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Sourcebook on Torts, Second Edition SOURCEBOOK ON TORTS Second Edition Cavendish Publishing Limited London • Sydney SOURCEBOOK ON TORTS Second Edition Graham Stephenson, LLM, Solicitor Principal Lecturer in Law University of Central Lancashire Cavendish Publishing Limited London • Sydney Second 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] Visit our Home Page on http://www.cavendishpublishing.com © Stephenson, Graham 2000 First edition 1996 Second 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. Stephenson, Graham, 1947— Sourcebook on tort law—2nd ed 1 Torts—England 2 Torts—Wales I Title 346.4'2'03 ISBN 1 85941 587 3 Printed and bound in Great Britain PREFACE I recall that when I was putting together the manuscript for the first edition I was running some 60 miles a week in preparation for the London Marathon of that year (1996). I completed the book but did not get much beyond the 14 mile mark in the race as a result of feeling unwell (it was particularly hot!). This year, I again was involved with the book and had also been accepted for the marathon. This time I am happy to say that I completed both without too much difficulty. The invitation from the publishers (to whom I am grateful) to do a second edition seems to have come round very quickly. There has been much to add, including several important House of Lords’ decisions, some statutory material and references to Law Commission Reports in relation to Psychiatric Illness and Damages. The more than welcome decision of the House of Lords in Arthur Hall and Co (a Firm) v Simons; Barratt v Woolf Seddon (a Firm); Harris v Schofield Roberts and Hill (a Firm) ((2000) The Times, 21 July) came too late for full consideration in this edition. In a highly significant ruling, the whole House decided that the advocate’s immunity from suit for negligence should be removed for acts during the conduct of civil proceedings and, by a majority (4:3), held that it should no longer survive in relation to acts performed in criminal litigation. As far as I can ascertain, the materials are up to date as at 1 July 2000. Graham Stephenson Preston July 2000 v ACKNOWLEDGMENTS Grateful acknowledgment is made to the Controller of Her Majesty’s Stationary Office for permission to reproduce Crown Copyright materials; to the Incorporated Council of Law Reporting for England and Wales for permission to reproduce extracts from the Law Reports and the Weekly Law Reports; to Butterworths for permission to reproduce extracts from the All England Law Reports; and to Sweet & Maxwell for permission to reproduce extracts from the Criminal Appeal Reports. vii CONTENTS Preface v Table of Cases xv Table of Statutes xxxv 1 INTRODUCTION 1 TORT AND OTHER TYPES OF LIABILITY 2 FUNCTIONS OF TORT LAW 5 Appeasement and vindication of rights 6 Justice 6 Deterrence 7 Public forum function 8 Compensation function 9 HUMAN RIGHTS 11 CONCLUSION 11 2 DUTY OF CARE 13 INTRODUCTION 13 THE ELEMENTS OF NEGLIGENCE 13 DUTY OF CARE 15 Pre-1932 16 Post-Donoghue 23 Post-Anns 25 Post-Caparo 31 HUMAN RIGHTS 32 SPECIFIC AREAS OF DIFFICULTY 39 Omissions 40 IMMUNITY BASED ON THE DEFENDANT’S STATUS. 53 Police 53 Other emergency services. 58 Public authorities 67 3 BREACH OF DUTY 91 INTRODUCTION 91 STANDARD OF CARE 92 FACTORS TAKEN INTO ACCOUNT 96 Magnitude of the risk 97 Seriousness of the harm 103 Cost and practicality of precautions 104 ix Sourcebook on Torts Social utility of the defendant’s activity 106 Special standards 107 Professional persons 107 Common practice 114 Children 125 Sporting competition 128 Proof of breach 132 4 CAUSATION AND REMOTENESS OF DAMAGE 137 INTRODUCTION 137 CAUSATION IN FACT 137 The extent of the harm 143 Successive causes 146 Multiple causes 155 Proof of causation 155 Lost chance 164 REMOTENESS OF DAMAGE 166 Type of harm 169 Manner of occurrence 170 Extent of the harm 173 Egg-shell skull rule 174 Claimant’s economic state 175 Intervening events 176 Intervening natural events 177 Intervening negligent acts by third parties 177 Deliberate intervention by third parties 180 Act of the claimant 187 5 LIABILITY FOR PSYCHIATRIC INJURY 191 INTRODUCTION 191 PRIMARY VICTIMS 192 SECONDARY VICTIMS 196 6 LIABILITY FOR ECONOMIC LOSS 259 PURE ECONOMIC LOSS 260 GENERAL RULE AGAINST RECOVERY 278 The notable exception 280 RELIANCE 305 OTHER EXCEPTIONAL CASES 309 CONCLUSION 328 x Contents 7 OCCUPIER’S LIABILITY 329 INTRODUCTION 329 LIABILITY TO LAWFUL VISITORS 330 Who is an occupier? 331 Who is a lawful visitor? 336 THE COMMON DUTY OF CARE 338 Variations in the standard of care 341 Warning notices 348 Liability for independent contractors 349 Limitations on the extent of the duty 354 Restriction or exclusion of liability 357 Liability to trespassers 358 8 PRODUCT LIABILITY 363 INTRODUCTION 364 COMMON LAW 364 Who owes the duty? 364 To whom is the duty owed? 367 STANDARD OF CARE 368 CAUSATION/REMOTENESS 372 STRICT LIABILITY 373 COMMENTARY 386 Products covered 386 Producer 387 Actionable damage 387 Defect 388 Defences 388 9 STRICT LIABILITY 393 INTRODUCTION 393 LIABILITY FOR ESCAPES OF THINGS 393 Non-natural use 396 Escape 398 Status of the claimant 399 Defences 401 Remoteness of damage 402 LIABILITY FOR FIRE 405 Fire under Rylands v Fletcher 406 Negligence 409 Nuisance 411 xi Sourcebook on Torts LIABILITY FOR ANIMALS 413 Common law 413 Animals Act 1971 414 COMMENTARY 419 Defences 425 10 NUISANCE 429 INTRODUCTION 429 DISTINCTION BETWEEN PUBLIC AND PRIVATE NUISANCE 430 PRIVATE NUISANCE 437 Interests protected 437 Conduct covered 441 Activity or conduct must be unreasonable 441 Negligence a factor? 441 Continuing or isolated escape? 448 Substantial harm 449 Locality 450 Social utility 451 Claimant’s hypersensitivity 452 Duration, frequency and intensity 453 Motive 453 Who can be sued? 454 Remoteness of damage 456 Types of damage recoverable 459 Defences 459 REMEDIES FOR NUISANCE 462 11 TRESPASS TO THE PERSON 469 INTRODUCTION 469 DIRECT HARM 470 Nature of liability in trespass to the person 472 Hostility 477 Assault and battery 481 Intentionally caused harm outside trespass 486 DEFENCES TO ASSAULT AND BATTERY 487 Self-defence 488 Provocation 488 Contributory negligence 489 Ex turpi causa and volenti 490 Consent 492 FALSE IMPRISONMENT 494 xii Contents 12 DEFAMATION 501 INTRODUCTION 501 WHO CAN SUE? 502 THE MEANING OF DEFAMATORY 503 DEFAMATORY OF THE CLAIMANT 507 PUBLICATION 509 Difference between libel and slander 510 DEFENCES 512 Responsibility for publication 512 Offer to make amends 513 Justification 516 Absolute privilege 516 Qualified privilege at common law 518 Statutory qualified privilege 536 Fair comment 541 MALICE 542 DAMAGES 543 13 DEFENCES 549 INTRODUCTION 549 VOLENTI NON FIT INJURIA 549 CONTRIBUTORY NEGLIGENCE 557 14 VICARIOUS LIABILITY 565 INTRODUCTION 565 TEST FOR DECIDING WHO IS AN EMPLOYEE 566 COURSE OF EMPLOYMENT 572 Time 572 Place 573 What was the employee employed to do? 574 Benefit of employer 575 Express prohibitions by employer 577 LENDING OF VEHICLES 579 15 ASSESSMENT OF DAMAGES 581 INTRODUCTION 581 GENERAL AND SPECIAL DAMAGES 582 AGGRAVATED AND EXEMPLARY DAMAGES 583 LUMP SUM 589 Pecuniary and non-pecuniary losses 592 xiii Sourcebook on Torts Medical expenses 593 Loss of earnings 595 THE LOST YEARS 610 DEDUCTIONS FROM DAMAGES 612 Comment 616 Collateral benefits 617 Loss of earning capacity 618 Pain and suffering 619 Loss of amenity 620 DAMAGES ON DEATH 621 CONCLUSION 627 Index 629 xiv TABLE OF CASES A AB v South West Water Services Ltd [1993] QB 507 462, 586 Adams v Ursell [1913] 1 Ch269 450 Adams v Ward [1917] AC 309; [1916–17] All ER Rep 157 518, 524 Addie v Dumbreck [1929] AC 358 358 Admiralty Comrs v SS Volute [1921] All ER Rep 197; [1922] 1 AC 136 129 Al Saudi Banque v Clark Pixley (a Firm) [1989] 3 All ER 36; [1990] 2 WLR 344 296 Albery-Speyer and Budden v BP Oil Ltd (1980) 124 SJ 376 372 Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907; [1992] 1 AC 310 211, 225–28, 231, 233–42, 244–49 Alexander v North Eastern Rly Co (1865) 6 B & S 340 516 Alexandrou v Oxford [1993] 4 All ER 328 56, 57 Aliakmon, The; see Leigh and Sullivan Ltd v Aliakmon Shipping Co Ltd— Allbut v General Council of Medical Education and Registration (1889) 23 QBD 400 525, 526 Allen v Gulf Oil Refining Ltd [1980] QB 156; [1979] 3 All ER 1008 460, 461 Ancell v McDermott [1993] 4 All ER 355 56 Anns v Merton London Borough Council [1978] AC 728; [1977] 2 All ER 492 14, 24, 25, 27–30, 50, 52, 54, 59, 67, 70, 71, 77, 80–82, 88, 234, 266, 270–78, 328 Arneil v Schnitzer (1944) 173 ORE 179 46 Arthur Hall and Co (a Firm) v Simons; Barratt v Woolf Seddon (a Firm); Harris v Schofield Roberts and Hill (a Firm) ((2000) The Times, 21 July v, 53 Ashdown v Samuel Williams [1957] 1 QB409 357 Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] KB 223; [1947] 2 All ER 680 81 Attia v British Gas [1987] 3 All ER 455 225, 226 Attorney General v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545; [1990] 1 AC 109 503 Atwell v Michael Perry & Co [1998]
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