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Neg – ‘breach of a legal duty to take care which results in damage, undesired by the D to the C’ per
Winfield
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In addition, the breach caused the damage (ie
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Universal test –donoghue v Stevenson 1932 ‘neighbour principle’
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The HL said firstly look at
precedents then if not, look at 3 stage test: loss must be reasonably foreseeable; there must be a
relationship of sufficient proximity between the c and d; it must be ‘fair, just and reasonable’ for law to
impose a duty in the situation
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Law requires closeness of relationship
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NB for policy
reasons, either full or partial legal immunity has been given: legal profession; the police – rigby v chief
constable of northamptonshire – policy = no d of c and operational = d of c
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However, in swinney v cc of northumbria there was a d of c as police knew victim and
had prior warning
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Ambulance service – d of c owed once 999 call accepted (kent v
Griffiths)
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The effect of human rights – ‘blanket immunity’ was
criticized in ECHR
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Nervous shock – actions involve c suffering a positive psychiatric illness, or damage, as a result of
witnessing a sudden traumatic event caused by the d
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In recent years the courts have
begun to move away from the terminology of nervous shock and now refer to psychiatric illness – alcock v
cc of SY; white v cc of Sy
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The psychiatric illness must be caused by a sudden shock
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The court must
consider: the nature of the psychiatric damage; foreseeability of damage; the relationship between the c
and victim; proximity in time and space; manner of perception
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Re
primary victims – the d need only foresee that a physical injury can be caused to the victim and there
must be a recognised psychiatric illness
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The criteria for a successful secondary victim claim: 1
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Pure economic loss –the courts have sought to make a distinction between actual physical damage to
property, consequential EL and pure EL – Spartan steel and alloys ltd v martin
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since junior boks the courts have sought to restrict &
limit claims for PEL
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The courts re-affirmed the difference
between a defect in property & damage actually caused by a defect
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In murphy v brentwood, anns was overruled by HL – a dangerous defect in property which
manifested itself before causing any physical injury was PEL and as such irrecoverable
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Exceptions to general rule: the rule in hedley
byrne v heller; the principle in junior books; breach of statutory duty; breach of fiduciary duty – white v
jones; the exceptions cited in murphy: adjoining occupiers and complex structure theory; references –
spring v guardian assurance
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However,
it such losses have been caused by a negligent misstatement or service they maybe recoverable under the
criteria given in hedley byrne
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1
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Factors likely to be
special: business capacity, maker knows gravity of inquiry, maker has special skill or knowledge
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However, social relationships were considered in chaudry v prabhakar
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Voluntary
assumption of responsibility (implied or expressed)
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Use of exclusion clauses and UCTA 1977 – cannot exclude for PI but can exclude
for loss/damage if reasonable
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Actual reliance – the c must actually rely on the advice of the d; purpose
reliance – if the statement is made for a particular purpose and used for another purpose; reasonable
reliance
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Standard of care and breach of duty – there are 2 stages to ascertain a b of d: what is the standard of
care to be expected from the d? (matter of law) consideration of factors which determine whether the d has
fallen below standard (matter of fact)
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An objective test is used – nettleship v weston
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A skilled d is
judged by the ‘Bolam test’ – Bolam v friern barnet hospital
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Though the
standard is objective, the courts can be occasionally take into account specific circumstances and/or
subjective characteristics of the d
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Expertise/level of skill/trainees – nettleship v Weston – no discount
for trainees
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2
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BUT common practice can be
negligent
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The state of art defence – the courts judge the degree of knowledge at the time of the
wrongful act – roe v ministry of health
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Knowledge of the c - higher standard if c (actual or likely) is
known to have a disability – paris v stepney
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Does d know of disability? 6
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7
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8
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Factors considered in determining a breach – 1
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Magnitude of risk; 3
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Social benefit/utility – miller v
Jackson 5
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Also note compensation act 2006
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Essentially,
there has to be a link or nexus between the d’s breach and c’s damage
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Factual causation – deal with establishing the actual physical link between the
negligence and the damage/loss
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e but for the defendant’s act/omission would
the claimant have suffered the damage/loss anyway
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– cork v
Kirby; Barnett v Chelsea & Kensington
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1
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See compensation act 2006
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The
balance of probability approach ‘more likely than not’ – wilsher v AHA
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3
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4
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5
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e fitizgerald v lane & patel; multiple consecutive causes – tort
followed by tort remains liable for damage caused (baker v Willoughby); tort followed by natural event –
only had to pay damages up to point of illness (jobling v associated dairies)
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This is a question of law for the court to decide
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e they act as a novus actus interveniens providing they are unforeseeable
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1
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Exceptions – humber oil terminal
trustee ltd v owners – shifts in seabed are foreseeable so didn’t break chain
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act of third paty/act of
stranger – TP must act in an unforeseeable manner
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3
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However, Wieland v Cyril – c fell downstairs, but c wasn’t acting unreasonable
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Cts said more moral issue and
damage were reduced instead (contrib neg)
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This is a question of law for the court to decide and so in some cases, the d
may have caused the damage in fact, but in law, such damage is too remote to be recoverable
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1
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There is no need to foresee the exact method by which damage occurs
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Extent of damage –
the d is liable for the full extent of the damage even if this is more excessive than that normally expected
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It does not matter if the c had a condition
that aggravates the damage – page v stepney
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3
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Clinical negligence – professional negligence refers to litigation involving professional malpractice
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Medical profession and duty – r v bateman – special skill and knowledge; 2
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duty of assist; 4
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D of c – r v Cambridge health authority – do not interfere with clinical judgments re
treatment; 6
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Duty to write prescriptions clearly – Prendergast v
same & dee; 8
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BREACH/STANDARD OF CARE – ordinary skilled man and practice accepted at the time – bolam v
friern hmc; cts reserve right to find a body of opinion is unreasonable/illogical – Marriott v west midlands
health authority; a reasonable body of opinion need not be large; Cts wont decide between differing
opinions – maynard v west midlands; cts consider level of information/risk –sideway v board of governors
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D can take into account emotional state of
p (pearce v united Bristol NHS); cts consider an error of judgment – whitehouse v Jordan – not all
mistakes on errors of jment will be a breach of jment will be a breach of bolam test; the level of skill –
wilsher v essex AHA – standard relates to post filled by d; state of knowledge and state of art defence –
roe v ministry of health
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CAUSATION: ‘But for’ test – Barnett/wilsher
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Vicarious liability – it is for employees and means ‘on behalf of’
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It is strict liability
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Consider rationale: deep pockets theory, the employer’s liability (compulsory
insurance) act 1969; degree of control and supervision, etc
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was a tort committed? 2
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Was tort committed in the course of employment? Re relationship – an
employee has a contract of service and therefore the employer is vicariously liable, whereas an
independent contractor has a contract for services and the employer is not vicariously liable
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Control test (yemens v noakes) – more control, likely to be employee status; 2
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Multiple or economic reality test (ready mixed concrete v
minister of pensions)- factors that suggested he was a contracter outweighed factors that he was an
employee ie a balancing test; 4
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Labelling – look at
reality, not label of job status
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Tax/PAYE – airkix footwear case 7
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Profit & loss 9
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However, this can shift taking into factors such as control and authority
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COURSE OF EMPLOYMENT: as per Winfield this is satisfied if the wrongful act is: expressly or
impliedly authorized, or incidental to the employee’s duties or an unauthorized method of doing something
authorized by the employer
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If an
employee’s act was not in the course of employment he will be deemed to have been on a ‘frolic of his
own’ and as a result the employer will be VL
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Deviations from an authorized route –
smith v stages- it is a new and independent journey? Depends of degree of deviation
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Express
prohibitions by the employer – twine v bean’s express 3
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New test in magna v trustees of Birmingham – is the criminal act closely
connected to employment? ALSO: employees indemnity governed by both: s1(1) civil liability
(contribution act) 1978 and lister principle
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Employer’s
liability is made up of both common law and various statutory provisions – s1 employer’s liability
(compulsory insurance) act 1969
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An employer must take reasonable care and skill for the safety of all of his employees
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a duty to provide reasonably competent fellow employees; 2
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duty to provide a safe system of work
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1
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2
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Most employees are now covered by statutory
provsions – health and safety at work act 1974, s1 (1) employer’s liability (defective equipment) act 1969,
provision and use of work equipment regulations 1998
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The ct will consider whether reasonable care was taken to
protect employees in particular circumstances
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The employer must take
reasonable steps to ensure that there is safety equipment but aso that such equipment is actually used – bux
v slough
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3
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A safe system must be both devised
and implement – mcdermid v nash dredging
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STANDARD & BREACH – reasonable care was provided to the employee in all
circumstances ie an objective test – latimer v AEC
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An employee must take reasonable care of his own safety – o’reilly v national rail
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With regards to legal causation an employee may act as a novus actus
interveniens if they refuse to use safety equipment – mcwilliams v William arrol but note bux v slough
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DEFENCES: volenti non fit injuria is a complete defence
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Contributory negligence – s1(1)
law reform (contributory negligence) act 1945 – bux v slough/fraser v winchester health
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Occupier – wheat v
lacon – sufficient degree of control of the premises
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Premises – s1 (3) (a) – any fixed or moveable structure including vessel, vehicle of
aircraft – wheeler v copas
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Visitors can include: 1
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This can be restricted by area (pearson v coleman bros); time (stone v taffe); and purpose ( r v
smith & jones)
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3
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4
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OLA 1957 (a visitor is lawfully on premises, usually through permission
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Standard may be different depending on visitor
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BREACH – usual breach rules apply
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FACTORS/QUALIFICATIONS: children s2(3)(a) – the doctrine of allurement
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Pearson v coleman
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S2 (3)(a)
states: an occupier must be prepared for children to be less careful than adults
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Experts/specials (s2(3)(b)) – roles v Nathan – standard is lower as expert
knew danger
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Woodward v major of
hastings – not technical (only icet floor) therefore did not escape liability
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There has to be warning of risk/providing alternative
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Not too remote
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DAMAGE – claims can be made for PI, damage to property and consequential loss but not pure
economic loss
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Contrib neg – s2(3) and the law reform (contrib neg)
act 1945
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EXCLUSION – S2 (1) ola 57
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Ucta
s1(1)(c); s1 (3) (b) ucta only applies to business liability, s2 (1) cannot exclude liability for death/PI, s 2
(2) exclude for damage only if reasonable
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OLA 1984 – a trespasser goes on the land without invitation to any sort and whose presence is either
unknown to the proprieter or if known, is practically objected to – Robert addie + son ltd v dumbreck
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D OF
C: s1(2)(a)-(c) the occupier of the premises owes a duty to non-visitor if: he is aware of danger, he knows
vicinity of the danger, the risk is one against he may be reasonably expected to offer some protection
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BREACH – s1(4) standard is lower than OLA 57
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APPLICATION: adults as trespassers – revill v newbery – d shot trespasser so
was liable
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Tomlinson v congleton – danger did not arise from property; it was c’s
decision to dive in shallow water
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The place only becomes dangerous if child makes it
dangerous eg a tree
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ALSO CAUSATION AND REMOTNESS! DEFENCES – volenti (s1(6)),
contrib neg – law reform (contrib neg) act 1945 – revill v newberry
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However, consider duty of common humanity as the
minimum duty an occupier must comply with – brb v herrington
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D OF C: Donoghue v Stevenson
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Defect and damage – tort
concerns dangerous goods
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The consumer – provided injury to him is reasonably foreseeable
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The
manufacture includes designers, repairers, processors, etc
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Breach of duty
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– roe v
ministry of health it was not established though
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Type of product – includes most goods, their
packaging, labellings and instructions/warnings – kubach v hollands – lack of warnings
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Causation –
‘but for’ test but consider NAI’s – grant v Australia knitting mills – failure to inspect may be NAI
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Remoteness – test of reasonable foreseeability – the wagon mound
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Defences
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The act imposes strict liability
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1
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They do not necessarily have to be the buyer or consumer of the product
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2
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S2(2)(b) –
own brander
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If supplier fails to provide name of producer within a reasonable
period of the time they will be liable as if they were the producer
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Product s1(2) – any goods or
electricity…component part or raw material
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4
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Factors
to be considered are given in s3(2): presentation/marketing – Richardson v lrc (condoms aren’t 100%) ;
reasonable use of product; the time the product has been in circulation
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But for rule
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DAMAGE; s5(1) – states that the
following constitute ‘damage’: death, PI, loss or damage to any property
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S 5(4) property damage claims are excluded if the total sum does not exceed £275
(excluding interest)
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DEFENCES: s4(1) (a)-(f)
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NB limitiation 3 years from date of injury and 10 years
from when product first appeared (s11A (3) and (4) limitation act 1980)
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It is actional per se (do not
have to prove damage)
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1
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2
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3
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There is no need for actual injury – cole v turner
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Hostility – two views: hostility is needed – Wilson v pringle – going beyond accepted boundaries of
conduct; expressed/implied consent – r v brown
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Battery
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FALSE IMPRISONMENT – this involves an act by the d that directly and intentionally causes the

complete restriction of the c’s liberty without lawful justification
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Mere convenience is not enough – bird v
jones
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DEFENCES: self defence
(s3(1) criminal law act 1987); volenti, necessity, statutory authority, reasonable chastisement
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Tort is
actionable per se
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Definition of land – Bernstein v skyviews/civil aviation
act 1982 – aeroplanes are permitted unless something falls out
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DEFENCES; consent/licence – calgarth; lawful or
statutory authority; necessity – rigby v cc of northampshire
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An action for the recovery of land
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TRESPASS TO GOODS – any direct
and intentional interference with goods in the possession of another without lawful authority
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Conversion of goods – governed by
torts (interference with goods) act 1977 – “any dealing with another’s property in a way which amounts to
a denial of his rights over it, or an assertion of a right inconsistent with his right, by wrongfully taking,
detaining or disposing of it
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DEFENCES: lawful authority, jus tertii
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NUISANANCE – PRIVATE
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The c requires proprietary or possession interest in land – hunter v canary
wharf
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Landlords – generally
not liable but note exceptions – Tetley v chitty – express or implied authorization, knew of nuisance prior
to letting, reserve right of entry and repair
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actual damage to property – lemon v webb;
2
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3
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ELEMENTS: indirect, damage, unlawful
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Indirect interference with the use or enjoyment of the land
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There must be actual damage
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Nuisance is not actionable per se – the wagon mound test no
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3
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Standard is judged objectively i
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It is a balancing act
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However, in crown river cruises v kimbolton it was a oneoff event); character of neighbourhood – neighbourhoods can change (gillingham borough council v
medway; moving to nuisance – sturges v Bridgman/miller v Jackson – ‘I got here first is not a defence’;
abnormal sensivity – objective standard in mckinnon industries v walker – if damage only occurs because
of c’s abnormal sensitivity – no nuisance, but if non-sensitive c would have suffered some damage then
could be nuisance; public benefit or social utility – miller v Jackson –majority will not necessarily win
over minority; d’s motive/intention – Christie v davey – may change a lawful activity into an unlawful
nuisance
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DEFENCES: volenti, contrib beg s1 law reform (contrib neg)
act 1945, lawful use of land, statutory authority - what does statute authorize – can be absolute or
conditional – wheeler v saunders – note that planning permission is not a defence to nuisance
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Prescription rights – if activity has been going on for 20yrs not a nuisance – it has been a
nuisance for 20yrs – sturges v Bridgman
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REMEDIES – abatement or self help, injunctions – full or partial – miller v Jackson, damages
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PUBLIC – an unlawful act or omission that endangers the health, safety or comfort or Her Majesty’s
Subjects or some section of it or obstructs the exercise of common right EG pollution, organizing a pop
festival, queueing on the highway, carrying a child with smallpox along the highway, pigeons
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PARTIES: unlike private nuisance, no interest in land is required by the c
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STATUTORY NUISANCE: highway nuisances – these are the most

common and include obstruction of and having dangerous premises near a highway – lyons v Gulliver –
theatre queue blocking entrance to café
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Note s41 highways act 1980 – the duty
to maintain highways placed on various public authorities – cross v kirkless
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Contrib neg
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RYLANDS V FLETCHER – strict liability is liability imposed without proof of fault on part of the d
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The rule of rylands v fletcher: 1
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D – any person can be a d if they have
control over the land on which dangerous thing is brought
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e it must have an element of danger – Cambridge water co
v eastern countries leather (chemicals) and hale v Jennings (fairground ride)
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There must be an escape beyond the boundaries of the land the defendant either
occupies or controls to another person’s land
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DEFENCES: volenti – can be expressed
or implied, common benefit to both parties, act of god, default of the claimant/contrib neg, act of
stranger/third party – the act must be foreseeable (perry v Kendrick transport), statutory authority
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DEFAMATION – “publication of a statement which reflects on a person’s reputation and tends to lower
him in the estimation of right thinking members of society generally or tends to make them shun or avoid
him” – Winfield
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LIBEL: it is recorded
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SLANDER: not permanent
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Difference between 2 forms: libel is actionable per dse
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S2 defamation act – also see mcmanus v
beckham
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PARTIES: natural person, corporate bodies (steel and morris v
mcdonalds)
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ELEMENTS: 1
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Whether the word are defamatory as per sim v stretch – ‘tended to lower the plaintiff in the
estimation of right thinking members of society generally by exposing him to hatred, contempt and
ridicule’
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Nb vulgar abuse does
no constitute defamatory statement – parkins v scott
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Who decides? S7 defamation act
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The defamatory statement
must refer to the c eg Cassidy case
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as a general rule, a member of a class which has been defamed
cannot sure merely because of his or her membership of that class (eastwood v holmes)
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3
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This means that the defamatory material must have come
to the attention at least one other person besides the c
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– hinderer v
cole
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Following are
not publications: letter, statements repeated by tp, d’s spouse, search engine
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Justification is a complete defence – alexander v north eastern railway
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2
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subject matter must be one of public interest, words must be comments or opinions –
british chiropractic, comments must be honest and relevant expression of opinion, no evidence of malice –
Thomas v bradbury 3
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Qualified privilege – only when statement made is made with
no evidence of malice – angel case
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responsible journalism (the

Reynolds test), but no need to fulfill the ten reynolds criteria – jameel v wall street journal
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innocent
dissemintation 6
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Under s2 defamation act 1996 it is a defence for the d to offer to:
accept that the statement is wrong, publish a correction/apology in writing, pay c’s costs

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