0802mp_2 tort

Module Planner

LLB (Hons)

Law of Tort

© Holborn College Ltd 2008

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in any retrieval system of any nature without either the written permission of the copyright holder, application for which should be made to Holborn College Ltd, Woolwich Road, Charlton, London SE7 8LN, or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency.

Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil claims for damages. The College reserves the right to modify any information contained herein.

Produced in January 2008.

Contents

Introduction

Law of Tort – A Brief Outline 7

Diagram 9

Syllabus 10

How To Use This Planner 10

Reading List 10

Learning Outcomes 11

Part 1

Study Unit OneGeneral Principles. Parties to an Action 12

Study Unit Two Negligence: The Duty of Care – Development and General Considerations 14

Study Unit ThreeNegligence: The Duty of Care – Liability for Negligent Misstatements 19

Study Unit FourNegligence: The Duty of Care – Pure Economic Loss 24

Study Unit FiveNegligence: The Duty of Care – Liability for Psychiatric Injury 29

Study Unit SixNegligence: The Duty of Care – Misfeasance, Nonfeasance, Omissions 35and Liability for Wrongful Life and Wrongful Birth

Study Unit Seven Negligence: Breach of Duty – Standard of Care 39

Study Unit EightNegligence: Causation – The ‘But For’ Test 44

Study Unit NineNegligence: Remoteness of Damage and Novus Actus Interveniens 47

Study Unit TenNegligence – Defences – Contributory Negligence and Volenti Non Fit Injuria 51

Law of Tort

1

Study Unit ElevenVicarious Liability and Liability for Independent Contractors 56

Study Unit TwelveNegligence in the Exercise of Statutory Powers and Breach of Statutory Duty 62

Study Unit ThirteenEmployers’ Liability and Product Liability 68

Part 2

Study Unit Fourteen Occupiers’ Liability 73

Study Unit FifteenNuisance – Public and Private 79

Study Unit SixteenThe Rule in Rylands v Fletcher and Liability for Fire 87

Study Unit SeventeenLiability for Animals 92

Study Unit EighteenDefamation and Malicious Falsehood 95

Study Unit NineteenTrespass to the Person and to Land 102

Study Unit Twenty Economic Torts – Passing Off and Deceit 108

Study Unit Twenty One Remedies – Damages and Injunctions 114

Study Unit Twenty Two Defences and Limitation 121

Revision and Examination Technique 125

Law of Tort

2

Law of Tort

Module Title: Law of Tort

Pre-requisite: None

Level of Study: Level Two

Total Learning Hours: 300 hours

Credits: 30

Teaching Method(s): Lectures and seminars (in term-time). The teachingelement of the module will be delivered by means oftwo one-hour lectures and one one-hour seminareach week. The lecture will set out the general rulesand principles concerning each topic, perhapsmaking particular reference to any especiallyproblematic areas. Seminars will both develop andtest students’ understanding of each topic. As wellas their general research and reading, students willbe expected to prepare specific discursive and/orproblem solving questions for discussion in class.

Core Module: Yes

Aims

• To acquire a knowledge and understanding of the principles of Tort law, includingnegligence, common law issues of employer’s liability, nuisance, statutory torts such asOccupiers’ Liability, Animal Act, Consumer Protection Act and International Torts;

• To develop a range of graduate skills including transferable intellectual skills and key skills;

• To research individually and report back upon matters of Tort law;

• To apply their knowledge and understanding to unseen questions under examinationconditions;

• To fulfil the Law Society and the Bar Council’s requirements for the ‘’Foundations in the Lawof Tort’ element of a Qualifying Law degree.

Contents

This module considers the substance and role of the law of negligence, including the generalprinciples relating to a duty of care. It also examines pure omissions, proximity and failure toprevent harm. It goes on to consider the application of a duty of care to ‘special duty’ topicssuch as psychiatric injury and economic loss. Statutes are then considered such as the

Law of Tort

3

Occupiers’ Liability Acts 1957 and 1984, the Consumer Protection Act 1987 and Animal Act1971. International torts will be considered such as battery, assault, false imprisonment,nuisance and Rylands v Fletcher. This module also examines employers’ liability includingvicarious liability and primary non-delegable duty. Wherever relevant the impact of HumanRights Act 1998 is considered.

Learning Outcomes

Knowledge

At the end of this module students will be able to:

• Demonstrate knowledge of the foundation concepts, values and rules operating in a rangeof substantive areas in Tort law;

• Demonstrate a basic ability to apply this knowledge to the facts of an actual or hypotheticalproblem or some complexity, providing a reasoned conclusion;

• Demonstrate the ability to discuss orally legal matters in technical and complex language.

Skills

As well as their knowledge and understanding of the Syllabus, students will be assessed upontheir ability to:

• Retrieve up-to-date primary and secondary sources of legal information, using both paperand electronic sources;

• Analyse primary legal materials;

• Use legal terminology with accuracy;

• Communicate effectively in writing in the English language.

Assessment Method(s)

Unseen Examination: 70%

Coursework 30%

Indicative Reading

Jenny Steele, Tort Law, Text, Cases and Materials, 1st Edition, Oxford University Press

College text to be provided to students

Further Reading:

Giliker P & Beckwith S, Tort, 2nd Edition, Sweet and Maxwell

Howarth, Dr Hepple, Howarth and Matthews Tort; Cases and Materials, 5th Edition,

Law of Tort

4

Butterworths

Howarth, Dr, Textbook on Tort, 2nd Edition, LexisNexis

Murphy, John Street on Torts, 11th Edition, LexisNexis

Rogers, WH Winfield and Jolowocz on Tort, 16th Edition, Sweet and Maxwell

Weir, Tony, A Casebook on Tort, 16th Edition, Sweet and Maxwell

Websites

Increasingly the internet is becoming a good source of information for law students. Thefollowing may be of use, but bear in mind that URLs are subject to change, as is the freeaccess provided by some operators.

(A) LAW REPORTS

www.the-times.co.uk/news

This site has a searchable database going back to 1 January 1996. Law reports can beaccessed for printing or downloading to disk.

http;//www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgemt.htm

Excellent free site containing full text of recent House of Lords’ decisions – fullydownloadable to print or disk.

http;//www.smithbernal.com/casbase

Currently provides free transcripts of recent English cases – very useful.

www.lawreports.co.uk

This is the official law report site – has special student pages with case summaries. Alsohas 24 hour updated legal news pages – day by day decision reports.

http//www.courtservice.gov.uk/lexicon

Court Service homepage – has limited number of appeal case transcripts.

www.swarb.co.uk-negligence

Links to UK cases on negligence

www.swarb.co.uk-other

Links to general tort cases.

(B) PARLIAMENT

www.parlchan.co.uk/index.htm

Quick reference guide to the House of Commons and its business.

www.parliament.uk

Gateway site for both the House of Commons and the House of Lords.

Law of Tort

5

(C) LEGAL REFERRAL SITES

www.venable.co.uk

Excellent free general resource site – provides a gateway to a host of other webresources related to law.

http;//www.ukc.ac.uk/library/lawlinks/default.htm

Currently one of the best gateway sites in the UK, maintained by the University of Kent.Numerous useful links.

www.legal.net

Gateway site to huge database of USA law – useful for comparative research.

www.findlaw.co

Very comprehensive US searchable database – great for comparative studies.

www.westlaw.com

Excellent summaries of cases on all subjects.

(D) PUBLISHERS

www.cavendishpublishing.com

Lots of useful information for students and good links – regular case updates and avirtual classroom.

www.butterworth.co.uk

Site for Butterworths the leading legal publishers – allows free access to a recentdevelopments archive that is useful for quick reference – fully downloadable to print ordisk.

www.smlawpub.co.uk

Site for Sweet & Maxwell, leading law publishers.

(E) GOVERNMENT SITES

www.hmso.gov.uk/stat.htm

Very useful site providing full text of recent Acts of Parliament and some delegatedlegislation. Fully downloadable to print or disk.

www.open.gov.uk/law.comm/homepage.htm

Site allows access to full text of Law Commission consultation papers and reports.Adobe Acrobat Reader for downloading to disk.

http;//www.open.gov.uk/index.htm

Click on ‘what’s new’ to get a list of recent government publications – good for LawCommission updates, Home Office statements, etc.

Law of Tort

6

Introduction

Law of Tort – A Brief Outline

A tort is a civil wrong which entitles a person who suffers a detriment by its commission toclaim damages for his loss or injury. In some circumstances, such as where a person suffersfrom a nuisance, the most appropriate remedy will be an injunction to prevent the continuationof the nuisance. The primary function of the law of tort is to compensate the victim of a civilwrong, but the law also acts as a deterrent.

Tort distinguished from Crime and Contract

The duty to refrain from committing a tort is imposed upon us all by law whether we like it ornot and that duty is owed to everybody. In contract any liability can only come into existenceby the agreement of the parties concerned. A tort differs from a crime in that a crime is not acivil wrong. The object of criminal proceedings is to protect the community as a whole,whereas the principal objective of tort is to compensate a claimant for his loss. A crime ispunishable by the state whereas a claim in tort is brought by the person who has suffered adetriment – the claimant.

A tort may also be a crime – so for example, any person who drives his car is obliged by lawto drive carefully so as not to injure any other road user. In the event that a driver breaches hisduty and is negligent in his driving any person who suffers as a result of his negligence maybring a claim against the driver of the vehicle. The negligent driving may also be a crime suchas driving without due care and attention – this will be punishable by the state. It can be seentherefore that a person who drives negligently causing an accident may be punished by thestate and may face a civil claim from any person who has suffered as a result of hisnegligence.

Interests Protected

There are many different distinct torts which protect a wide range of interests. A person’spersonal safety is protected by the torts of negligence, battery, assault and falseimprisonment. Personal property is protected by the torts of nuisance, trespass to goods andtrespass to land. A person’s personal reputation is protected by the tort of defamation. Theseinterests are protected by means of the law acting as a deterrent and by providing amechanism for claiming compensation in the event of a breach.

Defences to an Action in Tort

There are two types of defences that may be raised to an action in tort – those which may beraised in respect of more than one tort are known as general defences and includecontributory negligence, volenti non fit injuria (assumption of risk or consent), self-defence,necessity and Act of God. Other defences such as the defence of qualified privilege in libelare only available in respect of one tort and are known as particular defences.

Law of Tort

7

Key Areas of Study

One of the main areas of study in tort is negligence. You will see that almost one third of thesyllabus is devoted to this one particular tort. Other torts that will be studied include occupiers’liability, nuisance, defamation, liability for animals, trespass to the person, goods and land andvicarious liability.

The law of tort is heavily case based and students are advised to make case notes from theoutset – the same cases will be used to illustrate several legal principles and the making ofcase notes will help to save time and help in understanding a course which is conceptuallychallenging at times, but is generally thoroughly enjoyed by the vast majority of students.

Law of Tort

8

Diagram

Law of Tort

9

Tresspass: tothe Person and

to Land

Part One

Part Two

Part Three

General Principles:Parties to an Action

Negligence

Breach of Duty:Standard of Care

Defences

Vicarious Liability andLiability for Independent

Contractors

Negligence: StatutoryPowers and Breach of

Statutory Duty

Public and Private Nuisance

Rule in Rylands v Fletcher

Defamation and Malicious Falsehood

Economic Torts

The Duty of Care:Liability for Negligent

Misstatements

The Duty of Care:Liability for Psychiatric

Injury

Negligence: Causation

The Duty of Care:Development and

General Considerations

The Duty of Care: PureEconomic Loss

The Duty of Care:Misfeasance, Nonfeasance

and Omissions

Employer’s and Product Liability

Occupiers’ Liability

Liability for Animals

Remedies: Damages and Injunctions

Defences andLimitation

Remoteness of Damage

Syllabusa) The scope and function of the law of tort; the bases of liability; the interests protected

by the law of tort; sources of future development, including the law of the EuropeanUnion.

b) Negligence: the concepts of duty, breach, causation and remoteness of damage.Negligent infliction of personal injuries; the assessment of damages. Occupiers’ liability;liability of employers; product liability. Negligent infliction of other physical damage andof economic loss. Negligent misstatements.

c) Assault, battery, false imprisonment and other intentional physical harm.

d) Interference with economic interest: deceit, inducing breach of contract, intimidation,conspiracy.

e) Trespass to land; nuisance; the principle in Rylands v Fletcher; liability for animals.

f) Liability under statutory duties and powers.

g) Defamation and malicious falsehood. Protection of privacy.

h) Vicarious and joint liability. The effect of death on liability.

i) Defences. Remedies.

How to Use this Planner

This Course Planner sets out in detail the full scope and extent of Law of Tort. We intend it tobe the basis of your work on this module.

The Course Planner and the college textbook are linked, and the two should be used together.

The introduction will give you a brief overview of the subject areas to be studied. It is importantto remember, while you learn each individual topic, that the areas all relate to one another andyou should look at the subject as a whole, rather than as a series of isolated parts.

The Course Planner has been divided into two ‘parts’, and each of those ‘parts’ contain anumber of ‘study units’ which you will progress through in order. The ‘study units’ each containa topic within the subject as a whole. You should work through each study unit in order,completing the reading listed and any questions/interrograms that have been set.

Reading List

a) You must obtain the following books


Winfield and Jolowicz on Tort, Rogers (16th edition) 2002 (Sweet & Maxwell)

b) You should obtain the following book

Tort Law, Markesinis and Deakin (5th edition) 2003 (Oxford University Press)

OR

Street on Torts, Brazier and Murphy (11th edition) 2003 (Butterworths)

Law of Tort

10

c) It would be useful to obtain the following books

Salmond and Heuston on the Law of Torts, Heuston and Buckley (21st edition) 1996(Sweet & Maxwell)

Butterworths Core Texts: Tort, Hedley (3rd edition) 2002 (Butterworths)

Tort: Cases and Materials, Hepple, Matthews and Howarth (5th edition) 2000(Butterworths)

A Casebook on Tort, Weir (9th edition) 2000 (Sweet & Maxwell)

Please note that externally produced books (ie those not published by Old Bailey Press) mayhave new editions published during the life span of this Planner. This list is correct at the timeof going to press.

d) Reference to Journals

CLJ Cambridge Law Journal

CLP Current Legal Problems

IHL In-House Lawyer

L Ex Legal Executive

L Teach Law Teacher Journal

Legal Studies Legal Studies

LMCLQ Lloyd’s Maritime and Commercial Law Quarterly

LQR Law Quarterly Review

MLR Modern Law Review

NLJ New Law Journal

PLJ Property Law Journal

RWLR Rights of Way Law Review

SJ Solicitors’ Journal

TELL Tolley’s Employment Law Line

Learning Outcomes

Each study unit contains a number of learning outcomes: these are intended to guide you inyour study of each topic. Once you have completed the reading for each study unit, you shouldgo back to the learning outcomes and ensure that you understand the topics to which theyrefer. Remember that the subject must always be looked at as a whole: if you do notunderstand what the learning outcomes refer to, you will need to repeat your reading. Youshould not progress from one study unit to the next until you understand, and have reached,the learning outcomes for that particular study unit.

Law of Tort

11

Part 1: Study Unit One

Topic

General Principles. Parties to an Action

Prologue

In this study unit the general principles that underpin the law of tort will be studied.Consideration will be given to those who can pursue a claim in tort and who can be suedincluding situations where there is more than one potential defendant. The distinction betweentort and crime and tort and contract will also be considered.

Essential Reading


Winfield and Jolowicz on Tort, Rogers – Relevant Chapter(s)

Other Reading

Street on Torts, Brazier and Murphy – Relevant Chapter(s)

Learning Outcomes

To have considered:

a) the general principles which underpin the law of tort;

b) to distinguish tortious liability from liability in contract and crime;

c) to consider who can bring an action in tort and against whom such an action can bebrought, including joint and several liability.

Sources of Law

Statute

Civil Evidence Act 1968

Civil Liability (Contribution) Act 1978

Congenital Disability Act 1976

Limitation Act 1980

Case LawB v Islington Health Authority [1992] NLJ 565

Law of Tort – 1. General Principles

12

Baker v Willoughby [1970] 2 WLR 50

Birse Construction Ltd v Hastie Ltd [1996] 2 All ER 1

Brooke v Bool (1928) 2 KB 578

Burton v Islington Health Authority [1993] QB 204

Cassell v Broome [1972] AC 1027 (HL) (especially the judgments of Lord Reid and LordWilberforce)

Derbyshire County Council v The Times Newspapers(1992) QB 770

EETPU v Times Newspapers [1982] QB 585

Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421

J (A Child) v Wilkins (2001) The Times 6 February (CA)

Jameson v Central Electricity Generating Board (1999) 1 All ER 193 (HL)

Jones v Northampton Borough Council (1990) The Independent 25 May

McKay v Essex Area Health Authority [1982] QB 1166

Multiple Claimants v Ministry of Defence [2003] EWHC 1134

Reading v Attorney-General [1951] AC 507

Robertson v Ridley [1989] 2 All ER 474

The Koursk (1924) P 140

Interrograms

1. Distinguish tortious liability from:

a) liability in contract;

b) criminal liability.

2. What are the aims of the law of tort?

3. What view is adopted by Lord Reid in Cassell v Broome as to the proper purpose of thelaw of tort?

4. Is Lord Reid’s view shared by Lord Wilberforce?

5. a) How may minors sue and be sued?

b) How may persons of unsound mind sue and be sued?

6. Who may be immune from liability in tort?

7. What is independent liability?

8. Distinguish joint and several liability.

Note: examination questions are not usually set directly on issues arising in this unit.

Question

Winfield states that ‘tort is concerned with the allocation or prevention of losses, which arebound to occur in our society’. Discuss, with particular reference to the Civil Liability(Contribution) Act 1978.

Law of Tort – 1. General Principles

13

Part 1: Study Unit Two

Topic

Negligence: The Duty of Care – Development and General Considerations

Prologue

The historical development of the tort of negligence and the question of when a duty of caremay be owed will be considered. The neighbour principle formulated by Lord Atkin in anattempt to formulate a general rule will be studied in great detail and students will look at thefactors that the courts will take into account when they are considering whether a duty of careis owed in novel situations.

Essential Reading



Other Reading

Tort Law, Markesinis and Deakin – Relevant Chapter(s)

Learning Outcomes

To have considered:

a) the general tests for the imposition of the duty of care;

b) the content and influence of Donoghue v Stevenson and the judgements of LordAtkin and Lord Buckmaster;

c) the importance of the judgement of Lord Wilberforce in Anns v London Borough ofMerton;

d) the subsequent reassessment of the Anns formulation.

Sources of Law

Case Law

DEVELOPMENT

Anns v London Borough of Merton [1978] AC 728; [1977] 2 All ER 492 (HL)

Candler v Crane, Christmas & Co [1951] 2 KB 164

Donoghue v Stevenson [1932] AC 562 (HL)

Law of Tort – 2. Negligence: The Duty of Care – Development and General Considerations

14

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 (HL)

Home Office v Dorset Yacht [1970] AC 1004 (HL)

RETREATING FROM ANNS

Alexandrou v Oxford [1993] 4 All ER 328

Curran v Northern Ireland Co-Ownership Housing Association Ltd [1987] AC 718; [1987] 2 AllER 13 (HL)

D & F Estates v Church Commissioners [1989] AC 177; [1988] 3 WLR 368 (HL)

Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 (HL)

Leigh and Sillivan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785 (HL); [1985] 1 QB 350 (CA)

Murphy v Brentwood District Council [1991] AC 398; [1990] 3 WLR 414; [1990] 2 All ER 908 (HL)

Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd [1985] AC 210

Osman v Ferguson [1993] 4 All ER 344

Rowling v Takaro Properties Ltd [1988] AC 473; [1988] 1 All ER 163

Swinney v Chief Constable of Northumbria [1996] 3 All ER 449

Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175; [1987] 2 All ER 705 (PC)

FURTHER AUTHORITIES

Brooks v Commissioner of Police for the Metropolis & Others (2002) EWCA Civ 407

Caparo Industries v Dickman [1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All ER 568 (HL)

Elguzouli-Daf v Metropolitan Police Commissioner [1995] 2 WLR 173; [1995] 1 All ER 883

Hughes v National Union of Mineworkers [1991] 4 All ER 278

Kent v Griffiths and Others [2000] 2 WLR 1159

Lonrho plc v Tebbit [1992] 4 All ER 280 (CA); [1991] 4 All ER 973 (Ch D)

Marc Rich & Co AG v Bishop Rock Marine Co [1994] 1 WLR 1071; [1994] 3 All ER 686 (CA)

Mulcahy v Ministry of Defence [1996] 2 WLR 474

Reid v Rush & Tompkins [1990] 1 WLR 212; [1989] 3 All ER 228

Stovin v Wise [1996] 3 WLR 388; [1996] 3 All ER 801 (HL)

Sutherland Shire Council v Heyman (1985) 60 ALR 1 (Australia)

X v Bedfordshire CC; M v Newham LBC; E v Dorset CC [1995] 3 WLR 152; [1995] 3 All ER353 (HL)

NOVEL DUTY OF CARE SITUATIONS

Barrett v Enfield London Borough Council [1999] 3 WLR 79 (HL)

Chittock v Woodbridge School (2002) CA The Times 15 July

Evans v Souls Garages Ltd (2001) The Times 23 January

Jolley v Sutton London Borough Council [2000] 1 WLR 1083

Kirkham v Chief Constable of Greater Manchester [1990] 2 QB 283; [1990] 2 WLR 987;[1990] 3 All ER 246


15

Law Society v KPMG Peat Marwick [2000] 4 All ER 540

Reeves v Commissioner of Police of the Metropolis [1999] 3 WLR 363

Smolden v Whitworth (1996) The Times 18 December

Topp v London Country Bus [1993] 1 WLR 977; [1993] 3 All ER 448 (CA)

Watson v British Boxing Board of Control Ltd (2001) The Times 2 February (CA)

Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692

LIMITATION OF THE DUTY OF CARE

Bradford-Smart v West Sussex County Council (2002) The Times 29 January (CA)

Goodes v East Sussex CC [2000] 1 WLR 1356 (HL)

Makepeace v Evans Brothers (Reading) (2000) The Times 13 June (CA)

ArticlesBailey and Bowman ‘Public Authority Negligence Revisited’ [2000] CLJ 85–132

De Prez ‘Liability for Failure to Prevent Acts of Self-Destruction’ [2000] PN 16(2), 113–121

Harrison ‘The Emergency Services, “999” Calls and the Duty of Care’ [2000] PN 16(3),171–182

Kay ‘Smolden v Whitworth: The Liability of a Rugby Referee’ (1997) 31 LTeach 388

Kaye ‘Acts Speak Louder than Statements, or Nine into One Will Go: Marc Rich and Co vBishop Rock Marine Co’ (1995) 58 MLR 574

Kidner ‘Resiling from the Anns principle: the Variable Nature of Proximity in Negligence’(1987) 7 Legal Studies 319

Markesinis and Deakin ‘An Analysis of the Tort of Negligence from Anns to Murphy’ (1992) 55MLR 619

‘On Murphy v Brentwood DC’ (1990) 106 LQR 525; (1991) 25 L Teach 74; (1991) 50 CLJ 24and 58

Reed ‘Corporate Manslaughter’ [2000] Crim Law 102 (general principles relating tomanslaughter by gross negligence)

Reynolds ‘The Rise and Fall of the Atkin Doctrine: Searching for a Will-O’-The-Wisp’ [2004]20(3) CLJ 105

Rodger ‘Lord MacMillan’s Speech in Donoghue v Stevenson’ (1992) 108 LQR 236

Tan Keng Feng ‘Of Duty’ (1996) 112 LQR 209


16

Interrograms

1. What is the notional duty of care?

2. What was the ‘contract fallacy’?

3. What was the significance of the judgment of Lord Atkin in Donoghue v Stevenson?

4. How did Lord Atkin formulate the test for the existence of a duty of care? Who in law ismy neighbour?

5. Was the view of Lord Atkin shared by Lord Buckmaster? What was the view which washeld by Lord Buckmaster?

6. How was the principle in Donoghue v Stevenson applied in Home Office v Dorset YachtCo?

7. What was the two-stage test enunciated by Lord Wilberforce in Anns v Merton LondonBorough Council?

8. What did Lord Wilberforce mean by proximity? What is the ‘necessary qualification ofproximate relationship’?

9. Did Lord Wilberforce envisage that his second stage would be relied upon frequently?

10. What did Lord Scarman say in McLoughlin v O’Brian about the role of policy in decidingwhether or not a duty of care should be imposed in a particular case? Do you think thatLord Scarman was correct?

11. What did Lord Keith say in Peabody v Parkinson about the existence of a duty of care?How has his judgment been subsequently interpreted?

12. Does the two-stage test in Anns enable lower courts to refuse to follow a line ofauthorities which have always held that no duty of care is owed in such a situation?Should it do so?

13. What did Lord Bridge mean in Curran when he said that the two stage test in Annsobscured the distinction between misfeasance and nonfeasance? Is this criticismjustified?

14. What interpretation did Lord Keith in Yuen Kun Yeu place upon the word ‘proximity’ inthe judgment of Lord Wilberforce in Anns? Do you think this interpretation is a correctone? What is the distinction between foresight and proximity?

15. Why did Lord Keith envisage such a restricted role for the second stage of the Annstest?

16. What is the status of the Anns two stage test in the light of Curran and Yuen Kun Yeu?

17. What did Lord Keith say about the Anns two-stage test in Rowling v Takaro PropertiesLtd? Identify situations where public policy has dictated that there should be no liability.

18. What was the formulation of the test for duty of care in Caparo v Dickman?

19. There now appear to be four requirements for establishing whether a duty of care exists:forseeability of damage, proximity, public policy and whether it is just and reasonable toimpose a duty. Will all these requirements be referred to by the court in every case?

20. In determining what is fair, just and reasonable, what factors will the court take intoaccount?


17

Questions

1. ‘The categories of negligence are never closed.’ (Lord MacMillan, Donoghue vStevenson [1932] AC 562.)

Discuss.

2. ‘It is, I think, at bottom a matter of public policy which we as judges, must resolve. Thistalk of “duty” or “no duty” is simply a way of limiting the range of liability fornegligence.’ (Lord Denning)

Comment.

3. ‘My Lords, Anns v Merton London Borough Council … may be said to represent thehigh-water mark of a trend in the development of the law of negligence by yourLordships’ House towards the elevation of the “neighbourhood” principle derived fromthe speech of Lord Atkin in Donoghue v Stevenson … into one of general applicationfrom which a duty of care may always be derived unless there are clear countervailingconsiderations to exclude it. In an article by Professor J C Smith and Professor PeterBurns “Donoghue v Stevenson – The Not So Golden Anniversary” (1983) 46 MLR 147,the trend to which I have referred was cogently criticised, particularly in its tendencyto obscure the important distinction between misfeasance and non-feasance.’ (LordBridge in Curran v Northern Ireland Co-ownership Housing Association [1987] 2All ER 13, 17.)

Discuss.

4. ‘[The neighbour principle] should I think be regarded as a statement of principle. It isnot to be treated as if it were a statutory definition. But I think that the time has comewhen we … should say that it ought to apply unless there is some justification or validreason for its exclusion.’ (Per Lord Reid in Home Office v Dorset Yacht.)

Discuss.

5. Is it correct to say that since Anns v Merton London Borough Council the courts haveconsistently tried to restrict the scope of the duty of care and the persons to whom itis owed? If so, has this been a desirable development?

6. Describe and comment on the factors which influence a court in deciding whether tohold that a duty of care exists and to whom it is owed.


18

Part 1: Study Unit Three

Topic

Negligence: The Duty of Care – Liability for Negligent Misstatements

Prologue

This study unit continues with the study of the tort of negligence but will consider when a dutyof care is imposed upon a defendant for negligent words which cause loss to the plaintiff. Theleading cases of Hedley Byrne v Heller and Caparo v Dickman will be looked at in detail.

Essential Reading



Other Reading



Learning Outcomes

To have considered:

a) the basis of liability for negligent words as opposed to negligent deeds;

b) the case of Hedley Byrne v Heller in detail;

c) the subsequent development of the line of authority represented by Hedley Byrne.

Sources of Law

StatuteUnfair Contract Terms Act 1977: ss 1, 2, 11 and 13

Case Law

DEVELOPMENT

Candler v Crane Christmas & Co [1951] 2 KB 164

Derry v Peek (1889) 14 App Cas 337


Law of Tort – 3. Negligence: The Duty of Care – Liability for Negligent Misstatements

19

Henderson v Merrett Syndicates Ltd [1994] 3 WLR 761; [1994] 3 All ER 506 (HL)

Leidig v Intervention Board for Agriculture Produce [2000] Lloyd’s Rep PN 144 (CA)

Ministry of Housing v Sharp [1970] 2 QB 223

Nocton v Lord Ashburton [1914] AC 932

Welton v North Cornwall District Council [1997] 1 WLR 570

Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577 (HL)

HEDLEY BYRNE REQUIREMENTS

a) Representor’s special skill

Esso Petroleum Co Ltd v Mardon [1976] 1 QB 801

Howard Marine and Dredging Co v A Ogden and Sons (Excavations) Ltd [1978] QB 574

Mutual Life and Citizens Assurance Co v Evatt [1971] AC 793

b) Reasonable reliance by representee

Andrew v Kounnis Freeman [1999] 2 BCLC 641 (CA)

Chaudry v Prabhakar [1989] 1 WLR 29; [1988] 3 All ER 718

Chappell v Somers & Blake [2003] 3 All ER 1076

Edwards v Lee [1991] NLJ 1517

McCullagh v Lane Fox (1995) The Times 22 December

Smith v Eric S Bush Ltd [1990] 1 AC 831; [1989] 2 WLR 790 (HL)

The Royal Bank Trust Co (Trinidad) Ltd v Pampellonne [1987] 1 Lloyd’s Rep 218

c) Representor’s knowledge of type of transaction

Al Saudi Banque v Clarke Pixley [1990] 2 WLR 344

Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All ER 568

Spring v Guardian Assurance [1994] 3 WLR 354; [1994] 3 All ER 129 (HL)

STATEMENTS PUT INTO GENERAL CIRCULATION

Al Saudi Banque v Clarke Pixley [1990] 2 WLR 344

Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All ER 568(HL)

Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360; [1995] 1 All ER 16

James McNaughten Paper Group v Hicks Anderson [1991] 1 All ER 134

Mariola Marine v Lloyd’s Register [1990] 1 Lloyd’s Rep 547

Morgan Crucible v Hill Samuel [1991] 1 All ER 148

NOVEL FACT SITUATIONS

Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161 (CA)


20

ArticlesAllen ‘Liability for References: The House of Lords and Spring v Guardian Assurance’ (1995)58 MLR 553

Clarke ‘Under Control and Under Contract?’ (1994) CLJ 220

Cooke ‘Henderson v Merritt Ltd, Spring v Guardian Assurance’ (1995) 29 L Teach 367

Hedley ‘Negligence – Pure Economic Loss – Goodbye Privity, Hello Contorts: Henderson vMerrett Ltd’ [1995] CLJ 27

Heydon ‘The Negligent Fiduciary: Henderson v Merrett Ltd’ (1995) 111 LQR 1

Maher ‘The Auditor’s Duty of Care – Caparo Test Ten Years On’ [2000] PN 16(3), 150–164

Norton ‘Auditor’s Liability since Caparo’ [2000] CLL Rev 92–107

Stapleton ‘Duty of Care and Economic Loss’ (1991) 107 LQR 249

Interrograms

1. What was the state of the law before Hedley Byrne was decided?

2. Why was the House of Lords not prepared to apply ordinary Donoghue principles inHedley Byrne? Do you think that this refusal was justified?

3. Was the plaintiffs’ claim in Hedley Byrne a meritorious one?

4. What are the necessary ingredients of a Hedley Byrne ‘special relationship’?

5. What principle was established by the Privy Council in Mutual Life v Evatt? Is thisprinciple still good law?

6. What principle was established by the Privy Council in The Royal Bank Trust Co(Trinidad) Ltd v Pampellonne? Do you think that the decision was a correct one?

7. What knowledge must the defendant have of the type of transaction for which theinformation is required?

8. Does Hedley Byrne apply to statements made on social occasions? What is a socialoccasion?

9. What is the effect of s2(1) of the Misrepresentation Act 1967 on Hedley Byrne?

10. To what extent can a defendant exclude liability for negligent misstatement? WouldHedley Byrne be decided the same way today?

11. In Chaudry v Prabhakar was counsel for the defendant correct in conceding that aHedley Byrne duty of care existed?

12. Does the Hedley Byrne line of authority remain as a separate line of authority in the lightof the judgment in Anns v Merton London Borough Council and the subsequentinterpretation of that decision?

13. In Caparo v Dickman into what categories did the House of Lords classify negligentmisstatements? What factors now determine when it will be ‘just and equitable’ toimpose a duty?


21

Questions

1. Groat is the editor of an information paper produced by Trove Ltd. It is financed byadvertisements and is distributed free of charge to dealers in antiques and second-hand coins. From time to time it prints lists of current market prices for rare coins. Thissection is headed by the following statement: ‘These prices are for guidance only andneither the editor nor the publisher can undertake any responsibility for theiraccuracy.’ In one issue an Illyrian ducat of a certain year is listed at £600 to £800 anda Ruritanian ducat of the same year is listed at £2,000 to £2,500. In fact, because ofan error in typesetting, these prices have been transposed. Franc, a coin-dealer, isoffered a Ruritanian ducat and, after consulting the list, buys it for £2,000. Penny, whoruns a small shop repairing antique china and is on Trove Ltd’s mailing list, sells herIllyrian ducat for £600. On her advice her brother Mark does the same. Trove Ltd thenissue an amended list.

Advise Franc, Penny and Mark.

2. Arnold wishes to give as a gift to his nephew, Paul, something of lasting value. He goesto a friend of his, Dennis, who is an art enthusiast, with a large collection of his own.Arnold tells him, ‘I am looking for a small painting, preferably nineteenth century witha sporting theme. I want to spend about £1,000. Could you keep your eye open foranything likely?’ About a month later Dennis telephoned Arnold and says ‘I think I’vefound the very thing – a study of the 1890 Derby winner by quite a sought-after artist.’Arnold buys the painting for £1,000 and gives it to Paul. He dies shortly afterwards.Four years later Paul decides to have the painting valued, expecting it to be worth atleast £5,000. It turns out to be a worthless modern copy, as would have been apparenton inspection by any competent dealer.

Advise Paul.

3. Tarzan, an accountant, is asked by Leon to value shares in Eastbay Ltd to discoverwhether they are likely to prove a good investment. Tarzan and Leon are old friendsand Tarzan states that he will value the shares for ‘old times sake’ but that anystatement which he makes as to the investment value of the shares is to be treated asa statement of opinion and that no reliance is to be placed thereon.

Tarzan’s report states that the shares are certain to be a good investment. Leon leaksthe report to the Barchester Evening Gazette, which duly publishes it. Tarzan alsoinforms Neil, over a drink in the pub, that shares in Eastbay Ltd are bound to prove asound investment. Leon, Neil and Bernard, a reader of the Barchester Evening Gazette,purchase shares in Eastbay Ltd and lose a substantial sum of money when the sharesin the company drop in value.

Advise Tarzan as to his potential liability.

4. Flora is a keen amateur gardener who has won many prizes in flower shows. In 1999she decided to exhibit begonias (which she had not done before) at the LambethFlower Show, as the prize for the winner was an all expenses paid trip to famousgardens in the United States. At Christmas 1998 she had been given as a present anewly published gardening manual published by Wilt Ltd. In the section on begoniason the first line of page 90 this manual gave the recommended daily dosage of a plantfood. There is a correction strip inside the fly leaf of the manual listing errors in thetext including the following: ‘Page 90, line 1. For “daily dosage” read “weeklydosage”.’ Flora did not read the correction and administered the food daily. Flora’sbegonias flourished until the week before the flower show when they began to witherand as a result she had to withdraw her entry.

Advise Flora.


22

5. Iris wanted to take over and develop an ailing garden centre near her home. Sheapplied to the Rambling Bank for additional finance. The Bank asked for a report fromPlant and Tree, a firm of management consultants. They commented very favourablyin a report headed ‘for the Bank’s own use only’. They reported that the Centre hadgood prospects for future growth, but noted that no one involved in the project hadany sales experience, which they thought was a major weakness. The Bank told Iris thegist of this report.

Soon afterwards Iris met an old friend, Rose, the sales director of Shrubberies. All theemployees of Shrubberies are partners and share in its profits. Rose had recently seenthe draft accounts for Shrubberies for the current year, which showed a substantialdecline in profitability. The accounts had been audited by Myrtle, a charteredaccountant. Rose had been unhappy at Shrubberies for some time and decided toresign and join forces with Iris in the garden centre project, especially as Iris had toldher about Plant and Tree’s report.

The market garden has failed. Plant and Tree had underestimated the severity of therecession and had failed to identify a number of unsuitable features in the site. Theaccounts of Shrubberies were seriously inaccurate and Myrtle has now producedrevised accounts showing a healthy position.

Advise Rose.

6. ‘All members of the Appellate Committee in this case [the Hedley Byrne case] spokein terms of the principle resting upon an assumption or undertaking of responsibilityby the defendant towards the plaintiff coupled with reliance by the plaintiff on theexercise by the defendant of due care and skill’ (Spring v Guardian Assurance 1994,per Lord Goff).

Discuss. What is the role of concepts of reliance and assumption of responsibility in thedevelopment of the tort of negligence?


23

Part 1: Study Unit Four

Topic

Negligence: The Duty of Care – Pure Economic Loss

Prologue

Historically the courts have been reluctant to allow recovery for pure economic loss. In thisunit, students will consider the development of the law in this area, particularly the decision ofthe House of Lords in Junior Books v Veitchi and the subsequent retreat from that decision.

Essential Reading



Other Reading


Learning Outcomes

To have considered:

a) the development of the duty of care in cases of pure economic loss;

b) the decision of the House of Lords in Junior Books v Veitchi and its subsequentdevelopment;

c) the decision of the House of Lords in The Aliakmon.

Sources of Law

StatuteContracts (Rights of Third Parties) Act 1999

Case LawOLD RULE

Anns v Merton LBC [1978] AC 728; [1977] 2 All ER 492 (HL)

Cattle v Stockton Waterworks Co (1875) LR 10 QB 453


Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1 QB 27

Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569

Law of Tort – 4. Negligence: The Duty of Care – Pure Economic Loss

24

NEW RULE

Bailey v HSS Alarms Ltd (2000) The Times 20 June (CA)

Carr-Glynn v Frearsons (A Firm) [1998] 4 All ER 225 (CA)

D & F Estates v Church Commissioners for England [1989] AC 177; [1988] 3 WLR 368 (HL)

Gorham v BT [2000] 4 All ER 867 (CA)

Hooper v Fynmores (A Firm) (2001) The Times 19 July

Horsfall v Haywards (1999) The Times 11 March

Junior Books Ltd v The Veitchi Co Ltd [1983] 1 AC 520 (HL)

Law Society v KPMG Peat Marwick [2000] 4 All ER 540

Merrett v Babb [2001] QB 1174

Ross v Caunters [1980] Ch 297; [1979] 3 All ER 580

Walker v Medlicott [1999] 1 WLR 727

White v Jones [1995] 2 WLR 187; [1995] 1 All ER 691 (HL)

RETREAT FROM JUNIOR BOOKS AND ANNS V MERTON LBC

Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 All ER 135

Bellefield Computer Services Ltd v E Turner & Sons Ltd; Unigate UK Ltd v E Turner & SonsLtd [2000] NPC 9 (CA)

D & F Estates v Church Commissioners for England [1988] 3 WLR 368; [1988] 2 All ER 992 (HL)

Lennon v Commissioner of Police of the Metropolis [2004] 2 All ER 266

* Leigh & Sillavan Ltd v Aliakmon Co Ltd [1986] AC 785 (HL)

Marc Rich and Co v Bishop Rock Marine Co [1994] 1 WLR 1071; [1994] 3 All ER 686 (CA)

Muirhead v Industrial Tank Specialities Ltd [1986] QB 507; [1985] 3 All ER 705

Murphy v Brentwood Council [1991] AC 398; [1990] 3 WLR 414; [1990] 2 All ER 908 (HL)

Outram v Academy Plastics Ltd (2000) The Times 26 April (CA)

Ryeford Homes v Sevenoaks DC (1989) 16 Con LR 75

Simaan General Contracting Co v Pilkington Glass (No 2) [1988] QB 758; [1988] 2 WLR 761;[1988] 1 All ER 791

Tate & Lyle Industries v GLC [1983] 1 All ER 1159

* (Note that the principle laid down in The Aliakmon case still stands but that the case hasbeen reversed on its facts by the Carriage of Goods by Sea Act 1992.)

Articles‘Cases on Duty of Care and Economic Loss’ (1990) 24 L Teach 307

Cooke ‘White v Jones’ (1995) 29 L Teach 367

Cretney ‘Negligent Solicitors and Wills: A Footnote’ (1996) 112 LQR 54

Duncan Wallace ‘No Surprises in the Privy Council’ (1996) 112 LQR 369


25

Haydon ‘Frustration of Testamentary Intentions: A Remedy for the Disappointed Beneficiary:White v Jones’ [1995] CLJ 238

Huxley ‘Economic Loss in Negligence: The 1989 Cases’ (1990) 53 MLR 369

Jones ‘Economic Loss – A Return to Pragmatism’ (1986) 102 LQR 13

Murphy ‘Expectation Losses, Negligent Omissions and the Tortious Duty of Care’ [1996] CLJ 43

O’Hara ‘Pure Economic Loss for Defective Buildings after Henderson v Merrett Syndicates’[2000] Const LJ 16(5), 374–375

Stapleton ‘Duty of Care and Economic Loss’ (1991) 107 LQR 249

Weir ‘A Damnosa Hereditas?: White v Jones’ (1995) 111 LQR 357

Interrograms

1. What is the principle established in Cattle v Stockton Waterworks Co?

2. What is the ‘floodgates’ argument? Liability to too many people, too much liability orboth?

3. What was the impact of the decision of the House of Lords in Hedley Byrne v Heller onthe recoverability of economic loss consequent upon a negligent act?

4. Why did the plaintiff not recover all his loss of profits in Spartan Steel v Martin?Distinguish between consequential and pure economic loss.

5. Is the test put forward by Edmund-Davies LJ more satisfactory than the test adopted bythe majority?

6. Would Spartan Steel be decided the same way today (see Lord Roskill in Junior Books)?In what situations has pure economic loss been recovered?

7. Why was the plaintiff allowed to recover in Ross v Caunters? Would the case be decidedthe same way today?

8. In Ross v Caunters Megarry VC held that the defendants were liable where the financialloss to the plaintiff as an individual was foreseeable. Is this an appropriate test for fixingthe boundaries of liability?

9. Why did Junior Books sue Veitchi rather than the main contractors (Junior Books Ltd vThe Veitchi Co Ltd)?

10. How would a court discover whether or not the floor was defective (Junior Books Ltd vThe Veitchi Co Ltd)?

11. Could a consumer who had bought a defective product from a vendor use Junior Booksto sue the manufacturer in tort?

12. Is it correct to say that Veitchi assumed a responsibility to Junior Books?

13. How was Junior Books interpreted in the following cases:

a) Tate & Lyle Industries v Greater London Council;

b) Muirhead v Industrial Tank Specialities;

c) Aswan Engineering Establishment Co v Lupdine Ltd;


26

d) Simaan General Contracting Co v Pilkington Glass Ltd (No 2); and

e) Greater Nottingham Co-Operative Society Ltd v Cementation Piling andFoundations Ltd?

14. What was the principle established by the House of Lords in The Aliakmon? Why didthey establish this principle?

15. Do you think that the decision given by the House of Lords was (a) fair and (b)justifiable?

16. What is a possessory or a proprietary interest in goods? Give examples.

17. Do you agree with Oliver LJ in The Aliakmon that the cases of foreseeable economicloss are so varied that there may not be a common principle running through the cases?

18. Is there a difference between economic loss consequent upon a negligent act andeconomic loss consequent upon a negligent misstatement? If so, what is the difference?

Questions

1. Jasper’s ambition in life had always been to purchase a Prototrike XRIII, a unique motorcar with an exceptionally powerful engine. He approached Perrin Ltd, themanufacturers of the Prototrike XRIII, with a view to purchasing an XRIII. He was toldthat Perrin Ltd did not deal with the public direct, but only through independentgarage dealers. So Jasper went to see Rowan’s Cars Ltd, his local car dealers, and askedthem to order an XRIII for him.

Rowan’s Cars Ltd duly entered into a contract with Perrin Ltd, one of the terms of whichstated that ‘Perrin Limited accept no liability for any defects in the product supplied,nor for any personal injury caused as a result of any defect.’ Two weeks after the carwas delivered Jasper discovered that his XRIII had two major defects. The first was thatthe engine was defectively manufactured and was practically useless. The second wasa hairline crack in the chassis which was caused when an employee of Bodger Limited(a company which specialises in transporting cars) negligently unloaded the XRIII fromthe transporter at Rowan’s Car Limited before Jasper acquired any possessory orproprietary interest in the car.

Jasper took the car back to Rowan’s Cars Limited only to find that they were unable tohelp him as they had gone into liquidation.

Advise Jasper what rights, if any, he has against Perrin Limited and Bodger Limited.

2. During demolition work an employee of Diabolical Demolition Ltd carelessly drives hismechanical digger into some overhead power lines, the property of the LondonElectricity Board, and brings them down. The power lines supply only the adjacentfactory of Premier Products Ltd. When the power is cut off the materials in fourfurnaces solidify and are rendered worthless. The furnaces are quickly cleared of thesolidified materials, but a whole day’s production at the entire factory is lost beforepower can be restored.

Advise Premier Products Ltd. Would your answer differ in the following factualsituations.

a) At the time of the power cut Premier Products Ltd were not using the furnacesbecause of a short industrial dispute but when the dispute was resolved threehours of production was lost while waiting for power to be restored.


27

b) Premier Products Ltd had not paid their employees during the period thatproduction was halted and these employees now wish to know whether they canrecover their loss of wages from Diabolical Demolition.

3. Critically examine the decision of the House of Lords in Junior Books Ltd v TheVeitchi Co Ltd [1983] 1 AC 520 and its subsequent development. (You may find ithelpful, in answering this question to consider Interrograms 9–14.)

4. ‘There has been a good deal of discussion in argument about the controversial decisionin Junior Books Ltd v Veitchi Co Ltd … My own view of Junior Books is that thespeeches of their Lordships have been the subject of so much analysis and discussionwith differing explanations of the basis of the case that the case cannot now beregarded as a useful pointer to any development of the law, whatever Lord Roskill mayhave had in mind when he delivered his speech. Indeed I find it difficult to see thatfuture citation from Junior Books can ever serve any useful purpose.’ (Per Dillon LJ inSimaan General Contracting Co v Pilkington Glass Ltd (No 2).)

Discuss.

5. ‘It does not, of course, at all follow as a matter of necessity from the mere fact that theonly damage suffered by a plaintiff in an action for the tort of negligence is pecuniaryor “economic” that the claim is bound to fail.’ (Murphy v Brentwood District Council,per Lord Oliver of Aylmerton.)

Discuss.


28

Part 1: Study Unit Five

Topic

Negligence: The Duty of Care – Liability for Psychiatric Injury

Prologue

This study unit will continue with the tort of negligence but will look more specifically at thedevelopment of the law with respect to when a duty of care should be imposed for psychiatricinjury. Consideration will also be given to primary and secondary victims, and when the courtswill allow a secondary victim to recover for his psychiatric injury. Students will also look at theliability of legal representatives to their clients.

Essential Reading



Other Reading



Learning Outcomes

To have considered:

a) the development of the duty of care in nervous shock cases (now usually calledpsychiatric damage cases);

b) the attitude of the courts in the line of cases up to McLoughlin v O’Brian and since;

c) the liability of lawyers and other persons involved in the legal process.

Sources of Law

Case Law

PSYCHIATRIC DAMAGE (NERVOUS SHOCK)

a) Original test

Victorian Railway Commissioners v Coultas (1888) 13 App Cas 222

Law of Tort – 5. Negligence: The Duty of Care – Liability for Psychiatric Injury

29

b) Development

Boardman v Sanderson [1964] 1 WLR 1317

Bourhill v Young [1943] AC 92 (HL)

Chadwick v BTC [1967] 1 WLR 912; [1967] 2 All ER 945

Dooley v Cammell Laird & Co [1951] 1 Lloyd’s Rep 271

Dulieu v White [1901] 2 KB 669

Hambrook v Stokes Bros [1925] 1 KB 141

King v Phillips [1953] 1 QB 429

McLoughlin v Grovers (A Firm) 2001

Schneider v Eisovitch [1960] 2 QB 430

c) Modern test

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310; [1991] 3 WLR 1057;[1991] 4 All ER 907 (HL)

Brice v Brown [1984] 1 All ER 997

Farrell v Avon Health Authority 2001 Lloyd’s Rep Med 458

Farrell v Merton Sutton and Wandsworth Health Authority (2001) 57 BMLR 158

Frost v Chief Constable of South Yorkshire [1999] 2 AC 455

Greatorex v Greatorex [2000] 4 All ER 769

Hatton v Sutherland [2002] 2 All ER 1

Hevican v Ruane [1991] 3 All ER 65

Hunter v British Coal Corporation [1998] 2 All ER 97 (CA)

Jaensch v Coffey (1984) 54 ALR 417; (1984) 155 CLR 549

Leach v Chief Constable of Gloucestershire [1999] 1 All ER 215

McFarlane v Caledonia Ltd [1994] 2 All ER 1 (CA)

McLoughlin v O’Brian [1983] 1 AC 410; [1982] 2 All ER 298 (HL)

North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49

Page v Smith [1995] 2 WLR 644; [1995] 2 All ER 736 (HL)

Schofield v Chief Constable of West Yorkshire (1998) The Times 15 May

Vernon v Bosley [1997] 1 All ER 577 (CA)

Walker v Northumberland CC [1995] 1 All ER 737

White and Others v Chief Constable of the South Yorkshire Police and Others [1999] 1All ER 1 (HL)

W and Others v Essex County Council and Another [2000] 2 WLR 601

Young v Charles Church (Southern) Ltd (1997) The Times 1 May (CA)


30

d) Property damage

Attia v British Gas plc [1988] QB 304; [1987] 3 All ER 455

LEGAL REPRESENTATIVES

Al-Kandari v J R Brown & Co [1988] QB 665; [1988] 1 All ER 833

Arthur JS Hall & Co v Simons [1999] 3 WLR 873

Atwell v Michael Perry and Co (A Firm) and Another [1998] 4 All ER 65

Carr-Glynn v Freasons [1999] 2 WLR 1046

Carr-Glynn v Frearsons [1998] 4 All ER 225 (CA)

Clarke v Bruce Lance and Co (A Firm) [1988] 1 WLR 881; [1988] 1 All ER 364 (CA)

Gran Gelato v Richcliff [1992] Ch 560; [1992] 2 WLR 867; [1992] 1 All ER 865

Harris v Schofield Roberts & Hall [2000] 3 WLR 543 (HL)

Palmer v Durnford Ford [1992] 1 QB 483; [1991] 2 All ER 122

Pickersgill v Riley [2004] 14 EGCS 140

Rondel v Worsley [1969] 1 AC 191; [1969] 3 All ER 993 (HL)

Ross v Caunters [1980] Ch 297; [1979] 3 All ER 580

Saif Ali v Sydney Mitchell and Co Ltd [1980] AC 198; [1978] 3 All ER 1033 (HL)

Welsh v Chief Constable of Merseyside Police [1993] 1 All ER 692

White v Jones [1995] 2 WLR 187; [1995] 1 All ER 691 (HL)

Williams v Fanshaw Porter of Hazelhurst [2004] 2 All ER 616

ArticlesPSYCHIATRIC DAMAGE (NERVOUS SHOCK)

Hedley ‘Nervous Shock: Wider Still and Wider?’ [1997] CLJ 254

Hopkins ‘A New Twist to Nervous Shock: Page v Smith’ [1995] CLJ 491

Law Commission Consultation Paper No 137 (1995) ‘Liability for Psychiatric Illness’

Noble ‘Page v Smith’ (1995) 29 L Teach 376

Steele ‘Scepticism and the Law of Negligence’ [1993] CLJ 437

Tan ‘Nervous Shock: Bystander Witnessing a Catastrophe: McFarlane v Caledonia Ltd’ [1995]111 LQR 48

Teff ‘Liability For Psychiatric Illness: Advancing Cautiously’ (1998) 61 MLR 849

Thomas ‘Page v Smith: A Scottish Footnote’ (1996) 112 LQR 383

Trindade ‘Nervous Shock and Negligent Conduct: Page v Smith’ (1996) 112 LQR 22

Woollard ‘Nervous Shock: the Story So Far: Law Commission Paper No 137’ (1996) 30 LTeach 105


31

LEGAL REPRESENTATIVES

Cane ‘Ross v Caunters’ (1980) 96 LQR 182

Cane ‘Negligent Solicitor Escapes Liability’ (1992) 109 LQR 539

Markesinis ‘Fixing Acceptable Boundaries to the Liability of Solicitors’ (1987) 103 LQR 346

Williams ‘May There be No Moaning of the Bar’ [2000] PN 164, 225–240

Interrograms

1. What is meant by the phrase ‘nervous shock’? Is ‘psychiatric damage’ a preferablephrase? (See Bingham LJ in Attia v British Gas plc.)

2. Why are grief and sorrow alone not actionable?

3. What was the principle laid down in Victorian Railway Commissioners v Coultas?

4. What was the principle laid down in Dulieu v White?

5. Was the test in Dulieu applied in Hambrook v Stokes?

6. What is the ratio of Bourhill v Young?

7. What is the area of impact theory? Is it a satisfactory theory and is it still applied in thecourts today?

8. What is the ratio of King v Phillips?

9. What is the ratio of McLoughlin v O’Brian? How has the case been subsequentlyinterpreted? To what extent may a stranger establish liability for nervous shock?

10. What was the test of liability laid down by Lord Wilberforce in McLoughlin?

11. What was the test of liability laid down by Lord Bridge in McLoughlin?

12. What is the role of public policy in nervous shock cases? What are the criteria forestablishing liability for nervous shock since Alcock?

13. Can damages be recovered for nervous shock suffered as a result of witnessingproperty damage?

14. Does stress at work give rise to an action in negligence? What factors will be taken intoaccount by the courts?

15. In Farrell v Avon Health Authority was the Claimant a primary or secondary victim?

16. Do you think that Clarke LJ in North Glamorgan NHS Trust was correct in saying thatthe control mechanisms laid down in Alcock should be applied ‘too rigidly ormechanically’?

17. What were the reasons of policy given for holding that no duty of care was owed inRondel v Worsley? Do you find these reasons convincing?

18. How was Rondel applied in Saif Ali v Sydney Mitchell?

19. On what grounds did the Court of Appeal in Clarke v Bruce Lance distinguish Ross vCaunters? Do you find the distinction to be a satisfactory one?

20. Why did the House of Lords disapprove of Rondel v Worsley in Harris v SchofieldRoberts & Hall?


32

Questions

1. Bill is burnt to death in a car accident caused by the negligence of Ben. Advise thefollowing parties, who all suffer nervous shock, whether or not they have a cause ofaction in negligence against Ben:

a) Brian, who witnessed the accident;

b) Benedict, who unsuccessfully tried to rescue Bill;

c) Bill’s wife, who saw Bill’s mutilated body at the hospital;

d) Bill’s mother, who saw the accident live on television;

e) Bill’s father, who saw the accident on the television evening news;

f) Bill’s mistress, who saw a photograph of the accident in a newspaper thefollowing morning;

g) Bernard, who saw the only copy of his research work (which had taken two yearsto complete) burnt to a cinder in Bill’s car;

h) Bobby, who saw the accident and realised that Bill was wearing his suit.

2. ‘That foreseeability does not of itself, and automatically, lead to a duty of care is I thinkclear.’ (Per Lord Wilberforce in McLoughlin v O’Brian.)

Discuss with particular reference to the development of the law relating to nervousshock.

3. ‘I would only add that I cannot, for my own part, regard the present state of the law[on compensation for psychiatric damage] as either entirely satisfactory or as logicallydefensible. … Policy considerations could, I cannot help feeling, be much betteraccommodated if the rights of persons injured in this was were to be enshrined in andlimited by legislation.’ (Lord Oliver of Aylmerton in Alcock v Chief Constable ofSouth Yorkshire.)

Discuss this quotation, explaining what may be unsatisfactory about the present lawand outlining the form which legislation on this subject might take.

4. Honor Todd, a well-known businesswoman whose hobby was the pursuit of solitude,always spent her holidays on the remote island of Vodos (which is governed by Englishlaw). While on holiday in 1998 she met and fell in love with Job Lott, a solicitor whospecialises in mass produced wills.

On their last night together Job said he would give Honor anything she asked. Honorsaid she wanted one of his mass produced wills. Job, however, did not have any of hiswills with him nor did he have any access to law books on the island, but as an act oflove he agreed to prepare, without responsibility, a special hand-made will for Honor.Unfortunately, in his excitement and without the help of his mass-produced wills, Jobforgot to get the will signed, so that when Honor died in 1999, Lotta Lolly, the mainbeneficiary under the will Job prepared, was unable to claim any of the £50,000 left toher under the will.

Advise Lotta as to her rights, if any, against Job.

5. In 1998, Hector was knocked down in a road accident on a dark night. The driver’sinsurance company offered him a settlement on the basis of an admission of liabilityby the driver subject to a deduction of 25 per cent on the basis of Hector’s contributorynegligence; this would result in a total award of damages of £8,000. Hector went toJacob, a solicitor, who told him that the offer was ridiculous. ‘We’ll get you legal aid’


33

said Jacob ‘and we’ll threaten to sue if need be.’ Hector turned down the offer, whichwas withdrawn. Jacob then discovered that Hector’s financial assets were such that hewas just above the limits of eligibility for legal aid and Hector decided not to hazardhis own funds in litigation. In 1999 he told his rich uncle Toby what had happened andToby agreed to finance any litigation. They went to a new firm of solicitors which tookcounsel’s opinion; counsel advised that, as important evidence had recentlydisappeared and witnesses had died, the chances of success in an action for personalinjuries would be low. Toby has paid the second firm of solicitors. Hector and Toby nowwonder if they have any action they can take against Jacob.

Advise them.


34

Part 1: Study Unit Six

Topic

Negligence: The Duty of Care – Liability for Third Parties – Misfeasance, Nonfeasance,Omissions and Liability for Wrongful Life and Wrongful Birth

Prologue

The general rule is that there is there is no liability for omissions – there is no general duty toact to prevent harm coming to others. However, as we have seen, the neighbour principleapplies to acts and omissions. In this unit students will consider the exceptions to the generalrule and will look at circumstances in which liability may be imposed as a result of anomission.

Essential Reading



Other Reading


Learning Outcomes

To have considered:

a) the distinction between misfeasance and nonfeasance;

b) the situations in which a person may be under a duty to rescue (ie liability foromissions);

c) the decision of the House of Lords in Smith v Littlewoods Organisation Ltd;

d) the approach adopted by the courts in cases of wrongful life and wrongful birth.

Sources of Law

StatuteCongenital Disabilities (Civil Liability) Act 1976

Law of Tort – 6. Negligence: The Duty of Care – Liability for Third Parties

35

Case Law

LIABILITY FOR THIRD PARTIES AND OMISSIONS; THE DUTY TO RESCUE

Akenzua & Another v Secretary of State for the Home Department and Another [2003] 1 WLR 741

Capital and Counties plc v Hampshire County Council [1997] 3 WLR 331; [1997] 2 All ER 865 (CA)

Carmarthenshire County Council v Lewis [1955] AC 549

East Suffolk Rivers Catchment Board v Kent [1941] AC 74; [1940] 1 KB 319

Haynes v Harwood [1935] 1 KB 146

Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049; [1989] AC 53 (HL)

Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL)

King v Liverpool City Council [1986] 3 All ER 544


Lamb v Camden London Borough Council [1981] QB 625

OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897

P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342

Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL)

Stansbie v Troman [1948] 2 KB 48

Three Rivers District Council and Others v Govenor & Company of the Bank of England[2000] 2 WLR 1221

Topps v London Country Bus Ltd [1993] 1 WLR 977; [1993] 3 All ER 448 (CA)

See also Case Law in unit 12 (negligence in the exercise of statutory powers; breach ofstatutory duty).

WRONGFUL LIFE AND WRONGFUL BIRTH

Allen v Bloomsbury Health Authority [1993] 1 All ER 651

Burton v Islington AHA [1993] QB 204

Emeh v Kensington and Westminster AHA [1985] QB 1012; [1984] 3 All ER 1044

Greenfield v Irwin (2001) The Times 6 February (CA)

Hardman v Amin (2000) Lloyd’s Rep Med 498

McFarlane v Tayside Health Board [1999] 3 WLR 1301

McKay v Essex AHA [1982] QB 1166

Parkinson v St James and Seacroft University Hospital NHS Trust (2001) 3 All ER 97 (CA)

Rance v Mid-Downs Health Authority [1991] 2 WLR 159

Rand v East Dorset Health Authority [2000] Lloyd’s Rep Med 181

Rees v Darlington Memorial Hospital NHS Trust [2003] QB 20 (CA)

Thake v Maurice; [1986] 1 All ER 497; [1986] QB 669 (CA)

Udale v Bloomsbury AHA [1983] 1 WLR 1098; [1983] 2 All ER 522


36

Articles

LIABILITY FOR THIRD PARTIES AND DUTY TO RESCUE

Bailey ‘Beyond the Call of Duty’ (1987) 50 MLR 956

Booth ‘Liability in Negligence’ JLGL 2002 5(1)3–5

Fleming ‘Injury Caused by Stolen Motor Vehicles’ (1994) 110 LQR 187

WRONGFUL BIRTH AND WRONGFUL LIFE

Bickford-Smith, ‘Failed Sterilisation Resulting in the Birth of a Disabled [2001] 4 JPIL 404

Glazebrook ‘Unseemliness Compound by Injustice’ [1992] CLJ 226

Glazebrook ‘What Care Must Be Taken of an Unborn Baby?’ [1993] CLJ 20

Interrograms

LIABILITY FOR THIRD PARTIES AND DUTY TO RESCUE

1. What was the basis of the decision of the Court of Appeal in Lamb v Camden LondonBorough Council?

2. What was the likely insurance position in Lamb (see the article by Lee and Merkin [1981]NLJ 965)?

3. What was the basis of the decision of the Court of Appeal in P Perl (Exporters) Ltd vCamden London Borough Council?

4. What were the insurance implications of Perl?

5. Do you think the conclusion reached by the Court of Appeal in King v Liverpool CityCouncil was a fair one?

6. Why did Smith v Littlewoods Organisation Ltd go to the House of Lords given that therewas a consistent line of Court of Appeal decisions which had held that in such a caseno duty of care was owed?

7. What was the basis of the judgment of Lord Mackay in Smith?

8. What was the basis of the judgment of Lord Goff in Smith?

9. Outline the four situations in which Lord Goff considered that a defendant was under aduty of care to prevent third parties from causing damage to the plaintiff.

10. What is the ratio of Smith (here you should also have regard to the judgments of LordsGriffiths, Brandon and Keith)?

11. Do you think that the decision of the House of Lords in Hill v Chief Constable of WestYorkshire was a fair one?

12. What was the significance of the Criminal Injuries Compensation Scheme in Hill? Wouldthe case have been decided differently if there had been no such scheme?

13. If Hill had been decided otherwise, would it have been fair to differentiate betweendifferent murder victims and hold that the first victim was not owed a duty of care butthat the seventh victim was owed a duty of care?


37

14. What is the justification for there being no general duty to rescue? Do you find thesejustifications convincing?

15. In what situations does the law recognise a duty to rescue?

16. In Akenzua & Another v Secretary of State for the Home Department and Another(2002) did Sedley LJ consider it necessary that the victim be known to the defendant?

WRONGFUL LIFE AND WRONGFUL BIRTH

16. Explain the decision in McKay v Essex AHA. Do you think it was a correct decision?

17. What is the effect of s1 of the Congenital Disabilities (Civil Liability) Act 1976?

18. What are the competing policies in a wrongful birth action?

19. What was the conclusion reached in Emeh v Kensington and Chelsea and WestminsterAHA? Do you think it was a correct decision?

20. How was McFarlane distinguished in Rand v East Dorset Health Authority?

Questions

1. John was employed by Antelope Furniture Ltd and was based at Antelope’s factory inBasra, Iraq when war broke out between Iran and Iraq. Basra was bombed on anumber of occasions during the war. John’s wife, worried about the safety of John,telephoned Antelope to inquire about the safety of John. She was told that John andhis fellow employees had been evacuated from Basra and were safe. This statementwas in fact untrue and one week later John was killed by a bomb which hit the factoryduring an Iranian bombing raid on Basra.

John’s widow now wishes to bring an action against Antelope on the ground thatAntelope ought to have known that their employees were at risk and that they werein breach of their duty of care to their employees in failing to take steps to evacuatethem from Basra. Advise John’s widow, assuming that the problem is governed byEnglish law.

Would your advice be different if, at the time John was killed, he was shopping in thecity centre of Basra?

2. ‘The problems of … wrongful birth involve an evaluation not only of law, but also ofmorals, medicine and society. Thus it is not surprising that the same issues may elicitdivergent judicial responses.’ (Schroeder v Perkel 432 A 2d 834, 841.)

Discuss the validity of this statement in the light of recent English cases.

3. Police officers in Worthshire arrest George, a police informer, on suspicion ofcommitting a serious rape on Sally. When George arrives at the police station he hashis fingerprints taken. After questioning him and taking a blood sample for DNAanalysis the police release George on bail. The police subsequently lose the bloodsample and the fingerprints are not recorded. Four months later George violently rapesand kills Ann, a school teacher. When George is arrested finger prints and blood testsshow that he raped Sally.

Advise Charles, Ann’s husband, whether he can successfully bring a claim against thepolice in respect of their alleged negligence. Would your advice differ if the policeofficers were aware that George was sexually attracted to school teachers?


38

Part 1: Study Unit Seven

Topic

Negligence: Breach of Duty – Standard of Care

Prologue

Once a duty of care has been established the next factor to determine is whether there hasbeen a breach of that duty. In order to determine this it is necessary to consider the standardby which we measure normal conduct and whether the defendant has fallen below this standard.

Essential Reading



Other Reading



Learning Outcomes

To have considered:

a) the standard of the reasonable man;

b) the circumstances in which the duty of care will be breached;

c) the standard of care of professional persons, in particular doctors;

d) the doctrine of res ipsa loquitur.

Sources of Law

StatuteCivil Evidence Act 1968: s11

Case LawBREACH OF DUTY

a) Reasonable man standard

Adams v Rhymney Valley DC (2000) The Times 11 August (CA)

39

Law of Tort – 7. Negligence: Breach of Duty – Standard of Care

Blyth v Birmingham Waterworks Co (1856) 11 Ex 781

Glasgow Corporation v Muir [1943] AC 448; [1943] 2 All ER 44 (HL)

McHale v Watson (1966) ALR 513; (1996) 115 CLR 199

Mansfield v Weetabix Ltd [1998] 1 WLR 1263

Mullin v Richards [1998] 1 All ER 920 (CA)

Nettleship v Weston [1971] 2 QB 691

Roberts v Ramsbottom [1980] 1 All ER 7

Roe v Minister of Health [1954] 2 QB 66

Wilsher v Essex Area Health Authority [1988] AC 1074; [1987] QB 730; [1987] 2 WLR425; [1988] 1 All ER 871

b) Breach of duty

Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 (HL)

Bottomley v Todmorden Cricket Club [2004] PIQR P18

Caldwell v Maguire [2002] PIQR P6

Condon v Basi [1985] 2 All ER 453

Daborn v Bath Tramways [1946] 2 All ER 333

Gorringe v Calderdale MBC (2002) The Times 16 May

Haley v London Electricity Board [1965] AC 778

Hardaker v Newcastle HA (2001) Lloyd’s Rep Med 512

Hilder v Associated Portland Cement Ltd [1961] 1 WLR 1434

Latimer v AEC Ltd [1953] AC 643; [1952] 2 QB 701

McCord v Swansea City AFC Ltd (1997) The Times 11 February

Mullin v Richards [1998] 1 All ER 920

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd, The Wagon Mound (No 2)[1967] 1 AC 617

Paris v Stepney Borough Council [1951] AC 367

Vowles v Evens [2003] 1 WLR 1607; [2003] EWCA Civ 318

Watt v Hertfordshire County Council [1954] 1 WLR 835

Wilks v Cheltenham Cycle Club [1971] 1 WLR 668

Withers v Perry Chain Ltd [1961] 1 WLR 1314

Wooldridge v Sumner [1963] 2 QB 43

c) Common practice – medical negligence

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118

Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 (HL)

Brown v Rolls Royce Ltd [1960] 1 WLR 210

Clark v MacLennan [1983] 1 All ER 416


40

Gold v Haringey AHA [1988] QB 481; [1987] 2 All ER 888

Knight v Home Office [1990] 3 All ER 237

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

Sidaway v Bethlem Royal Hospital Governors [1985] AC 871; [1985] 1 All ER 643 (HL)

Whitehouse v Jordan [1981] 1 WLR 246 (HL); [1980] 1 All ER 650 (CA)

RES IPSA LOQUITUR

Colvilles Ltd v Devine [1969] 1 WLR 475

Easson v LNE Railway [1944] 2 KB 421

Fryer v Pearson (2000) The Times 4 April (CA)

Gee v Metropolitan Railway (1873) LR 8 QB 161

Henderson v Henry E Jenkins & Sons [1970] AC 282

Mahon v Osborne [1939] 2 KB 14

Ng Chun Pui v Lee Chuen Tat [1988] RTR 298 (PC)

Scott v London and St Katherine Docks Co (1865) 3 H & C 596

Widdowson v Newgate Meat Corporation (1997) The Times 4 December (CA)

ArticlesDovey ‘Tort and Contact’ [2000] L Ex 18

Griffiths ‘The Standard of Care Expected of a First Aid Volunteer’ (1990) 53 MLR 255

Harpwood ‘Bolitho, Expert Evidence and the Role of Judges’ [2001] 6 Health Law 1

McInnes ‘The Death of Res Ipsa Loquitur in Canada’ (1998) 114 LQR 547

Robertson ‘Informed Consent to Medical Treatment’ (1981) 97 LQR 102

Teff ‘Consent to Medical Procedures: Paternalism, Self-Determination or TherapeuticAlliance?’ (1985) 101 LQR 432

Thomas ‘Sued rather than bruised’ [2002] L Ex 38

Trindade ‘Disclosure of Risks in Proposed Medical Treatment’ (1993) 109 LQR 352

Interrograms

1. How was negligence defined in Blyth v Birmingham Waterworks Co? What is theobjective test?

2. Why is the standard of the reasonable man used? What are the characteristics of areasonable man?

3. How was the standard of the reasonable man applied in Nettleship v Weston?

4. Do you think that the decision in Roberts v Ramsbottom was a fair one?

5. What does Bolton v Stone state about the foreseeability of risks? At what point shouldthe cost justify the reasonable man in taking no precautions?


41

6. What is the role of common practice in setting the standard of care demanded in aparticular case?

7. What is the standard of care demanded of a child?

8. What is the standard of care owed by sportsmen to each other and to spectators? IsWooldridge v Sumner still good law?

9. Is the standard of care required reduced in the case of an emergency?

10. What standard is used for skilled or professional persons?

11. Is there a distinction between negligence and an ‘error of clinical judgment’?

12. What is the ratio of Sidaway? How was it interpreted in Gold v Haringey AHA?

13. Does English law recognise the existence of the doctrine of informed consent? Should it?

14. Explain the relevance of s11 of the Civil Evidence Act 1968.

15. Explain what is meant by the term res ipsa loquitur.

16. Distinguish between the legal burden of proof and the evidential burden. Upon whoseshoulders should the burden of proof rest? What factors may affect the burden ofproof?

17. Do you think that the decision in Gorringe v Calderdale MBC (2002) was a fair decision?

18. What is the ratio of Ng Chun Pui v Lee Chuen Tat?

Questions

1. ‘The courts must say firmly that in a professional man, an error of judgment is notnegligent.’ (Per Lord Denning MR in Whitehouse v Jordan.)

Discuss.

2. Billy is an aged, accident-prone, golf-loving millionaire. He owns a large estate on theoutskirts of Preston on which he has built a golf course. Billy has been blessed with theability to hit a golf-ball very hard but, unfortunately, lacks the ability to direct hisshots. Occasionally he hits the ball out of his estate on to a busy street in Preston.When this happens the ball is usually travelling very fast and should it hit anyone it islikely to occasion serious injury. Billy could largely reduce the risk of injury by erectinga 20-foot fence around his estate, at a cost of £80,000, but is unwilling to do sobecause it would lower the appearance of his estate.

One day a ball hit by Billy goes out of his estate and hits Jimmy, severely injuring him.Advise Billy as to whether or not he has been negligent.

3. Hank, aged 21, is the owner of a new ‘Prototrike 13’. The Prototrike is a three-wheeled, one seater vehicle powered by a washing-machine engine. It meets currentsafety standards and requires no licence or insurance to drive.

After a couple of practice spins in the garden, Hank takes the machine to the cornershop for a packet of his father’s favourite biscuits. On the way, as a result of hisinexperience, Hank loses control of the Prototrike on a slippery road surface and runsinto the path of an oncoming car driven by Frank who is taking his pregnant wife tohospital. Frank swerves to avoid Hank and his car careers into a shop window. Frank isseriously injured in the accident and Walter, an old friend of Frank’s, who witnessedthe accident from inside the shop, suffers nervous shock.

Discuss.


42

4. ‘The paternalistic model of the doctor-patient relationship has been a dominant featureof medical practice since its inception. It is reflected in modern English law in thefamiliar Bolam principle, that a doctor is not liable in negligence when he has acted ‘inaccordance with a practice accepted as proper by a responsible body of medical menskilled in [the] particular art.’ That this principle governs liability for diagnosis andtreatment is firmly established. But it is only very recently that the House of Lordsconsidered for the first time its application to non-disclosure of risks.’ (Teff)

Discuss this statement and explain how this principle was applied by the House ofLords to the non-disclosure of risks.

5. a) Why do the courts invoke res ipsa loquitur? Are they justified in doing so?

b) ‘It is my submission that the effect of [Henderson v Henry E Jenkins & Sonsand Colvilles Ltd v Devine] is that the operation of the maxim res ipsa loquiturin English courts places a legal burden of proof on the defendant.’ (Atiyah)

Discuss.

6. ‘The maxim res ipsa loquitur makes it easier for a plaintiff to prove negligence; justicerequires the creation of a similar rule for proof of causation.’

Discuss.

7. In 1996 Brenda, then aged 20, had recently started a modelling career. She went toAndrew, a dentist, complaining of intermittent severe pain in her jaw. Andrew treatedan infected tooth. She did not experience the pain for some time but early in 1998 itrecurred more severely. Tests have shown that she is suffering from a cancerouscondition and will require major surgery which will leave her disfigured. The medicalevidence now is that early signs of her condition would normally have been detectableas early as 1995 and that there is a possibility that, if she had been treated in 1996,she would have experienced no disfigurement.

Last month she was walking past a lorry belonging to Conrad plc which was parked inthe street. A heavy sack suddenly toppled from the lorry for no apparent reason andstruck her in the face. She was permanently scarred and lost an eye.

Advise Brenda.

8. Mrs White was admitted to hospital with breathing difficulties. That evening Dr Greendecided to perform an emergency operation and insert a device in her windpipe. Shewas then transferred to intensive care under Nurse Brown. Nurse Brown was atemporary nurse hired from the Florence Agency. The agency paid her remunerationand the hospital paid a fee to the agency. Nurse Brown was instructed to summon adoctor if there was any change in Mrs White’s condition. She was a very experiencednurse who had previously worked in a specialist clinic where she had tended people inMrs White’s condition. When Mrs White’s windpipe became temporarily obstructed,she attempted to clear it herself but was unsuccessful.

Most doctors would not have performed surgery when Dr Green did. They would havewaited until it was clear that she was not responding to other treatment, but some wouldhave performed surgery. It is not clear whether Mrs White would have recovered from theemergency if Nurse Brown had summoned help or if she would have died anyway.

Advise Mrs White’s executors.

(Note: question 8 also requires knowledge of the law of vicarious liability which isconsidered in unit 11.)


43

��

��

��

��

��

��


Winfield and Jolowicz on Tort��

��

Street on Torts��

Tort Law��

��

��

��

��

��

��

��

��

��

Allied Maples Group Ltd � Simmons and Simmons ��

Barnett � Chelsea and Kensington Hospital Management Committee ��

Cork � Kirby Maclean ��

Law of Tort Ð 8. Negligence: Causation Ð The Ô But ForÕ Test

�4

Carter v. Basildon & Thurrock University Hospitals NHS Foundation Trust [2007] Lawtel 15 August

��

Cutler � Vauxhall Motors Ltd ��

Performance Cars � Abraham ��

��

McWilliams � Sir William Arrol & Co Ltd ��

��

Fairchild � Glenhaven Funeral Services Ltd and Others ��

Fitzgerald � Lane ��

Hotson � East Berkshire AHA ��

Jolley � Sutton London Borough Council ��

Kay � Ayrshire and Arran Health Board ��

McGhee � National Coal Board ��

Page � Smith (No 2) ��

Pearman � North Essex Health Authority ��

Pickford � ICI plc ��

Sutherland � Hatton ��

Wilsher � Essex Area Health Authority ��

��

Baker � Willoughby ��

Heil � Rankin ��

Jobling � Associated Dairies ��

��

��

��

��

��

��

��

��


�5

Barker v. Corus [2006] UKHL 20Compensation Act 2006, s3Brett v. University of Reading [2007] EWCA Civ 88

��

Cutler � Vauxhall Motors Ltd ��

Performance Cars � Abraham ��

��

McWilliams � Sir William Arrol & Co Ltd ��

��

Fairchild � Glenhaven Funeral Services Ltd and Others ��

Fitzgerald � Lane ��

Hotson � East Berkshire AHA ��

Jolley � Sutton London Borough Council ��

Kay � Ayrshire and Arran Health Board ��

McGhee � National Coal Board ��

Page � Smith (No 2) ��

Pearman � North Essex Health Authority ��

Pickford � ICI plc ��

Sutherland � Hatton ��

Wilsher � Essex Area Health Authority ��

��

Baker � Willoughby ��

Heil � Rankin ��

Jobling � Associated Dairies ��

��

��

��

��

��

��

��

��


�5

Interrograms

1. What is the ‘but for’ test?

2. How was the ‘but for’ test applied in Barnett v Chelsea and Kensington HospitalManagement Committee? Do you think that the result was a fair one?

3. What principle do the courts apply where the damage suffered by the plaintiff isattributable to a pre-existing condition rather than the defendant’s negligence?

4. Do you think that the decision of the House of Lords in Kay v Ayrshire and Arran HealthBoard is (a) correct and (b) fair?

5. What is the ratio of Hotson v East Berkshire AHA?

6. What is the ratio of McGhee v NCB?

7. How was McGhee interpreted by the House of Lords in Wilsher v Essex AHA?

8. Can the decision of the Court of Appeal in Fitzgerald v Lane stand in the light of thedecision of the House of Lords in Wilsher?

9. What is the ratio of Baker v Willoughby? What difficulties may arise where there aresuccessive causes of harm to the plaintiff?

10. How was Baker interpreted in Jobling v Associated Dairies? Do you find the distinctionbetween the cases to be a satisfying one?

11. Do think that the decision of the House of Lords in Fairchild v Glenhaven FuneralServices Ltd was correct?

Question

Arthur goes out in his car for a leisurely Sunday afternoon drive. But he negligently driveshis car along a dockside. His car hits and injures James, a famous flautist earning £200,000per year. As a result of the accident James has to have his hand amputated and he has hadto abandon his career as a flautist. Arthur’s car then swerves over the dockside into the openhold of a ship. Burning petrol from the car ignites a valuable cargo of antique furniture,doing £350,000 worth of damage. The fire also causes the ship’s air conditioning system tofail. The temperature in a specially designed hold in the stern of the ship, which is unaffectedby the fire, consequently falls by 50 degrees F causing damage to some exotic plants worth£25,000. A strong wind unexpectedly springs up and blows sparks from the blaze on to anearby tanker, as a result of which it is completely destroyed by fire. The tanker will cost£60,000,000 to replace. The crew of the tanker are drowned because their lifeboat, beingleaky, sinks.

Discuss the extent of the liability of Arthur.

Law of Tort – 8. Negligence: Causation – The ‘But For’ Test

46

Part 1: Study Unit Nine

Topic

Negligence: Remoteness of Damage and Novus Actus Interveniens

Prologue

A defendant will not always be liable for all loss which flows from a breach of duty of care.The law places limits on upon the extent of damages which a claimant can recover if suchloss is too remote. This study unit will consider the general principles of remoteness ofdamage.

Essential Reading



Other Reading



Learning Outcomes

To have considered:

a) the tests laid down for remoteness of damage in Polemis and Wagon Mound (No 1);

b) the basis of the doctrine of novus actus interveniens.

Sources of Law

Case Law

TESTS

Lamb v Camden London Borough Council [1981] QB 625

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound (No 1))[1961] AC 388 (PC)

Overseas Tankship (The Wagon Mound) (No 2) [1967] 1 AC 617 (PC)

Polemis and Furness, Withy & Co, Re [1921] 3 KB 560

Sutradhar v Natural Environment Research Council [2004] Env LR D8

(UK) Ltd v Miller Steamship Co Pty Ltd [1921] 3 KB 560

Law of Tort – 9. Negligence: Remoteness of Damage and Novus Actus Interveniens

47

DAMAGE TO THE PERSON

Bradford v Robinson Rentals [1967] 1 WLR 337; [1967] 1 All ER 267

Hughes v Lord Advocate [1963] AC 837 (HL)

Jebson v Ministry of Defence (2000) The Times 28 June (CA)

Jolley v Sutton LBC [2000] 3 All ER 409 (HL)

Robinson v Post Office [1974] 1 WLR 1176; [1974] 2 All ER 737

Smith v Leech, Brain and Co [1962] 2 QB 405

ANOMALOUS CASES

Al Kandari v Brown [1988] QB 665; [1988] 1 All ER 833

Doughty v Turner Manufacturing Co [1964] 1 QB 518; [1964] 1 All ER 98 (CA)

Meah v McCreamer [1985] 1 All ER 367

Tremain v Pike [1969] 1 WLR 1556; [1969] 3 All ER 1303

DAMAGE TO PROPERTY

Saleslease Ltd v Davis [2000] 1 All ER (Comm) 883

Vacwell Engineering v BDH Chemicals [1971] 1QB 88

DAMAGE TOO REMOTE – NOVUS CAUSA

Alcoa Minerals of Jamaica Inc v Broderick [2000] 3 WLR 23

Dodd Properties v Canterbury CC [1980] 1 WLR 433

Lagden v O’Connor [2003] 3 WLR 1571 (HL)

Liesbosch Dredger v SS Edison (1933) AC 449; (1933) 45 Ll LR 123 (HL)

DAMAGE TOO REMOTE – NOVUS ACTUS

a) Act of plaintiff

Emeh v Kensington and Chelsea AHA [1985] QB 1012

Kirkham v Chief Constable of Greater Manchester [1990] 2 QB 283

McKew v Holland & Hannen & Cubbitts (Scotland) Ltd [1969] 3 All ER 1621 (HL)

Wieland v Cyril Lord Carpets [1969] 3 All ER 1006

b) Act of third party (see also unit 6 on third parties)

Al-Kandari v Brown [1988] QB 665; [1988] 1 All ER 833

Knightly v Johns [1982] 1 WLR 349; [1982] 1 All ER 851

Lamb v Camden LBC [1981] QB 625

Wright v Lodge [1993] 4 All ER 299

c) Act of nature

Carslogie Steamship Co v Royal Norwegian Government [1952] AC 292


48

NOVUS ACTUS NOT MAKING DAMAGE TOO REMOTE

a) Agony of the moment

Jones v Boyce (1816) 1 Stark 493

The Orepesa [1943] P 32

REASONABLE ACT OF PLAINTIFF

Sayers v Harlow UDC [1958] 1 WLR 623

NOVUS ACTUS SHOULD HAVE BEEN FORESEEN

Rouse v Squires [1973] QB 889

Stansbie v Troman [1948] 2 KB 48 (CA)

ArticleCartwright ‘Remoteness of Damage in Contract and Tort: A Reconsideration’ [1996] CLJ 488at 496–504 and 507–514

Interrograms

1. What was the test laid down for remoteness of damage in Re Polemis?

2. How does the test in The Wagon Mound (No 1) differ from the test in Polemis? Whichtest represents the current state of the law? In what way does Wagon Mound (No 2)differ from Wagon Mound (No 1)?

3. What test was applied in the Liesbosch Dredger?

4. What is meant by the ‘egg-shell skull’ rule?

5. Do you think that Robinson v Post Office was correctly decided? Was Professor Atiyahcorrect to call it a ‘bridgehead between liability for fault and strict liability’?

6. Can the decision in Doughty v Turner Manufacturing Co be reconciled with Hughes vLord Advocate? If personal injury was foreseeable, does it matter that the precise injurywas unforeseeable?

7. Is there any justification for adopting a narrower approach to remoteness in cases ofproperty damage than in cases of personal injury?

8. Explain what is meant by the term novus actus interveniens. Outline the different formsof novus actus interveniens. Are intervening acts subject to a causation test?

9. Distinguish McKew v Holland & Hannen & Cubbitts from Wieland v Cyril Lord Carpets.

10. In what circumstances will an intervening act of nature break the chain of causation?

Questions

1. ‘In effect, therefore, Wagon Mound (No 2) reversed Wagon Mound (No 1).’ (Dias andMarkesinis.)

Discuss.


49

2. Tony’s neighbour, Sid, offers to carry out the servicing of Tony’s car. Sid has justcompleted a series of fifteen evening courses on basic car maintenance. Since Tony isunemployed and short of money he accepts Sid’s offer. Sid forgets to replace theradiator cap after topping up the water, so that steam starts to come out of the bonnetof the car when Tony is driving for the first time after Sid has carried out the servicing.Tony leaves the car at the side of the road when he sees the steam and walks off tofind a telephone from which to summon help. In his anxiety he forgets to lock the doorof the car and leaves the keys in the ignition. In his absence an unknown thief stealsthe car and when driving it at high speed through a red traffic light collides withBrian’s car, causing Brian severe injuries. The unknown thief runs off and is nevertraced.

Advise Brian.

3. One night Alf stepped in front of a yellow car and was knocked down. In panic thedriver of the yellow car drove off, leaving Alf lying in the road. The driver of the yellowcar cannot be traced. Half an hour later Brian, who was late for an important businessappointment, drove down the same road. Because of the bad light Brian did not seeAlf’s body until he was 20 yards away. He braked hard but failed to avoid it. Brian’s carwent into a skid on the slippery road, ran over Alf and crashed into a tree.

Alf was killed in the second accident although medical evidence showed that he hadalready suffered brain damage in the collision with the yellow car. Both Brian’s legswere broken when the car hit the tree and he will have a limp for the rest of his lifeand will be unable to carry out his favourite hobby of hillwalking. Medical evidenceshowed, however, that he already had a pre-existing arthritic condition which, despitethe accident, would have caused stiffness in his legs in later years.

Discuss.

4. ‘The conclusion I draw from these passages is that McGhee v National Coal Board laiddown no new principle of law whatever. On the contrary, it affirmed the principle thatthe onus of proving causation lies on the pursuer or plaintiff. Adopting a robust andpragmatic approach to the undisputed primary facts of the case, the majorityconcluded that it was a legitimate inference of fact that the defenders’ negligence hadmaterially contributed to the pursuer’s injury. The decision, in my opinion, is of nogreater significance than that and the attempt to extract from it some esotericprinciple which in some way modifies, as a matter of law, the nature of the burden ofproof of causation which a plaintiff or pursuer must discharge once he has establisheda relevant breach of duty is a fruitless one.’ (Per Lord Bridge in Wilsher v Essex AHA.)

Discuss.

5. Explain the meaning of the concept of nova causa interveniens (new and interveningcause) and its role in the tort of negligence.

6. ‘Where human action forms one of the links between the original wrongdoing of thedefendant and the loss suffered by the plaintiff, that action must at least have beensomething very likely to happen if it not to be regarded as novus actus interveniensbreaking the chain of causation.’ (Lord Reid in Home Office v Dorset Yacht Co Ltd(1970).)

Discuss this proposition and explain how since 1970 the courts have dealt with theproblem of intervening deliberate human conduct.


50

Part 1: Study Unit Ten

Topic

Negligence – Defences – Contributory Negligence, Volenti Non Fit Injuria and Ex Turpi Causa

Prologue

Where a claimant suffers damage partly through his own negligence as well as thedefendant’s negligence, any damages awarded may be reduced to take into account theclaimant’s contributory negligence. Similarly, where a defendant can prove that a claimantknew of the risk of harm and that he voluntarily accepted that risk, the defendant will raise adefence of volenti non fit injuria which, if successful, will act as a complete defence.

Essential Reading



Other Reading


Learning Outcomes

To have considered:

a) the function and application of contributory negligence;

b) the function and application of volenti non fit injuria.

Sources of Law

StatutesLaw Reform (Contributory Negligence) Act 1945

Motor Vehicles (Wearing of Seat Belts) Regulations 1982 (SI No 1203)

Road Traffic Act 1988: s149(3)

Unfair Contract Terms Act 1977: s2

Law of Tort – 10. Negligence – Defences

51

Case Law

Contributory negligence

BEHAVIOUR OF PLAINTIFF

a) Generally

Davies v Swan Motor Co [1949] 2 KB 291

Jones v Livox Quarries Ltd [1952] 2 QB 608

Nance v British Columbia Electric Railway Co Ltd [1951] AC 601

Pitts v Hunt [1991] 1 QB 24; [1990] 3 WLR 542; [1990] 3 All ER 344 (CA)

Reeves v Commissioner of Police for the Metropolis [1999] 3 WLR 363; [1999] 3 All ER897 (HL)

Tomlinson v Congleton BC [2003] 2 WLR 1120

Tremayne v Hill [1987] RTR 131

b) Children

Evens v Souls Garages (2001) The Times 23 January

Gough v Thorne [1966] 1 WLR 1387

Morales v Eccleston [1991] RTR 151

Oliver v Birmingham and Midland Omnibus [1933] 1 KB 35

Yachuk v Oliver Blais Ltd [1949] AC 386

c) Workmen

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

d) Rescuers

Harrison v British Railways Board [1981] 3 All ER 679

e) Emergencies

Jones v Boyce (1816) 1 Stark 493

CAUSATION

Capps v Miller [1989] 2 All ER 333

Froom v Butcher [1975] 3 WLR 379

O’Connell v Jackson [1972] 1 QB 270

Owens v Brimmell [1977] QB 859

Stapley v Gypsum Mines Ltd [1953] AC 663

APPORTIONMENT

Baker v Willoughby [1970] AC 467

Fitzgerald v Lane [1989] AC 328; [1988] 2 All ER 961 (HL)


52

Froom v Butcher [1975] 3 WLR 379

Jason v Ministry of Defence [2000] 1 WLR 2055 (CA)

Pitts v Hunt (above)

Reeves v Commissioner of Police of the Metropolis [1999] 3 All ER 897 (HL)

Volenti

LACK OF CONSTRAINT

Bowater v Rowley Regis Corporation [1944] KB 476

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656

AGREEMENT

Blake v Galloway [2004] 3 All ER 315 (CA)

Dann v Hamilton [1939] 1 KB 509

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656


Morris v Murray [1991] 2 WLR 195; [1990] 3 All ER 80

Nettleship v Weston [1971] 2 QB 691


Reeves v Commissioner of Police of the Metropolis [1999] 3 WLR 363; [1999] 3 All ER 897(HL); [1998] 2 All ER 381 (CA)

White v Blackmore [1972] QB 651

Wilks v Cheltenham Cycle Club [1971] 1 WLR 668

Wooldridge v Sumner [1963] 2 QB 43

MERE KNOWLEDGE INSUFFICIENT

Dann v Hamilton [1939] 1 KB 509

Smith v Austin Lifts Ltd [1959] 1 WLR 100

Smith v Baker [1891] AC 325

RESCUE CASES

Chadwick v British Transport Commission [1967] 1 WLR 912

Cutler v United Dairies [1933] 2 KB 297

Haynes v Harwood [1935] 1 KB 146

Videan v British Transport Commission [1963] 2 QB 650

White and Others v Chief Constable of the South Yorkshire Police and Others [1999] 1 All ER 1 (HL)

EX TURPI CAUSA


Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218

Law of Tort

53

ArticlesFleming ‘Contributory Negligence and Multiple Tortfeasors’ (1988) 104 LQR 6

Hopkins ‘Two Tales of Topers’ [1991] CLJ 27

Jaffey ‘Volenti Non Fit Injuria’ [1985] CLJ 87

Oakley ‘Contributory Negligence of a Fraudulent Representee’ [1994] CLJ 218

InterrogramsCONTRIBUTORY NEGLIGENCE

1. Define contributory negligence.

2. Is it a complete defence?

3. In what respects is the Law Reform (Contributory Negligence) Act 1945 an improvementupon the common law?

4. What did the Court of Appeal say in Davies v Swan Motor Co about the interpretationof ‘fault’ in s1(1) of the 1945 Act?

5. What is the effect of s149(3) of the Road Traffic Act 1988?

6. Is a person who fails to wear a rear seat-belt guilty of contributory negligence?

7. Can a four year old child ever be guilty of contributory negligence?

8. Can a rescuer be guilty of contributory negligence?

9. What test do the courts apply in determining whether the plaintiff’s negligence was acause of the damage which he suffered?

10. Why was the act of the plaintiff in McKew v Holland & Hannen & Cubbitts treated as anovus actus interveniens and not as contributory negligence (refer back to unit 9)?

11. What is the principle which the courts apply in reducing the damages payable to theplaintiff?

12. What principle did the House of Lords apply in Fitzgerald v Lane in the situation wherethe plaintiff has been guilty of contributory negligence and there is more than onedefendant? Do you think the decision is correct?

VOLENTI

13. What does the maxim volenti non fit injuria mean?

14. What was the principle laid down by the House of Lords in Smith v Baker?

15. How the courts apply volenti to a rescuer?

16. Is agreement an essential element in volenti?

17. Why was volenti held to be inapplicable in Dann v Hamilton?

18. Would Dann v Hamilton be decided the same way today?

19. What impact has s2 of the Unfair Contract Terms Act 1977 had on the doctrine ofvolenti?

20. Does volenti apply to a spectator watching a game of golf who is hit by a shot which washooked off the fairway?


54

Questions

1. ‘The defence of volenti non fit injuria should … be confined to cases where there is anagreement between the parties that the defendant’s conduct should not beactionable. Such agreement can only effectively be made before the allegedly tortiousconduct occurs. The agreement can be implied, on an “officious bystander” test, butonly where there is a relationship or transaction between the parties from which theimplication can arise. The rationale of the volenti defence, and the reason why theplaintiff recovers nothing, is that the defendant, in acting as he did, may have reliedon the plaintiff’s promise not to claim.’ (Jaffey)

Discuss.

2. Brian, aged 9, is the owner of a new ‘Prototrike 13’. The Prototrike is a three-wheeled,one-seater vehicle powered by a washing-machine engine. It meets current safetystandards and requires no licence or insurance to drive.

After a couple of practice spins in the garden, Brian took the machine to the corner shopfor a packet of his father’s favourite biscuits. As he drove on to the road, he saw a car,which was on the wrong side of the road, travelling very quickly towards him. The car wasbeing driven by Patrick who was drunk. Brian could have taken avoiding action but hewas so scared that he was rooted to the spot. The car hit Brian, severely injuring him.

Patrick was unhurt, but James and John, who were passengers travelling in the rear ofthe car, were seriously injured. James and John knew that Patrick was rather drunkwhen they got into the car, but they had travelled with him on many other occasionswhen he had been drunk and he had always driven safely.

Neither James nor John were wearing rear seat-belts and medical evidence establishedthat they would not have been so seriously injured had they been wearing their seat-belts.

Discuss.

3. Luke is unemployed but has enrolled on a government training scheme. He is sent threedays each week for work experience to the offices of Newfield Industries plc. The officemanager Matilda is sent to a conference one day in a town 40 miles away and is told totake the company car. She asked Luke to go with her as part of his work experience. Shealso thought that she might be drinking and that Luke could then drive the car, but didnot tell Luke this. Both Luke and Matilda know that he is not allowed to drive thecompany car. On the way back Matilda stopped for a drink at a pub and asked Luke totake over the driving. Luke drove out of the pub car park without looking and causedNeil, a passing motorcyclist, to swerve. Neil struck a tree and was seriously injured.

Advise Neil as to any rights of action in tort.

4. Walter, a student, works part-time for the Demon Delivery Service. He uses his own carand several evenings each week he goes to Demon’s offices and collects the packagesand letters which he is to deliver that evening. He is given strict instructions aboutobeying all traffic regulations. He does not, however use the seatbelt in his car becausehe finds it inconvenient when he has to get out of the car frequently. On his rounds oneevening, he was startled by the loud explosion of a bomb which had been placed in alitter bin. He lost control of the car and collided with a lamppost. He was thrownforward and became stuck halfway through the windscreen. Vera, a passer-by, went tohis assistance and succeeded in releasing him from the car. Vera was herself badly cutin the process and lost a great deal of blood. She was a final year student and wasunable to sit her examinations, which she has had to defer to next year.

Advise Vera.


55

Part 1: Study Unit Eleven

Topic

Vicarious Liability and Liability for Independent Contractors

Prologue

An employer may be responsible for damage caused by the torts of his employees who wereacting in the course of their employment at the time the tort was committed. Generallyspeaking, an employer will not be liable for the torts of independent contractors. It is thereforeessential to be able to determine who is an employee and who is an independent contractor,and this will be considered in this study unit.

Essential Reading



Other Reading

Salmond and Heuston on the Law of Torts, Heuston and Buckley – Relevant Chapter(s)

Learning Outcomes

To have considered:

a) the rationale behind the doctrine of vicarious liability;

b) the distinction between an employee and an independent contractor and to considerthe reasons for drawing such a distinction;

c) the concept of ‘course of employment’;

d) the application of the doctrine to agents;

e) the circumstances in which an employer may be liable for the torts of independentcontractors.

Sources of Law

StatuteUnfair Contract Terms Act 1977

Law of Tort – 11. Vicarious Liability and Liability for Independent Contractors

56

��

��

��

Market Investigations Ltd � Minister of Social Security ��

Massey � Crown Life Insurance ��

OÕ Kelly � Trusthouse Forte plc ��

Ready Mixed Concrete (South East) Ltd � Minister of Pensions ��

Stevenson, Jordan & Harrison � MacDonald ��

Yewens � Noakes ��

��

General Engineering Ltd � Kingston & St Andrews Corp ��

Hudson � Ridge Manufacturing Co Ltd ��

Mersey Docks and Harbour Board � Coggins and Griffith (Liverpool) Ltd ��

��

Lister � Hesley Hall Ltd ��

Mattis � Pollock ��

Racz � Home Office ��

��

Bayley � Manchester, Sheffield and Lincolnshire Railway Co ��

Century Insurance Co � Northern Ireland Road Transport Board ��

��

Joel � Morrison ��

Smith � Stages ��

Storey � Ashton ��

Whatman � Pearson ��

Williams � Hemphill ��

��

Conway � George Wimpey and Co Ltd ��

Limpus � London General Omnibus Co ��

Rose � Plenty ��

Twine � BeanÕ s Express Ltd ��

Law of Tort Ð 11. Vicarious Liability and Liability for Independent Contractors

�7

Viasystems (Tyneside) Ltd v. Thermal Transfer (Northern) Ltd [2006] 2 WLR 428Hawley v. Luminar Leisure [2006] EWCA Civ 30

��

��

��

Market Investigations Ltd � Minister of Social Security ��

Massey � Crown Life Insurance ��

OÕ Kelly � Trusthouse Forte plc ��

Ready Mixed Concrete (South East) Ltd � Minister of Pensions ��

Stevenson, Jordan & Harrison � MacDonald ��

Yewens � Noakes ��

��

General Engineering Ltd � Kingston & St Andrews Corp ��

Hudson � Ridge Manufacturing Co Ltd ��

Mersey Docks and Harbour Board � Coggins and Griffith (Liverpool) Ltd ��

��

Lister � Hesley Hall Ltd ��

Mattis � Pollock ��

Racz � Home Office ��

��

Bayley � Manchester, Sheffield and Lincolnshire Railway Co ��

Century Insurance Co � Northern Ireland Road Transport Board ��

��

Joel � Morrison ��

Smith � Stages ��

Storey � Ashton ��

Whatman � Pearson ��

Williams � Hemphill ��

��

Conway � George Wimpey and Co Ltd ��

Limpus � London General Omnibus Co ��

Rose � Plenty ��

Twine � BeanÕ s Express Ltd ��

Law of Tort Ð 11. Vicarious Liability and Liability for Independent Contractors

�7

d) Intentional wrongful acts

Armagas v Mundogas SA ‘The Ocean Frost’ [1986] AC 717

Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [1999] 2WLR 541

General Engineering Services Ltd v Kingston and Saint Andrew Corp [1989] 1 WLR 69

Heasmans v Clarity Cleaning Co Ltd [1987] IRLR 286

Irving v The Post Office [1987] IRLR 289

Lloyd v Grace, Smith & Co [1912] AC 716

Morris v C W Martin and Sons Ltd [1966] 1 QB 716

T v North Yorkshire County Council (1998) The Times 10 September

Warren v Henley’s Ltd [1948] 2 All ER 935

BREACH OF STATUTORY DUTY

Majrowski v Guy’s and St Thomas’ NHS Trust [2005] EWCA Civ 251

EMPLOYER’S INDEMNITY

Lister v Romford Ice and Cold Storage Co [1957] AC 555 (HL)

PRINCIPAL AND AGENT

Ormrod v Crossville Motor Services [1953] 1 WLR 1120

Independent contractor

D & F Estates v The Church Commissioners for England [1989] AC 177; [1988] 3 WLR 368 (HL)

Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191

Padbury v Holliday and Greenwood (1912) 28 TLR 492

Rowe v Hesman [1997] 1 WLR 1390

Salsbury v Woodland [1970] 1 QB 324

ArticlesBettle ‘Suing Hospitals Direct: Whose Tort Was It Anyhow?’ [1987] NLJ 573

Cain ‘Back to Basics: Vicarious Liability’ TELL 2001 6(8) 57–59

McKendrick ‘Vicarious Liability and Independent Contractors – A Re-Examination’ (1990) 53MLR 770

Montgomery ‘Suing Hospitals Direct: What Tort?’ (1987) NLJ 703

Rose ‘Liability for an Employee’s Assaults’ (1977) 40 MLR 420


58

Interrograms

1. What is the rationale behind the doctrine of vicarious liability?

2. When one employer lends an employee to another employer, who, for the purposes ofvicarious liability, is the employer of that employee?

3. What impact does the Unfair Contract Terms Act 1977 have on the ability of the originalemployer to transfer liability to the ‘hiring’ employer?

4. Do you think that the case of Wilsher v Essex Area Health Authority (CA) was a case ofvicarious liability or primary liability?

5. What is meant by the requirement that the employee must commit the tort within the‘course of his employment’?

6. Is the employer liable where his employee does an act which has been expresslyprohibited?

7. Are the decisions in Twine v Bean’s Express Ltd and Rose v Plenty reconcilable?

8. Are the decisions in Rose v Plenty and Heasmans v Clarity Cleaning Co Ltdreconcilable?

9. Is there any relevance in the fact that, at the time he committed the tort, the employeethought he was acting in the best interests of his employer?

10. When is an employee on a ‘frolic of his own’?

11. Are the decisions in Warren v Henley’s Ltd and Century Insurance Co v NorthernIreland Road Transport Board reconcilable?

12. Is the reluctance of the courts to render an employer vicariously liable for an assaultcommitted by an employee justified?

13. In what circumstances may an employer be vicariously liable for a theft committed by anemployee?

14. In what circumstances may an employer be vicariously liable for a fraud committed byan employee?

15. Do you think that the decision of the House of Lords in Lister v Romford Ice and ColdStorage Co was justified? What is the practical importance of the decision today?

16. Why does vicarious liability not extend to torts committed by an independent contractor?

17. In what circumstances may an employer be liable for the torts of his independentcontractors?

Questions

1. ‘At the moment we have a broad test of course of employment unrestricted by factorssuch as the employee’s motives, whether he is acting in his master’s interests, whatthe master has expressly sanctioned or even whether the relevant act was expresslyprohibited. Yet, in many cases of assault, the line is very closely drawn and theemployee can suddenly find himself outside the course of his employment committingan independent personal act, the origin and influence of the events leading up to itbeing almost completely ignored.’ (F D Rose)

Explain and discuss the validity of this statement.


59

2. Sharp Practices Ltd entered into a contract with NY Estates Ltd to supply NY Estates witha combine harvester and a driver, called Dick. One of the terms of the contract betweenthem stated that ‘the driver was to be regarded for all purposes as the employee of NYEstates Ltd, who alone shall be responsible for all claims arising in connection with theoperation of the machinery by the driver.’

While using the combine harvester, Dick negligently allowed it to get out of control. Itcareered across a road and smashed into a barn owned by NY Estates, causing damageamounting to £20,000. Seth, whose car Dick narrowly missed, called Dick a fool. Dickretaliated by punching Seth, breaking his jaw.

Meanwhile Mrs Bates, the secretary at NY Estates, thought that she ought to inform themanager, Mr Turner, of this sequence of events. Mr Turner had left the office to take 20dozen eggs to a valued customer. But, before reaching the customer’s home, Mr Turnerdecided instead to turn back and go to visit his mistress, who lived in the oppositedirection. Mrs Bates eventually managed to contact Mr Turner by telephone at thehome of his mistress. On hearing the news, Mr Turner immediately decided to returnto NY Estates. In his rush to get back, Mr Turner went through traffic lights which wereat red and ran over Jack, who, knowing the lights were at red, had not looked to seewhether a car was coming before crossing the road. Jack was seriously injured, but MrTurner was unhurt, although all the eggs in his car were smashed.

Discuss.

3. Rodney, a 21-year-old student, owns a motor-cycle; he has had a number of convictionsfor driving offences. On Saturdays and some evenings he works for ScramblerMessenger Services. He uses his own motor-cycle and visits the Messenger Servicesoffice once each working day to collect the messages he is to deliver. He did not tellthe Messenger Services about his convictions and they did not enquire or examine hisdriving licence. One Saturday while delivering a message, he rode through a halt signwithout stopping. A car driven by Stewart was approaching on the main road. Stewart,who was driving at 10 mph in excess of the speed limit, was forced to swerve, strucka tree and was seriously injured.

Discuss.

4. Barnaby, aged 19, asks his father, Fergus, for permission to borrow Fergus’ car to takehis girl-friend out for the evening. Fergus says ‘That’s all right, provided you return mybooks to the Public Library, as you will be passing it on the way.’ As Barnabyapproaches the library, he takes a corner too quickly and crashes into a lamp-post. Thecar catches fire but Christine, a library assistant, rushes out and drags Barnaby clear.Christine is severely burned about the hands and face.

Advise Christine.

5. Woodworm Ltd are a firm of surveyors. One week, while the regular secretary is onholiday, they ask for a temporary secretary from Slipups Ltd, a firm which maintains aregister of people willing to do such temporary work. Slipups Ltd select Blanche andsend her to the office of Woodworm Ltd. On the first morning she is left alone in theoffice and the manager tells her ‘If there are any telephone calls, don’t try to deal withthem. Just take a message or ask the caller to ring again in the afternoon.’

During the morning, Horace telephones regarding the report Woodworm Ltd arepreparing about a house he is considering buying. Blanche at first refused to tell himanything, but Horace insists that he will lose the house unless he can exchangecontracts that morning. Blanche therefore goes to the file and reads the concludingpage over the telephone. This is very encouraging, but Blanche does not notice that


60

she is reading a page from a different report which she has carelessly removed alongwith the file. In fact the report on Horace’s property was very unfavourable. However,on hearing Blanche’s report, Horace purchases the house and finds, after moving in,that it is seriously defective.

Advise Horace.


61

Part 1: Study Unit Twelve

Topic

Negligence in the Exercise of Statutory Powers and Breach of Statutory Duty

Prologue

In this study unit students will look at the circumstances in which carelessness in the exerciseof a statutory power can give rise to liability in negligence. Consideration will also be given tothe distinct tort of breach of statutory duty and the principles which govern this tort.

Essential Reading



Other Reading



Learning Outcomes

To have considered:

a) the development of the law relating to negligence in the exercise of a statutory power;

b) the distinction between a policy decision and an operational decision;

c) the circumstances in which a cause of action arises in tort for breach of statutory duty;

d) the defences available for breach of statutory duty.

Sources of Law

Case Law

Negligence in the exercise of a statutory powerAnns v Merton London Borough Council [1978] AC 728; [1977] 2 All ER 492 (HL)

Capital and Counties plc v Hampshire County Council [1997] 2 All ER 865 (CA)

Cross v Kirklees MBC [1998] 1 All ER 564 (CA)

Curran v Northern Ireland Co-Ownership Housing Association Ltd [1987] AC 718 (HL)

Law of Tort – 12. Negligence in the Exercise of Statutory Powers and Breach of Statutory Duty

62

East Suffolk Rivers Catchment Board v Kent [1941] AC 74 (HL); [1940] 1 KB 319 (CA)

Harris v Evans [1998] 3 All ER 522 (CA)

Home Office v Dorset Yacht Co [1970] AC 1004 (HL)

Jones v Department of Employment [1989] QB 1; [1988] 1 All ER 725

Lonrho v Tebbit [1992] 4 All ER 280 (CA); [1991] 4 All ER 973 (Ch)

Mills v Winchester Diocesan Board [1989] Ch 428; [1989] 2 All ER 319

Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd [1985] AC 210

Rowling v Takaro Properties Ltd [1988] AC 473; [1988] 1 All ER 163

Sheppard v Glossop Corporation [1921] 3 KB 132

Stovin v Wise [1996] 3 WLR 388; [1996] 3 All ER 801 (HL)

Todd v Adams [2002] 2 Lloyd’s Rep 293

Yuen Kun Yeu v Attorney-General of Hong Kong [1988] 1 AC 175


a) General principles

CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013; [1987] 3 All ER 151

Hague v Deputy Governor of Parkhurst Prison [1992] 1 AC 58; [1991] 3 All ER 733 (HL)

Lonrho Ltd v Shell Petroleum Co Ltd [1982] AC 173; [1981] 2 All ER 456

Stovin v Wise (above)

Wentworth v Wiltshire County Council [1993] 2 WLR 175; [1993] 2 All ER 256

X v Bedfordshire CC; M v Newham LBC; E v Dorset CC [1995] 3 WLR 152; [1995] 3 AllER 353 (HL)

b) Remedy within Act

Atkinson v Newcastle Waterworks Co (1877) 2 Ex D 441

Calveley v Chief Constable of Merseyside [1989] AC 1228; [1989] 1 All ER 4025

Cocks v Thanet District Council [1983] 2 AC 286

Groves v Lord Wimbourne [1898] 2 QB 402

Monk v Warbey [1935] 1 KB 175

Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832

Richardson v Pitt-Stanley [1995] 2 WLR 26 [1995]; 1 All ER 460 (CA)

Thornton v Kirklees Metropolitan Borough Council [1979] QB 626

c) Benefit of a class

Cutler v Wandsworth Stadium Ltd [1949] AC 398

d) Scope of statute

Gorris v Scott (1874) LR 9 Exch 125

John Summers & Sons Ltd v Frost [1955] AC 740


63

e) Defences

ICI v Shatwell [1965] AC 656; [1964] 2 All ER 999

Westwood v Post Office [1974] AC 1

ArticlesNEGLIGENCE IN THE EXERCISE OF A STATUTORY POWER

Bowman and Bailey ‘The Policy/Operational Dichotomy – A Cuckoo in the Nest’ [1986] CLJ 430


Butler and Wood ‘Negligence in Residential Care’ [1995] NLJ 1826

Cane ‘Suing Public Authorities in Tort’ (1996) 112 LQR 13

Convery ‘Stovin v Wise’ (1997) 60 MLR 559

Harris ‘Powers Into Duties – A Small Breach in the East Suffolk Wall?’ (1997) 113 LQR 398

Hopkins ‘East Suffolk Rehabilitated in South Norfolk’ [1996] CLJ 425

O’Sullivan ‘Industrial Injuries: Richardson v Pitt-Stanley’ [1995] CLJ 241

Interrograms

NEGLIGENCE IN THE EXERCISE OF A STATUTORY POWER

1. What special considerations arise when a plaintiff seeks to argue that the defendantswere negligent in the exercise of a statutory power?

2. Distinguish between a power and a duty.

3. Why were the defendants not liable in negligence in Sheppard v Glossop Corporation?

4. What were the arguments put forward by the Home Office in Home Office v Dorset YachtCo against the existence of a duty of care?

5. What is a ‘policy’ decision?

6. What is an ‘operational’ decision?

7. Do you think that the distinction is a satisfactory one?

8. What did Lord Keith say about the distinction in Rowling v Takaro Properties? Do youthink he was correct?

9. How was the distinction applied in Anns?

10. How was Anns interpreted in Peabody v Parkinson? What principle can be derived fromPeabody?


11. How do the courts decide whether a breach of statutory duty confers upon the plaintiffa cause of action in tort?

12. Was Thornton v Kirklees Metropolitan Borough Council correctly decided?

13. Distinguish Groves v Lord Wimbourne from Atkinson v Newcastle Waterworks Co.


64

14. What is a class for the purpose of ‘statutes for the benefit of a class’? Why did theplaintiff fail in Cutler v Wandsworth Stadium?

15. What is the principle in Gorris v Scott?

16. What is an absolute duty?

17. Explain the decision in John Summers & Sons Ltd v Frost.

18. To what extent is volenti available as a defence to breach of statutory duty?

19. Is contributory negligence a defence?

20. Is there a defence of delegation?

Questions

1. ‘Their Lordships … are well aware of the references in the literature to [thepolicy/operational dichotomy] and of the critical analysis to which it has beensubjected. They incline to the opinion, expressed in the literature, that this distinctiondoes not provide a touchstone of liability, but rather is expressive of the need toexclude altogether those cases in which the decision under attack is of such a kind thata question whether it has been made negligently is unsuitable for judicial resolution,of which notable examples are discretionary decisions on the allocation of scarceresources or the distribution of risks … If this is right, classification of the relevantdecision as a policy or planning decision in this sense may exclude liability; but aconclusion that it does not fall within that category does not, in their Lordships’opinion, mean that a duty of care will necessarily exist.’ (Per Lord Keith in Rowling vTakaro Properties Ltd.)

Discuss.

2. Under the (fictitious) Bad Business Registers Act local authorities are given the powerto establish registers of disreputable and untrustworthy businesses. The registers areto be open without charge to general public inspection and the names of businessesare to go on the register if, after a full inspection by a local authority consumerprotection officer, the authority finds that the standards of the business fall below anacceptable level.

Minnow is considering investing some money in Shark Enterprises, who are offeringdouble the market rate of interest. He consults the register kept by the PlodworthyDistrict Council and finds that Shark Enterprises are not listed. He therefore invests themoney. Shark Enterprises cease trading soon afterwards and Minnow is unable torecover his money. In fact Shark Enterprises had been investigated and the Council haddecided that in view of their shocking record they should be put on the register, but,due to carelessness of a clerk, they were omitted from the register open to the public.

Advise Minnow.

Would it make any difference to your answer if the Plodworthy Council had decided toinspect businesses only of certain categories, which did not include Shark Enterprises?

3. Because of cuts in public spending Poolbog Borough Council decided to exercise on aselective basis only its powers to inspect building foundations under the Public HealthAct 1936. According to Council minutes, inspections were to be carried out on a totallyrandom basis to prevent foreknowledge by builders of the decisions of the Council.


65

Shoddy Ltd built factory premises on land owned by Premier Products Ltd. Thefoundations laid by Shoddy Ltd failed to comply with minimum requirements, andwere not inspected by Poolbog Council. Premier Products sold the completed factory toHitt and Runne Ltd. As the factory was newly-built Hitt and Runne felt that a surveyor’sreport was unnecessary. Almost immediately minor cracks began to appear in thefactory floor, but these were not sufficiently serious to affect production. Two yearslater the cracks became much more serious owing to the effect of the dry summer onthe negligently laid foundations. Production could no longer be continued and thepremises were evacuated. Hitt and Runne suffered the following losses:

a) £500,000 cost of underpinning the foundations and repairing the floor;

b) £30,000 removal expenses and £70,000 cost of renting alternative premises;

c) £600,000 loss of profits; and

d) £30,000 as wages paid to laid off employees.

Advise Hitt and Runne on the basis that Shoddy have gone into liquidation.

4. In January Agnes was aged 85 and living in her own home which she owned. Herdaughter Brenda thought that she was becoming too frail and forgetful to continueliving on her own and wanted her to get a place in sheltered accommodation run bythe local council. The council said that Agnes’ condition would have to beindependently assessed by two doctors, one appointed by Brenda and one chosen bythe council. The two doctors, Cyril (Brenda’s nominee) and Daniel, visited Agnes. Shewas lively during the visit and the doctors reported that she was a fit and robust lady,in good condition for her age and well able to live on her own. She was refused a placein the sheltered housing.

Brenda immediately had work done to adapt her own home so that her mother couldcome and live with her. However, in April, before she was able to move, Agneswandered out one night, could not find her way home and fell over in the darknessbreaking both hips. She has been in hospital ever since and is unlikely to be wellenough to go to live with Brenda.

Advise Agnes and Brenda.

5. ‘It is widely believed that this branch of the law [liability in tort for breach of statutoryduty] is unpredictable in its operation and difficult to state with any degree of clarity.’(Buckley)

Discuss the validity of this statement, with particular reference to how anyunpredictabilities which may be found to exist can be eliminated.

6. Duffer and Herbert work for Shinem Co, a window cleaning business. Shinem have astatutory duty to supply all their employees with suitable safety harnesses. Theharnesses are kept in a shed to which the foreman, Fred, has a key. Each window cleaneris expected to collect a harness from Fred each morning and give it back for Fred toinspect each evening.

Advise Shinem in each of the following situations.

a) Duffer keeps forgetting to return his harness for inspection. One of the straps hasbecome very frayed. One day at work he slips, but the safety harness breaks andhe falls, breaking his arm, and severely injuring Creep, a passer-by.

b) Herbert usually collects a harness but does not wear it, because it makes him feelclaustrophobic. One day he forgets to collect it in the morning, and when he goesback a couple of hours later Fred is not there and the shed is locked. He carries


66

on work but he trips over his bucket and falls. Because of the lack of a harnesshe falls to the ground and sustains severe head injuries.

Afterwards he is affected by a fear of heights.

7. Statutory regulations impose upon employers and employees in the chemicalmanufacturing industry an obligation to ensure that prescribed protective equipment(including special gloves) are worn when workers are handling chemicals. Theregulations apply to the premises of Stinks Ltd. George, Hamish and John, who are allemployed there, were engaged in loading chemicals on to a lorry and were all wearingthe prescribed clothing. George and Hamish were passing casks containing chemicalsup to John who was standing on the back of a truck. A fly went into John’s eyesuddenly and he removed his glove to wipe it away. George did not notice and passeda cask up to him. John was unable to hold it. Some of the chemical spilled over hishand. He screamed in agony and clung on to Hamish in desperation.

John suffered serious burns to his hand. He will be permanently disfigured and will notbe able to obtain manual employment. Hamish has suffered from severe depressionsince the incident and has not been able to return to work.

Discuss issues of tortious liability arising.

8. 'Where a statutory duty is imposed upon a person or body of persons and that duty isbroken there is of course liability to whatever penalty the statute provides. It has,however, long been the rule in the case of some statutes that an action in tort may bebrought by anyone who is injured by their breach.’ (Winfield and Jolowicz.)

Discuss.


67

Part 1: Study Unit Thirteen

Topic

Employers’ Liability and Product Liability

Prologue

An employer has a common law duty to protect his employees. This is a non-delegable dutyand the circumstances in which a breach of this duty may give rise to liability will beconsidered. Also in this unit students will consider liability for loss or injury as a result ofdefective products and the major provisions of the Consumer Protection Act 1987.

Essential Reading



Other Reading



Learning Outcomes

To have considered:

a) the duties owed at common law by an employer to his employees;

b) the operation of the Employers’ Liability (Defective Equipment) Act 1969;

c) the deficiencies in the common law which led to the enactment of the ConsumerProtection Act 1987 (CPA);

d) the provisions of the CPA 1987.

Sources of Law

StatutesConsumer Protection Act 1987, Part I

Employers’ Liability (Compulsory Insurance) Act 1969

Employers’ Liability (Defective Equipment) Act 1969

Law Reform (Personal Injuries) Act 1948: s1

Law of Tort – 13. Employers’ Liability and Product Liability

68

Case LawEMPLOYERS’ LIABILITY

ICI v Shatwell [1965] AC 656; [1964] 2 All ER 999 (HL)

Sutherland v Hatton [2002] 2 All ER 1

Walker v Northumberland CC [1995] 1 All ER 737

Wilsons & Clyde Coal Co v English [1938] AC 57 (HL)

Withers v Perry Chain Co [1961] 1 WLR 1314

a) Competent fellow employees

Davie v New Merton Board Mills [1959] AC 604

Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348

Smith v Crossley Brothers Ltd (1951) 95 SJ 655

b) Proper plant and equipment

Coltman v Bibby Tankers Ltd [1988] AC 276

Knowles v Liverpool County Council [1993] 4 All ER 321

Smith v Baker [1891] AC 325

c) Safe place of work

Fairchild v Glenhaven Funeral Services Ltd; Waddingtons plc v Leeds City Council[2001] EWCA Civ 1881

Latimer v AEC [1953] AC 643

d) Safe system of work

General Cleaning Contractors v Christmas [1953] AC 180

Johnson v Coventry Churchill International [1992] 3 All ER 14

King v Sussex Ambulance NHS Trust (2002) The Times 24 July (CA)

McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC 906

Paris v Stepney Borough Council [1951] AC 357

Thompson v Smiths Shiprepairers [1984] 1 All ER 881

e) Economic welfare

Reid v Rush & Tompkins [1990] 1 WLR 212; [1989] 3 All ER 228

f) Psychiatric illness

Bonser v ULC Coal Mining Ltd [2003] EWCA Civ 1296

Hatton v Sutherland [2002] EWCA Civ 76


69

g) Defences

Bux v Slough Metals Ltd [1974] 1 All ER 262

Richardson v Pitt-Stanley [1995] 2 WLR 26; [1995] 1 All ER 460 (CA)

PRODUCT LIABILITY

A v National Blood Authority [2001] 3 All ER 289

Andrews v Hopkinson [1957] 1 QB 229

Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 All ER 135

Carroll & Others v Fearon and Others [1999] ECC 73

Donoghue v Stevenson [1932] AC 562 (HL)

EC Commission v UK Case C–30/95 [1997] All ER (EC) 481

Evans v Triplex Safety Glass Co Ltd [1936] 1 All ER 283

Grant v Australian Knitting Mills Ltd [1936] AC 85

Kubach v Hollands [1937] 3 All ER 907

Mason v Williams & Williams Ltd [1955] 1 WLR 549

Richardson v LRC Products [2000] Lloyd’s Rep Med 280

Articles

EMPLOYERS’ LIABILITY

Collender ‘Stress in the Workplace’ [2002] NLJ 152

Lang ‘The Employers’ Liability (Defective Equipment) Act – Lion or Mouse?’ (1984) 47 MLR 48

O’Sullivan ‘Industrial Injuries: Richardson v Pitt-Stanley’ [1995] CLJ 241

PRODUCT LIABILITY

Bradgate and Savage ‘The Consumer Protection Act 1987’ [1987] NLJ 929, 953, 1025 and 1049

Cartwright ‘Product Safety and Consumer Protection’ (1995) 58 MLR 222

Newdick ‘The Development Risk Defence of the Consumer Protection Act 1987’ [1988] CLJ 455

Newdick ‘The Future of Negligence in Product Liability’ (1987) 103 LQR 288

Tettenborn ‘Components and Product Liability: Damage to “Other Property” ’ [2000] LMCLQ 338

Interrograms

EMPLOYERS’ LIABILITY

1. What was the doctrine of common employment?

2. Why was the doctrine abolished by s1 of the Law Reform (Personal Injuries) Act 1948?

3. Why was Hudson v Ridge Manufacturing Co Ltd not decided on the basis of vicariousliability?


70

4. Why did the court reach different decisions in Hudson v Ridge Manufacturing Co Ltd andSmith v Crossley Brothers Ltd?

5. What was the basis of the decision of the House of Lords in Davie v New Merton BoardMills Ltd?

6. How has that decision been affected by the Employers’ Liability (Defective Equipment)Act 1969?

7. What meaning was given to the word ‘equipment’ by the House of Lords in Coltman vBibby Tankers Ltd? What is the employer’s duty to provide proper equipment?

8. How far does the duty to provide a safe place of work extend?

9. What factors should be considered by an employer in carrying out his duty to provide asafe system of work?

10. What is the effect of the decision of the House of Lords in McDermid v Nash Dredgingand Reclamation Co Ltd?

PRODUCT LIABILITY

11. What statement of principle was established by the House of Lords in Donoghue vStevenson relating to product liability?

12. What were the limitations of this common law rule? What were the factors leading to theintroduction of the CPA 1987?

13. What was the basis of the decision in Grant v Australian Knitting Mills Ltd?

14. Why were the defendants not liable in Evans v Triplex Safety Glass?

15. Who may be liable under s2(2) of the CPA? What is the relationship between an actionin negligence and the CPA when the claimant is injured by a defective product?

16. In what circumstances may the supplier of the product be liable?

17. What is a product for the purposes of the CPA? Who is a ‘producer’ for this purpose?

18. When is a product defective according to the CPA?

19. To what extent can a manufacturer satisfy his obligations under the Act by putting awarning on his product?

20. What is the ‘state of the art’ or ‘development risks’ defence? Do you think it should havebeen included within the Act? What other defences are available to a producer underthe Act?

Questions

1. Sally is employed as a secretary at Zany Mental Hospital. She is working late oneevening when one of the patients, Thomas, comes into her room and threatens her.Thomas had occasionally been violent in the past and this information appeared on hisrecord card when he was admitted, but it was not known to the nursing staff on hisward. Sally rushed towards the fire exit at the end of the corridor; this was locked incontravention of the fire regulations which require all fire doors to be kept unlockedwhile the building is in use. Sally is attacked by Thomas and severely beaten up beforeher screams bring assistance.

Advise Sally.


71

2. Regulations made under statutory authority provide:

‘Employers shall ensure that all workers engaged in the manufacture of chemicalswear the protective clothing prescribed in these regulations at all times when they areexposed to danger and shall ensure that such clothing is maintained in a sound stateof repair.’

These regulations apply to the premises of Burns plc. Scald, an employee of Burns, whois noted for bad time-keeping, turned up late for work. In his haste to put on hisprotective overalls, he ripped them down one side. He discarded them and put on aspare pair which were hanging on a peg. Later that day one of the workers in thelaboratory collapsed with a suspected heart attack. Flame, a medical orderly employedby Burns, went into the laboratory to assist; he put on the overalls abandoned by Scald,but did not notice that they were torn. In the laboratory, a quantity of acid was spilledon him and penetrated through the tear in the overalls. Flame was severely injured.

Advise Flame.

3. Critically examine the provisions of Part I of the Consumer Protection Act 1987 relatingto product liability. To what extent do these provisions constitute an improvementupon the common law rules?

4. Dolly buys a bottle of after-shave lotion, ‘Old Socks’, for her boyfriend, Butch. He triesit and they both like its pleasant smell. However, Butch finds that, after using ‘OldSocks’ for a couple of weeks, he comes out in an extremely ugly and uncomfortablerash on the face. Stin Co, the manufacturers of ‘Old Socks’, say they had tested theproduct before putting it on the market and had not found any unpleasant side-effects,except for a tingling sensation and reddening of the skin of some sensitive blondes.

Butch’s mother, Mrs Cassidy, is so horrified by her son’s disfigurement that she suffersfrom nightmares and gets a phobia about cosmetics. This means that she has to resignher job as a counter assistant at Wellies Chemist Shop, where she had worked in theBeauty Department.

Butch goes to a leading skin specialist, Dr Scab, who advises him that there is nothinghe can do to improve his damaged appearance. In fact, the latest issue of the skinspecialists’ journal, the Razor, carried an article describing a new preparation, ‘Face-ease’, which causes considerable improvement in cases of bad face rash.

Butch gives up his job as a waiter because he cannot bear the looks he gets from hiscustomers, and his marriage to Dolly is postponed.

Advise Butch and Mrs Cassidy if they have any grounds of action against Stin Co or DrScab.

5. Earlier this year Harry, aged four, was driving a toy car which had been bought in 1991for his older brother. The car toppled over when Harry tried to go up a steep bank;Harry banged his head and suffered severe head injuries. The car had been thecheapest model and complied with government safety regulations. The sameregulations are in force today and the car has been properly maintained. Nowadays allcars are in fact equipped with a special stabilising device which might have preventedthe car toppling over, but in 1991 these were available only on the most expensivemodels. Harry’s mental ability is severely impaired. He is expected to live for at least30 or 40 years but has to attend a special school and is unlikely ever to find anyemployment.

Advise Harry’s father whether Harry is likely to have a cause of action against themanufacturer in negligence or under the Consumer Protection Act 1987.


72

Part 2: Study Unit Fourteen

Topic

Occupiers’ Liability

Prologue

The duty owed by occupiers’ of premises to visitors is a specialised area of negligence whichis now governed by statute rather than the common law. The 1957 Occupiers’ Liability Actgoverns the duty owed by an occupier to visitors and the 1984 Occupiers’ Liability Act governsthe duty owed by an occupier to trespassers.

Essential Reading



Other Reading


Learning Outcomes

To have considered:

a) liability under the Occupiers’ Liability Act 1957;

b) the development of the duty owed to trespassers;

c) the provisions of the Occupiers’ Liability Act 1984;

d) liability under the Defective Premises Act 1972.

Sources of Law

Statutes

Countryside and Rights of Way Act 2000: ss13(1), 2(1)

Defective Premises Act 1972

Occupiers’ Liability Act 1957

Occupiers’ Liability Act 1984

Unfair Contract Terms Act 1977: s2

Law of Tort – 14. Occupiers’ Liability

73

Case Law

OCCUPIERS’ LIABILITY ACT 1957 (liability to lawful visitors)

a) Occupier

AMF International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028

Harris v Birkenhead Corporation [1976] 1 WLR 279

Wheat v E Lacon and Co Ltd [1966] AC 552 (HL)

b) Visitor

Edwards v Railway Executive [1952] AC 737

Ferguson v Welsh [1987] 3 All ER 777

Gould v McAuliffe [1941] 2 All ER 527

Holden v White [1982] 2 WLR 1030

McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53 (HL)

R v Smith and Jones [1976] 1 WLR 672

Robson v Hallett [1967] 2 QB 393

Stone v Taffe [1974] 1 WLR 1575

c) Duty of care

Ferguson v Welsh [1987] 3 All ER 777

McGivney v Ealderslea Ltd (2001) 17 Const LJ 454 (CA)

Ribee v Norrie (2000) The Times 22 November (CA)

d) Children

B v Camden LBC (2000) PIQR P9

Glasgow Corporation v Taylor [1922] 1 AC 44

Jolley v Sutton LBC [2000] 3 All ER 409

Liddle v Yorks (North Riding) CC [1934] 2 KB 101

Phipps v Rochester Corporation [1955] 1 QB 450

e) Common calling

Ogwo v Taylor [1987] 3 All ER 961; [1988] AC 431 (HL)

f) Warning

Darby v National Trust (2001) The Times 23 February (CA)

Roles v Nathan [1963] 1 WLR 1117


74

g) Independent contractors

AMF International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028

Gwilliam v West Hertfordshire Hospitals NHS Trust and Others [2003] QB 443 (CA)

Haseldine v Daw [1941] 2 KB 343

Payling v Naylor (t/a Mainstreet) (2004) The Times 2 June (CA)


Woodward v Mayor of Hastings [1945] KB 174

h) Exclusion of duty

Ashdown v Samuel Williams and Sons Ltd [1957] 1 QB 409

White v Blackmore [1972] QB 651

OCCUPIERS’ LIABILITY ACT 1984 (LIABILITY TO NON-LAWFUL VISITORS)

i) Pre-1984 situation

British Railways Board v Herrington [1972] AC 877 (HL)

Southern Portland Cement Ltd v Cooper [1974] AC 623

j) 1984 Act duty

Donoghue v Folkstone Properties Ltd [2003] 3 All ER 1101 (CA)

Ratcliffe v McConnell and Others [1999] 1 WLR 670

Revill v Newberry [1996] 2 WLR 239; [1996] 1 All ER 291 (CA)

Tomlinson v Congleton BC [2003] 2 WLR 1120 (CA)

k) Defective premises

Andrews v Schooling (1991) 1 WLR 783; [1991] 3 All ER 723 (CA)

Cavalier v Pope [1906] AC 428

McAuley v Bristol City Council [1992] 1 QB 134; [1992] 1 All ER 749

McNerny v London Borough of Lambeth (1988) 21 HLR 188

Murphy v Brentwood DC [1990] 3 WLR 414

Thompson v Clive Alexander & Partners (1992) 28 Con LR 49

Articles

Bragg and Brazier ‘Occupiers and Exclusion of Liability’ (1986) 130 SJ 251 and 274

Jones ‘The Occupiers’ Liability Act 1984’ (1984) 47 MLR 713

Martin ‘Defective Premises – the Empire Strikes Back’ (1996) 59 MLR 116

Weir ‘Swag for the Injured Burglar’ [1996] CLJ 182


75

Interrograms

1. Does the OLA 1957 apply to the ‘occupancy’ duty or the ‘activity’ duty or both?

2. Who is an occupier for the purposes of the 1957 Act?

3. Who is a visitor for the purposes of the 1957 Act?

4. What must an occupier do if he wishes to place limitations upon the permissionaccorded to a visitor?

5. What is the common duty of care?

6. What principles govern the duty of care to children?

7. What is the effect of s2(3)(b)? How was it applied in Roles v Nathan?

8. Can an occupier discharge his duty to a visitor by giving him a warning?

9. Does the occupier need to give a special warning of an unusual danger?

10. What is the effect of s2(4)(b)? How was it applied in Ferguson v Welsh?

11. What provision is made in the 1957 Act for those who enter an occupier’s premises inpursuance of a contract with the occupier? What are the special rules for skilledvisitors?

12. Who is a trespasser?

13. To whom does the OLA 1984 apply?

14. When is a duty owed by an occupier to a non-visitor under s1(3) of the 1984 Act?

15. What is that duty and how does it differ from the Herrington standard?

16. To what extent can an occupier exclude liability towards a visitor?

17. How was the definition of ‘business liability’ in s1(3) of UCTA 1977 amended by s2 ofthe 1984 Act?

18. Can an occupier exclude liability towards a trespasser under the 1984 Act? Does UCTAapply to the 1984 Act?

19. What duty is owed to a visitor by an independent contractor who is not an occupier?

20. What duty is owed to a trespasser by an independent contractor who is not an occupier?

Questions

1. Bill employed Ben, an electrician, to carry out some rewiring in his house. Bill told Benthat he did not want anyone else to do the job because he did not trust otherelectricians to do the job properly. However, Ben was very busy and so, without tellingBill, he asked another electrician, called Weed, if he would do the job. Weed agreedand he went to Bill’s house to do the rewiring. He was admitted to the house by Bill’swife, Florence, who was unaware of the fact that Bill had told Ben not to employanyone else to do the job. Florence was sure that Weed was not taking all proper safetyprecautions in doing the rewiring but did not say anything because she did not knowmuch about electricity. Weed was in fact using an unsafe system of work and henegligently set the house on fire. Florence managed to escape from the houseuninjured but Weed was seriously burned and the house was gutted. Brian, who hadleft his new suit in Bill’s house, suffered nervous shock when he saw the fire. Zebedee,


76

who had left the only copy of his thesis (which had taken him three years to complete)in Bill’s house, also suffered nervous shock when he was told about the fire. Dougal, afireman, who had acted in accordance with the standards required of firemen, wasbadly injured in fighting the fire because of the heat from the flames.

Discuss.

2. On their way home from a discotheque, Ronald and Nancy decided to take a short cutacross the railway track. They climbed through a gap in the fence near to a sign whichsaid ‘Trespassers Keep Out – No Liability Is Accepted For Death, Personal Injury orDamage To Property, Howsoever Caused’. Both Ronald and Nancy knew they were notsupposed to be on the railway track.

The owners of the railway knew that people were in the habit of cutting across thetrack by climbing through the fence. Initially, they repaired the fence each time it wasbrought to their attention that it was broken. However, owing to the expense ofmaintaining the fence, they decided instead to invest in a warning device which wasplaced on the track and which would warn drivers of oncoming trains that somethingwas on the track, thus giving trains plenty of time to stop. The warning device wasmanufactured and fitted by Schultz Ltd, a firm of independent contractors whichspecialised in the manufacture of such warning devices. Nancy, having had too muchto drink, tripped over a loose plank of wood lying near to the track, and fell on to thetrack. The warning device failed to work because it was defectively fitted by SchultzLtd and Nancy was killed by an oncoming express train. Ronald was uninjured but hisexpensive camera, which he had dropped on to the track in trying to rescue Nancy, wassmashed by the train.

Discuss. Would your answer differ if, on the day of the trial, it was discovered that thewarning system had not been switched on by the railway company, but that, even if ithad been switched on, it still would not have worked because it had been defectivelyfitted?

3. In April the Grossprofit Garden Co Ltd held a reception in the grounds of their factory tolaunch their new power lawnmower. They invited selected press representatives andsome of their biggest customers. A marquee was hired for the occasion from Bodgit Ltdwhose workmen came and erected their marquee in the factory grounds. On the dayof the reception the marquee collapsed, injuring several of the guests. This wasbecause one of the guy-ropes was badly frayed, as would have been obvious oninspection, and it had snapped in the strong wind. Also the employee of Grossprofitwho was demonstrating the lawnmower attempted to turn a corner at too high aspeed and lost control. The lawnmower injured Sly, a representative of one ofGrossprofit’s rivals, who had gained admission by forging an invitation.

At the entrance to the factory grounds there was a notice reading: ‘Danger.Experimental Area. Grossprofit Garden Co Ltd can accept no liability whatsoever for anyinjuries suffered in these grounds, howsoever caused.’

Advise Sly and the injured guests.

4. Critically examine the changes brought about in the law by the provisions of theOccupiers’ Liability Act 1984. To what extent do these changes constitute animprovement upon the common law?


77

5. Stein planned to hijack a plane from the privately owned Albatross Airport. He boughthis ticket and, despite carrying a loaded gun, he somehow managed to get past asecurity check inside the terminal. But as he walked towards the boarding area, he sawan airport security guard approaching. He quickly ducked into the nearest room, payingno heed to the sign on the door which stated: ‘Restricted Area – Authorised PersonnelOnly’. Within the room were sealed containers of poisonous gas.

As he dashed into the room, Stein slipped on a puddle of water which had leakedthrough the ceiling. He fell on his gun, causing it to fire. The bullet passed through hisarm and punctured a cannister of gas. Rushing into the room to investigate the shot,Fox, an airport security guard, inhaled some escaping gas and collapsed, sufferingirreparable lung damage. Nelson, a passenger in the terminal, panicked at the soundof the gunshot. In his mad rush towards an exit, he slipped, fell and broke his leg ona wet floor, which had just been washed by Kwik Klean (an independent companyemployed by Albatross Airport to clean the terminal floor). It had been the practice ofKwik Klean to display a sign warning passengers that the floor was wet, but thepractice had recently been stopped because so many of the signs were being stolen.

Advise Stein, Fox and Nelson as to any rights they may have in tort.

6. Foulfoods Ltd held an ‘open-day’ at their factory when members of the public wereallowed to visit. Dudley took his 10-year-old son, Evan. Notices at the entrance to thefactory read: ‘Members of the public enter this factory at their own risk. The machineryis dangerous. Visitors should keep to the gangways.’

Evan climbed on to a railing to get a better view. He lost his balance and slipped intoa vat of soup. Geoffrey, an employee of Foulfoods, who was supervising visitors in thatarea of the factory, reached down with a long pole, but Evan’s hands were covered insoup and slipped down the pole. Hugh, another visitor, jumped into the vat and heldEvan up so that he could be rescued. Evan was seriously ill for some time as the resultof swallowing large quantities of soup. Hugh died.

Advise Evan and Hugh’s widow as to any potential claims in tort.


78

Part 2: Study Unit Fifteen

Topic

Nuisance – Public and Private

Prologue

The tort of nuisance is concerned with unreasonable interference with a persons’s use orenjoyment of his land. Nuisance can be divided into two categories: public nuisance andprivate nusiance. The difficulty with this area of tort is that in many cases the law seeks tobalance two competing interests: the right of one person to enjoy his land and the right of hisneighbour to use his land.

Essential Reading



Other Reading



Learning Outcomes

To have considered:

a) the distinction between public and private nuisance;

b) the tort of private nuisance, in particular the relationship between nuisance andnegligence;

c) the tort of public nuisance;

d) the remedies available to a plaintiff in a nuisance action;

e) the protection of privacy (in outline only).

Sources of Law

Statutes

Highways Act 1980

Protection From Harassment Act 1997 (in outline only)

Law of Tort – 15. Nuisance – Public and Private

79

Case Law

Private nuisance

PLAINTIFFS

Hunter v Canary Wharf Ltd [1997] 2 All ER 426 (HL)

Lippiatt and Another v South Gloucestershire Council [1999] 3 WLR 137

Malone v Laskey [1907] 2 KB 141 (CA)

Pemberton v Southwark London Borough Council (2000) 21 EG 135 (CA)

TYPES OF HARM

Adams v Ursell [1913] 1 Ch 269

Baxer v Camden London Borough Council (No 2) [1999] 2 WLR 567

Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436

Calvert v Gardiner and Others (2002) The Times 22 July

Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 73 (HL)

Halsey v Esso Petroleum [1961] 1 WLR 683; [1961] 2 All ER 145

Holbeck Hall Hotel and Another v Scarborough Borough Council [2000] 2 All ER 707

Laws v Florinplace Ltd [1981] 1 All ER 659

Leakey v National Trust [1980] QB 485; [1980] 1 All ER 17

Rees v Skerrett [2001] 1 WLR 1541 (CA)

Sedleigh-Denfield v O’Callaghan [1940] AC 880

Southwark London BC v Mills [1999] 4 All ER 449

Wringe v Cohen [1940] 1 KB 229

UNREASONABLE INTERFERENCE

a) Duration

Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 (HL)

Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409

Midwood v Manchester Corporation [1905] 2 KB 597

b) Sensitivity of plaintiff

Robinson v Kilvert (1889) 41 Ch D 88

c) Character of neighbourhood

Bamford v Turnley (1860) 3 Bands 62

Gilingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343; [1992] 3All ER 923

St Helens Smelting Co v Tipping (1865) 11 HL 642


80

Sturges v Bridgman (1879) 11 Ch D 852

Wheeler v Saunders [1995] 3 WLR 466; [1995] 2 All ER 697 (CA)

d) Utility of defendant conduct


Bellews v Cement Co [1948] 1r R 61

e) Malice

Bradford Corp v Pickles [1895] AC 587

Christie v Davey [1893] 1 Ch 316

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

f) Fault by defendant

The Wagon Mound (No 2) [1967] 1 AC 617

DEFENDANTS

a) Creator

Bybrook Barn Garden Centre Ltd v Kent County Council (2001) The Times 5 January

Southport Corporation v Esso Petroleum [1954] QB 182; [1953] 3 WLR 773

b) Occupier

Bower v Peate (1876) 1 QB 321

Goldman v Hargrave [1967] 1 AC 645

Harris v James (1876) 45 LJQB 545

Home Brewery plc v William Davis and Co (Loughborough) Ltd [1987] QB 339; [1987] 1All ER 637

Leakey v National Trust [1980] QB 485

Marcic v Thames Water Utilities Ltd [2004] 1 All ER 135 (HL)

Matania v National Provincial Bank [1936] 2 All ER 633

Sedleigh-Denfield v O’Callaghan [1940] AC 880

St Anne’s Well Brewery v Roberts (1928) 140 LT 1

c) Landlord

Lippiatt v South Gloucestershire Council [1999] 4 All ER 149

Hussain and Another v Lancaster City Council [2000] QB 1 (CA)

Pemberton v Southwark LBC [2000] 1 WLR 1672

Tetley v Chitty [1986] 1 All ER 663



81

DEFENCES

a) Prescription


b) Statutory authority

Allen v Gulf Oil Refining Co Ltd [1981] AC 1001

Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1992] 3 All ER 923

Tate & Lyle Industries Ltd v GLC [1983] 2 AC 509; [1983] 1 All ER 1159 (HL)

Wheeler v Saunders [1995] 3 WLR 466; [1955] 2 All ER 697

INVALID DEFENCES

a) Plaintiff came to nuisance

Miller v Jackson [1977] QB 966


b) Usefulness of defendant’s activity


Attorney-General v PYA Quarries [1957] 2 QB 169

Bellews v Cement Co [1948] 1r R 61

REMEDIES

a) Injunction

Kennaway v Thompson [1981] QB 88

Miller v Jackson [1977] QB 966

Pride of Derby v British Celanese [1953] Ch 149

Tetley v Chitty [1986] 1 All ER 663

b) Abatement

Lemon v Webb [1895] AC 1

c) Damages

Bone v Seale [1975] 1 WLR 757; [1975] 1 All ER 787

British Celanese v Hunt [1969] 1 WLR 959

Malone v Laskey [1907] 2 KB 144

Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287

The Wagon Mound (No 2) [1967] 1 AC 617


82

Public nuisance

ELEMENTS

AB v South West Water Services Ltd [1993] 1 All ER 609; [1993] 2 WLR 507

Attorney-General v PYA Quarries [1957] 2 QB 169

Lyons v Gulliver [1914] 1 Ch 631

Noble v Harrison [1926] 2 KB 332

Rose v Miles (1815) 4 M & S 101

Wandsworth LBC v Railtrack plc [2002] QB 756 (CA)

THE HIGHWAY

a) Obstruction

Dymond v Pearce [1972] 1 QB 497

Hubbard v Pitt [1976] QB 142

Thomas v NUM (S Wales Area) [1985] 2 All ER 1

b) Damages on highway

Clark v Chambers (1878) 3 QBD 327

Dymond v Pearce [1972] 1 QB 497

Holliday v National Telephone Co [1899] 2 QB 392

LE Jones (Insurance Brokers) Ltd v Portsmouth City Council [2003] 1 WLR 427

c) Dangers close to highway

British Road Services v Slater [1964] 1 WLR 498

Mint v Good [1951] 1 KB 517

Tarry v Ashton (1876) 1 QBD 314


d) Condition of highway

Cross v Kirklees MBC [1998] 1 All ER 564 (CA)

Goodes v East Sussex County Council [2000] 3 All ER 603

Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326

Griffiths v Liverpool Corporation [1967] 1 QB 374

Sandhar v Department of Transport, Environment and the Regions (2004) The Times15 November

Thompson v Hampshire County Council (2004) The Times 14 October


83

ArticlesBagshaw ‘Private Nuisance by Third Parties’ (2000) 8 Tort L Rev 165

Cane ‘What a Nuisance! Hunter v Canary Wharf Ltd’ (1997) 113 LQR 515

Cross ‘Does Only the Careless Polluter Pay? A Fresh Examination of the Nature of PrivateNuisance’ [1995] 111 LQR 445

Davies ‘Wandsworth BC v Railtrack plc nuisance’ (2001) RWLR 9

O’Sullivan ‘Nuisance in the House of Lords – Normal Service Resumed’ [1997] CLJ 483

Richards ‘Nuisance: Exploring the Boundaries’ (2001) 80 PLJ 9

Thomas ‘Natural Born Nuisance’ L Exec 2000 December 31

Tromans ‘Nuisance and Planning Control: Wheeler v Saunders’ [1995] CLJ 494

Wilkinson ‘Tolerated and Non-tolerated Trespassers’ [2000] NLJ 1301–1302

Wightman ‘Nuisance – the Environmental Tort?: Hunter v Canary Wharf in the House ofLords’ (1998) 61 MLR 870

Interrograms

PRIVATE NUISANCE

1. How may private nuisance be defined?

2. Who can be the parties to an action in private nuisance?

3. Why did the plaintiff’s case fail in Bridlington Relay v Yorkshire Electricity Board?

4. What distinction was drawn in St-Helen’s Smelting Co v Tipping? Is there anyjustification for such a distinction?

5. Can an isolated event or escape constitute a nuisance?

6. What constitutes an abnormally sensitive use and why is it a relevant factor in anuisance action?

7. What is the relevance of the character of the neighbourhood?

8. Is the utility of the defendant’s conduct relevant?

9. Do you think that Hollywood Silver Fox Farm Ltd v Emmett was correctly decided? Whatis the significance of reasonableness in this area?

10. Is nuisance a tort of strict liability?

11. What is the relationship between nuisance and negligence?

12. In what situations may the occupier of land be held responsible for a nuisance whichhas been created by:

a) a trespasser; and

b) an act of nature.

13. In what situations may a landlord be liable for a nuisance committed on demisedpremises?


84

14. When does time begin to run for the purposes of prescription?

15. Do you think that the defence of statutory authority was correctly applied in Allen v GulfOil Refining Ltd?

16. Is coming to the nuisance a defence? Should it be?

17. What principles do the courts apply in considering whether or not to grant an injunction?

18. What are the main distinctions between public and private nuisances? What are thesimilarities?

19. Can the tort of nuisance provide a basis for the protection of privacy?

20. What is the effect of the Protection From Harassment Act 1997?

Questions

1. ‘Comparing nuisance with negligence the main argument for the respondent was thatin negligence foreseeability is an essential element in determining liability, andtherefore it is logical that foreseeability should also be an essential element indetermining the amount of damages: but negligence is not an essential element indetermining liability for nuisance, and therefore it is illogical to bring in foreseeabilitywhen determining the amount of damages. It is quite true that negligence is not anessential element in nuisance. Nuisance is a term used to cover a wide variety oftortious acts or omissions, and in many negligence in the narrow sense is not essential…’ (per Lord Reid in The Wagon Mound (No 2).)

Discuss.

2. Oak is the owner of a large estate adjoining a river. On the estate there is an unusualoutcrop of rock close to and overhanging the river. After a winter with many severefrosts, parts of the rock have crumbled and fallen into the river; in addition, theincreased volume of water caused by melting snow has changed the bed of the river.As a result of these two factors eddies caused by the rocky outcrop are damaging thebanks of Ash’s property on the other side of the river and Ash’s property is now verysusceptible to floods.

Oak has put up a notice reading, ‘Those rocks are dangerous. No climbing’. Elm, asixteen-year old boy, who is unable to read, climbs over the rocks collecting wildflowers for his collection. Part of the rock surface gives way and he falls to the groundsuffering severe injuries.

Advise Oak.

3. The Chemical Company owns and operates a factory on Piddlewick Downs close to thevillage of Piddlewick in a predominantly rural area. It manufactures components forthe steel industry. Over a long period local inhabitants have been complaining that theemissions from the factory fall as acid rain, damaging their vegetables and thewashing which they hang out to dry on their lines. They feel also that owing to thefactory’s discharge of effluent into the sea, it is no longer safe to follow their oldpractice of bathing in the sea off Piddlewick Point. Government inspectors have donenothing to allay their fears.

In an attempt to discover the precise nature of the discharge, Barnaby, an official ofthe Save the World organisation, takes a boat out to the end of the ChemicalCompany’s pipeline which is two hundred metres off shore. He is injured by a highlyconcentrated discharge when collecting a sample. It is agreed that such a discharge


85

occurs three times a week and it would constitute a danger to anyone swimming in thearea.

Advise the parties concerned.

4. An Act of Parliament authorises local authorities to acquire land or buildings for thepurpose of providing residential accommodation for short periods for disturbed andmaladjusted children from their area. The Thumbscrew District Council acquiredproperty for this purpose in a semi-rural area in 1995 and has used it since then. Theproperty lies between the Dreamyville Bowling Club which was established in 1963and Rose Cottage which was purchased by George and Hilda, an elderly couple, in1997. Both the Bowling Club and George and Hilda complain that there is a great dealof noise from the Council’s property. George is in very poor health and has to rest everyafternoon, but his rest is interrupted by the noise created by the children.

Discuss whether the Bowling Club or George and Hilda have any cause of action innuisance.

5. Andrew, Berry and Clive each lease premises on an industrial estate. Andrew hasrecently greatly increased the use of his premises and often overloads the drains andsewage system. There is frequently an unpleasant smell hanging over the otherworkshops and both Basil and Clive find that there is sometimes a flowback of sewageinto their systems.

Betty uses her premises for her photography business. She has chemicals stored in herbasement. These are kept in accordance with the manufacturers’ instructions. Howeverwater has seeped into the basement from Andrew’s overflowing sewage system andthis results one evening in a violent explosion. Bricks and glass shower down on Clive’spremises damaging some goods stored there and Daphne, who was walking past inthe street, was showered with broken glass.

Discuss the issues of liability in tort raised by these facts.

6. ‘The law of nuisance entails an endless process of balancing. Different private interestshave to be balanced against each other, private interests have to be balanced againstthe public interest.’

Discuss.


86

Part 2: Study Unit Sixteen

Topic

The Rule in Rylands v Fletcher and Liability for Fire

Prologue

Liability under the rule in Rylands v Fletcher is an example of a strict liability tort – this meansthat tortious laibility may be imposed upon a defendant in the absence of any fault ornegligence on the part of the defendant. The rule applies to things which are accumulated onland and which are likely to do mischief if they escape from that land. An obvious examplewould be fireworks which are kept on one person’s land and are accidentally set alight causingdamage to a neighbour’s land.

Essential Reading



Other Reading



Learning Outcomes

To have considered:

a) the case of Rylands v Fletcher and its subsequent development;

b) the present scope of the rule;

c) liability for the spread of fire.

Sources of Law

Statute

Fires Prevention (Metropolis) Act 1774: s86

Human Rights Act 1998

Law of Tort – 16. The Rule in Rylands v Fletcher and Liability for Fire

87

Case Law

BASIC RULE

Cambridge Water Co v Eastern Counties Leather [1994] 2 WLR 53; [1994] 1 All ER 53 (HL)

Rylands v Fletcher (1868) LR 3 HL 330 (HL); affirming (1866) LR 1 Ex 265 (Court ofExchequer Chamber)

Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61; [2003] 3 WLR 1467

ACCUMULATION

British Celanese v A H Hunt [1969] 1 WLR 959; [1969] 2 All ER 1252

Giles v Walker (1890) 24 QBD 656

Smith v Kenrick (1849) 7 CB 515

NON-NATURAL USER

British Celanese v A H Hunt [1969] 1 WLR 959; [1969] 2 All ER 1252

Cambridge Water Co v Eastern Counties Leather (above)

Mason v Levy Auto Parts [1967] 2 QB 530

Pontardawe RDC v Moore-Gwyn [1929] 1 Ch 656

Rickards v Lothian [1913] AC 263

Rylands v Fletcher (above)

DANGEROUS THINGS

Read v Lyons Ltd [1947] AC 156

ESCAPE

Read v Lyons Ltd (above)


DEFENDANT’S LAND

Benning v Wong (1969) 122 CLR 149

McKenna v British Aluminium Ltd (2002) The Times 25 April

DEFENDANT’S PURPOSES

Rainham Chemical Works v Belvedere Fish Guano [1921] 2 AC 465

RECOVERABLE DAMAGE

Hale v Jennings Bros [1938] 1 All ER 579

Halsey v Esso Petroleum Ltd [1961] 1 WLR 683

Perry v Kendrick Transport Ltd [1956] 1 WLR 85


Shiffman v Order of St John [1936] 1 All ER 557

Weller v Foot and Mouth Disease Research Institute [1966] 1 QB 569


88

DEFENCES

a) Act of God

Greenock Corporation v Caledonian Railway Co [1917] AC 556

Nichols v Marsland (1876) 2 Ex D 1

b) Fault of plaintiff

Ponting v Noakes [1894] 2 QB 281

c) Consent of plaintiff

Kiddle v City Business Premises [1942] 2 All ER 216

d) Common benefit

Kiddle v City Business Premises (above)

e) Act of third party

Perry v Kendrick Transport Ltd [1956] 1 WLR 85

Rickards v Lothian [1931] AC 263

f) Statutory authority

Green v Chelsea Waterworks (1894) 70 LT 547

FIRE

Balfour v Barty-King [1957] 1 QB 496

Emanuel v GLC [1971] 2 All ER 835

Filliter v Phippard (1847) 11 QB 347

Goldman v Hargrave [1967] 1 AC 645

Musgrove v Pandelis [1919] 2 KB 43

Ogwo v Taylor [1988] AC 431 (HL)

Sochacki v Sas [1947] 1 All ER 344

ArticlesHeuston ‘The Return of Rylands v Fletcher’ (1994) 110 LQR 185 and 506

Layard ‘Balancing Environmental Considerations’ (1997) 113 LQR 254

Weir ‘Rylands v Fletcher Reconsidered’ [1994] CLJ 216

Wilkinson ‘The Cambridge Water Case’ (1994) 57 MLR 799


89

Interrograms

1. What are the facts of Rylands v Fletcher?

2. Why did the court not rely on trespass, nuisance or negligence?

3. What was the principle established by Blackburn J? What is meant by ‘strict liability’?Who can sue or be sued under the principle?

4. What is an accumulation?

5. What is meant by non-natural user?

6. How was non-natural user applied in the following cases:

a) Rickards v Lothian;

b) Mason v Levy Auto Parts of England;

c) British Celanese v A H Hunt;

d) Transco plc v Stockport Metropolitan Borough Council.

7. Why do the courts insist on the need for an escape?

8. What is the significance of the decision in Transco plc v Stockport?

9. Must the defendant be in occupation of the land? May a licensee be liable?

10. Are damages for personal injuries recoverable? If so, in what situations?

11. What constitutes an ‘Act of God’? What are the recognised defences to the rule inRylands v Fletcher?

12. Explain the decision in Perry v Kendrick.

13. Is the defence of an independent act of a third party consistent with Rylands being atort of strict liability?

14. What is the test of remoteness in a Rylands action?

15. Is it correct to view Rylands as an anomaly in English tort law? Is the rule any more thanliability for having caused harm by the creation of an unreasonable risk?

16. What actions may be brought for the spread of fire? What was MacKenna J’sformulation of the criteria for liability for fire in Mason v Levy Autoparts?

17. What is the effect of s86 Fires Prevention (Metropolis) Act 1774? What are themeanings of ‘fire’ and ‘accidentally began’ under the 1774 Act?

18. In the light of Cambridge Water can liability under Rylands v Fletcher still be one of strictliability?

19. In your opinion, has the Human Rights Act 1998 affected the position of a person whodoes not have an interest in land?

Questions

1. Compare and contrast the tort of nuisance with liability in tort under the rule inRylands v Fletcher.

2. James, a lecturer in the Department of Physiology of the University of Wessex, infectstwenty-five farmyard goats with a virus for the purposes of an experiment. The goatsare kept in the University’s animal house, each in a separate chamber with a window


90

made of heavy-duty glass. One Sunday there is an extraordinarily heavy hail-storm,the worst recorded in Wessex for seventy-five years. A large hailstone shatters one ofthe windows, allowing a goat to escape. It wanders into the garden of a nearby house,also owned by the University but rented to Tom, another lecturer in the PhysiologyDepartment. Tom knew of the presence of the goats when he took the house. Tom’sfour-year-old son Edward starts to stroke and play with the goat, which appears to bequite tame. His mother Mary emerges from the house and screams loudly when shesees the goat nuzzling against Edward. Startled by the scream the goat bites Edward.Edward contracts a rare disease as a result. Mary suffers neuro-dermatitis as a result ofthe shock and worry over Edward’s injury and subsequent illness.

Advise the University.

3. ‘In order to consider the question in the present case in its proper legal context, it isdesirable to look at the nature of the liability in a case such as the present in relationboth to the law of nuisance and the rule in Rylands v Fletcher, and for that purposeto consider the relationship between the two heads of liability.’ (Cambridge Water CoLtd v Eastern Counties Leather plc (1994), per Lord Goff of Chieveley.)

Discuss this statement and explain the significance of the Cambridge Water case inthe development of the law.


91

Part 2: Study Unit Seventeen

Topic

Liability for Animals

Prologue

A person who owns or is in possession of an animal may be liable for damage caused by thatanimal either at common law or under the Animals Act 1971. A person may also be liableunder the ordinary principles of tort for any act which he has committed through the agencyof an animal, eg a person who instructs his dog to attack another person may be liable for thetort of battery.

Essential Reading



Other Reading


Learning Outcomes

To have considered:

a) the function and operation of the Animals Act 1971;

b) the distinction between dangerous and non-dangerous animals;

c) the rules governing and protecting livestock.

Sources of Law

StatuteAnimals Act 1971

Case Law

COMMON LAW

Draper v Hodder [1972] 2 QB 556

DANGEROUS SPECIES (AT COMMON LAW)

Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1

Law of Tort – 17. Liability for Animals

92

NON-DANGEROUS SPECIES

Briscoe v Shattock [1999] 1 WLR 432

Cummings v Grainger [1977] QB 397; [1977] 1 All ER 104

Curtis v Betts [1990] 1 WLR 459; [1990] 1 All ER 769

Kite v Napp (1982) The Times 1 June

Mirvahedy v Henley [2002] QB 769; [2003] 2 All ER 401 (HL)

Wallace v Newton [1982] 1 WLR 375; [1982] 2 All ER 106

DEFENCES

Cummings v Grainger [1977] QB 397; [1977] 1 All ER 104

Dhesi v Chief Constable of the West Midlands (2000) The Times 9 May

STRAYING LIVESTOCK

Ellis v Loftus Iron Co (1874) LR 10 CP 10

LIVESTOCK AND DOGS

Cresswell v Sirl [1948] 1 KB 241

JOINT KEEPERS

Flack v Hudson (2000) The Times 22 November (CA)

Interrograms

1. What types of tortious liability may arise in respect of animals at common law? Do theseliabilities survive the 1971 Act?

2. Why was the Animals Act 1971 enacted?

3. How is a ‘dangerous species’ defined in the Act? In what circumstances may D be liablefor animals belonging to a dangerous species?

4. Who is a keeper of an animal?

5. How is a non-dangerous species defined? In what circumstances may D be liable foranimals belonging to a non-dangerous species?

6. How was s2(2) applied in Wallace v Newton and Kite v Napp?

7. Is an alsatian dog caught by s2(2)?

8. Is it necessary to show negligence to succeed under s2(2)?

9. What are the defences contained in s5 of the Act?

10. What defence was available in Cummings v Grainger?

11. What is meant by ‘livestock’?

12. When may an owner be liable for his livestock? In what circumstances may liability arisein respect of an animal on the highway?

13. What power is given by s7?


93

14. When will liability be imposed under s8? What type of damage is compensatable unders4?

15. How may livestock be protected under the 1971 Act?

Questions

1. ‘The Animals Act 1971 is not a model to be followed in enacting an area of the law oftort in statutory form.’

Discuss.

2. Ethel, the housekeeper at the Desperado Mink Farm, was left in charge for two weekswhile the owner, Clive, had to go into hospital. She fed the mink each day as instructedbut did not feed Clive’s two alsatians of which she was afraid. Fiona, aged ten, climbedthrough a hole in the fence surrounding the farm and released a number of mink fromtheir cages. Fiona was bitten on the arm. A few days later the alsatians, which were bythen desperately hungry, bit through the wire of their enclosure and escaped into theroad where they started to attack a passing pedestrian, George. A nearby farmer,Hector, shot and killed the two alsatians but in doing so also shot George in the leg.

Discuss the rights and liabilities of the parties in tort.


94

Part 2: Study Unit Eighteen

Topic

Defamation and Malicious Falsehood

Prologue

The tort of defamation seeks to protect a person’s reputation. The tort consists of twocategories of defamation; libel and slander. Students will look at what amounts to adefamatory statement and the possible defences that a defendant may raise. Students willalso consider the ancient tort of malicious falsehood which is where one person maliciouslymakes a false statement to another person with the result that a third person suffers damage.

Essential Reading



Other Reading


Learning Outcomes

To have considered:

a) the distinction between libel and slander;

b) the elements of defamation;

c) the defences available;

d) the tort of malicious falsehood.

Sources of Law

Statutes

Broadcasting Act 1990

Defamation Acts 1952 and 1996

Libel Act 1792

Slander of Women Act 1891

Theatres Act 1968

Law of Tort – 18. Defamation and Malicious Falsehood

95

Case Law

Defamation

PLAINTIFF

Derbyshire County Council v Times Newspapers [1993] 2 WLR 449; [1993] 1 All ER 1011 (HL)

EETPU v Times Newspapers [1980] QB 585

Goldsmith v Bhoyrul [1997] 4 All ER 268

Metropolitan Saloon Omnibus v Hawkins (1859) 4 H & N 87

ELEMENTS

a) Defamatory nature

Berkoff v Burchill [1996] 4 All ER 1008 (CA)

Byrne v Deane [1937] 1 KB 818

Capital & Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741

Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331

Charleston v News Group Newspapers Ltd [1995] 2 WLR 450; [1995] 2 All ER 313 (HL)

Hartt v Newspaper Publishing (1989) The Times 7 November

Lane v Holloway [1968] 1 QB 379

Lewis v Daily Telegraph [1964] AC 234

Mapp v News Group Newspapers Ltd [1998] 2 WLR 260

Monson v Tussauds Ltd [1894] 1 QB 671

Sim v Stretch [1936] 2 All ER 1237

Tolley v J S Fry & Sons Ltd [1931] AC 333

Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581

b) Reference to plaintiff

Dwek v Macmillan Publishers Ltd (1999) EMLR 284

Hayward v Thompson [1982] QB 47

Hulton v Jones [1910] AC 20

Knupffer v London Express Newspaper Ltd [1944] AC 116

Morgan v Odhams Press Ltd [1971] 1 WLR 1239

Newstead v London Express Newspaper Ltd [1940] 1 KB 377

c) Publication

Bryanston Finance v De Vries [1975] QB 703

Cutler v McPhail [1962] 2 QB 292

Godfrey v Demon Internet [1999] 4 All ER 342


96

Goldsmith v Sperrings Ltd [1977] 1 WLR 478

Huth v Huth [1915] 3 KB 32

McManus and Others v Beckham [2002] 1 WLR 2982 (CA)

Slipper v BBC [1990] 3 WLR 967; [1991] 1 All ER 165

Sun Life Assurance v W H Smith (1934) 150 LT 211

Theaker v Richardson [1962] 1 WLR 151

Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170

DEFENCES

a) Consent

Chapman v Lord Ellesmere [1932] 2 KB 431

b) Justification

Alexander v North Eastern Railway (1865) 6 B & S 340

De L’Isle (Viscount) v Times Newspapers [1987] 3 All ER 499

Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147

Morrell v International Thompson Publishing [1989] 3 All ER 733

Prager v Times Newspapers Ltd [1988] 1 All ER 300

Shah v Standard Chartered Bank [1998] 4 All ER 155 (CA)

Williams v Reason [1988] 1 All ER 262

c) Fair comment

Control Risks v New English Library [1990] 1 WLR 183

Cruise v Express Newspapers Ltd [1999] 2 WLR 327

Kemsley v Foot [1952] AC 345

London Artists Ltd v Littler [1969] 2 QB 375

Lyon v Daily Telegraph [1943] KB 746

Slim v Daily Telegraph Ltd [1968] 2 QB 157

Telnikoff v Matusevitch [1992] 2 AC 343; [1991] 3 WLR 952; [1991] 4 All ER 817 (HL)

Thomas v Bradbury Agnew [1906] 2 KB 627

d) Absolute privilege

Addis v Crocker [1961] 1 QB 11

Gray v Avadis [2004] EWHC 1894 (QB)

Hamilton v Al Fayed (2000) The Times 28 March (HL)

Taylor v Serious Fraud Office [1998] 4 All ER 801 (HL)

Waple v Surrey CC [1998] 1 All ER 624 (CA)


97

e) Qualified privilege

Bryanston Finance v De Vries (above)

Horrocks v Lowe [1975] AC 135; [1974] 2 WLR 282

Kearns v General Council of the Bar [2003] 2 All ER 534 (CA)

Loutchansky v The Times Newspapers Ltd and Others [2001] 4 All ER 115

McCartan Turkington Breen v The Times Newspapers [2000] 4 All ER 913

Osborne v Boulter [1930] 2 KB 226

Regan v Taylor (2000) The Times 15 March

Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 (HL)

Watt v Longsden [1930] 1 KB 130

PARLIAMENTARY PRIVILEGE

Hamilton v Al Fayed [2000] 2 WLR 609 (HL)

REMEDIES

Grobbelaar v Times Newspapers Ltd and Another [2002] 1 WLR 3024 (HL)

Holley v Smyth [1998] 1 All ER 853 (CA)

John v Mirror Group Newspapers [1996] 2 All ER 35 (CA)

Rantzen v Mirror Group Newspapers [1993] 3 WLR 953; [1993] 4 All ER 975 (CA)

Sutcliffe v Pressdram [1990] 1 All ER 269

MALICIOUS FALSEHOOD

De Beers Products v Electric Co of New York [1975] 1 WLR 972

Joyce v Sengupta [1993] 1 WLR 337; [1993] 1 All ER 897 (CA)

Lyne v Nichols (1906) 23 TLR 86

Ratcliffe v Evans [1892] 2 QB 524

White v Mellin [1895] AC 154

Articles

‘On the Derbyshire Case’ (1993) 56 MLR 738

Harbottle & Lewis ‘Recent Developments in Common Law Qualified Privilege’ (2002) 102 IHL 68

Kaye ‘Libel and Slander – Two Torts or One?’ (1976) 91 LQR 524

Lord Lloyd ‘Reform of the Law of Defamation’ (1976) 29 CLP 43

Mitchell ‘Malice in Defamation’ (1998) 114 LQR 639

Prescott ‘Libel and Pornography: Charleston v News Group Newspapers’ [1995] 58 MLR 752

Sutherland ‘Fair Comment by the House of Lords?’ (1992) 55 MLR 278


98

Tettenborn ‘Negligence v Defamation – A Little Awkwardness?’ [1987] CLJ 390

Williams ‘Defamation Act 1996’ (1997) 60 MLR 388

Young ‘Fact, Opinion and the Human Rights Act 1998’ (2000) 20 OJLS 89

Interrograms

1. Define a defamatory statement.

2. What does the law of defamation protect? Consider the problem of achieving a balancebetween freedom of speech and protection of reputation. Is there sufficient protectionof privacy under the law of defamation?

3. What is the basis of the distinction between libel and slander? How effective is the tortof defamation especially in the light of the legal aid position?

4. Is a defamatory record libel or slander?

5. Is it libel or slander to read out a libellous statement to a third party?

6. In what situations is slander actionable per se?

7. What was the definition of a defamatory statement put forward in Sim v Stretch?

8. What is meant by innuendo?

9. What is the distinction between a ‘false’ innuendo and a ‘true’ innuendo?

10. Can a class of persons be defamed? Will this often give rise to a successful action?

11. What is meant by ‘publication’? Was there publication in Huth v Huth? What is thedistinction between Huth and Theaker v Richardson?

12. Is there a distinction between the publisher of a statement and a person who merelyinnocently disseminates the publication?

13. What is the scope of the defence of consent?

14. What must a defendant show to establish a defence of justification?

15. Distinguish between absolute and qualified privilege. What are the consequences of thisdistinction?

16. What are the elements of fair comment? Do you think that the decision in London ArtistsLtd v Littler was justified?

17. What is the significance of an apology and an offer of amends?

18. What are the main effects of the Defamation Act 1996?

19. What are the elements of malicious falsehood?

20. What part does malice play in the tort?

Questions

1. a) Explain the meaning of ‘innuendo’ in the law of defamation.

b) George, who runs a small business in the town of Borchester, is persuaded by arogue to pay out £50 for an entry in a trade directory which turns out to be non-existent. The rogue was using the name ‘Service Directories’. George writes to all


99

his fellow members of the Borchester Chamber of Commerce, saying ‘beware ofa rogue selling entries in a bogus directory. Any name like ‘Service Directories’should be treated with some suspicion’. Unknown to George, an entirelyreputable firm, ‘At Your Service Directories’, is currently trying to get orders inthe Borchester area. They allege that they have lost many orders as a result ofthe suspicion about them.

Advise ‘At Your Service Directories’.

2. a) Explain the distinction between libel and slander. What are the practicalconsequences, if any, of the distinction?

b) Recently, Thug, a man with a bad criminal record for offences of violence, dieswhen in custody at the headquarters of the Northshire police. An official inquiryhas exonerated the police from all blame but Lenin, a student activist, believesthat Thug was maltreated by the police. He draws up a poster which shows alarge and conspicuous picture of a pig, and which reads, ‘Who Killed Thug? Whoare the Guilty Men?’ The word ‘pig’ is sometimes used as a term of abuse whendescribing the police.

Lenin hangs the poster on the official noticeboard of the Department ofHamsterology at the University of Northshire where he is a student.

Frisbee, the Head of Department has noticed the poster hanging there over a twoweek period but he does not remove it. These matters have now been drawn tothe attention of Police Constable Bruiser who had been in charge of Thugthroughout the period leading up to his death. Bruiser seeks your advice as towhether he has a cause of action in defamation.

Advise Bruiser.

3. Does the law of defamation strike an appropriate balance between the interests of theplaintiff and the requirements of freedom of speech?

4. The Amaryllis Society is a federation of countrywomen’s clubs; it has an executivecommittee of fifteen, which among other things approves judges and appoints judgingpanels for shows. In a recent issue the Bumpkin, a magazine for country people,published a letter which it had received signed by Rita Rhubarb and giving the address,Pectin House, Berryville. It read: ‘I can only conclude that the Amaryllis Society hastaken leave of its senses or has ceased to interest itself in the affairs of countrywomen.Or is there some more sinister explanation for the extraordinary panel of judges whenI exhibited my jams and jellies at this year’s Berryville Show – Daphne Damson, whowas fined back in 1968 for shoplifting several pounds of preserving sugar from ourlocal supermarket; and old Mrs Loganberry, who I know was disqualified from a showlast year although nothing was said at the time?’

In fact there is no such address as Pectin House and the writer of the letter cannot betraced. Daphne Damson was fined for shoplifting icing sugar in 1968; the MrsLoganberry who judged the Berryville Show was disqualified last year, but there isanother Mrs Loganberry who is well known as a show judge in another part of thecountry.

Advise the publishers of the Bumpkin as to any possible liability in defamation.

5. A chain of local newspapers (including the Westtown Gazette) carries a syndicatedcolumn under the heading, ‘Dr Healwell Answers’. This gives advice to parents whowrite in with problems on the health and upbringing of children. Dr Healwell is not areal person and the column is written by several people. A few months ago, in


100

response to an enquiry, ‘Dr Healwell’ recommended that parents should not worryabout truancy and that children who were reluctant to go to school would learn moreif they were taken on country outings.

A Dr Healwell, who had practised as a children’s doctor in Australia, had retired a fewyears ago and settled in Westtown. He had not seen the column but had noticed thathe had not recently been asked, as he often had in the past, to speak in local schools.He had also been invited to serve as a governor of Westtown Academy, but theinvitation had been withdrawn. He has now learned about the column and has alsolearned that the headmaster of the academy had written to all the governors, saying,‘I have enough problems as it is without that lunatic Healwell breathing down myneck’

Advise Dr Healwell whether he has a cause of action in defamation.

6. Provincial TV, a local television channel, presented a series of programmes in 1999under the general title of ‘Police Probe’. Before the series started, publicity materialstated that it would focus on arousing public concern about inconclusive local policeinvestigations which had not led to convictions.

In the first two programmes, it was suggested that the police might have beenimproperly induced not to press charges. The third programme concernedinvestigations into sexual offences. It included a reconstruction of a police interviewwith a man described as ‘the only suspect questioned’ in connection with a particularrape in 1988, for which no one had ever been charged. He was described as having ‘aprevious criminal record’. Fictitious names were used and the programme made clearthat the parts were played by actors. The actual man questioned in 1988 was ThomasSmith who had had one conviction, when a student, of dishonestly travelling on a trainwithout paying the fare. The actor portraying the detective very closely resembledJohn Robinson, an officer who joined the local police in 1990.

Advise Thomas Smith and John Robinson whether either has a cause of action indefamation.

7. During March and April 1999 the Daily Scum ran a series of articles each week in itschildren’s section giving a profile of leading popular singers and groups.

One article featured a group called The BCDs, whose members are Bill, Con and Dan.The article included the statement: ‘The BCDs are a group of amiable lads, but a bitwild. One of them was deported from Germany a while back because of some troubleat a concert.’ Another article was about a vocalist, Evangeline. It included thestatement: ‘Evangeline has had an unusually long career. The photo shows her singingat a concert in Nirvana seven years ago.’

In 1994 German promoters had oversold tickets for a concert where the group to whichBill then belonged was to perform. The concert was cancelled and the group was askedto leave Germany but not formally deported.

Because of the imprisonment of a pop singer in Nirvana in 1988, other performers(including Evangeline) refused to go there until 1991 when the singer was released.The picture was taken in 1987.

Advise the Daily Scum as to any possible liability in defamation.

8. Describe the defences available to a defendant in a defamation action and discusswhether they provide an adequate protection for freedom of speech.


101

Part 2: Study Unit Nineteen

Topic

Trespass to the Person and Trespass to Land

Prologue

In this study unit students will look at two forms of trespass; trespass to the person andtrespass to land. Trespass to the person may take the form of an asault, battery or falseimprisonment. Trespass to land is committed when one person enters upon land in thepossession of another without lawful justification.

Essential Reading



Other Reading


Learning Outcomes

To have considered:

a) the distinction between assault and battery;

b) the ingredients of assault and battery;

c) the tort of false imprisonment, and the distinction between it and the tort of maliciousprosecution;

d) the rule in Wilkinson v Downton;

e) trespass to land.

Sources of Law

Statutes

Police and Criminal Evidence Act 1984

Protection From Harassment Act 1997 (in outline only)

Law of Tort – 19. Trespass to the Person and Trespass to Land

102

Case Law

TRESPASS TO THE PERSON

a) Battery

Barnes v Nayer (1986) The Times 19 December

Chatterton v Gerson [1981] QB 432

Cole v Turner (1704) 6 Mod 149

Davidson v Chief Constable of North Wales [1994] 2 All ER 597 (CA)

F (Mental Patient: Sterilisation), Re [1990] 2 AC 1

Fowler v Lanning [1959] 1 QB 426; [1959] 1 All ER 290

Lane v Holloway [1968] 1 QB 379

Letang v Cooper [1965] 1 QB 232; [1964] 2 All ER 929 (CA)

Read v Coker (1853) 13 CB 850

Scott v Shepherd (1773) 2 W B1 892

Sidaway v Bethlem Royal Hospital Governors [1985] AC 871 (HL)

Stanley v Powell [1891] 1 QB 86

Wilson v Pringle [1987] QB 237; [1986] 3 WLR 1; [1986] 2 All ER 440

b) Assault

R v St George (1840) 9 C & P 483

R v Wilson [1955] 1 WLR 493

Stephens v Myers (1830) 4 C & P 349

Tuberville v Savage (1669) 1 Mod Rep 3

c) False imprisonment

Bird v Jones (1845) 7 QB 742

Davidson v Chief Constable of North Wales Police (above)

Hague v Deputy Governor of Parkhurst Prison v [1992] 1 AC 58

Herd v Wearsdale Steel, Coal and Coke Co Ltd [1915] AC 67

Herring v Boyle (1834) 1 Cr M & R 377

Meering v Graham-White Aviation Co (1919) 122 LT 44

Murray v Ministry of Defence [1988] 2 All ER 521 (HL)

R v Governor of Brockhill Prison, ex parte Evans (No 2) [2000] 4 All ER 15

R v Self [1992] 1 WLR 657; [1992] 3 All ER 476 (CA)

Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 663

Robinson v Balmain Ferry Co Ltd [1910] AC 295

Sunbolf v Alford (1838) 3 M & W 248


103

d) Malicious prosecution

Glinski v McIver [1962] AC 726

Martin v Watson [1995] 3 WLR 318; [1995] 3 All ER 559 (HL)

Metall und Rohstoff v Donaldson Lufkin [1990] 1 QB 391

e) Rule in Wilkinson v Downton

Janvier v Sweeney [1919] 2 KB 316

Wilkinson v Downton [1897] 2 QB 57

Wong v Parkside Health NHS Trust [2003] 3 All ER 932 (CA)

f) Self Defence

Revill v Newberry [1996] 1 All ER 291

TRESPASS TO LAND

a) Possession

Hemmings v Stoke Poges Golf Club [1920] 1 KB 720

Jones v Llandrwst UDC [1911] 1 Ch 393

Ocean Estates Ltd v Pinder [1969] 2 AC 19

b) Interference

Holmes v Wilson (1839) 10 Ad & E 503

c) The highway

Harrison v Duke of Rutland [1893] 1 QB 142

Hickman v Maisey [1900] 1 QB 752

d) Airspace

Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd[1987] 2 EGLR 173

Bernstein (Lord) of Leigh v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902

Kelsen v Imperial Tobacco Co [1957] 2 QB 334

e) Trespass ab initio

Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299

Elias v Pasmore [1934] 2 KB 164

The Six Carpenters’ Case (1610) 8 Co Rep 146a

f) Interference

Conway v Wimpey & Co [1951] 2 KB 266

League Against Cruel Sports Ltd v Scott [1985] 2 All ER 489


104

Smith v Stone (1647) Style 65

Vine v Waltham Forest London Borough Council [2000] 4 All ER 1169

g) Defences

Hurst v Picture Theatres Ltd [1915] 1 KB 1

Jones and Another v Stones [1999] 1 WLR 1739

Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985


h) Damages

Drane v Evangelou [1978] 1 WLR 455

Articles


Dworkin ‘Trespass and Negligence – A Further Attempt to Bury the Forms of Action’ (1965)28 MLR 92

Jones ‘Protection From Harassment’ (1997) 31 LTeach 252

Tan Keng Feng ‘Failure of Medical Advice: Trespass or Negligence?’ (1987) 7 Legal Studies 149

Woollard ‘Prosecution or Persecution?: Martin v Watson’ [1995] 29 L Teach 99

TRESPASS TO LAND

McKendrick ‘Trespass to Air Space and Property Development’ [1988] NLJ 23

Interrograms


1. Give a definition of the tort of battery.

2. Can battery be committed negligently?

3. What advantage could a plaintiff obtain by proceeding in battery rather than negligence?Can there be a negligent trespass since Letang v Cooper?

4. What did the Court of Appeal in Wilson v Pringle mean by ‘hostility’ in touching? Do youthink the Court of Appeal was correct in introducing this requirement?

5. Does a person who blocks a doorway so that others cannot get out without bumping intohim commit the tort of battery?

6. Why did the plaintiff in Sidaway argue her case in negligence rather than battery?

7. Is consent a defence to a claim in battery?

8. Is contributory negligence a defence? Should it be?

9. Is provocation a defence to a claim in battery?


105

10. Give a definition of the tort of assault. Can there be an assault without a battery, andvice versa?

11. Can words alone constitute an assault?

12. Explain the decision in Tuberville v Savage.

13. Is it an assault to point an unloaded gun at the head of another person?

14. In false imprisonment must the plaintiff be aware of the fact that he has beenimprisoned?

15. What defences are available to false imprisonment?

16. What is the rule in Wilkinson v Downton? Can the rule be distinguished from:

a) assault; and

b) battery?

17. Is there a tort of harassment?

TRESPASS TO LAND

18. Give a definition of the tort of trespass to land.

19. What are the defences to the tort of trespass? Can a person ever lawfully trespass?

20. What remedies are available for trespass?

Questions

1. Pam and Sue Ellen went to Ritzi’s Disco one evening when it was holding a ‘SlamDancing Night’. Slam dancing was a new form of dancing where free expression couldbe given to dancers’ feelings and bumping into other dancers was positivelyencouraged. Pam tripped over Ray’s feet as she made her way on to the dance floorand when she picked herself up off the floor she was punched by Bobby, a ratherenthusiastic dancer. As a result of the punch Pam’s jaw was broken.

Sue Ellen, while sitting at the bar, saw her husband, JR, dancing with Donna. Furious,because she believed JR to be having an affair with Donna, she threw a beer glass inJR’s direction. JR ducked and the glass hit Cliff, who was taken to hospital with a seriouseye injury. Cliff was told that he needed an emergency operation but, because thesurgeon thought that anyone who participated in slam dancing was incapable ofunderstanding the risks involved in the operation, he was not told of the serious natureof the operation or the considerable risk that he might lose the sight in one eye. Theoperation, through no fault of the surgeon, resulted in Cliff losing the sight in one eye.

Discuss.

2. After what he thought was an extremely boring lecture, John leapt out of his seat,pushed his way past Jane and Jill and rushed to the front of the lecture theatre to tellthe lecturer, Charles, what he thought of him. When he reached the front he spat inCharles’ face and shook his fist at him, but was restrained from taking further actionby two fellow students. Charles retaliated by throwing his books at John. John duckedand the books hit Frances, knocking her to the floor where she cut her eye. Frances wastaken to hospital and was given an anti-tetanus injection. She suffered a freak reactionto the injection, which resulted in brain damage and permanent partial disability.Meanwhile Charles had suffered a minor heart attack which his doctor stated wascaused by his reaction to John’s insults.

Discuss.


106

3. Sally and Caroline are secretaries occupying adjoining rooms at Hardsell Ltd. Sally isknown to be particularly nervous and excitable. One day Wheeze, a visiting salesrepresentative who knew Sally, was waiting in Sally’s office while she was away takingdictation. As a practical joke he placed a realistic toy in the shape of a housefly in hertin of dried milk. Later that day Sally was making a cup of coffee while talking on thetelephone to her mother Ruth. She noticed the fly and started screaminguncontrollably. Ruth could not get Sally to explain what was happening. Carolinerushed to Sally’s assistance when she heard the scream and gashed her leg on thecorner of the desk. Since the incident Ruth has been very depressed and has sufferedfrom a disagreeable skin complaint resulting from her nervous reaction.

Advise Sally, Ruth and Caroline.

4. Advise the Manpool Borough Council in each of the following situations.

a) Alan and Basil, both aged eight, are playing in a park belonging to the Councilwhen they find a disused hut, boarded up and marked ‘No Admittance’. Alantries to wriggle under the door but becomes firmly wedged. Basil runs to find thepark-keeper, who refuses to release Alan until the park closes one hour later.Alan is unharmed.

b) Dennis, an adult visitor to the park, sees that a small boy swimming in the pondhas got into difficulties. In rushing to the rescue, Dennis tramples on a bed ofvaluable plants and damages them. The child is able to reach the bank unaided.

c) Pratt Ltd erect a crane on their land which is adjacent to the park. At night, whenthe park is closed and the crane is unused, the boom of the crane swings overten feet of the park at a height of two hundred feet.

5. ‘The tort of false imprisonment is too narrowly conceived: it should provide a generalremedy for interference with freedom of movement.’

Discuss.

6. In what circumstances is intention relevant to establishing liability in tort?


107

Part 2: Study Unit Twenty

Topic

Economic Torts – Passing Off and Deceit

Prologue

The law of tort also seeks to protect a person in relation to his trade, business or livelihood.In this study unit students will consider the economic torts which deal with the intentionalinfliction of economic harm upon another. Students will also look at the tort of deceit whichdeals with a situation whereby the defendant makes a false statement by words or conductwith the result that the plaintiff acts to his detriment. The third tort that will be considered ispassing off, where the defendant represents that goods are his own whereas the are in realitythe goods of the plaintiff.

Essential Reading



Other Reading


Learning Outcomes

To have considered:

a) the economic torts and the relationship between the nominate torts;

b) the tort of conspiracy;

c) the tort of inducing breach of contract;

d) the tort of intimidation;

e) the tort of interference with trade by unlawful means and what constitutes unlawfulmeans;

f) the tort of passing off;

g) the tort of deceit.

Sources of Law

Statutes

Misrepresentation Act 1967: s2(1)

Trade Union and Labour Relations Act 1974

Law of Tort – 20. Economic Torts – Passing Off and Deceit

108

Case Law

ECONOMIC TORTS

a) Background

Allen v Flood [1898] AC 1

Associated Newspapers Group plc v Insert Media Ltd [1988] 1 WLR 509

Mogul Steamship Co Ltd v McGregor, Gow and Co Ltd [1892] AC 25

Quinn v Leatham [1901] AC 495

b) Conspiracy

Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 (HL)

Femis-Bank v Lazer (1991) 3 WLR 80; [1991] 2 All ER 865

Gulf Oil Ltd v Page [1987] Ch 327

Huntley v Thornton [1957] 1 WLR 321

Lonrho v Fayed [1992] 1 AC 448

Lonrho v Fayed (No 5) [1993] 1 WLR 1489

Lonrho v Shell Petroleum Co Ltd (No 2) [1982] AC 173

Metal und Rohstoff v Donaldson Lufkin & Jenrette [1990] 1 QB 391; [1989] 3 All ER 14(CA)

Midland Bank Trust Co v Green (No 3) [1982] Ch 529

Mulcahy v R (1868) LR 3 HL 306, 317

Scala Ballroom Ltd v Ratcliffe [1958] 1 WLR 1057

c) Inducing breach of contract

Brimelow v Casson [1924] 1 Ch 302

CBS Songs Ltd v Amstrad Consumer Electronics [1988] AC 103; [1988] 2 All ER 485

Daily Mirror Newspaper v Gardner [1968] 2 QB 762

Edwin Hill & Partners v First National Finance Corp plc [1989] 1 WLR 225; [1988] 3 AllER 801

Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691

J T Stratford & Sons Ltd v Lindley [1965] AC 269

Law Debenture Trust Corp v Ural Caspian Oil Corp [1994] 3 WLR 1221; [1995] 1 All ER157 (CA)

Lumley v Gye (1853) 2 El & B1 216

Merkur Island Shipping Corp v Laughton [1983] 2 AC 570

Thomson and Co Ltd v Deakin [1952] Ch 646

Torquay Hotel Co Ltd v Cousin [1969] 2 Ch 106


109

d) Intimidation

Cory Lighterage v TGWU [1973] ICR 339

Morgan v Fry [1968] 2 QB 710

Rookes v Barnard [1964] AC 1129 (HL)

e) Economic duress

Universe Tankships of Monrovia v International Transport Workers Federation [1983] 1AC 366

f) Interference with trade by unlawful means

Acrow v Rex Chainbelt Inc [1971] 1 WLR 1676

Chapman v Honig [1963] 2 QB 502

J T Stratford & Sons Ltd v Lindley [1965] Ch 646

Lonrho plc v Fayed [1992] 1 AC 448

Merkur Island Shipping Corp v Laughton [1983] 2 AC 570

Torquay Hotel Co Ltd v Cousin [1969] 2 Ch 106

PASSING OFF

British Telecommunications plc v One in a Million Ltd [1998] 4 All ER 476 (CA)

Clark v Associated Newspapers Ltd [1998] 1 All ER 959

DECEIT

a) False statement

Bissett v Wilkinson [1927] AC 177

Edgington v Fitzmaurice (1885) 29 Ch D 459

Notts Patent Brick v Butler (1886) 16 QBD 778

Pasley v Freeman (1789) 3 TR 51

R v Barnard (1837) 7 C & P 784

With v O’Flanagan [1936] Ch 575

b) Knowledge of falsity

Angus v Clifford [1891] 2 Ch 449

Derry v Peek (1889) 14 App Cas 337

c) Intention

Andrews v Mockford [1896] 1 QB 372

d) Reliance by plaintiff

Edgington v Fitzmaurice (1885) 29 Ch D 459

Redgrave v Hurd (1881) 20 Ch D 1


110

e) Damage

Doyle v Olby [1969] 2 QB 158

Smith Kline and French Laboratories Ltd v Long [1989] 1 WLR 1; [1988] 3 All ER 887

Smith New Court Securities Ltd v Scrimgeour Vickers Ltd [1996] 3 WLR 1051; [1996] 4All ER 769 (HL)

Articles

Cane ‘Tortious Interference with Contractual Remedies: Law Debenture Corp v Ural CaspianOil Core’ [1995] 111 LQR 400

Carty ‘Intentional Violation of Economic Interests: The Limits of Common Law Liability’ (1988)1 LQR 250

Marks ‘Loss of Profit in Damages for Deceit’ (1992) 108 LQR 386

Payne ‘Measure of Damages for Fraudulent Misrepresentation’ [1997] CLJ 17

Sales ‘The Tort of Conspiracy’ [1990] CLJ 491

Interrograms

ECONOMIC TORTS

1. Does the law recognise a principle that commercial entities must trade fairly?

2. What are the general principles laid down in Mogul Steamship Co Ltd v McGregor, Gow& Co and Allen v Flood, and to what extent do they conflict with Quinn v Leatham?

3. What is the tort of conspiracy?

4. In the tort of conspiracy what is an unlawful act?

5. In what ways may a person commit the tort of inducing a breach of contract?

6. Is an actual breach of contract an essential element of the tort of inducing breach ofcontract?

7. What is the tort of intimidation?

8. Is economic duress a tort?

9. In the tort of interference with trade by unlawful means, what constitutes unlawfulmeans?

PASSING OFF

10. Define the ingredients of the tort of passing off.

DECEIT

11. What are the elements of the tort of deceit?

12. What is the measure of damages in deceit?


111

Questions

1. Catherine runs a highly successful catering business, which has attracted much customaway from the older-established businesses run by Dora and Emma.

Catherine made an exclusive contract with Fergus under which he was to supply freshfruit and vegetables to her business as required. Catherine won an important order toprovide the lunch for a business convention. She placed orders with Fergus, includingone for papaya which the organisers had specifically requested. Dora told Ferguscorrectly that six Iraqi businessmen were to be attending the lunch and was notsurprised that Fergus (who is secretary of a local anti-Iraq group) refused to carry outthe order. Dora and Emma also bought up all the available supplies of papaya.Catherine was obliged to make special arrangements at considerable expense to fly inpapaya from Malaysia for the luncheon; she was able to procure other fruit andvegetables locally, although some was of inferior quality.

Advise Catherine whether she has any cause of action against Dora or Emma.

2. ‘The individual torts of intimidation and inducing breach of contract are merelyillustrations of a general principle that it is tortious intentionally to cause economicloss by unlawful means.’

Discuss.

3. In July Newton and Ridley Ltd entered into two contracts with the Rovers Return. Underthe first contract Newton and Ridley were to supply beer to Rovers Return every Friday,but it was a term of the contract that ‘no liability is accepted for any failure to deliverbeer due to industrial action’. Under the second contract, Newton and Ridley agreed tosupply the Rovers Return with wine ‘as and when necessary’.

In November, due to a failure to resolve a dispute over pay at Newton and Ridley, theunion representing employees at Newton and Ridley decided, after holding a ballot inaccordance with the Trade Union Act 1984, to call a strike of their members working atNewton and Ridley. The union leaders sought to ascertain the terms of the contractbetween Newton and Ridley and the Rovers Return, but Newton and Ridley refused toallow them to see the contract. Nevertheless, the union leaders decided to proceedwith the strike and wrote to all their members instructing them to cease workimmediately. The union leaders also wrote to Newton and Ridley and to the RoversReturn informing them of the decision to strike and regretting any inconveniencecaused thereby. As a result of the strike Newton and Ridley are unable to deliver anybeer or wine to the Rovers Return, who have had to close because they are unable toobtain supplies.

Advise Newton and Ridley and the Rovers Return as to any common law claims theymay have (you are not expected to deal with points arising from the trade disputeslegislation).

4. ‘It is certainly a general rule of our law that an act prima facie lawful is not unlawfuland actionable on account of the motive which dictated it. I put aside the case ofconspiracy which is anomalous in more than one respect’ (Allen v Flood, per LordHerschell.)

Discuss.

5. Kale, Leek and Marrow are students at the Barsetshire Agricultural College. They wantthe College canteen to stop serving foods with a high cholesterol content and to servemore health foods. On several occasions they stand on the public pavement outside the


112

College, holding placards criticising the College’s policy and demanding changes, anddistributing leaflets on ‘A healthy diet for a healthy life’. They do not interfere withpassers-by, but once a van-driver from Fatty Foods Ltd turns away and does not delivera consignment of food which the College had ordered. Kale, Leek and Marrow also writeto the College Principal saying that if catering policy does not change they will preventthe kitchen staff entering the kitchens to prepare meals.

Advise the College.

6. The Demonic Co Ltd have acquired a site in a remote rural part of England to constructa factory where they will manufacture cosmetics for which animal products will berequired. Francis, a prominent campaigner against the killing of animals for suchpurposes, is determined to stop construction. He approaches Jerry, who has submitteda tender for the construction work, and tells him that he will report to the revenueauthorities some minor tax evasions by Jerry’s company unless he withdraws his bid.Jerry therefore does withdraw. His was the lowest tender by a considerable margin. Asa result of the withdrawal Jerry goes out of business and the Demonic Co have to accepta much higher tender from Matthew.

In order to interfere with the work, Francis hires a fleet of coaches and lorries andsends them on journeys every day along the lanes near the construction site. As aresult, Matthew is greatly impeded in the work and cannot complete the contractwithin the period agreed.

Advise Francis as to his possible liability in tort.

7. a) What can amount to ‘unlawful means’ for the purposes of torts involvingintentional infliction of economic loss? In what circumstances do unlawful meanshave to be established?

b) The League for Decency usually arranges to hire the hall of Barsetshire TechnicalCollege for its meetings and social functions. Mrs Proudy, the secretary of theLeague, heard recently that the College is to allow a pop group (the Hirams) togive a concert at the hall at which some of the musicians will appear in the nude.She telephoned the College and said, ‘I am aghast. Unless you cancel thesearrangements, I cannot believe that my members will ever again want to use theCollege for its functions.’

Advise the Hirams.

8. Discuss the issues of tortious liability which arise in the following situations.

a) Cecil holds a hospital medical appointment and is a leading amateur rugbyfootball player. He is required by his hospital contract to give six months noticeif he wishes to leave, although the normal period in such contracts is threemonths. When the professional body governing rugby football permitted playersto accept professional contracts, Bovine, a leading rugby club, offered contractsto many players. On 30 September it offered Cecil a three-year contract providedthat he resigned his medical appointment and took up the post on 1 January.Cecil did so.

b) Daphne owns several florists’ shops. She obtains many of her supplies from amarket garden owned by Edgar. She telephones Edgar each Friday to place herorder for the coming week. Freda tells Daphne (correctly) that Edgar has afinancial stake in a farm run by his brother, which exports live animals to theEuropean continent. Daphne is very active on behalf of ‘animal rights’ andimmediately notifies Edgar that she will take no more supplies from him.


113

Part 2: Study Unit Twenty One

Topic

Remedies – Damages and Injunctions

Prologue

Although remedies are studied at the end of the course this is one of the most important studyunits. When a person seeks legal advice he wants to know what sort of remedy he can expectto get if he is succesful in his claim and students must be able to relate such information inthe examination. In this study unit the different remedies that are available will be studied.

Essential Reading



Learning Outcomes

To have considered:

a) the different categories of damages claims available;

b) how damages for personal injuries are calculated;

c) the principles governing recovery of damages in fatal accident cases;

d) the operation of the Law Reform (Miscellaneous Provisions) Act 1934 and the FatalAccidents Act 1976;

e) the provisions of the Administration of Justice Act 1982.

Sources of Law

StatutesAdministration of Justice Act 1982: s4

Damages Act 1996

Fatal Accidents Act 1976

Law Reform (Miscellaneous Provisions) Act 1934

Law Reform (Personal Injuries) Act 1948

Social Security (Recovery of Benefits) Act 1997

Supreme Court Act 1981: s32A

Law of Tort – 21. Remedies – Damages and Injunctions

116

Case LawNOMINAL DAMAGES

Constantine v Imperial Hotels Ltd [1944] KB 693

AGGRAVATED DAMAGES

Kralj v McGrath [1986] 1 All ER 54

EXEMPLARY DAMAGES

AB v South West Water Services Ltd [1993] 2 WLR 507; [1993] 1 All ER 609 (CA)

Cassell v Broome [1972] AC 1027 (HL)

Holden v Chief Constable of Lancashire [1987] QB 380; [1986] 3 All ER 836

Kuddus v Chief Constable of Leicestershire (2001) 3 All ER 193 (HL)

Rookes v Barnard [1964] AC 1129 (HL)

Thompson v Commissioner of Police of the Metropolis [1997] 2 All ER 762 (CA)

PROVISIONAL DAMAGES

Willson v Ministry of Defence [1991] 1 All ER 638

MEASURE OF DAMAGES

Fatal Accident Multipliers and the 4th Edition Ogden Tables P & MILL 2001 17(2)

DAMAGES FOR PERSONAL INJURY

a) Loss of earnings

British Transport Commission v Gourlay [1956] AC 185 (HL)

Cookson v Knowles [1979] AC 556 (HL)

Hodgson v Trapp [1988] 3 All ER 870; [1989] AC 807

Lim Poh Choo v Camden and Islington AHA [1980] AC 174 (HL)

Wells v Wells [1998] 3 All ER 481 (HL)

Willson v Ministry of Defence (above)

b) Lost years

Gammell v Wilson [1982] AC 27

Gregg v Scott [2003] Lloyd’s Rep Med 105 (CA)

Harriss v Empress Motors Ltd [1983] 3 All ER 561

Pickett v British Railways Engineering Ltd [1980] AC 136 (HL)

c) Potential loss of earning capacity

Foster v Tyne and Wear CC [1986] 1 All ER 567

Moeliker v Reyrolle Ltd [1977] 1 All ER 9


115

d) Loss of pension rights

Dews v National Coal Board [1988] AC 1

e) Loss of housekeeping, capacity etc

Daly v General Steam Navigation Co Ltd [1980] 3 All ER 696

Hardwick v Hudson [1999] 1 WLR 1770

Willson v Ministry of Defence above

f) Medical expenses

Cunningham v Harrison [1973] QB 942; [1973] 3 All ER 463

Donnelly v Joyce [1974] QB 454

Housecroft v Burnett [1986] 1 All ER 332

Hunt v Severs [1994] 2 AC 350; [1994] 2 WLR 602; [1994] 2 All ER 385 (HL)

Roberts v Johnstone [1987] QB 878; (1988) 3 WLR 1247

g) Deductions

Colledge v Bass Mitchells & Butlers Ltd [1988] 1 All ER 536

Gaca v Pirelli General plc [2004] 3 All ER 348

Hodgson v Trapp [1988] 3 All ER 870

Hussain v New Taplow Paper Mills Ltd [1988] 2 WLR 266

Longden v British Coal Corporation [1998] 1 All ER 289 (HL)

McCamley v Cammell Laird [1990] 1 All ER 854

Neal v Bingle [1998] 2 All ER 58 (CA)

Parry v Cleaver [1970] AC 1

Smoker v London Fire Authority [1991] 2 All ER 449

h) Other pecuniary loss

Allen v Bloomsbury Health Authority [1993] 1 All ER 651

Jones v Jones [1985] QB 704; [1984] 3 All ER 1003

Meah v McCreamer [1985] 1 All ER 367

Pritchard v J H Cobden Ltd [1988] Fam 22; [1987] 1 All ER 300

i) Pain and suffering

Croke v Wiseman [1981] 3 All ER 852

Heil v Rankin [2000] 3 All ER 138 (CA)

Hicks v Chief Constable South Yorkshire [1992] 2 All ER 65

Kralj v McGrath (above)

Wise v Kaye [1962] 1 QB 638


116

j) Loss of amenity

Lim Poh Choo v Camden and Islington AHA (above)

West v Shepherd [1964] AC 326

k) Loss of expectation of life

Doleman v Deakin (1990) The Times 30 January

l) Interest

Cookson v Knowles (above)

Jefford v Gee [1970] 2 QB 130

Wright v British Railways Board [1983] 2 AC 773

DAMAGES FOR DEATH

Cox v Hockenhull [2000] 1 WLR 750

Cresswell v Eaton [1991] 1 All ER 484

Hayden v Hayden [1992] 4 All ER 681

Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65

Pidduck v Eastern Scottish Omnibus [1990] 2 All ER 69

Spittle v Bunney [1988] 3 All ER 1031

Stanley v Saddique [1992] 1 QB 1; [1991] 2 WLR 459

Watson v Wilmott [1990] 3 WLR 1103; [1991] 1 All ER 473

DAMAGE TO PROPERTY

Liesbosch Dredger v SS Edison [1933] AC 449

INJUNCTION (IN OUTLINE ONLY)

American Cyanamid v Ethicon Ltd [1975] AC 396

Gulf Oil Ltd v Page [1987] Ch 327

Morris v Redland Bricks Ltd [1970] AC 652

MEASURES OF DAMAGES FOR ECONOMIC LOSS (protection of the reliance interest)

NyKredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1998] 1 All ER 305 (HL)

Platform Home Loans Ltd v Oyston Shipways Ltd [1998] 4 All ER 252 (CA)

South Australian Asset Management Corp v York Montague Ltd [1996] 3 All ER 365 (HL); alsoreported as Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] 2 WLR 607 (HL)

Articles, Reports and Consultation PaperBeale ‘Valuer’s Negligence and Falls in the Property Market: Banque Bruxelles v Eagle StarCo’ (1995) 111 LQR 571

Fleming ‘Damages for Personal Injuries’ [1994] CLJ 436


117

Jaffey ‘The Law Commission Report on Aggravated, Exemplary and Restitutionary Damages’(1998) 61 MLR 860

Kemp ‘Damages for Personal Injuries: A Sea Change’ (1998) 114 LQR 570

Law Commission Report No 247 (1997) on Aggravated, Exemplary and RestitutionaryDamages

Law Commission Report No 262 (1999) ‘Damages for Personal Injury: Medical, Nursing andOther Expenses; Collateral Benefits’

Lewis ‘Damages Act 1996’ (1997) 60 MLR 230

Lord Chancellor’s Consultation Paper ‘Damages for Future Loss’ (March 2002)

Matthews and Lunney ‘A Tortfeasor’s Lot is Not a Happy One: Hunt v Severs’ [1995] 58 MLR 395

O’Sullivan ‘Negligent Professional Advice and Market Movements’ [1997] CLJ 19

Stapleton ‘Negligent Valuers and Falls in the Property Market’ (1997) 113 LQR 1

Stapleton ‘The Normal Expectancies Measure in Tort Damages’ (1997) 113 LQR 257

Woollard ‘Assessment of Damages for Non-Pecuniary Loss: Reform Proposals’ (1997) 31LTeach 142

Interrograms

1. What are nominal damages? When are they awarded?

2. What are contemptuous damages?

3. What are aggravated damages?

4. What are exemplary damages and why are the courts reluctant to grant them?

5. What recent reform proposals have been made regarding the recovery of aggravated,exemplary and restitutionary damages?

6. How do the courts assess the multiplicand and appropriate multipliers?

7. Do the courts make allowance for the impact of inflation in the future? Should they?

8. What is a ‘structured settlement’?

9. What is the effect of s32A of the Supreme Court Act 1981?

10. What are the effects of the Damages Act 1996?

11. What are the ‘lost years’? Can damages be claimed for loss of earnings in the lostyears?

12. What expenses are deducted from a lost years claim?

13. What is loss of earning capacity? Is it different from loss of earnings?

14. What is the effect of s2(4) of the Law Reform (Personal Injuries) Act 1948?

15. What deductions are made from a loss of earnings claim?

16. In what circumstances can a claim be made for pain and suffering?


118

17. What is loss of expectation of life? Does such a claim still exist?

18. What is the purpose of an award of damages under the Law Reform (MiscellaneousProvisions) Act 1934?

19. What is the effect of s4(2) of the Administration of Justice Act 1982? Do you think thesolution which was adopted is a satisfactory one?

20. How do the courts assess damages in a claim under the Fatal Accidents Act 1976?

Questions

1. Patrick, aged 42 and a father of four children, suffered a major heart attack in 1986which left him an invalid who would be unable to work for the rest of his life. Patrickwas a professor earning £40,000 per year. He is unable to look after himself and hiswife has had to give up work to look after him.

Glanville, aged 45 and also a father of four children, was severely injured in a car crashcaused by Brian, whose consciousness had been impaired by a stroke as he wasdriving. Glanville was so seriously injured that he will never return to work as anexecutive with a company which publishes law books. He is also unable to look afterhimself and his wife has had to give up work to look after him. Glanville’s employerscontinue to pay his salary on an ex gratia basis. He is also in receipt of £500 per monthunder a personal insurance policy during the remaining period of his disability.

Discuss any remedies available to Patrick and Glanville and justify any disparitieswhich you find.

2. a) Should tort damages in personal injury cases be paid by means of a lump sum orby periodical payments?

b) Jill was seriously injured in an accident caused by Micky’s negligence. As a resultof the accident Jill needs nursing care for the rest of her life. Her husband, Adam,a managing director earning £50,000 per annum, decided to give up his job tolook after Jill. He could have employed a nurse to look after Jill at a cost of£15,000 per annum, but felt that it was his responsibility as a husband to lookafter his wife.

Jill wishes to know whether she can claim damages for the care provided byAdam and, if so, how much. Advise her.

Would your advice differ if Jill told you that she had no intention of giving Adamany part of the damages award she received, but wished to invest all the moneyin British Gas shares, which she intended to give to the Accident PreventionSociety.

3. Is the current English law relating to the assessment of damages in cases of personalinjury satisfactory? If not, what reforms would you suggest?

4. Two brothers, James, aged 16, and Lionel, aged 20, were involved in a road accidentwhen a car driven by Lionel was in collision with a van driven by Walter. Lionel was 25per cent to blame and Walter 75 per cent. Lionel was killed instantly. James was soseriously injured that he is now completely paralysed and shows no signs ofconsciousness. It is estimated that his expectation of life is ten years. James and Lionelwere both unmarried. Their parents were aged 50 at the date of the accident and bothare school-teachers. Lionel was a very promising law student. James had just left


119

school with no qualifications (having declared that the educational system was merelya machine for producing wage slaves for capitalists).

Outline how damages will be calculated in respect of both James and Lionel.

5. ‘A series of recent English cases has raised, in an acute form, the problem of therelationship of the two theories underlying liability for wrongful death: loss to thesurvivors and loss to the estate. It has generally been assumed that loss to the survivorsis the preferable theory…[But] it will be suggested that there are substantialadvantages to the regime where only the estate can recover for wrongful death, andsurvivors’ claims are against the estate, not against the wrongdoer.’ (Waddams)

Discuss.

6. A procession of decorated lorries was making its way through the streets as part of alocal gala. Jake was standing on top of one of the floats holding a bucket into whichspectators were tossing coins. The lorry struck the corner of an awning projecting overthe roadway from the department store owned by Sellers plc. Jake was knocked fromthe lorry and the rear wheel passed over him. Jake was taken to hospital andunderwent two operations; he recovered consciousness intermittently and was heavilysedated because of the pain. He died after one month. Jake was a self-employedcarpenter; his wife Kate had done the paperwork for his business but had nototherwise been employed. He had two children, Leo and Molly, aged 8 and 6. Leo ismusically gifted and Jake has paid the fees to enable him to attend a school for suchchildren; Molly is mentally handicapped and attends a special state school; she isunlikely ever to be employable.

Advise Sellers plc whether and to what extent it will be liable to pay damages inrespect of the incident involving Jake.

7. ‘The present law on the assessment of damages for personal injuries is unfair andunsatisfactory, but the widespread adoption of structured settlements would eliminatemost of the problems.’

Discuss.

8. David was driving at dusk along a straight, level road at the maximum permittedspeed. A large bird flew out suddently and struck the windscreen of his car. Davidtemporarily lost control and struck a pedal cycle which he was overtaking. The cyclistPaul suffered severe head injuries. He was aged 24, an articled clerk with a firm of Citysolicitors, unmarried and childless. He is now able to do only light unskilled work at alocal supermarket. His expectation of life has probably not been reduced, but themedical experts are not agreed on this.

a) Has Paul a claim in tort against David? If so, how will the damages be assessed?

b) Do you think that English law provides a satisfactory method of compensation insuch circumstances?


120

Part 2: Study Unit Twenty Two

Topic

Defences and Limitation

Prologue

This study unit will consider the defences of ex turpi causa, necessity and mistake. Studentswill also look at limitation – this concerns the period of time starting with the day the cause ofaction arose within which a defendant can bring is claim. If a claim is made out of time thedefendant can raise limitation as a form of defence.

Essential Reading



Learning Outcomes

To have considered:

a) the defences which may apply in a tort action and which have not been dealt withelsewhere;

b) the defences of ex turpi causa, necessity and mistake;

c) the limitation periods which operate in a tort claim;

d) future trends in the law of tort, including the impact of European Law.

Sources of Law

Statutes

Consumer Protection Act 1987

Latent Damage Act 1986

Limitation Act 1980

Case Law

EX TURPI CAUSA

Ashton v Turner [1981] QB 137

Clunis v Camden and Islington Health Authority [1998] 3 All ER 180 (CA)

Law of Tort – 22. Defences and Limitation

121


National Coal Board v England [1954] AC 403 (HL)

Pitts v Hunt [1991] 1 QB 24; [1990] 3 WLR 542; [1990] 3 All ER 344 (CA)

Revill v Newbury [1996] 1 All ER 291

Tinsley v Milligan [1993] 3 WLR 126; [1993] 3 All ER 65 (HL)

NECESSITY

Burmah Oil Co v Lord Advocate [1965] AC 75

Hague v Deputy Governor of Parkhurst Prison [1992] 1 AC 58

Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985

Southwark Borough Council v Williams [1971] Ch 734; [1971] 2 WLR 467

LIMITATION

Adams v Bracknell Forest Borough Council [2004] 3 All ER 897

Broadley v Guy Clapham & Co [1994] 4 All ER 439 (CA)

Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189 (CA)

D W Moore & Co v Ferrier [1988] 1 All ER 400

Dobbie v Medway Health Authority [1994] 1 WLR 1234; [1994] 4 All ER 450

Forbes v Wandsworth Health Authority [1996] 4 All ER 881 (CA)

Letang v Cooper [1965] 1 QB 232; [1964] 2 All ER 929 (CA)

Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1

Stubbings v Webb [1993] AC 498; [1993] 2 WLR 120; [1993] 1 All ER 322 (HL)

Articles and Report

Hopkins ‘Ex Turpi Causa and Mental Disorder’ [1998] CLJ 444

Hopkins ‘Two Tales of Topers’ [1991] CLJ 27

Jones ‘Accidental Harm, Intentional Harm and Limitation’ (1994) 110 LQR 31

Law Commission Report No 270 ‘Limitation of Actions’ (2001)

McGee ‘Trespass and Limitation’ (1993) 109 LQR 356

McGee ‘Back to Pirelli’ (1992) 108 LQR 364

Mullaney ‘Reform of the Law of Latent Damage’ (1991) 54 MLR 349

Stowe ‘The Unruly Horse Has Bolted: Tinsley v Milligan’ (1994) 57 MLR 41

Williams ‘The Wrongdoing Passenger’ [1990] NLJ 1235


122

Interrograms

GENERAL DEFENCES

1. Explain what is meant by the maxim ex turpi causa non oritur actio.

2. What was said about ex turpi causa in Ashton v Turner?

3. Is mistake a defence in tort?

4. What is meant by inevitable accident?

5. Is necessity a recognised defence in tort?

6. What is the limitation period in a personal injuries claim?

7. When does time begin to run?

8. Why do we have limitation periods?

9. Explain the decision in Pirelli v Oscar Faber.

10. Why was the Latent Damage Act 1986 introduced?

11. What is the effect of the 1986 Act?

12. What recent reform proposals have been made regarding limitation periods?

FUTURE TRENDS

13. Is tort law generally suitable for legislative intervention?

14. Have recent legislative attempts to reform tort law been successful?

15. What does the enactment of the Consumer Protection Act 1987 tell us about theadequacy of the negligence action?

16. Is there a difference between contract and tort? If so, what?

17. Would you support a move towards extending the scope of strict liability?

18. Should the tort action be retained in cases of personal injury?

19. Is tort law all about negligence? If not, what is it concerned with?

20. What has been the impact of membership of the European Union on the developmentof the law of tort?

Questions

1. Plum was exercising his alsatian dog, Terror, in the park when he saw Grape trying tosteal the handbag of a young woman wheeling a pram. Plum released the dog fromits lead and said ‘Get him, Terror.’ Terror pounced on Grape and brought him to theground. Grape hurt his back when he fell and was also bitten in the face. Grape was adrug addict and therefore could not be given the normal treatment for the bite and forhis other injuries. As a result his treatment was delayed and he was in hospital for sixmonths. At the time of his injury he had just been asked to join a new pop group, theSoft Fruits, which has now had a number of successful concerts. Grape’s place wastaken by another instrumentalist and he is now unemployed.

Advise Grape.


123

2. Critically examine the Latent Damage Act 1986 and explain why it was enacted.

3. Examine the alternatives to fault liability in providing compensation for personalinjuries and death. Are any of these alternatives preferable to the present tort system?

4. ‘The defences of volenti non fit injuria and ex turpi causa are ill-defined andunnecessary.’

Discuss. (Refer to unit 10 for the defence of volenti.)


124

Revision and Examination Technique

Whole books have been written on how to study and this brief note makes no pretence atbeing an infallible guide. In any case, skill in revision and examination techniques is an art bestacquired by actual practice.

The more you study, the more you devise your own short cuts for efficient preparation forexams. Unfortunately, it is only when you actually sit the examination that you can see whetheryour particular method of revision is successful. If it is not, it is an expensive and frustratingway to find out.

While it is true that examination techniques are best learned actually sitting examinations, it isnot necessary to wait until the real thing. ‘Mock’ examinations, tackled under realisticconditions, can be very helpful. For example, select a question and, without looking at theskeleton answer (if there is one), write out your own. You can use the questions set throughoutthis Planner to stage your own practice run.

Or, if you have time, tackle a full quota of four or five questions at once – as a mockexamination.

The short list of do’s and don’ts below attempts to set out some suggestions which it is hopedmost students will find of practical use in planning their revision and tackling examinations.

Do’s

Before the examination

a) Do plan ahead and make your plans increasingly detailed as you approach theexamination date.

Allocate enough time for each topic to be studied, bearing in mind the time actuallyavailable to you before the exams.

b) Do exercise constant self-discipline, especially if studying at home.

c) Do, during your course of study, especially once revision starts, constantly test yourselforally and in writing.

d) Do keep up-to-date. While examiners do not require familiarity with changes in the lawduring the three months prior to the examination, it obviously creates a good impressionto show you are acquainted with any recent changes. Sources that you might look at inorder to be up to date include: leading journals such as Modern Law Review, LawQuarterly Review and New Law Journal; cumulative indices to law reports such as theAll England Law Reports, and such sources as the Law Society’s ‘Gazette’ and theLegal Executive ‘Journal’.

e) Do familiarise yourself with past examination papers, and try at least one ‘mockexamination’ well before the date of the real thing.

Law of Tort – Revision and Examination Technique

125

In the examination room

f) Do read the instructions on the examination paper carefully. While any last minutechanges are unlikely – such as the introduction of a compulsory question – it has beenknown to happen.

g) Do read the questions carefully. Analyse problem questions – work out what theexaminer wants. PLAN YOUR ANSWER before you start to write.

h) Do note mark allocations (if any) on the question paper. It is pointless to spend anexcessive amount of time in producing a perfect answer to a part of a problem thatcarries only a tiny percentage of the marks.

i) Do allow enough time to re-read your answers. A misplaced word (a ‘not’ in the wrongplace, for example) may turn a good answer into gibberish.

Don’tsa) Don’t finish the syllabus too early – constant revision of the same topic leads to

stagnation – but DON’T leave revision so late that you have to ‘cram’.

If you are the sort of person who works better to a deadline – make it a realistic one!

b) Don’t try to learn by rote. In particular, don’t try to reproduce model answers by heart.Learn to express the basic concepts in your own words.

c) Don’t answer the question you expect to see! By all means ‘problem-spot’ beforeexaminations by going over old exam papers but make sure that what the examiner isasking for really does match what you are preparing to write about.

and above all –

d) DON’T PANIC!

Finally, it may be useful at this juncture to say a few words about the structure of your answersin the examination. Amost all examination problems raise more than one legal issue that youare required to deal with. Your answer should do all of the following.

a) Identify the issues raised by the question

This is of crucial importance and gives shape to the whole answer. It indicates to theexaminer that you appreciate what he is asking you about. This is at least as importantas actually answering the questions of law raised by that issue. The issues should beidentified in the first paragraph of the answer.

b) Deal with those issues one by one as they arise in the course of the problem

This, of course, is the substance of the answer and where study and revision pays off.

c) If the answer to an issue turns on a provision of a statute, CITE that provision briefly,but do not quote it in detail from any statute you may be permitted to bring into theexamination hall

Having cited the provision, show how it is relevant to the question.


126

d) If there is no statute, or the meaning of the statute has been interpreted by the courts,CITE the relevant cases

‘Citing cases’ does not mean writing down the name of every case that happens to dealwith the general topic with which you are concerned and then detailing all the facts youcan think of.

You should cite only the most relevant cases – there may perhaps only be one. No morefacts should be stated than are absolutely essential to establish the relevance of thecase. If there is a relevant case, but you cannot remember its name, it is sufficient torefer to it as ‘one decided case’.

e) Whenever a statute or case is cited, the title of the statute or the name of the caseshould be underlined

This makes the examiner’s job much easier because he can see at a glance whether therelevant material has been dealt with, and it will make him more disposed in your favour.

f) Having dealt with the relevant issues, summarise your conclusions in such a way thatyou answer the question

A question will often say at the end simply ‘Advise A’, or B, or C, etc. The advice willusually turn on the individual answers to a number of issues. The point made here isthat the final paragraph should pull those individual answers together and actually givethe advice required. For example, it may begin something like: ‘The effect of the answerto the issues raised by this question is that one’s advice to A is that …’

Make sure that you have answered the question completely. If the question says ‘AdviseA, B, C and D’, don’t leave D out. Don’t get diverted into discussing advice to partieswhom you are not required to advise.

We wish you the best of luck!


127

0802mp_2 tort

Documents