUT…
Roache v News Group Newspapers
HELD: Roache successfully sued the Sun newspaper over a report that he was ‘boring’, a ‘joke’ and hated by other members of the cast
...
”
HELD: CA held to describe someone as ‘hideous looking’ was capable of being defamatory BUT Millett LJ dissenting held: ‘People must be allowed to poke fun at one
another without fear of litigation
...
Miss Burchill made a cheap joke at Mr Berkoff's expense; she
may thereby have demeaned herself, but I do not believe that she defamed Mr Berkoff’
...


- Now that there is a requirement for C to show that the defamation has caused or is likely to cause serious damage (Defamation Act 2013 s
...


3
...
Defamation only requires that one other person must hear or read the statement
- This requirement emphasises the purpose of defamation > to protect the reputation of individuals
- You cannot defame a person to their face, although if another person is present or reads the words, the defamation is published
- It is for the jury to decide as a question of fact whether or not there had been substantial publication: Al Amoudi v Brisard
- A spouse cannot defame a person to his/her spouse: Wennhak v Morgan and Wife
- However, a person may be defamed to their spouse: Watt v Longsdon
…
...

Pullman v Hill
HELD: A letter sent to partners was opened, in the course of the business, by a clerk
...


Theaker v Richardson
FACTS: Dput a highly defamatory letter, addressed to Mrs Theaker, through her letter box
...

HELD: it was a ‘natural and probable consequence’ of D’s actions that the letter should be seen by the husband, so D was liable for the publication
...

Repetition by a third party
- Where a defamatory statement is repeated by a third party, it is generally, no defence to say that you were merely repeating another’s words
...
McManus v Beckham
Multiple Publication and one year limitation period
- It used to be a feature of English libel law that each publication of the defamatory statement is a separate tort
...


In Duke of Brunswick and Luneberg v Harmer C sent his servant to the newspaper office, where he bought a back copy of the paper from their
archive, some 18 years old
...

- This rule, for the purpose of limitation, is abolished by s
...

- The cause of action accrues, for the purposes of the Limitation Act 1980, on the first publication (s
...

- However, a further cause of action may accrue if a later repetition is ‘materially different’
...
8(5))
...

- For other countries,
s
...

Liability of Distributors
At Common Law, anyone involved in the production or distribution of a libel could, in theory, be held to be liable BUT
Bottomley v FW Woolworth & Co
HELD: A bookseller was not liable for defamatory statements made in magazines sold by them, as they had no reason to believe that they contained libellous
statements
...

Defamation Act 1996
1(1) In defamation proceedings a person has a defence if he shows that—
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement
...


- The Defamation Act 1996 s
...

Twitter
- Tweets are statements in a permanent form and are subject to the law of defamation like any other publication: Lord McAlpine v Bercow


4
...
Any statements covered by absolute privilege cannot be relied upon in legal proceedings and so cannot be used as a basis for a
defamation claim
...
Statements made in Parliament
- Bill of Rights 1688: ‘Article 9 - The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place
out of Parliament
...
ordered by Parliament and to authenticated reports
of proceedings in Parliament (ie Hansard)
...

BUT
- Defamation Act 1996 s13(1) allows an MP to waive the privilege
...
The courts
had previously struck out the proceedings, as to prevent D from referring to proceedings in Parliament would be unjust
...
Court proceedings and reports
- Any statement made in the course of judicial proceedings, including the preparation of litigation (so including witness statements and
communications to solicitors, barristers etc
...

- Making statements and complaints to the police is also privileged
...
14
...
Communications between Government ministers
Common Law Qualified privilege
- Covers situations where there is a moral or legal duty to disclose information even if it is unfavourable to C, such as an employment reference
...
An example might be correspondence between members of a company
regarding personnel issues
...
Any malice will defeat the privilege
...

- Defamation Act 1996 s
...

*Note where the privilege covers the reporting of the information, not the information itself
...




Defences
- Codified by Defamation Act 2013: but statutory defences based on common law and cases remain relevant - as the explanatory notes to the Act make
clear, these new defences of truth, honest opinion and public interest are based on, and intended to reflect, the previous common law defences


1
...
2 Truth

(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true
...

(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to
be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation
...


Defamation Act 2013 – Explanatory Notes
13
...
The section is intended broadly to reflect the current
law while simplifying and clarifying certain elements
...

- The burden is still on D to show the truth of the statement
...

- A statement is not defamatory if it is ‘substantially true’
- Does not need to be absolutely true: Alexander v North Eastern Railway Co
...
Most time is
spent arguing about the true meaning of the words
The Claimant’s reputation
- A further issue: is it a defence to show that although C did not do the act of which (s)he is accused, (s)he has done similar acts in the past?
Eg
...

- Only if the ‘sting’ of the libel is of widespread behaviour > you cannot do it if your statement refers to a single incident/event
- Evidence of bad reputation is admissible in mitigation of damages - specific allegations and rumours are not
Nominal Damages
Where the court finds that the claimant has no reputation, they may award nominal (or derisory) damages
...

FACTS: Liverpool Football player > sun published article - he sued for libel
HELD: he succeeded BUT got to HOL, who gave him £1 in damages because they said issues that he had arisen suggested he had trashed his own reputation - saying he has no
reputation only giving him a pound because anything anyone says about you cannot damage your reputation
[24] … The tort of defamation protects those whose reputations have been unlawfully injured
...



COMMON LAW: Justification
- A statement which is true in relation to C cannot be defamatory so D may rely on the defence of justification if he is able to establish the accuracy of the
statement
- The law required only that he establishes that the central defamatory thrust of the statement is true; justification will still provide a dfence if there are
peripheral inaccuracies in the statement: s
...
Honest Opinion (Formerly fair comment)
- A defence to show that:

- The statement complained of was a statement of opinion

- The statement complained of indicated the basis of the opinion
- An honest person could have held the opinion based on any fact which existed at the time the statement was published (or anything asserted
as fact in a privileged statement published before the statement complained of)
Defamation Act 2013 s
...
As with the defence of truth, the statutory defence
“broadly reflects the current law while simplifying and clarifying certain elements, but does not include the current requirement for the opinion to be on a
matter of public interest
...

- Opinions, as opposed to assertions of fact, are not capable of being defamatory
...

- The common law defence required that the opinion be on a matter of public interest
...
The requirement no longer exists and a commentator may express an opinion on a
matter without defaming the subject whether or not the matter is in the public interest
...
An opinion is an observation or an inference from facts, not an assertion of
fact
...
’ Jordan CJ in Gardiner v Fairfax
- However, facts founding the opinion must be true or privileged; and facts must be indicated in statement
...

British Chiropractic Association v Singh
FACTS: Guardian writer being rude about BCA (i) knowingly promoting bogus treatment (ii) not a shard of evidence their treatments actually work
HELD: CA said bogus in this context is a statement of opinion > entitled to say he thinks they are bogus ALSO no evidence = statement of opinion

- The elements of the defence are identified in the Defamation Act 2013 s
...

3
...

(2) The first condition is that the statement complained of was a statement of opinion
...

(4) The third condition is that an honest person could have held the opinion on the basis of—
(a) any fact which existed at the time the statement complained of was published;
(b) anything asserted to be a fact in a privileged statement published before the statement complained of
...


(6) Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the
defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion


COMMON LAW: Fair Comment
- Applied to critical comment based upon true facts
...

- It was effectively opinion based on true statements
- With regard as to whether the comment was fair, it was said ‘the true test is whether the opinion, however exaggerated, obstinate or prejudiced, was
honestly hold by the person’ Reynolds v Times Newspapers
- This approach to the fairness of the comment was regarded as important protection of freedom of expression


3
...
4 of the Defamation Act 2013
Defamation Act 2013 s
...

(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all
the circumstances of the case
...

(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such
allowance for editorial judgement as it considers appropriate
...

(6) The common law defence known as the Reynolds defence is abolished
...

- It remains to be seen how this defence will be applied by courts
...
4(3)
BUT, Malice would defeat the public interest defence: if D does not reasonably believe the statement to be true (objective test), then they cannot
reasonably believe that it is in public interest to publish the statement
...
4 of the Defamation Act 2013 does not explicitly state that the defence is defeated by malice (unlike s
...

- So to publish something knowing it was untrue or being reckless of whether it was true or not would defeat the statutory defence: if for no other reason,
it cannot be in the public interest to publish statements that are not true
...
And a reasonable belief in
the truth of a statement means that the maker cannot have been reckless as to its truth or falsity
...
These are absent from the final Defamation Act 2013, although they were included in earlier versions of the bill
...

- This allows courts to look at the context and circumstances of the statement, rather than encouraging them to work their way through a set of specific
questions
...

[51] …But whereas the question of whether the story as a whole was a matter of public interest must be decided by the judge without regard to what the
editor's view may have been, the question of whether the defamatory statement should have been included is often a matter of how the story should have been
presented
...
If the article as a whole is in the public interest, opinions may reasonably
differ over which details are needed to convey the general message
...
That would make the publication of articles which are, ex hypothesi, in the public interest, too risky
and would discourage investigative reporting
...

Reportage
- In Al-Fagih v HH Saudi Research & Marketing (UK) Ltd, D had reported accusations made about C
...

[35] Such a report is, however, plainly defamatory under what is known as the repetition rule: a report of a defamatory remark by A about B is not
justified by proving merely that A said it; rather the substance of the charge must be proved
...

- However, it is recognised that the fact that the accusations have been made may be, in itself, newsworthy, notwithstanding the truth or falsity of the
allegation
...

- In this case, the Defamation Act 2013 provides a defence where the report may repeat the accusation without having to investigate the truth of the
allegation
...
(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the
court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest
disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it
...
This article was subsequently
published in the UK but did not include the explanation that Reynolds had given for the events, which had been printed in the original article
...
The defences of justification and fair comment were unavailable, given the factual nature of the article
...
C held that the story implied that he had deliberately misled the Dail and his cabinet colleagues
...
This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media
on all matters of public concern
...

2
...

4
...

6
...

8
...

10
...
Responsible journalism is
the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals
...
It can be regarded as the price journalists pay in return for the privilege
...
(Lord Nicholls)
...
Seaga v Harper
- Defamation Act 2013 s
...
2 provides that, if a written offer to make amends, in the form of a correction, apology and payment of compensation and
costs, is accepted by the claimant, the claim is settled
...

- Makes it much more difficult for C to proceed
Nail v Jones and Harper Collins Publications
FACTS: Jimmy Nail was an actor > someone published a biography making several accusations about his youth, in particular one suggesting he lived off dog food for a period of
his life > D offered to make amends, Nail refused
HELD: Nail won but damages were less so costs were awarded against him

- Malice defeats an offer to make amends:

Thornton v Telegraph Media Group

HELD: Malice defeats an offer to make amends: if the defendant knew that the accusation was false or was reckless as to its truth or falsity, then an offer to make amends is not
a defence and cannot be pleaded in mitigation of damages
...
As publication occurs whenever a third
party reads the words, maintaining words on a website is a continuing tort: even though a new cause of action does not accrue
...

- Aggravated damages may be available where D conducts him or herself in a way that aggravates the claim: for example, by repeating the statement or
failing to apologise
...
bbc
...
uk/news/uk-25551640, Defamation Act 2013 aims to improve libel laws
The Defamation Act 2013 contains a series of measures, including:
1
...
- Protection for those publishing material on a matter of public interest where they reasonably believe that it is in the public interest
3
...
- Introduction of a new process aimed at helping potential victims of defamation online, by resolving the dispute directly with the person who has posted
5
...
’
- Justice minister Shailesh Vara said: "As a result of these new laws, anyone expressing views and engaging in public debate can do so in the knowledge that
the law offers them stronger protection against unjust and unfair threats of legal action…
...
"

http://thejusticegap
...

- BUT it did address were some of the criticisms that have been made of the English law of defamation and the perception that English law was
‘claimant friendly’: that claimants were using English courts to restrain free speech
- ‘It appears the thinking behind the bill is to reform the law on defamation, so that a fairer balance is struck between the right of freedom of expression and
the protection of reputation’
- It has been claimed the act reverses the ‘chilling effect’ previous laws have had on the freedom of expression and legitimate debate
- Justice minister Shailesh Vara said: "As a result of these new laws, anyone expressing views and engaging in public debate can do so in the knowledge that
the law offers them stronger protection against unjust and unfair threats of legal action…
...
"


KEY developments:
- Serious harm requirement: s
...
9 and 10

- Reduces the ability of claimants to come to an English courts
- English courts would hear any case where the claimant had a reputation in this country and the Libel had been published in this country
(with the internet - most things are published in UK) SO enormous scope for people to bring claims in English courts BUT this has now been
restricted by the act
- Common law defences abolished in favour of statutory defences
- The act also changed the defences available to D
...
However, as the explanatory notes to the Act make
clear, these new defences of truth, honest opinion and public interest are based on, and intended to reflect, the previous common law
defences
...
4
- Protection for scientists and academics publishing peer-reviewed material in scientific and academic journals s
...
8
- One year limitation period s
...
1 = serious harm requirement
1 Serious harm
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant
...


- Does not change the meaning of ‘defamatory’, merely sets an additional requirement for C to prove and therefore prevents trivial claims succeeding
AND removes ‘claimant friendly’ perception
- Caused or likely to be caused > remains some flexibility BUT strikes a fair balance
- Protective of free speech BUT protection of reputation where serious harm is caused
- As a result, the requirement for serious harm has raised the bar for a successful claim and may prevent cases like the McDonald’s libel case from
succeeding
E
...
Mcdonalds suing the couple handing out defamatory leaflets – this would now be thrown out of court as Mcdonald’s could not prove serious financial loss
...

- There are policy arguments in favour of the serious harm requirement
...

- Furthermore, this requirement discourages claimants wasting court time and helps them understand when claims should be bought

S
...
2 = defence of ‘truth’

- Replaces the common law defence of justification
- D must show the statement is ‘substantially true’
- Effectively protects those expressing honest opinions - protecting freedom of speech - creating a balance
- BUT this section does little more than restate the previous common law defence of justification > no substantive development of the law - mere
clarification of old law

s
...
4 = defence of ‘publication on matter of public interest’
- Replaces the previous common law defence of Reynolds which protected responsible journalism
- A defence to show that the statement complained of was on a matter of public interest and that D reasonably believe that publishing that statement was
in the public interest
- The impact of this provision however, remains to be seen
- The decision as to whether a publication falls under a matter of public interest is a question to be decided by the judge
- Regardless, this is a key example of a provision in the 2013 act that aims to strike a fair balance between the right of freedom of expression and the
protection of reputation

s
...

(2) It is a defence for the operator to show that it was not the operator who posted the statement on the website
...

(4) For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person
...

(6) Subject to any provision made by virtue of subsection (7), a notice of complaint is a notice which—
(a) specifies the complainant’s name,
(b) sets out the statement concerned and explains why it is defamatory of the complainant,
(c) specifies where on the website the statement was posted, and
(d) contains such other information as may be specified in regulations
...

(8) Regulations under this section—
(a) may make different provision for different circumstances;
(b) are to be made by statutory instrument
...

(10) In this section “regulations” means regulations made by the Secretary of State
...

(12) The defence under this section is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others
...
6 = defence for ‘peer-reviewed statement in scientific or academic journal etc
6 Peer-reviewed statement in scientific or academic journal etc
(1) The publication of a statement in a scientific or academic journal (whether published in electronic form or otherwise) is privileged if the following conditions are met
...

(3) The second condition is that before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by—
(a) the editor of the journal, and
(b) one or more persons with expertise in the scientific or academic matter concerned
...

(5) Where the publication of a statement or assessment is privileged by virtue of this section, the publication of a fair and accurate copy of, extract from or summary of the
statement or assessment is also privileged
...

(7) Nothing in this section is to be construed—
(a) as protecting the publication of matter the publication of which is prohibited by law;
(b) as limiting any privilege subsisting apart from this section
...


- Creates a niche category of qualified privilege for those publishing in a scientific or academic journal
...
7 = reports etc protected by privilege
- Updates and extends the circumstances in which the defences of absolute and qualified privilege apply
- The main changes = an extension of the privilege from reports of certain UK or EU proceedings or official documents to reports of equivalent
proceedings or documents anywhere in the world AND a new qualified privilege for fair and accurate reports of proceedings i) at press conferences ii) of

scientific or academic conferences (Defamation Act 2013, Taylor Wessing)

S
...

(2) In subsection (1) “publication to the public” includes publication to a section of the public
...

(4) This section does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication
...

(6) Where this section applies—
(a) it does not affect the court’s discretion under section 32A of the Limitation Act 1980 (discretionary exclusion of time limit for actions for defamation etc), and
(b) the reference in subsection (1)(a) of that section to the operation of section 4A of that Act is a reference to the operation of section 4A together with this section
...
Thus, in principle, if a newspaper article
was read by 100,000 readers, there were 100,000 torts committed, any one of which would give C a cause of action
...
8 prevents actions for multiple publications for the same material
- Limits C to bringing only one action against D where a defamatory statement was published multiple times
- However, a further cause of action may accrue if a later repetition is ‘materially different’
...
8(5))
...
It was held the publication of the libel took place at the time of purchase, and that the case was not barred by limitation
...
8 of the Defamation Act 2013
...
9 = ‘libel tourism’
9 Action against a person not domiciled in the UK or a Member State etc
(1) This section applies to an action for defamation against a person who is not domiciled—
(a) in the United Kingdom;
(b) in another Member State; or
(c) in a state which is for the time being a contracting party to the Lugano Convention
...

(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the
statement complained of
...


- Aims to reduce the negative effect of ‘libel tourism’ and prevent claims brought with a limited link to E&W
- Provides a court does not have jurisdiction to hear and determine an action in defamation unless it is satisfied that, of all the places in which the
statement complained of has been published, E&W is clearly the most appropriate place in which to bring an action
- Previously, (prior to the act) if a statement was made in another jurisdiction, including on the Internet or by a print publication, which is distributed to
and read in E&W, C may be able to bring proceedings in England and Wales: Shevill v Presse Alliance
- But following the act, the scope for bringing an action in E&W has been reduced dramatically:
Defamation Act 2013
- Persons domiciled in the EU or Lugano Convention country (Switzerland and Norway) may bring a claim in defamation before an English court
...
9(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in
which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the
statement
...

(2) In this section “author”, “editor” and “publisher” have the same meaning as in section 1 of the Defamation Act 1996
...


- The 2013 Act provides a defence

S
...

(2) In section 66(3) of the County Courts Act 1984 (certain actions in the county court to be tried with a jury unless the trial requires prolonged examination of documents etc) in
paragraph (b) omit “libel, slander,”
...
Critically discuss the extent to which the Defamation Act 2013 addresses criticisms that had been made of the English law of defamation
prior to the Act?
Intro:
- Outline the criticisms that have been made of English law:

General criticisms

- Too claimant friendly







- Not enough recognition of right to free speech
Specific criticisms
- Presumption of harm to reputation
- Use of libel laws to protect commercial interests
- Irrelevance of reasonable or honest belief in truth
- Repetition rule – innocent dissemination no defence
- Multiple publication rule undermined limitation as legal principle
- Libel tourism
- Insufficient protection for statements made without malice and in public interest
...
Critically discuss the availability of defences in defamation and how they balance interests in reputation and freedom of speech
...
Was the Defamation Act 2013 a missed opportunity to reform libel law?
4
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