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Principles of Tort Law, Fourth Edition PRINCIPLES OF TORT LAW Fourth Edition CP Cavendish Publishing Limited London • Sydney EDITORIAL ADVISORY BOARD PRINCIPLES OF LAW SERIES PROFESSOR PAUL DOBSON Visiting Professor at Anglia Polytechnic University PROFESSOR NIGEL GRAVELLS Professor of English Law, Nottingham University PROFESSOR PHILLIP KENNY Professor and Head of the Law School, Northumbria University PROFESSOR RICHARD KIDNER Professor at the Law Department, University of Wales, Aberystwyth In order to ensure that the material presented by each title maintains the necessary balance between thoroughness in content and accessibility in arrangement, each title in the series has been read and approved by an independent specialist under the aegis of the Editorial Board. The Editorial Board oversees the development of the series as a whole, ensuring a conformity in all these vital aspects. PRINCIPLES OF TORT LAW Fourth Edition Vivienne Harpwood, LLB, Barrister Reader in Law, Cardiff Law School CCPP Cavendish PublishingCavendish PublishingLimited Limited London • Sydney Fourth edition first published in Great Britain 2000 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom. Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email: [email protected] Website: http://www.cavendishpublishing.com © Harpwood, V2000 First edition 1993 Second edition 1996 Third edition 1997 Fourth edition 2000 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. British Library Cataloguing in Publication data Harpwood, Vivienne Tort law – 4th ed (Principles of law series) 1 Torts – England 2 Torts – Wales I Title II Principles of tort law 346.4'2'03 ISBN 1 85941 467 2 Printed and bound in Great Britain PREFACE Tort is a broad church and many hymns, ancient and modern, can be heard within it. It is an ideal subject for undergraduate study because it shows how the law develops and responds to changing social and economic conditions. The origins of tort can be traced to the early years of the last millenium, and it has survived to enter this millenium while still undergoing a process of evolution. Jurisprudentially, it is intriguing because it demonstrates the shifting boundaries of judicial creativity. All the traditional subject matter of tort is analysed here in detail but particular emphasis is placed on exploration of complex and contentious areas and topics which students find perplexing. This fourth edition updates the material in the previous edition in the light of recent developments in this fast moving area of law. There is discussion of numerous cases decided at appellate level, including those concerning duty of care, liability for psychiatric injury, breach of duty, quantum and occupiers’ liability, as well as other mainstream areas of tort studied on undergraduate and professional courses. The impact of the Human Rights Act 1998 on the law of tort is discussed. The substantive law is set in the context of the Civil Procedure Rules 1998, changes in the availability of legal aid and other institutional and social changes. The book is carefully structured and has been updated with the student very much in mind. This book is the product of many years of lecturing and tutoring tort and would not have been possible without the stimulus and encouragement of colleagues and students too numerous to mention. Vivienne Harpwood September 2000 v CONTENTS Preface v Table of cases xxvii Table of statutes lix Table of statutory instruments lxiii Tavle of EU legislation lxv 1 AN OVERVIEW OF THE LAW OF TORT 1 1.1 WHAT IS TORT? 1 1.2 TORT AND CONTRACT 1 1.2.1 Duties fixed by law 1 1.2.2 Duties to whom? The relationship between the parties 2 1.2.3 Redressable by an action for unliquidated damages 2 1.2.4 Unliquidated damages 4 1.3 TORT AND CRIMINAL LAW 5 1.4 OTHER DEFINITIONS OF TORT 6 1.5 INSURANCE AND THE LAW OF TORT 6 1.6 AN OVERVIEW OF THE LAW OF TORT 7 1.7 CASE LAW 9 1.8 OTHER SYSTEMS OF COMPENSATION 10 1.9 TORTS OF STRICT LIABILITY 10 1.10 THE HUMAN RIGHTS ACT 1998 12 1.10.1 An example 13 1.10.2 The future of human rights and tort law 13 1.11 A SUMMARY OF THE OBJECTIVES OF TORT 13 1.11.1 An illustration of the operation of the tort system 15 1.11.2 The scenario 15 1.11.3 Are the objectives of tort met in this case? 16 SUMMARY OF CHAPTER 1 19 vii Principles of Tort Law 2 INTRODUCTION TO THE TORT OF NEGLIGENCE 21 2.1 FAULT 21 2.2 DONOGHUE V STEVENSON AND THE MODERN TORT OF NEGLIGENCE 22 2.2.1 The policy arguments 22 2.2.2 The significance of the decision 23 2.3 ESTABLISHING LIABILITY FOR NEGLIGENCE 24 2.3.1 What must be proved: duty; breach; damage 24 2.3.2 Duty of care 25 2.3.3 Breach of duty 25 2.3.4 Causation and remoteness of damage 27 SUMMARY OF CHAPTER 2 29 3 DUTY OF CARE – GENERAL PRINCIPLES 31 3.1 DUTY OF CARE 31 3.2 THE TEST FOR DETERMINING THE EXISTENCE OF A DUTY OF CARE 31 3.2.1 Foresight 31 3.2.2 Proximity 32 3.2.3 What is fair, just and reasonable 33 3.3 THE OPERATION OF JUDICIAL POLICY IN NEGLIGENCE 34 3.4 DEFINITION OF ‘POLICY’ 34 3.5 FACTORS INFLUENCING JUDICIAL POLICY 35 3.5.1 Legal reasoning 36 3.5.2 Role of the ‘duty’ principle in developing the law as a policy device 37 3.6 LATENT POLICY DECISIONS 38 3.7 EXPLICIT POLICY DECISIONS 38 3.8 THE DEVELOPEMENT OF A TWO-STAGE TES AND OPEN DISCUSSION OF POLICY 39 viii Contents 3.9 THE RETREAT 40 3.9.1 Criticisms of the two-stage test 40 3.10 THE INCREMENTAL APPROACH – THE THREE-STAGE TEST 41 SUMMARY OF CHAPTER 3 43 4 DUTY OF CARE – PSYCHIATRIC INJURY 47 4.1 WHAT IS ‘NERVOUS SHOCK’? 47 4.1.1 Recognised symptoms of psychiatric injury 48 4.2 DEVELOPMENT OF THE LAW 50 4.2.1 Fear for relatives and friends 51 4.2.2 The impact theory 51 4.2.3 The ‘area of shock’ theory 51 4.2.4 Rescuers 52 4.3 EXPANSION OF LIABILITY 53 4.3.1 Cases involving the ‘immediate aftermath’ 54 4.4 CONTRACTION OF LIABILITY FOR NERVOUS SHOCK 55 4.4.1 Restrictions on the scope of the duty 55 4.4.2 Proximity 57 4.4.3 The close tie of love and affection 57 4.4.4 The means by which the shock was sustained 57 4.5 THE IMMEDIATE EFFECTS OF ALCOCK 58 4.5.1 Pre-accident terror 59 4.6 DEVELOPMENTS SINCE ALCOCK 59 4.6.1 Primary and secondary victims 60 4.6.2 Rescuers – a new approach 61 4.6.3 The role of foresight 63 4.6.4 Employees 64 4.6.5 Sudden shock or slow appreciation 64 4.6.6 A summary of developments since Alcock 65 4.7 THE LAW COMMISSION REPORT 68 ix Principles of Tort Law 4.8 THE FUTURE OF PSYCHIATRIC INJURY CLAIMS – A DEVELOPING AREA OF LAW 69 4.8.1 ‘Bullying’ claims 72 SUMMARY OF CHAPTER 4 73 5 DUTY OF CARE – ECONOMIC LOSS 79 5.1 ECONOMIC LOSS CAUSED BY CARELESS STATEMENTS 79 5.1.1 Statements made by the defendant 79 5.1.2 The special relationship 80 5.1.3 Reliance 81 5.1.4 Reliance must be reasonable 81 5.1.5 Discharging the duty 82 5.1.6 A ‘case by case’ approach 83 5.1.7 Summary of Caparo v Dickman 83 5.1.8 Further developments 84 5.1.9 Statements made by a third party 88 5.2 ECONOMIC LOSS CAUSED BY NEGLIGENT ACTS 90 5.2.1 ‘Pure’ economic loss distinguished from other types of economic loss 91 5.2.2 Expansion of liability 91 5.2.3 The ‘high-water’ mark 93 5.2.4 Contraction of liability 94 5.2.5 The courts recognise the artificial distinctions made in previous cases 95 5.2.6 The new limits on liability 96 5.2.7 Summary 97 SUMMARY OF CHAPTER 5 99 6 SITUATIONS IN WHICH NO DUTY OF CARE IS OWED 103 6.1 THE ‘NO DUTY’ CASES 103 6.1.1 Lawyers 103 6.1.2 Legal proceedings 104 x Contents 6.1.3 Other causes of action 104 6.1.4 Other sources of compensation 104 6.1.5 Claimant is a member of an indeterminately large class of persons 104 6.1.6 Wrongful life 105 6.1.7 The police 105 6.1.8 The human rights arguments 109 6.2 CLAIMANT CAUSED HIS OR HER OWN MISFORTUNE 110 6.3 RESCUE CASES 110 6.4 DUTIES OWED BY OTHER PUBLIC BODIES 111 6.4.1 Health authorities and local authorities 111 6.4.2 Duty of ambulance service 116 6.5 CONCLUSION 119 SUMMARY OF CHAPTER 6 121 7 BREACH OF DUTY – THE STANDARD OF CARE 123 7.1 THE ‘REASONABLE MAN’ TEST 123 7.2 THE CASES 124 7.2.1 Reasonable assessment of risk 125 7.2.2 Unforeseeable risk cannot be anticipated 126 7.2.3 The utility of the conduct 127 7.2.4 The expense of taking precautions 127 7.2.5 Lack of special skills 128 7.2.6 Contributory negligence and the standard of care 129 7.2.7 Children 129 7.2.8 The sick and disabled 130 7.2.9 Carers and organisers 130 7.2.10 Drivers 132 7.2.11 Experts, professionals and people with special skills 133 7.2.12 Some criticisms of Bolam 134 7.2.13 Challenges to Bolam: the Bolitho test 135 xi Principles of Tort Law 7.2.14 Acceptable professional standards 139 7.2.15 Trainee experts 142 7.2.16 Clinical negligence 142 7.2.17 Professional negligence claims generally 143 7.3 PROOF OF NEGLIGENCE AND RES IPSA LOQUITUR 144 7.3.1 Unknown cause 144 7.3.2 Lack of proper care 145 7.3.3 Control by the defendant 145 7.4 RES IPSA LOQUITUR AND MEDICAL CASES 145 7.5 EFFECTS OF RES IPSA LOQUITUR 146 7.6 THE CONSUMER PROTECTION ACT 1987 146 SUMMARY OF CHAPTER 7 147 8 CAUSATION AND REMOTENESS OF DAMAGE 149 8.1 THE RELATIONSHIP BETWEEN CAUSATION AND REMOTENESS OF DAMAGE 149 8.2 CAUSATION 149 8.2.1 A typical examination problem 149 8.2.2 The ‘but for’ test 150 8.2.3
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