Tort Law Notes

Part 1 out of 2

[127 pages]

Contents:

Intentional Interferences with the Person + Defences

Occupiers’ Liability

Nuisance + The Tort in Rylands v Fletcher

Remedies

Vicarious Liability

Intentional Interferences with the Person

Who can sue whom, in what tort, for what damage and are there any defences?

Causes of Action

Trespass to the person is an intentional tort = the conduct must be deliberate. It is the act and not the injury that has to be intentional, D does not need to intend to commit a tort or cause harm. Trespass is actionable without proof of damage.

Letang v Cooper [1965] QB 232

Patch of land/grass used as car park for a hotel. Claimant sunbathing on that patch, car ran over her. Suffered severe injuries to her legs, she sued. It mattered whether she was bringing her claim in the tort of battery and in the tort of negligence because of the limitation period. This no longer applies because of new statute (private law 6 years, personal injury 3 years). Lord Denning: “We divide the causes of action now according as the defendant did the injury intentionally or unintentionally.” Intentionally = trespass to the person Unintentionally = negligence

ASSAULT

An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person. Assault protects the right not to be put in fear of unlawful invasion of our integrity.

Elements: 1) Intention that claimant apprehends the application of unlawful force. 2) Claimant must reasonable apprehend the application of unlawful force. 3) The threat must be of immediate and direct force.

Immediacy

Stephens v Myers

Argument at a parish meeting → C was the chairman of the meeting, D was sitting at the other end of the table, got into an argument. Motion was raised that D should leave. D said “I’d rather turn the chairman out of his chair than leave.”

Lots of other people between D and C. Did D have the means to carry it out? Was there a threat of immediate and direct force? Tindal CJ: “It is not every threat, where there is no actual personal violence, that constitutes an assault, there must in all cases, be the means of carrying the threat into effect.”

Tuberville v Savage (1669) 1 Mod 3

D says to C: “If it were not assize time, I would not take such language from you” and put hand on his sword. Threat conditional, condition not satisfied, so not an immediate threat – no assault. Look at the nature, what was actually says, as well as the means of carrying it out.

Thomas v National Union of Mine Workers

Striking miners were protesting. Some people decided to go to work during the strike, not well received by the strikers who made threats against the workers going in on buses. Scott J: ‘The tort of assault is not, in my view, committed, unless the capacity in question is present at the time the overt act is committed. Since the working miners are in vehicles and the pickets (people striking) are held back from the vehicles, I do not understand how even the most violent of threats or gestures could be said to constitute an assault.’

R v Ireland [1998] AC 147

Facts: D spent three months harassing three women with silent phone calls to their home at night, sometimes with heavy breathing. Not threatening anything expressly. Can words alone amount to an assault? Or was a physical manifestation of the threat required?

Lord Steyn: “The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence.” “He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the possibility of immediate personal violence.” Landlines → he knew that they were in their house. This was a key element to how menacing this was.

Ratio: Silence can amount to assault, despite no gestures or words. Must look at the facts. Importance placed on the effect on the victim.

BATTERY

A battery is the actual infliction of unlawful force on another person. Battery protects our bodily integrity.

Elements: 1) Intention on the part of the defendant (intentional conduct) 2) Application of direct and immediate force 3) The application of that force must be unlawful (without justification)

Collins v Wilcock (1984)

Facts: A woman was charged with assaulting a police officer. Woman was a prostitute. Officer grabbed her arm but did not place her under arrest, she retaliated and hurt the officer. Unlawful for officer to have grabbed her in the first place.

Defines the three trespass to the person torts. Goff LJ: Broad underlying principle “The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery.” Blackstone’s Commentaries: “The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it.” Goff LJ: General exception “Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.”

Ratio: If you show that someone touched you without your consent or justification, that is a battery, don’t need to show that you suffered any harm.

Transferred intent

Battery must show intentional conduct in the application of the unlawful force. Complication → e.g. A aiming at B who is standing in front of C, but missed B and hit C instead.

James v Campbell

C and D involved in argument. Third man was the source of most of the heat in the discussion, a Mr Paxton. Aimed at Paxton but gave C two black eyes. Claimant succeeded.

Livingstone v Ministry of Defence

During a NI Troubles riot, a soldier fired a baton round into the crowd and hit C. MoD argued there can’t be a battery because not aiming at the claimant in particular. You intended to apply force, doesn’t matter that it was someone else you intended to apply force to. Transfer doesn’t negate intention.

Scott v Shepherd [1773] 2 Black W 892

D threw a firework into a crowded market place. Interjection of people who panicked and threw it is a natural reaction, intervened and created a chain of throwing the firework. Whatever mischief follows from the original perpetrator’s unlawful act to frighten the bystanders comes back to him.

Recklessness

Bici v Ministry of Defence

British soldiers overseas, locals in celebration firing guns in the air Soldier fired at a person he thought was going to fire at him. Not a defence. Spraying bullets to a car coming towards you is at least reckless. Recklessness is sufficient to establish liability. Must be subjective recklessness → appreciated the potential harm

Hostility

Wilson v Pringle [1987] QB 237 (overruled)

Two boys as school where messing around. One boy jumps in the air and yanks the schoolbag from the other boy’s shoulder and causes him injury. D argues this was just horseplay. C says it is a hostile act, physical intrusion. ‘It is the act and not the injury which must be intentional. An intention to injure is not essential to an action for trespass to the person. It is the mere trespass by itself which is the offence.’ Croom-Johnson LJ: ‘Another ingredient in the tort of trespass to the person is that of hostility … If there is hostile intent, that will by itself be cogent evidence of hostility. But the hostility may be demonstrated in other ways…’

F v West Berkshire AHA (1990)

HL held that hostility is not a requirement of battery. There is a difference between the general exception established in Colins v Wilcock and acts which aren’t hostile but are batteries.

FALSE IMPRISONMENT

False imprisonment is the unlawful imposition of constraint on another's freedom of movement from a particular place. False Imprisonment protects our personal liberty in a physical sense.

Elements: 1) D must intend the restriction of C’s freedom of movement. 2) Imprisonment – complete restriction of C’s freedom of movement. 3) ‘False’ – The restriction must be unlawful.

1. Intention

R v Governor of Brockhill Prison, ex parte Evans

Facts: Evans, governor of Brockhill Prison, made a mistake and accidentally kept C in prison for 59 days because of a sentence miscalculation. C sued for false imprisonment. Governor was held liable.

Ratio: False imprisonment = tort of strict liability Unless you can justify the lawfulness of the act, you are liable. - The requisite intention is to restrict movement. - It’s about the act, regardless of whether you think you were justified or not. - D does not need to act in bad faith, or to intend to imprison falsely. Whether D is at fault by doing it maliciously or in bad faith is irrelevant to liability.

Iqbal v Prisoner Officers Association [2009] EWCA Civ 1312

Facts: Mohammed Iqbal is a prisoner who lives a boring routine existence in prison. His cell is unlocked with breakfast, he is allowed out, cleaning duty, exercise, lunch, hot meal, go to the gym, ring his mu, locked in for 12 hours over night. Prison officers decides to go on an unlawful strike. Not enough people to staff the prisons, lockdown initiated so Mr Iqbal was not allowed out of his cell for the little slivers of freedom → Iqbal’s movement was restricted because of the strike. Can we say the officers intentionally confined Iqbal to his cell?

If the defendant realises that the likely consequence of his act or omission will be that the claimant is imprisoned and carries on with that act/omission regardless of that likely consequence, that will amount to false imprisonment.

Ratio: 2:1 majority says no liability. Liability for positive acts vs liability for omissions. Really this was an omissions case, no right to be let out. In prison, your rights are only such that the prison governor allows. Haven’t unlawfully locked him in the previous night. Smith LJ: ‘I consider that there is much force in [the] submission that, save in particular circumstances, the tort of false imprisonment is not committed by omission or by refusal to act. Those particular circumstances were satisfied in the Brockhill Prison case where there was a right to be released and a duty to release. I do not think it would be right to extend those particular circumstances to cases where the right and the duty were anything other than clear.’ Sullivan LJ, dissenting: ‘While the right to strike is important, the right not to be falsely imprisoned is of fundamental importance.’

2. Complete restriction

Bird v Jones (1845) 7 QB 742

Grand stand set up for spectators to watch a boat race, closed off footpath. C wanted to walk but was stopped → his movement was restricted. Patteson J: ‘Imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him.’ Claim failed because it was not a complete restriction, just an obstruction. We are not dealing here with complete and total restriction of movement, C could have walked in any other direction.

Circumstances can completely restrict the movement, like “don’t move or I’ll shoot you”.

3. Lawfulness

Hague v Deputy Governor of Parkhurst Prison [1992] 1 AC 58

C serving long prison sentence. He was put in solitary confinement and subjected to various punitive measures during his detention. C complained not about having been sent to prison, but the way he was detained → argued that his detention was against prison rules, the character of the detention was unlawful. Claimed that it was unlawful for residual liberty to confined.

The lawfulness of the detention in the first place must be scrutinised. Allegations about conditions don’t change lawful imprisonment into unlawful detention. Lord Ackner: ‘An otherwise lawful imprisonment is not rendered unlawful by reason only of the conditions of detention, thereby providing a prisoner with a potential action for the tort of false imprisonment.’

Austin v Commissioner of Police of the Metropolis

May Day protests in 2001, police rounded up protestors and members of the public. Was this an interference with their liberty/tort of false imprisonment, was it justified or not? ECHR Article 5(1): ‘Everyone has the right to liberty and security of person’. Without lawful justification, e.g. committing a crime, cannot interfere with liberty. Could have amounted to the tort if they did it for longer to ’teach them a lesson’, which would lose that justification of public safety reasons → can only detail for as long as is necessary.

Relevance of claimant’s knowledge

Does it matter if at the time of imprisonment, the claimant didn’t know?

Herring v Boyle Dispute of payment of a boy’s school fees. Master refused to let the boy leave over the Christmas holidays. Boy wasn’t aware of the dispute. Judge said if he was not upset, no claim.

Meering v Graham-White Aviation Co Claimant was suspected of theft. Brought into a room to be questioned. Two guards outside stationed, told to stop him from leaving. Claimant didn’t try to leave, but his freedom of movement was still restricted.

Murray v Ministry of Defence

C suspected of being involved with fundraising for the IRA, so her house was raided. Soldiers didn’t initially tell her what was happening, burst into the house because of time pressure and didn’t want things to be concealed while they arrested her. The fact that C didn’t know at the time, is not a barrier to liability. Lord Griffiths: ‘The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage.’ If C is unaware he has been falsely imprisoned, and has suffered no hard, he only gets nominal damages as a token amount to recognise that a wrong has been done. No harm worthy of compensation.

Causation test

The causation test is not an element in the tort of false imprisonment.

Lumba

Facts: Secretary of State operated a secret policy against release of detained foreign nationals who were to be deported. Lumba was convicted of various violent and sexual assaults. If the formal policy had been followed, there were still grounds for detaining him, but actually detained due to the unlawful secret policy.

Ratio: 6:3 split on liability: Claimant succeeded The majority emphasises the fundamental importance of right not to be detained unlawfully without justification. Lord Dyson: ‘All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so (in fact).’ The court will not let public officials act according to secret policies. No defence of causation “so as to render lawful what is in fact an unlawful authority to detain, by reference to how the executive could and would have acted if it had acted lawfully, as opposed to how it did in fact act.”

Different 6:3 split: Claimant entitled only to nominal damages If you are saying that this tort protects a really fundamental right, why only nominal damages? Diminishing the harm that has occurred. Saying it is only successful on a technicality = you are both rightly and falsely imprisoned. Lord Brown, dissenting: “Rather than hold a detainee simultaneously both rightly detained and falsely imprisoned, the law should instead recognise that, notwithstanding a flaw in the decision-making process such as to involve the breach of a public law duty, the decision-maker has not in those circumstances committed the tort of false imprisonment.” If D can show that C would have been imprisoned anyway, then D has no liability.

Kambadzi

This is the hypothetical situation Lord Brown talked about but in real life. Originally C was lawfully detained, but failure to comply with requirement of regular reviews of detention → procedural rather than substantive failure. 3:2 split, false imprisonment established. Nominal damages only. Lord Brown dissent: there shouldn’t be any liability in the first place.

Conditions and terms

Robinson v Balmain New Ferry Co

Tunstall at the end of the boat, had to pay a penny every time you go through. C refused to pay exit charge for the pier. C agreed to conditions, they were only holding him to that. Claim failed, no liability.

Herd v Weardale Steel Co

Coal worker would go down mineshaft to work. Deal is to bring them down at the start of shift, and up at the end of shift. When C went down in the mine on the condition that he would only be brought up at the end of the shift. He refused to work, said it was dangerous. D did not let him up for 20 mins. Viscount Haldane LC at 72: “It is not false imprisonment to hold a man to the conditions he has accepted when he goes down a mine.” D is entitled to hold you to the terms and conditions you agreed to.

Defences

Lawful justifications for what would otherwise be a trespass:

1. SELF-DEFENCE

Ashley v Chief Constable of Sussex Police [2008] UKHL 25, [2008] 1 AC 962

Leading case on self-defence in tort is Ashley Police raid on house of a man thought to be a dangerous criminal. Police were briefed beforehand that he might be armed and dangerous. He was naked in bed and unarmed, officer thought he was coming at him and shot him dead. Family sued.

Lord Rodger: ‘If a person is actually under a potentially lethal attack or such an attack is imminent, the law recognises that he is entitled, or permitted, to defend himself and, if need be, to kill his assailant. The killing is justified.’ In criminal law, enough that you honestly believed you were under attack. The officer was acquitted because he honestly thought he was being attacked.

Lord Scott: ‘As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person has the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does constitute legitimate self-defence must strike the balance between these conflicting rights.’ The right of the police officer to self-defence vs the right of Mr Ashley not to be battered. We need an additional limit to D’s ability to say he thought something. HL held unanimously: In a civil law claim for tortious assault and battery where D acted under a mistaken belief that he was in imminent danger of being attacked, there is an objective test → D’s belief must be both honestly and reasonably held.

Lord Scott: ‘It is one thing to say that if A's mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A's unreasonably held mistaken belief would be sufficient to justify the law in setting aside B's right not to be subjected to physical violence by A.’

Two points were left open by some judges in the decision, flagged but not decided:

• Should self-defence be available where D’s reasonable belief is based on information given to him by a third party rather than the victim’s action itself.

Reason the officer thought he was under attack was because of the briefing and Mr Ashley’s reputation. Argument that you shouldn’t take into account what someone unconnected to the victim tells you about them.

• Should self-defence be available to a claim for battery only where the defendant was actually being attacked or in imminent danger of an attack? Is the better way to strike the balance saying that it is only possible if you are actually being attacked?

Does the response need to be proportionate?

Revill v Newberry

C was burglar who planned to raid an allotment. D was an elderly man who thought someone might rob the shed, sat inside it with a shotgun. When he heard C walk outside, he shoots and injures him through the door. Shot blindly to the door in an indiscriminate way = not proportionate. Not justified to use excessive force. Millett LJ: ‘The assailant or intruder may be met with reasonable force but no more; the use of excessive violence against him is an actionable wrong.’ Is acting illegally a bar to claims?

Chief Constable of Merseyside Police v McCarthy [2016] EWCA Civ 1257

Police in Liverpool called to break up a fight in a hotel where there was a drunken argument. C was there with friends, punched an officer. Officer fired shot of tazer. C got back up and tackled officer. Officer fell down the stairs and tazed him again, held for 11 seconds. 5 seconds was reasonable. Didn’t intend to prolong but as a matter of fact he did. He was distracted. CA held it was justified → initial contact and holding on longer were both justified, did not lose the defence.

2. CONSENT

Consent acts a defence to a trespass claim, as it negates the unlawfulness of D’s action. Related to “volenti non fit iniuria” = no actionable injury can happen to one who is willing → This is a manifestation of our right to bodily integrity. Any contact without consent is unlawful.

Chatterton v Gerson [1981] QB 432

C suffered chronic pain from a scar left on her leg after an operation. Specialist said he could carry out operation to deal with the pain, but there is a risk of numbness as a result. C went through the operation, experienced numbness and relief was only temporary, pain returned. Said she was not fully informed of the risk, sued for trespass. There is a duty in negligence to inform patients of the risks of the operation. If C did not consent, it would be a battery. She consented to the act of the operation, which is revisiting the scarred area. Bristow J at 442-3: ‘[What] the court has to do in each case is to look at all the circumstances and say "Was there a real consent?" In order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient than that involved in a breach of duty if the claim is based on negligence. … Once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass.’

St George’s Healthcare NHS Trust v S

S was a pregnant woman admitted to hospital, detained under the Mental Health Act 1983. She refused an induced delivery, despite being informed that her life and that of her unborn child were in danger. The doctors performed a Caesarian section, having obtained a court declaration. S subsequently sued the hospital in trespass. Whose judgement comes into play in consent? Doctors so concerned about her health and the health of her child vs S said her consent could not be overridden. CA agreed with the claimant.

Judge LJ: ‘She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant.

The declaration in this case involved the removal of the baby from within the body of her mother under physical compulsion. Unless lawfully justified this constituted an infringement of the mother's autonomy. Of themselves the perceived needs of the foetus did not provide the necessary justification.’

Blake v Galloway [2004] 1 WLR 2844

Horse-play between teenage boys. It is ‘not possible to characterise momentary carelessness as negligence’. However, a claimant cannot complain of a battery when tackled in a rugby game, as tackling is a necessary part of the game → consent is a defence to conduct which falls within the ordinary course of the game.

3. LAWFUL ARREST (prevention of a crime)

Criminal Law Act 1967 s 3 It is lawful for the police to interfere with bodily integrity and to use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. Ex: Pinning down someone trying to escape, restraining someone from hitting someone else

Davidson v Chief Constable of North Wales [1994] 2 All ER 597

Case involving false imprisonment. Two teenagers went to a shop Woolworths (department store) buying a music cassette. Teenagers standing in front of the albums, one boy picked one up. Plain-clothes store detective kept an eye on them but missed the bit where they paid for the cassette. Reported to police and held the boys until the police came. Store detective’s intervention was justifiable, not a conspiracy against the teenagers. Sir Thomas Bingham MR: ‘What distinguishes the case in which a defendant is liable [for false imprisonment] from a case in which he is not is whether he has merely given information to a properly constituted authority on which that authority may act or not as it decides or whether he has himself been the instigator, promoter and active inciter of the action that follows.’

Albert v Lavin (HL)

Case about queueing at a bus stop. Walked straight to the front of the queue because he wasn’t feeling well and needed to get home quickly. Off duty police officer pulled him away saying he was afraid there would be a breach of the peace. He did not believe him and punched him in the stomach. Whether or not D believed that the man was a police officer was irrelevant.

Right to intervene breaches of peace are not only limited to police. Lord Diplock: ‘Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.’

Interference based on the public interest: Prisons Act 1952 s 12(1) gives governors the right to detain prisoners. See Hague v Deputy Governor of Parkhurst Prison [1992] about the unlawfulness requirement for false imprisonment.

Statutory authority can legitimise conduct that would otherwise be considered unlawful.

4. NECESSITY

This defence only applies in very limited circumstances, can’t always allow D to argue this.

F v West Berkshire Health Authority [1990] 2 AC 1

Re F Situation where C doesn’t have the capacity to consent. C was a mentally handicapped 36 year old woman who had the mental age of a child. A was an in-patient at a mental hospital. Had sexual relationship with another patient in the hospital. Staff and her mother took the view that it wasn’t possible for them to use contraception, and she would not be able to cope mentally and physically with a pregnancy. They asked for court order to get her sterilised → She couldn’t consent. Court decided they can make this declaration. Lord Bridge: ‘Treatment which is necessary to preserve the life, health or well being of the patient may lawfully be given without consent.’ Ex: Turn up unconscious at a hospital, allow them to operate on you without having to wait for you to wake up.

These principles, although they predate the Mental Capacity Act 2005, are still relevant.

5. PATERNALISTIC INTERFERENCE

Mental Capacity Act 2005 s 1 Statutory framework for what circumstances medical procedures can be lawful despite the inability of the patient to consent. This is a structured approach that seems to minimise interference.

(1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Fundamental importance of right to consent → Starting point in that everyone has the capacity to consent, must first establish that you don’t before interfering with that right.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. Autonomy means you can make a bad decision. The fact that someone else doesn't think it is wise does not invalidate your consent.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. Can only be done if you are satisfied it is the only, or the least intrusive way to achieve it. Must consider the individual in the round and the circumstances in the round

C was a 16 year old boy at school. Severely autistic, suffered from epilepsy, learning difficulties, cannot communicate by speech. Taken on school trip to local swimming pool. Became fixated on the water in the pool, common reaction to seeing water for severely autistic people. Stood on the edge of the pool. Staff and teachers concerned he might fall in, but he was unresponsive to people trying to pull him away from the water. Staff decided to call the police. As a result of the police response, fell into the water and became very agitated. Saved by lifeguard, restrained on ground by 5 and then 7 police. Put in handcuffs, detained in a van. Disproportionate response but police said it was in his best interest. Lord Dyson finds liability → Best interest defence didn’t justify the extent of interference. Best interest doesn’t override, must be carefully scrutinised. The Act is intended to uphold right to consent as much as possible.

Lord Dyson MR: ‘The MCA 2005 does not impose impossible demands on those who do acts in connection with the care or treatment of others. It requires no more than what is reasonable, practicable and appropriate. What that entails depends on all the circumstances of the case. … What is reasonable, practicable and appropriate where there is time to reflect and take measured action may be quite different in an emergency or what is reasonably believed to be an emergency.’

Intentional Infliction of Harm (not trespass)

THE TORT IN WILKINSON V DOWNTON

In trespass, direct application of force is a requirement. The rule in Wilkinson v Downton concerns the intentional, indirect infliction of harm. If you can’t prove direct infliction, can try this.

Elements: • Conduct giving effect to that intention o Must be conduct for which there is no justification or excuse • Intention o Intention to cause severe distress o Recklessness not included, not enough to say D was reckless – must show specific intention • Consequence → what harm had to be inflicted? Must be recognised physical injury or psychiatric harm as a matter of the common law.

Defence: It is up to the defendant to prove that he was justified.

Wilkinson v Downton

D made a practical joke → In a pub, told C that her husband was in a traffic accident, broke both his legs, she should go to him and bring him pillows. C suffered shock and sickness. D didn’t apply any force to her → No cause of action in battery or assault. Indirect because you can’t point to any physical interference. There is no justification offered by D for what he did.

There is a valid cause of action here → Infringement of C’s legal right to personal safety. No need to show that he was acting maliciously, but must show that it was intended to cause her harm. Wright J: ‘The defendant has … wilfully done an act calculated to cause physical harm to the plaintiff - that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.’

O (A Child) v Rhodes [2015] UKSC 32

Concerns book written by famous musician and pianist. In this book, James writes about sexual abuse he suffered as a child in graphic detail. Son was 12 years old, had various learning difficulties. Lived with mother away from James. Mother afraid it would be distressing for the son, he wouldn’t be able to cope.

CA granted interim injunction restraining publication on the basis that psychologist established there would be irreparable damage on the child if he discovered it. SC overturned CA decision, said he should be able to tell his story.

Lady Hale and Lord Toulson: ‘A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail…’ Where you are exercising your right to tell your own true story, difficult to see it coming under Wilkinson v Downton. ‘It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another's right to personal safety. The right to report the truth is justification in itself … there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person's intention.’ Him choosing to publish the story doesn’t make it an actionable tort. Inappropriate expansion of what is a narrowly focused tort.

The necessary mental element in Wilkinson v Downton is intention to cause physical harm or severe mental or emotional distress, not recklessness. ‘A person who actually intends to cause another to suffer severe mental or emotional distress bears the risk of legal liability if the deliberately inflicted severe distress causes the other to suffer a recognised psychiatric illness.’ ‘In the present case there is no basis for supposing that the appellant has an actual intention to cause psychiatric harm or severe mental or emotional distress to the claimant.’

The harm that is suffered must be physical injury or recognised psychological harm. Narrow intention + harm requirements, unlike battery where we don’t have to show harm.

Lord Neuberger, dissenting: Argues that we don’t need medically recognised psychiatric illness if it was intended to cause distress → this situation is very different from limitation in negligence.

HARASSMENT

There is no common law action that deals with conduct that is annoying/unreasonable but doesn’t amount to a recognised tort.

Wong v Parkside Health NHS Trust

There is no common law tort of harassment. C got job as administrator in an office. Other woman carried out bullying because jealous that she got the job. The behaviour which falls short of the conduct recognised by Wilkinson v Downton. CA confirmed there is no common law tort of harassment. Facts of this case happened before statutory protection was put into place.

Protection from Harassment Act 1997 ss 1, 3, 7

This Act grants a private law remedy (civil right of action) as well as creating the statutory crime of harassment. Since it is a statutory civil action, it is not strictly speaking a “tort” (common law wrong). Mere anxiety/distress is not actionable in tort usually, but it is actionable in this statutory provision.

S 1(1) A person must not pursue a course of conduct— (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other…

D himself must recognise it as harassment, or the reasonable person must (if D has high standards of harassment). Breach of s 1 is actionable as a private law wrong with similar considerations as tort.

Conn v Sunderland City Council

A foreman on a building site was rough with his workers – swore a lot, uncompromising. What justifies interference of the law in this situation? Standard is high. Gage LJ: ‘what … crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa.

In my judgment the touchstone for recognising what is not harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.’ (applies Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224)

Veakins v Kier Islington Ltd

Case of bullying in the workplace. V was regularly belittled by her manager, told off in front of others and picked on. CA said that the manager’s campaign was oppressive and he behaved maliciously. Kay LJ (obiter): ‘Although malice is not an ingredient of harassment (which may be committed if the perpetrator does not know but ought to know that his conduct amounts to harassment), I accept that the presence of malice makes satisfaction of the “oppressive and unacceptable” test easier to achieve.’ Don’t have to show there was malice, but if you can show it that make sit easier to establish harassment.

S 7 Interpretation (as amended) (3) A “course of conduct” must involve— a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person (otherwise it is just an incident), or b) in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons. (4) “Conduct” includes speech. (5) References to a person, in the context of the harassment of a person, are references to a person who is an individual.

Claimant in action must be a real person.

Ferguson v British Gas [2009] EWCA Civ 46

Used to be a customer of British Gas, they wanted to keep her and continued to send her bills even though she had paid off her balance. British Gas knew she was in the right. Still distressing to receive threats of legal action.

What is the appropriate level of ‘gravity’ for conduct to constitute harassment? Jacob LJ: ‘A victim of harassment will almost always know that it is unjustified. The Act is there to protect people against unjustified harassment. Indeed if the impugned conduct is justified it is unlikely to amount to harassment at all.’

Can companies be liable under the 1997 Act? Sedley LJ:

‘One excuse which has formed part of British Gas's legal argument for striking out the claim, and which has been advanced as incontestable and decisive, is that a large corporation such as British Gas cannot be legally responsible for mistakes made either by its computerised debt recovery system or by the personnel responsible for programming and operating it. The short answer is that it can be, for reasons explained by Lord Justice Jacob.’ D argues that a system failure can’t harass people. However, a company has legal personality, and can be liable as a defendant to the Act but cannot bring a claim under it.

Iqbal v Dean Manson

Dispute between solicitor and his former firm. Got other lawyers agree to act as claimant against former firm. D tried to argue that each letter on its own was not so bad. Act says must take as a whole, the whole point is that it has a cumulative effect on the claimant. Rix LJ: ‘Of course, it is the individual instances which will make up the course of conduct, but it still remains the position that it is the course of conduct which has to have the quality of amounting to harassment, rather than individual instances of conduct. That is so both as a matter of the language of the statute, and as a matter of common sense.’

S 1(3) Defences Subsection (1) does not apply to a course of conduct if the person who pursued it shows— a) that it was pursued for the purpose of preventing or detecting crime, b) that it was pursued under any (statutory requirement) enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

Reasonableness of conduct is objective.

Hayes v Willoughby [2013] UKSC 17

Over period of 6 years D pursued a campaign against his former boss, D was convinced he was an embezzler. Made all sorts of allegations. There came a point when he did it just to annoy Hayes. Willoughby was told to stop pursuing this vendetta.

Difficulty for court is that the statute said it is okay if it is pursued for “the purpose of preventing or detecting crime”. Does it apply only if it was the only purpose?

Lord Sumption: ‘The difficulty about a wholly objective test is that it is not consistent with either the language or the purpose of the Act. The only wholly objective test which could work in

this context is one based on the reasonableness of the alleged harasser in supposing that there was a crime to be prevented or detected or that his conduct was calculated to achieve those ends. But where the draftsman intended to apply a test of reasonableness, he said so… ‘A large proportion of those engaging in the kind of persistent and deliberate course of targeted oppression with which the Act is concerned will in the nature of things be obsessives and cranks, who will commonly believe themselves to be entitled to act as they do.’ Victim of harassment with always know it is unjustified. Person doing the harassing will always think it is justified. “the purpose” is only one purpose, accepted that we always have multiple purposes when doing something.

SC held the defence of detecting or preventing a crime is only available if D had a rational belief that this is what he is doing. ‘A test of rationality, by comparison, applies a minimum objective standard to the relevant person's mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse.’ Not about if it is reasonable in the circumstances. The test for the validity of the defence is whether we can point to a rational connection between the reason for the harassing conduct and the basis on which you are trying to detect the crime → requires good faith.

S 3 Civil remedy (1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

The court may also grant ‘an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment’

“Apprehended” = don’t have to wait until they have, can stop them before they harass you.

No requirement that harm be foreseeable

Under the terms of the statute, there is no requirement that you must show foreseeability.

Jones v Ruth

C = couple who own a house D = neighbour who lived next door

Claimed that he carried out a lot of work that caused disruption, and was aggressive towards C. C said they suffered personal injury, D argued them suffering the harm was not foreseeable. Argument not accepted by court.

Patten LJ: ‘There is nothing in the statutory language to import an additional requirement of foreseeability. Nor is the foreseeability of damage the gist of the tort. Section 1 is concerned with deliberate conduct of a kind which the defendant knows or ought to know will amount to harassment of the claimant. Once that is proved the defendant is responsible in damages for the injury and loss which flow from that conduct. There is nothing in the nature of the cause of action which calls for further qualification in order to give effect to the obvious policy objectives of the statute.’

‘Targeted’ conduct?

Levi v Bates

Former owners of Leeds football club. D harassed the husband, which also is claimed to have harassed the wife. Different from saying that once you’ve been targeted, the losses don’t need to be foreseeable. Is it open to D to say “well I intended to harass this person but incidentally it have an unintended effect on the wife”? If it is foreseeable that it will affect the wife, falls under s 1(2). D is still liable. Briggs LJ: ‘The ability to bring a harassment claim extends beyond the targeted individual only to those other persons who are foreseeably, and directly, harmed by the course of targeted conduct of which complaint is made, to the extent that they can properly be described as victims of it.’

Equality Act 2010 s 26

Statutory action under Equality Act also called harassment but is different form of action → about sexual harassment in the workplace and general harassment of certain characteristics.

Problem Question

Peter and Kevin are rugby players who play for opposing teams. During a match, Peter deliberately kicks Kevin hard to stop him scoring a try, and seriously damages Kevin’s right leg.

Kevin is taken to hospital where he lapses into unconsciousness, but not before he has told a nurse that he is a Jehovah’s Witness and does not want to undergo an operation of any sort. This information is noted down but the hospital authorities decide to treat Kevin anyway in his own best interests. A specialist decides that his injury is so serious as to require amputation of the leg. Unfortunately, the hospital records seen by Dr Diana, the surgeon, are misleading and she amputates the wrong leg.

After a second operation to remove the other leg, Kevin is given a blood transfusion. The blood is infected with the HIV virus and Kevin consequently develops AIDS.

On his release from hospital, Kevin pursues a vendetta against Dr Diana. He follows her on her way to work, muttering obscenities under his breath and pretending accidentally to bump into her wherever possible. Dr Diana finds this annoying, but she does not generally worry too much about it. On one such occasion, however, she had just been reading a magazine article about the way that apparently harmless stalkers can turn violent; fearing that this might be the case with Kevin, Dr Diana sprays pepper spray into Kevin’s face when he gets close to her. Kevin was, in fact, unarmed.

Advise the parties as to their rights and liabilities in tort.

Kevin v Peter Intention because he deliberately kicks → battery Collins v Wilcock rugby expects injuries, normal play → defence of consent Blake v Galloway Threw sticks and stones at each other, bark hit eye Both boys understood from participating in the game Would be different if it was an accidental kick, but this was deliberate, so trespass would probably be established.

Kevin v Hospital Amputating the wrong leg against religious wishes Intentional, direct force for the wrong leg → trespass If they removed the right leg, can justify with defence of necessity Re F mentally ill patient sterilised because would not be able to cope with pregnancy, best interests justification Gillick talks about flat jacket for doctors in surgeries → extra protection given to a surgeon when they are told the patient does not consent Re F necessity, Lord Gough said when it is not practical to communicate with patient

Mental Capacity Act says patient’s wishes should be taken into account s 1 unwise decisions + best interests

Blood transfusion: Indirect application of force? Scott v Shepherd Clear negligence case, no clear answer for trespass.

Diana v Kevin Harassment claim Happening multiple times At start she doesn’t seem stressed, so would only have gotten nominal damages. Point left open in Ashley, if there is a mistake based on false information Was the threat from Kevin actually present? He was unarmed Can Kevin rely on preventing or detecting a crime for Diana’s medical practice? No S 1(3c) is Kevin’s actions reasonable/justifiable after all he has been through?

Essay Question

What are the virtues and shortcomings of the directness requirement in intentional torts? Use examples from specific torts to ground and demonstrate your views.

Introduction should be a conclusion

What is the directness of harm? Concept itself not clear, or manipulated in some cases

Why are people trying to get around the directness requirement? Is it too cumbersome in some cases, when we want to hold someone liable but have to get around it.

But protecting people who did not intend the action Keeping the liability confined Talking about intention but with reference to directness. If have to get both, maybe the court is focusing too narrowly. Or is it too broad?

Indirect in Rhodes, where do we draw the line? Have to come up with other constraints other than directness → must show harm or recognised psychological illness.

Use a variety of torts and examples.

Occupiers’ Liability

Occupiers’ liability = duty owed by a person (the occupier) which arises as a result of the state of the premises that they have control over, towards persons on their premises.

This is a crystallised instance of negligence liability specific to these people we call occupiers. It has unique features. The relevant duties arise as a result statutory intervention → OLA 1957 and OLA 1984 The Acts impose a positive duty to act, where engaged.

The occupiers’ liability regime is a statutory exemption to the rule in the tort of negligence that there is no duty imposed for pure omissions. Both acts impose liability in cases we otherwise regard as a pure omission, so we have a separate body of rules to deal with them.

Historical development

In old common law, the standard of care you owe to someone on your land depended on the relationship that the occupier had with that person on the land. Four categories: • Contractor: highest level of care owed, people you had a contract with which explains why they are on your premises, e.g. hotel guest • Invitee: not there as a result of a contract, owed more care than licensees because the occupier had a material interest in the person being on their land, e.g. shop owner + customer, have some sort of common interest of the person being on your land ‘Invitee’ is a legal term of art. Just because you have an “invite” doesn’t make you an invitee, e.g. dinner guest is a licensee for purposes of occupiers’ liability. • Licensee: not there as a result of a contract, people on your premises with whom you didn’t share any common interest, e.g. allowing someone to gratuitously walk across your garden • Trespasser: people with no right to be on your land – didn’t owe them a duty at all, although cannot negligently injure them, e.g. setting a trap

Descending hierarchy of standard of care owed depending on which category the person falls into. However, courts found it impossible to sensibly distinguish the difference between the categories and standards of care owed. Difficulty with ‘trespassers’ → courts created unstable broad exceptions to shift people from having no duties owed to them as trespassers into another category, e.g. if C is a child.

Ex: Cooke v Midland Great Western Railway (1909, HL) A railway turntable left unlocked by the occupier presented an irresistible attraction to ‘juvenile inter-meddlers’. Doctrine of allurement = if you have something on your land that was attractive to children, this promoted the child out from being a trespasser to being owed some low level of duty.

1957 Act focuses on duty of the occupier owed to persons lawfully on their land (“visitors”) 1984 Act deals with those not lawfully on the land (“trespassers”)

“PREMISES”

Most of the time, the Acts deal with a claimant coming onto a defendant’s land and being injured by the state of the land.

OLA 1957 s 1(1): ‘The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.’ OLA 1984 s 1(1)(a): ‘The rules enacted by this section shall have effect, in place of the rules of the common law, to determine— (a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them…’

The choice of term is broader than just ‘land’ → can also apply in a broad range of circumstances, e.g. non-land situations.

OLA 1957 s 1(3)(a): The act will regulate ‘the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft’;

OLA 1984 s 1(2): Similarly refers to an occupier of a ‘…premises (which, for those purposes, include any fixed or movable structure)’; See also OLA 1984 s 9, includes the” vessel, vehicle or aircraft” addition.

“Premises” is an unfixed and uncertain term, so courts have lots of room for interpretation.

- Jolley v Sutton LBC: A small abandoned boat - Maguire v Sefton BC: Leisure centre equipment - Hannington v Mite Cleaning Ltd: Skips - White v Blackmore: Safety ropes at a Jalopy car racing contest - Kealey v Heard; Maddocks v Clifton: Scaffolding and ladders when attached to the house - Furmedge v Chester-Le-Street BC: ‘Dreamspace V’ travelling art exhibition/massive bouncy castle the Council erected on their land - Tomlinson v Congleton Borough Council: Bodies of water - Natural features of land are subject to the Acts, the cliffs and hills and lakes are all governed by the occupiers’ liability regimes, not negligence → Dangers of the land itself.

“VISITOR”

OLA 1957 s 1(2): ‘…the persons who are to be treated as an occupier and as his visitors are the same (subject to subsection (4) of this section) as the persons who would at common law be treated as an occupier and as his invitees or licensees.’ Preserved the old categories. The top category of contractors is dealt with in OLA 1957 s 5 → Where a contract is silent on this, section 5 implies the term “you are my visitor for the purposes of the 1957 Act” into the contract.

Visitor = somebody who has the permission of the occupier to be on the premises. This permission can be express or implied by actions. Ex: A salesperson has implied permission to enter the property by the normal route, knock on the door, and in absence of a sign saying “No canvassers” offer what they are selling. Onus on the claimant to prove that they are a visitor. There are different ways in which implied permission can be implicitly limited:

1. Limited as to place The visitor is impliedly given permission to be in the places they might reasonably be expected to go for the purposes of their visit. Depends on how a reasonable visitor would interpret the permission.

Pearson v Coleman Bros (1948, HC)

7 year old plaintiff paid visit to the circus. Couldn’t find bathroom, wandered away from circus tent onto adjoining piece of land occupied by the circus owner. She was mauled by a lion. CA held that she was an invitee (visitor in OLA 1957). An invitee who had an invitation to come onto the land which had the circus tent on it had not been expressly limited to that bit of land. A child doesn’t become a trespasser while engaged in a reasonable search for the bathroom. Her wandering off has been reasonable where she could find the toilet, not just out of curiosity to see what else was on the land (would be a trespasser otherwise).

2. Behaviour Can come onto the site as a visitor but behave in a fashion that would shift you into the non-visitor category.

Kolasa v Ealing Hospital NHS Trust (2015, HC)

The drunken claimant climbed over a loo wall on hospital ground. Fell 30 ft, injuring himself.

Court held that when the claimant was brought to the hospital and put in A&E he was a visitor and owed the common duty of care under the 1957 Act s 2(2). However, his act of climbing over the wall was not an act covered by his general permission to be on the site as a patient, nor was a part of the permission given by the defendant to patients leaving the site after. He was therefore no longer an invitee, but a trespasser.

3. Time Permission may be limited temporally. As a customer, permission to be in the supermarket during opening hours, but hiding in the supermarket aisles after closing time is non-visitor.

4. Scope May be limited as to the scope of the purpose of your visit.

The Carlgarth (1926) per Lord Scrutton: ‘When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters, you invite him to use the staircase in the ordinary way in which it is used.’ Geary v J D Wetherspoon (2011, HC) Claimant leaving pub in Norwich, not drunk. She tried to slide down the bannisters, fractured her spine.

5. The effect of warnings

Tomlinson v Congleton BC [2004] 1 AC 46

Claimant was seriously injured, paralysed when he ran into a lake formed in an old quarry on the defendant Council’s park. Dived and hit his head in the shallow water. Swimming in the lake was prohibited by clearly noticeable signs saying, “Dangerous water, no swimming”.

1st question: Is Tomlinson a visitor or trespasser? Council allows people to come to the beach and use it, so could be visitor. But he goes outside the permission the Council gave him to use the premises, so a trespasser. Lord Scott weird interpretation says diving is not the same as swimming.

2nd question: Was this caused by the state of the premises or his activity on the premises? Argued there is omission to do something on the land like add a fence, so it could be state of the premises. HL preferred argument was that he was exercising his free will. Lord Hoffman says it is not an injury caused by the state of the premises. But he went on and said if he is wrong on this, still wouldn’t succeed. Reasoned through.

Majority proceeded on the basis that his choice to ignore the signs, even though it was known by the defendant Council that people regularly disregarded the notices and swam anyway, was sufficient to shift him into a non-visitor under the 1984 Act. The shift is an important difference in the standard of duty owned to you. The boundary can be a slippery concept. Council not required to put up a fence because the danger is obvious. When it comes to obvious risks, no duty. Encourage people to take responsibility for their actions, thinking about social utility. This is an obvious risk so you should bare responsibility for that.

Longmore LJ (CA): If there is a meaningful difference in the standard of care owed, it really shouldn’t hang on marking the precise point at which the claimant began swimming rather than walking around or paddling about. Tort law shouldn’t have difference between swimming or just paddling.

Lord Scott (HL) obiter: Unwilling to think of Tomlinson as a trespasser. A duty must have been owed by the Council to stop him becoming a trespasser because of the danger in the water. You can only owe someone a duty not to let them become a trespasser if they were not a trespasser but a visitor. A standing dive is not ‘swimming’.

6. Revoking permission

Permission to come onto the land can be revoked by the occupier with sufficiently clear instructions and a reasonable period for you to leave the premises. Snook v Mannion (1982 DC) Court took a baffling selective view, telling a policeman to “fuck off from my land” was taken by the court as not clear enough to revoke permission.

Special cases:

Children are a separate category. Courts more willing to find ways to make sure children had some degree of protection. Glasgow Corp v Taylor (1922, HL) Berry bush on defendant Council’s land is taken to have allured in the child.

While non-visitors are covered by the 1984 Act, there are exceptional categories for people who are not there with your permission but still get protection under the 1957 Act. OLA 1957 s 2(6) People who enter by right onto your land → not visitors but get the same benefits regardless of whether you want them to be there, e.g. emergency services and police.

OLA 1957 s 1(4) People entering your land pursuant to their rights under the Countryside and Rights of Way Act 2000, i.e. ‘ramblers’ are not visitors. Lower standard of care owed, subject to further restrictions set out in OLA 1984 s 1(6A): no duty owed by the occupier for

32 https://www.uninote.co.uk/vendor/kings-llb-student/ All rights reserved to the author. the risks arising from natural features of the landscape and climbing over fences. However, laid traps are beyond the restrictions in the Act.

A person using a public highway or right of way is not a visitor in relation to the occupier of the land under the public highway. But not a trespasser under the 1984 Act either. Instead, Highways Act 1980 supplies a statutory duty of care owed by the local Council for people using publicly-maintained land and highways.

“OCCUPIER”

Not necessary that there is a proprietary relationship between the person with the property in question. It often coincides but doesn’t have to. Occupier is defined identically in OLA 1957 s 1(2) and OLA 1984 s 1(2)(a). Not a fixed term at common law. A person who is an occupier for the purposes of land law is not necessarily an occupier for the OLA.

Cavalier v Pope (1906, HL) Occupier is the person with the power to exclude, can say no entry. Ex: Landlord can’t stop me bringing guests into my flat. Focus on factual control of the premises, not a legal relationship with the premises.

Wheat v Lacon and Co Ltd [1966] AC 552 (HL)

Facts: Defendants were well-known brewers. Owned a pub and employed Richardson as the manager and licensee to run the pub. R and his wife lived on the first floor above the pub. The agreement did not amount to any sort of property right in the flat. Claimant and her husband were holiday guests of the Richardsons, there by permission of the defendants. C’s husband fell down a set of stairs that led from the first floor to the back of the bar, found dead. No bulb in the light at the top of the stairs, and handrail ended three stairs from the bottom. C brought a claim against the brewers and R, alleging negligence and breach.

Ratio: Was the brewer an occupier of the building or part of the building? Either the brewers were occupiers because they occupied through their servants/employees (accepted by the majority), or as per Lord Denning because they had control of the premises despite not actually being in occupation of them.

Starting point = the person with immediate supervision and control is the occupier. But this test is too narrow. It is enough if a person had control over the state of the premises.

The brewers retained sufficient control over both the downstairs bar and the private parts of the building used by the Richardsons, because they did not give R a tenancy, therefore they retained control and a right to come in and effect repairs.

There is no problem having multiple occupiers of the same premises. Brewers and R were both occupiers of the stairwell. Each is under a duty to use care towards persons coming lawfully onto the premises, dependant on their degree of control. If each fails in his duty, each is liable to a visitor who is injured as a consequence When there are multiple occupiers, the duty owed by each occupier is not the same → tailored by the precise degree of control you have over the premises. Lord Morris: - If the stairs collapsed because they were decrepit and falling apart, the brewers would have been liable and R wouldn’t. - If the injury happens in a room upstairs furnished entirely by R, only R would be liable.

HL dismissed claim → brewers hadn’t breached duty of care owed. Short rail not dangerous enough and bulb unknowingly removed meant couldn’t hold brewers liable.

Occupancy can be temporally and spatially limited:

Martin v Martin-Baker Engineering (1983) A contractor may be an occupier, e.g. building contractor on a building site. Building site contractor firm, defendants and the firm both occupiers when the claimant came and fell and injured himself.

Page v Read (1984) Less invasive building practices, just a guy doing painting and putting up a wall was not held to be an occupier of the roof of the house where the claimant fell off the roof.

Dawson v Page (2013, CSIH) Returning to your house to check on your builders and walk your dog was sufficient to show enough control for the purposes of the act.

Smaller movable structures:

Ex: I loan you my ladder. I no longer have sufficient control over it to be regarded as an occupier when the shoddy state of the ladder causes you to fall through it. This deals with the breadth of ‘premises’.

Furmedge v Chester-le Street DC (2011, HC)

Court considered the project manager of this big public exhibition was the occupier of Dreamspace V. It was poorly anchored to the ground, gust of wind pulled it up and it collapsed, killing and injuring the people.

Court held the project managers were the occupiers because their employees dismantled it from its previous location, transported it, put it back together and were acting as stewards throughout the exhibition. They were in the position where they should have appreciated the risk to visitors if they failed to use reasonable care. The position was sufficient to give them the degree of control necessary to be regarded as an occupier under the 1957 Act.

Harris v Birkenhead Corp (1976, CA)

Possession is not necessary for sufficient control to exist. Defendant Council was held to be occupier of an abandoned, derelict house when a small child got in and injured themselves. McGall LJ: No need for actual or even symbolic possession of the premises. Council served notice to the tenant saying they will repossess the house in 14 days. They didn’t. Tenant hangs around for a while, eventually disappears and doesn’t tell the Council, house falls into disrepair. Sufficient that the Council had asserted their legal right to dispossess the owner and the tenant after the 14 days.

Ferguson v Welsh (1987, HL)

Different status for each occupier? Where there are multiple occupiers, could be lawful visitor for one and non-visitor for another.

C injured on building site. One of the occupiers did not know they allowed unauthorised subcontractors to work. Lord Goff: If it be the case that only one occupier authorises the third person to come onto the land, the third person is a lawful visit vis-à-vis that occupier, but a non-visitor vis-à-vis the other occupier.

Shtern v Cummings (2014, UKPC)

C injured by electric shock from fridge in their hotel. Action under 1957 Act could be brought against the company who ran the hotel, but not against the woman who was the controlling shareholder of the company and owned the land the hotel was built on.

A company may, through their employees, vicariously occupy a property (from Wheat). Lady Hale: As a matter of routine maintenance, the hotel operator should check the safety of electrical appliances. The injury is to do with poor maintenance, not because the wall fell on top of her. Respondent lacked the necessary degree of control, not involved in the day-to-day running of the hotel.

OCCUPANCY VS ACTIVITY

To what activities/behaviour ought the Act apply?

Occupancy duty (state of the premises itself) vs activity duty (things being done on the land) Courts only willing to apply the Act when the danger that injured C is under the occupancy duty → connected to the state of the premises.

OLA 1957 s 1(1): ‘The duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them…’

Fairchild v Glenhaven Funeral Services (2001, CA)

What happened to the claimants was not the state of the premises, but a thing done on the premises. Therefore, occupiers’ liability is not relevant here. Brooke LJ: ‘A duty on those occupiers to see that Mr Fairchild was reasonably safe in using the premises for the purposes for which he entered them, and he encountered no dangers in his use of the premises, as he would have done if he had fallen through an unguarded hole in the floor. It was what was going on in those premises which caused him harm.’

Tomlinson v Congleton BC [2004] 1 AC 46

Suggested in obiter that the Acts may apply where the occupier is allowing activities like shooting or speedboating on their premises, something that seems connected to the state of the premises itself → subtle distinction.

Hoffmann vs Hobhouse: What if the occupier allowed shooting or speedboating?

Dr McGrath argues that the Act ought to only apply to occupancy. Justifications: 1. Court practice: If that wasn’t the case, the OLA would govern all the liability of an occupier on their premises. This is not the case, as shown by Fairchild (action is in negligence for activity carried out, rather than occupiers’ liability).

2. The Acts impose a positive duty – liability for omissions. This demonstrates their limited and exceptional nature within the broader architecture of tort law. The occupancy duty requirement is a good way of controlling this. 3. Trend in recent decades where courts are focused on whether it is to do with the state of the premises as a preliminary threshold question for allowing an action under the OLAs at all.

Tomlinson → diving into shallow water Keown v Coventry Healthcare NHS Trust (2006, CA) → child climbing on the fire escape outside a hospital for fun and falling off Geary v JD Weatherspoon (2011, HC) → sliding down the barristers In each case, fundamentally the court says whatever other problems existed with the claims, this was just not a risk to do with the state of the premises, didn’t satisfy a threshold question to engage the Acts at all. The Act is only engaged if the injury being complained of flows from a risk that was part of the state of the premises.

Risks arising from the natural state of the land + obviousness of the risk may be relevant as well. The more obvious the risk, the less likely the courts are to accept that the risk is due to the state of the premises rather than the claimant running an obvious risk. If I come onto your premises and I choose to do something obviously risky, court says it isn’t to do with the state of D’s premises, it is to do with what you chose to do on the premises.

Edwards v London Borough of Sutton (2016, CA) Risk of falling over a low bridge in a park engages the act.

Revill v Newbery (1995, CA) A guy sits in his shed to catch a burglar with a shotgun and just shoots him. Doesn’t arise from the state of the premises, not the state of the shed he’s sitting in, so Act is not engaged.

Third parties:

Cunningham v Reading FC (1991, HC)

C sued when he was injured by fans of Reading FC ripping up chunks of the crumbling stadium and hurdling them at opposing fans. Act of a third party caused the injury. However, the Act was engaged because it was something to do with the stadium. Fundamentally connected to the land is enough even if you are talking about the behaviour of a third party. State of the stadium was integral to the activities of the third party and the occupier knew about it.

BREACH OF DUTY UNDER THE 1957 ACT

OLA 1957 s 2(1): ‘An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.’ Common duty of care is owed to all visitors to the extent you can legally do so, can extend or modify. If you are a visitor, the occupier owes you the duty.

Standard of duty

OLA 1957 s 2(2): ‘The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.’

The common duty of care is tailored to the use of the premises, for the purposes permitted by the occupier → no absolute standard. If one uses the premises for a purpose other than that which they have been permitted, one ceases to be a visitor and fall out of the 1957 Act altogether. The premises don’t have to be reasonably safe as a whole. Just the visitor himself must be reasonably safe. The statute is not forcing occupiers to change their premises to completely safe. No requirement that all harm is absolutely prevented. An occupier is not an insurer of their premises, not guaranteeing you not suffering any harm when you come onto the premises.

Objective test of whether you satisfy the duty. Breach is a finding of fact, so previous decisions are illustrative but not binding. The assessment of whether a duty has been breached takes into account a broad range of factors.

Esdale v Dover City Council (2010, CA)

Failure to follow your own procedures/rules isn’t decisive of breach but is illustrative. Not automatically negligence but not automatically irrelevant either. Likelihood of harm occurring; gravity of harm; cost of prevention.

Tomlinson v Congleton BC [2004] 1 AC 46

Their Lordships emphasis that social utility is important. What was being undertaken by the defendant, what would D have to stop doing in order not to risk breaching the duty? Even had the 1984 Act actually been engaged, it must have had something to do with the state of the premises (which it didn’t).

Lord Hoffman: When deciding whether the duty had been breached, an important factor is the social value of the activity which would have to be prohibited to reduce/eliminate the risk. Concludes that swimming is a good thing, need to consider carefully before banning local authorities from allowing people to swim in public parks.

System of inspection can be relevant in occupiers’ liability → health and safety.

Maguire v Sefton BC (2006, CA)

D didn’t go through with the proactive inspection system they had in place, instead they allowed a third party to come and inspect their gym equipment. This wasn’t sufficient, found breach.

Cook v Swansea City Council (2017, CA)

It’s okay to have a reactive system of inspection. The inspection system waits for members of the Swansea public to ring up to report that the local car park is covered in ice. C slipped on an icy car park. CA said that is enough, not requiring that councils go out to make sure that every car park is never icy. Enough that there is some system in place to guard against it, even if that risks somebody showing you it is slippery by actually injuring themselves.

Occupier’s knowledge of the danger is relevant:

Cunningham Knowing that your stadium is a crumbling wreck that can be exploited by Bristol City fans is different from a third party tearing a shelf off a wall and hitting someone with it. If this wasn’t the case, the law would be incentivising occupiers not to inspect their own premises. Act imposes a positive obligation to inspect.

Darby v The National Trust (2001, CA) A particular risk has to be foreseeable. When one dives into water, the risk is drowning, not catching a waterborne disease.

Simms v Leigh Rugby Club (1969) Courts also don’t require an occupier to guard against wholly unlikely even if foreseeable hazards. C was injured when he was thrown into a concrete wall 7 feet from the edge of the rugby pitch on which he was playing. The layout of the ground perfectly complied with all of the rules of how you make a rugby pitch. Wrangham J: It was simply too improbable that such an event would happen.

Dean and Chapter of Rochester Cathedral v Debell [2016] EWCA Civ 1094

Similar reasoning as Simms. The need for foreseeability of harm scuppered the claim. C injured themselves from tripping on very small pieces of concrete protruding from bollards on the grounds. Elias LJ: ‘not all foreseeable risks give rise to the duty to take remedial action’. It wasn’t enough that the risk was foreseeable, consideration has to be given to whether it was reasonable to think this was foreseeable, in particular the need to consider how it was reasonable to strike a balance between C’s right and the cost to the cathedral in removing the risk. Reasonable foreseeability + practical approach to the kinds of danger the cathedral was obliged to remedy.

Known vulnerabilities of the claimant are relevant.

Pollock v Cahill (2015, HC)

Must pay attention to the nature of one’s visitors, particularly any known vulnerability they have. OLA 1957 s 2(3): The circumstances relevant to see whether you breached the act include the degree of care and want of care that would ordinarily be looked for in such a visitor. The Act narrows down on precisely who the visitor is. Ds were liable to their blind guest under the 1957 Act. Left window open during the night, Pollock walked out of it and paralysed himself. William-Davies J: The fact that P was hugely competent with dealing with life without sight was irrelevant to the fact that Ds ought to have realised that leaving a large window open was clearly a risk to a blind person. Known characteristics of your visitor are important.

When D is a public authority, it is not sufficient to point to the potential for defensive practices.

English Heritage v Taylor [2016] EWCA Civ 448

C visiting a castle, slipped on grassy slope and fell into a moat. Argued that English Heritage should have provided a warning sign about the sheer drop. CA accepted that the sheer drop was not an obvious danger, but what counts as reasonable steps? Not requiring all heritage sites to put signs up everywhere. Only sheer drop in this case is not an obvious risk, if it was obvious then no need for signs. Risk was a non-obvious sheer drop into a moat from the edge of a path.

D was in breach of the s 2(2) duty by failing to put up a simple sign to warn. Not enough to simply say that public authorities would then have to put up many more signs.

There must be causation between the breach and the injury.

Edwards v London Borough of Sutton (2016, CA)

C fell off an old unfenced ornamental bridge. McCoombe LJ: Not only was the probability of risk so low to be minimal at best (doubtful that they breached their duty anyway), even if the Council had carried out an investigation of the risks they would still not have put up the railings that would have protected C from falling off the bridge. No causation, wouldn’t have made a difference.

Warnings and notices often discharge the duty.

OLA 1957 s 2(4)(a): ‘Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.’ Can’t just slap up warning signs and say that you have complied with your duty. The signs have to put the visitor in the position where the s 2(2) duty is complied with and make them reasonably safe.

Special classes of person modify the standard imposed by the duty.

OLA 1957 s 2 (3)(a): ‘An occupier must be prepared for children to be less careful than adults.’ What can the occupier reasonably expect from the behaviour of children? What is safe for adults may be dangerous for children, not the same mental and physical capabilities. Take this into account for premises. Can satisfy the 2(2) duty regarding the parent, but for the children something else may be required. Doctrine of allurement’s logic remains relevant to whether they breached the duty or not.

General rule: Natural features of the land are less likely to be regarded as tempting a child to injure themselves rather than structures on the land.

Dornan v Dept of Environment NI (1993, CA)

Claimant child injured themselves climbing a tree wasn’t demonstrative of a breach of the occupier’s common duty of care.

Although it is known that children climb tree, nothing rotten or dangerous about the tree. CA noted that it’s part of growing up, some children fall, that’s what children do.

Jolley v Sutton LBC (2000, HL) 14 year old boy injured while trying to fix up an unturned rotted boat abandoned on D Council’s land. The specific injury wasn’t foreseeable, boat collapsed on top of him, it was foreseeable that children would meddle with the boat in some way that would put them at risk. They are going to do something daft with the boat, D ought to have spotted that. Must prepare for children to do daft things in unexpected ways.

Tension of adjusting standards for children: What can an occupier reasonably expect of a parent/guardian?

Glasgow Corporation v Taylor (1922, HL)

C’s 7 year old son died after eating poisonous berries from an unfenced bush that had no warning next to it saying do not eat. Court reasoned that had the danger been familiar or obvious, D could rely on assuming that ’reasonable parents don’t allow children of tender years to go around such dangers.’ Here the berries looked edible, it couldn’t have been obvious to the parents that they were fatally poisonous to the child. Phipps v Rochester Corporation (1955, HC) 5 year old claimant and 7 year old sister were blackberrying on D’s building site, large expanse of grassland. C fell into a trench dug as part of the building work and broke his leg. Davlin J rejected the idea that with very small children, entry onto the premises is under some sort of ‘conditional license’, the condition being that they are accompanied by an adult. They shouldn’t be treated like adults, nor should ‘the world must make of itself a nursery to avoid injury to small children in all circumstances’. Stressed that occupier could reasonably expect there to be parental responsibility, expect that small children normally accompanied by an adult and consider what warnings are necessary on that basis. No liability in Phipps.

Marsden v Bourne Leisure Park (2009, CA)

Social balancing → when is it reasonable to expect a child to be accompanied? 2 year old drowned in a pond in a holiday camp. Wandered off towards the pond on a park map via a walkway that hadn’t been marked. Occupier wasn’t liable as the danger this presented to a small child was so obvious, wouldn’t allow a child to go wandering around a body of water. Courts didn’t think parents were at fault here, child could get away from even the most attentive parents.

Even if you tried to recover from the parents, kid just got away, can’t succeed. Parents let child onto the land because it wasn’t dangerous, so how could occupier breach the duty. If parents thought it was dangerous, why didn’t they accompany the child in the first place?

Act modifies the duty of care in s 2(2) for people with special skills. OLA 1957 s 2(3)(b): ‘…an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.’

Roles v Nathan (1963, CA); Hartman, Pearson

Two chimney sweeps come onto occupier’s land. Occupier warns them not to sweep the chimney, risk of being poisoned by carbon monoxide. Died when they came back at night time to finish the job quickly. Lord Denning MR: Can expect a chimney sweep to guard against this particular special risk themselves. No breach of occupier’s duty of care because it is fair to say you can expect the person to guard against it themselves. Hartman concurs. Pearson dissents → This is beyond what you can expect a sweep to take regard of. Magnitude of risk (death) is beyond what sweeps could be careful of. Ultimately a question of fact for each case, what we can expect of a particular person with a special skill.

Duty automatically discharged:

If you get independent contract to come in and fix your premises, and the claimant’s injury is a result of the thing you got the independent contractor in to sort, then it is not the occupier’s problem, they have satisfied their duty under 2(2). Shifts liability from the occupier to the independent contractor.

OLA 1957 s 2(4)(b): ‘…where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.’

Even where the independent contractor carries out their task negligently, occupier must still have taken the reasonable steps to make sure they were competent and supervised them in the right fashion if they needed to, in order to discharge their duty.

Haseldine v Daw (1941, CA)

Cs were injured in a lift the landlord got inspected by an independent contractor. Lift fell down the shaft. No breach of the duty owed, as D had recently contracted a respectable firm of engineers to service the lift close to the date of the accident. Lord Scott: The landlord ‘having no technical skill, he cannot rely on his own judgment’ is precisely the situation s 2(4)(b) is addressing. It is the independent contractor’s issue.

When is it reasonable to employ an IC? Reasonable where you don’t have the skill yourself, or where it is convention to do it.

Cook v Broderip (1968, HC)

Held to be reasonable to employ an electrician to change a fuse in a building. Occupier wasn’t liable for the electricians’ negligent work.

Woodward v Mayor of Hastings (1944, CA)

C pupil was injured when he fell on icy steps at school. Steps left that way by a cleaner. Wasn’t clear if cleaner was an IC or not. Even if they had been, court rejected that this would have satisfied 2(4)(b) → nothing special about it, no technical skill involved. Du Parcq LJ: The craft of the charwoman may have its mysteries, but there is no esoteric quality in the nature of the work the cleaning of a snow-covered step demands. Question of what is a special skill doesn’t have clear answer → sociology issue, assumptions?

Millar v Rooney (2006, NIQB)

It wasn’t enough if you just got a guy. IC Rooney was employed by D to set up workbenches. Someone else fell off them on a building site. The guy had no number in the phonebook, not part of any building federation, didn’t make any plan of work or risk assessment, anything professional do. Just a man in a van who was helping for a day. No 2(4)(b) discharge of duty.

Must the independent contractor carry insurance?

To satisfy the 2(4)(b) duty, does the occupier have to check that the IC is carrying insurance?

Gwilliam v West Hertfordshire Hospital NHS Trust (2002 CA) C was 63 year old man who injured himself when he ran at a Velcro splat wall provided by the IC for fundraising on hospital grounds. The contractor’s insurance had expired, so part of C’s claim for the injuries went unsatisfied. He sues the hospital saying they owe him the remaining money because they didn’t check that the IC had insurance. Lord Woolf MR in obiter: The common duty of care under the 1957 Act would have imposed a duty under s 2(4)(b) to check that the guy had insurance. On the facts, the hospital had checked and the IC didn’t have insurance but said he would get it in time for the fair. Sedley LJ: If there is no duty to protect against physical risk, how can there be a duty to protect against economic loss? Really trying to recover for personal injury or for purely economic.

Naylor v Payling (2004, CA) CA rejected that there was a general duty to check the insurance of contractors. C was injured when a bouncer employed by the defendant club threw them out. Court said no freestanding general duty under general tort of negligence or OLA. There may be a duty in special circumstances when the occupier has some statutory or other duty to insure himself and ensure everyone else is covered. E.g. situations where the employer accepts he should insure himself to protect the public.

Glaister v Appleby in Westmoreland Town Council (2009, CA) CA went back to Gwilliam, no general duty. Setting too much of a duty to occupiers. Lord Toulson: Nature of physical vs economic harm. In the general architecture of tort law, we protect physical injuries more than we protect economic injury. We have no business protecting economic injuries like in Gwilliam to the same degree.

Employing a competent IC where it is reasonable to do so isn’t enough. In some circumstances, must supervise and check the work of the contractor.

Ferguson v Welsh

C worked for the contractors employed to demolish a building on D’s land. Injured when a wall fell on him. Majority of HL held that even though there is no general duty to check, there is a duty to supervise where the occupier was aware that there was an unsafe system of work going on. Need to check their work before letting visitors on if evident they have unsafe practices.

AMF International Ltd v Magnet Bowling (1968, HC)

In some circumstances where the work is particularly technical, may have to get another IC to check the work of the first IC → large building projects. Duty applies while the work is carried out, not just when the work is finished. D failed to get the protection of 2(4)(b) where they failed to adequately failed to satisfy themselves that the IC had installed temporary flood precautions. C left special timber on the side in preparation to install the alleys, the timber was damaged in a flood. Need to check up on what the IC is doing as well.

Occupiers’ Liability Act 1984

Unlike the 1957 Act, the 1984 Act does not assume a duty owed to the non-visitor. 1957 Act imposes a duty to ensure visitor is generally safe on the premises. 1984 Act tailors itself to focus more on the particular risk that injured the claimant, rather than general safety.

- 1957 Act is general duty to your visitor to make sure they are generally safe. 1984 Act doesn’t reference visitor, less onus on the occupier to take care of them. - 1984 Act adds that you must know the trespasser is in the vicinity to the danger. Less onus on the occupier. Landlord, or brewers in Wheat probably don’t know the ins and outs, vs Tesco owner knowing there is a spill in an aisle. This knowledge doesn’t matter in the 1957 Act but does in the 1984 Act.

OLA 1984 s 1(3): ‘An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if— (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.’ No automatic duty, only a duty for the particular risk in the right circumstances. If you satisfy these factors, it is fair, just and reasonable to impose a duty (borrowed from Caparo).

These factors must be fulfilled at the point of harm, the moment when the injury was suffered. Not at the point where the occupier arranged their premises, e.g. opened their park or built the building.

Donoghue v Folkestone Properties Ltd [2003] QB 1008

Professional diver was trespassing, dived into the occupier’s harbour at dawn and hit an underwater object. Broke his neck. Lord Philips: In assessing whether a duty exists under the 1984 Act, this must be determined having regard to the circumstances prevailing at the time of the alleged breach of duty injuring the claimant. Sensible decision, wouldn’t expect people to dive in the middle of winter, so doesn’t matter that you didn’t have sign on the slipway.

ENGAGING THE 1984 ACT

How does C get a duty owed to him under the 1984 Act? Must demonstrate that the occupier was aware of the danger or had reasonable grounds to believe it exists. S 1(3)(a): Danger has broad meaning Keown → Hanging off the fire escape. Danger is the unguarded fire escape.

But there are limits:

Rhind v Astbury Water Park Ltd (2004, CA) Latham LJ: Section can’t be satisfied where the risk came form an underwater container C bumped his head on. Couldn’t be seen from shore, D did not know it was there, would only have been identified by underwater survey which D was not under a duty to find.

S 1(3)(b): Did you know or have reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger?

Donoghue v Folkestone Properties Ltd [2003] QB 1008

Trial judge upheld the claim, it was known that people trespassed the harbour and dived in in large numbers during summertime. CA said that despite this, there is no reason to say D had reasonable grounds to believe that the trespasser may be in the vicinity of the risk of water at the height of the winter in the middle of the night. Different to knowing there are trespassers on your ground in summer. Lord Philips: At the time C sustained his injuries, D had no reason to believe that anyone would be swimming from the slipway. Entitled to make a reasonable assessment of when and how people may trespass on your property.

Swain v Puri (1996, CA)

Child fell through roof of D’s building. ‘Reasonable grounds to believe’ doesn’t include constructive notice. It is not enough that you don’t know simply because you negligently didn’t think about it. But you are not allowed to intentionally not think about it → ‘shut-eye knowledge’ of D is enough here. If you knew that if you had taken greater care of your premises you would have spotted the children playing on the roof, you can be taken as having reasonably known about it.

S 1 (3)(c): Is it reasonable? Question of fact for courts to decide really.

Keown Longmore LJ in obiter: Even had they accepted the Act was engaged, it was doubtful that 1(3)(c) would have been satisfied. If the hospital had to offer protection against this, they would have to guard every tree and wall. Money is better spent on nurses’ pay, not better spent on extra security → social point.

STANDARD OF DUTY OWED TO NON-VISITORS

OLA 1984 imposes a lower standard of care even where the duty has been owed.

British Railways Board v Herrington (1972, HL) Children trespassers on railway track. Lords admitted that there was some sort of duty owed. There is a duty of ‘common humanity’, basis level of care you could owe towards someone, although certainly lower than the OLA 1957 standard.

What factors come into play about whether you have breached the duty? Not a punitive standard, not expected to keep visitors or non-visitors on your premises safe from all harms.

Take more account of children, no equivalent to 1957 Act saying you have to be ready for children to take less care than adults. However, courts will take account of the same sorts of factors under the 1984 Act, albeit at a lower level of care tied to the particular risk we are talking about.

OLA 1984 s 1(4): ‘Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.’ Same factors as s 1(3) assessment can be relevant but an occupier is not an insurer!

Ward v Norweb (1991, CA)

Defendants surrounded premises with an 8 ft fence topped with barbed wire, and had sturdily padlocked gate to the premises and warning signs everywhere. Simply could not be said to have breached the standard under 1(4) when the claimant 15 year old trespassers and got a severe electric shock on D’s premises.

Platt v Liverpool City Council (1997, CA)

Claimant children were killed or injured when the abandoned house they were playing in collapsed. Kennedy J: At the time the boys entered the dangerous property, it was surrounded by an 8 ft fence which could only be overcome by climbing over or wriggling under it through an 8-inch gap. No evidence on previous occasions that any child has done those things. City Council providing such a fence did take such care as is reasonable in the circumstances to see that no one would suffer injury on the premises by reason of the weakness of the building.

Young v Kent County Council (2005, HC)

Morrison J: All you had to do was put up two small, short fences to stop the trespassing kids getting onto the roof that they fell from. This failure to put the fences up was breaching the duty.

OLA 1984 s 1(5): ‘Any duty owed by virtue of this section may in an appropriate case be discharged by taking such steps as is reasonable on the circumstances to give warning of the danger concerned or to discourage persons from incurring the risk.’ Appropriate warnings may discharge the duty.

Absence or presence of warnings, the extent to which the occupier has taken care to make sure warnings made the particular dangers clear. Focuses on the particular risk, works in the claimant’s favour here. But probably enough if you specify the danger. Some notices will shape the scope of your permission but may not draw attention to a particular risk → this would help decide whether you are a visitor, it will not discharge your duty. ‘Keep out’ notice is unlikely to suffice.

Warnings are not sufficient themselves if they are routinely and plainly ignored.

Donoghue v Folkestone Properties Ltd [2003] QB 1008

Guy jumps off the harbour slipway on 27th December at midnight. The premises generally had warnings, but not actually on the slipway where C dived. This fell short of the duty of ‘common humanity’. Action still failed though because no duty in the first place.

Swain v Puri

Causation is still required. (grand moral justification why someone is responsible) Children trespassing case claim failed. Even if barbed wire was installed, the courts said it wouldn’t have dissuaded the trespassing children from climbing on the roof that they fell from. If you can show that the measures would not have made any different to C whatsoever.

Tomlinson v Congleton BC [2004] 1 AC 46

Lord Hoffman: 1(5) not satisfied given the repeated flaunting of the signs the Council put up banning swimming were ‘patently ineffectual’. Knowing the people are routinely ignoring your signs may prompt the defendant to have to take further action.

Focus on whether the injury arises as a result of the state of the premises. In 1984 Act, looks at this by assessing the obviousness of the risk. Even under the duty of common humanity, there is no duty to warn against obvious risks. Act may not be engaged in the first place. Court said this is not to do with the state of the premises, so his claim failed. But they still reasoned through the Act.

Lord Hoffmann: ‘It would be extremely rare for an occupier of a land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land, only where there is no genuine, informed decision. ‘It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them.’

Lord Scott: There is some risk of accidents arising out of the joie de vivre of the young, ‘that is no reason for imposing a grey and dull safety regime on everyone.’ This case acts as a touchstone within tort law, not about putting tort law in the way of people doing silly things.

We can critique the underlying normative position here → value judgements about the scope of protection of the law.

Geary

Sliding down the bannisters The risk is so obvious there can be no legal duty upon an occupier to prevent people doing that. The choice is over to you to do it or not.

Lord Hoffman: Short of some mental capacity on your part that takes away your ability to freely make decisions, you freely deciding to slide down bannisters and dive in shallow water is over to you. The same normative considerations as the defences against the free and informed action on the part of the claimant.

Hatcher v ASW Ltd (2010, CA)

Walking over a glass roof and falling through it was an obvious risk, failed to engage the 1984 Act at all.

RESTRICTIONS & EXCLUSIONS

White v Blackmore (1972, CA)

Exclusions of liability in the old common law: a suitably precise notice can exclude all liability. D’s car crashes into safety barrier, flings post through the air striking C dead. Signs at the entrance absolved the organisers of liability for personal injury ‘howsoever caused’. Once it was accepted that C noticed the notice, CA said that was sufficient to bar that. This will be more difficult now with the statutory regimes.

OLA 1957 s 2(1): You can yield duty to the extent that you haven’t done anything to ‘extend, restrict, modify or exclude’ insofar as you are legally allowed to do as an occupier. Restricting and excluding liability through signs and notices.

Relevant statutory regimes: Both apply in the right circumstances. - Unfair Contract Terms Act 1977 - Consumer Rights Act 2015

Exception: neither applies to recreational or educational visitors. Ex: Farmer lets schoolchildren onto land to look at the cows, for the purposes of recreation or education, not there for the purposes of business liability. This is the distinction between UCTA s 1(3)(b) and CRA s 66(4).

UCTA s 2(4) only applies to occupiers who occupy the premises in the course of a business, ‘business liability’ of an occupier. CRA s 2(3) applies to ‘consumers’, covers relationship between a consumer and a trader, people who are visitors on business and visitors not on business are covered. Where each applies, it bars the exclusion or restriction of liability for death and personal injury due to negligence, which includes duty under 1957 Act. → UCTA s 2(1); CRA s 65(1)

Outside of this, restrictions must be ‘fair and reasonable… having regard to all the circumstances’ UCTA s 11 (3), or not ‘unfair’ CRA s 62 (1);(4);(5) Unfair contract terms are not binding. Notice is unfair = contrary to good faith requirement and creates significant imbalance in parties’ rights and obligations.

DEFENCES

Full defences rather than the application of what is legally effective in a notice:

OLA 1957 s 2(5) explicitly preserves volenti (consent is a full defence)

Simms

Defence doesn’t work here, even if you engaged the Act. Guy tackled too hard on rugby pitch, hitting boundary wall. Willingly consented to all the risks involved in a game. As long as the pitch is properly constituted that’s enough.

White v Blackmore

Defence of volenti is rejected here, the defence is narrower than exclusion. Must have consented to the specific risk of being battered to death by a safety post flying through the air.

General defence of contributory negligence available in many cases.

OLA 1984 s 1(6) also explicitly preserves the defence of volenti.

Ratcliffe v McConnell

Diving into a swimming pool you broke into at night knowing that there is a risk of injury if you just take a running dive into water, haven’t checked how deep the water is. Personal responsibility and personal freedom is the normative underpinning in many of these cases.

Contributory negligence available, e.g. Young v Kent CC roof case.

UCTA does not apply but the CRA might apply where the trespasser is a ‘consumer’ (no authority on this yet but it is presumed). Although will they simultaneously be a trespasser and consumer? Drafting error.

Law Commission suggested that you be able to exclude the bare minimum duty under the OLA 1984. Parliament rejected this → If the duty owed under the 1984 Act is the absolute bare minimum you owe to another human being, cannot rationally exclude that. We exclude liability because you have conditional license to be on my land, allowed to be on the land for the extent I allow you. Trespasser by definition is beyond the scope of any license the occupier gave them, in that sense the occupier cannot control the scope of the duty owed to you. Problem: Visitor under 1957 Act is there on express or implied permission. If it can’t be excluded, then we have a clear difficulty on the other side too. The idea of the architecture between the two Acts is that you owe a greater duty to a visitor than a non- visitor is undermined if you can exclude the duty under the 1957 Act to visitors, arguably then the non-visitors have more protection than visitors.

RECOVERABLE DAMAGES

What damage is actually covered by the tort?

OLA 1957: Both personal injury and property damage S 1(3)(b): ‘the obligations of a person occupying or having control over any premises or structure in respect of damage to property, including the property of persons who are not themselves his visitors’ AMF case → Mocatta J awarded consequential losses for the cost of salvaging the timber by the negligence of the IC.

OLA 1984, clearly personal injury damages are recoverable in the normal fashion. S 1(8): ‘Where a person owes a duty by virtue of this section, he does not, by reason of any breach of the duty, incur any liability in respect of any loss of or damage to property.’ Doesn’t cover property damage, limited to personal injury.

Problem Question

Jemima rents her newsagents premises from Filthy Rich and Co. A clause in their contract provides that Filthy Rich shall be responsible for maintenance, and that they are entitled to enter the property to inspect its state of repair.

A sign on the door says clearly ‘Children admitted only if accompanied by an adult’. Bob, who is nine, sneaks in to look at the selection of comics displayed prominently by the window. The floorboards by the comics are rotten and there is a large hole near the display. Jemima has been aware of the hole for some time, but she hasn’t yet got around to telling Filthy Rich about it, and they haven’t inspected the premises. A sign on the wall above the hole states ‘Beware of damaged floor’. The hole is easily visible and avoidable in any event. In his excitement looking at the comics, however, Bob slips into the hole. He breaks both legs and his expensive trainers are ruined.

There is a broken step between the main part of the shop and the till. Fixing the step would mean closing the shop for several days. As Jemima cannot afford to close the shop, which is the only place to buy newspapers in the area, she has painted the step bright yellow so that everybody can see it. Geoffrey, who is blind, comes to the shop to buy a paper; he trips on the broken step, falls, and breaks his arm.

Advise the parties of their rights and liabilities in tort.

Bob 1. Which Act? 1957 or 1984 Reasonable to expect a person could enter a shop as a customer. Sign means not express visitor but could be implied visitor. Doctrine of allurement → Glasgow Corp children go on the land because of berries. But this may not be enough to make someone a visitor, statute is meant to replace the case law. Bob would want to be under 1957 in order to cover both his personal injury and his expensive trainers. But more likely to be under 1984 Act here, sign banning him otherwise.

2. Who is the occupier? Potential defendants: Could sue Jemima and Filthy Rich & Co → who has occupancy? More beneficial to sue FR because probably deeper pockets.

3. Duty of care? Aware of the danger or have reasonable grounds to believe it exists? J yes, knows about it. FR no, so difficulty in suing them.

Does she have grounds to believe someone like Bob would come into the shop? Sign saying ‘Children must be accompanied by adults’ means expects children to come into the shop. But would she reasonably expect an unaccompanied child? But OLA 1957 s 2(3)(a) makes specific allowance for children being less careful than adults. There is no similar provision in the 1984 Act, so questionable whether the duty will be modified to Bob. But this is an obvious risk – a big hole in the ground. Phipps court emphasises parental responsibility, mind them and guard them against these dangers. Allurement point → are you encouraging children to go over there? What reasonable steps can we expect a shopkeeper to take under the 1984 Act? All J is doing is a sign, nothing else. Could have covered the hole or something, if sign wasn’t enough. Tomlinson says no duty for obvious risks + individual responsibility, but doesn’t necessarily translate. But could she exclude liability with the sign? 1984 Act says sign conveying danger is sufficient. 1957 Act says sign is just a factor. No redress if Jemima is poor and has no insurance. Defendant may not be worth suing.

Geoffrey Under 1957 Act. Who is he suing? 1957 Act doesn’t matter that FR didn’t know about the danger. They had occupational control because they were able to inspect the premises, so liable even though they weren’t aware. Duty of care, did they take sufficient care? Is the sign enough? Or painting the step yellow? Look at breach issue. Foreseeable that some visitors to the shop could be blind. J’s argument is that she can’t afford to close the shop. But could she have done something more about the step? Maybe she could have moved the till? Verbal warning? Not clear that it was her only choice.

Problem Question

Bernie, Donald and Melania live in three separate flats in a large detached house in south London. Each flat occupies one floor of the house. Melania recently bought her top floor flat, while Bernie inherited the middle floor flat from his uncle. Donald lives on the ground floor, and he rents his flat from his landlady Hillary. Hillary also owns the house next door, where she lives with her family. Ted, Donald’s eccentric cousin, occasionally comes to stay with him when he has business in London. The ground floor flat is the only one with access to the large garden, while the first and second floor flats both have balconies that overlook the garden.

Melania runs a business from her flat, selling handmade jewellery to order on the Internet. Melania’s jewellery has ornate designs etched into it: the etching process involves using an acid to create shapes into the metal. Melania uses the balcony to store the acid, which is secured in a special drum. One night, a burglar tries to break into Melania’s flat via the balcony. He is unable to get in but in escaping he knocks over the drum, causing acid to spill down onto Bernie’s balcony, damaging Bernie’s prize collection of ceramic gnomes. The acid also seeps down into the garden of Donald’s flat, causing a significant hole to appear. The next morning, Ted goes out into the garden to smoke, and falls into the hole, breaking his wrist. Bernie discovers the damage to his gnomes and is distraught.

In the summer, Donald hosts a barbecue each Sunday afternoon for his friends from work. He only cooks steak for his guests. Melania is a vegetarian and finds the smell of the cooked meat offensive. When she asks Donald to stop, he says that he has always held these parties and refuses to change. He instead decides to host a barbecue every Saturday as well as Sunday.

Hillary suspects that Donald is breaching the terms of the lease by taking drugs, as she thought she once caught sight of him holding a syringe. She therefore sets up a Bluetooth video camera in a birdhouse in the garden, pointing at the flat. She also decides to go through the bins at night-time to check for drug paraphernalia. The bins are not labelled and so she ends up searching the bins of each of the flats. Donald is in fact diabetic, which is the reason for the syringe.

By mistake, Hillary has set up the camera to be linked to her social media account. The livestream from the camera goes viral as people are able to watch Donald, Bernie and Melania going about their daily lives. The webcam shows all three of them getting changed, and various ‘screen grabs’ of them in various states of undress appear on Twitter and in the next day’s newspapers. It is four hours before Hillary realises this and switches off the camera.

Hillary last year acquired planning permission to build a music studio in her back garden. When the builders start to dig the foundations, they discover the remains of an ancient

Roman grave. Excavation of the site, which is limited to Hillary’s garden, will take six months, causing great disruption by noise and dust to all of Hillary’s neighbours. Donald, Bernie and Melania all object to the planned work.

Advise the parties as to their rights and liabilities in tort.

Donald v Melania

Rylands v Fletcher

Escape of dangerous thing → from balcony under her control Don’t need it to actually be dangerous. Non-natural accumulation → doesn’t have to be improper and unnatural, can be an ordinary use Storing chemicals is the paradigm case of non-natural use of land Caused damage

Foreseeability of the type of damage (Cambridge Water)

Defence: act of third parties Richards

Gore v Stannard (CA, 2012) Large stack of tyres on D’s land caught fire. C’s action failed. Court unwilling to regard storing tyres (given that D’s business was supplying tyres) as an extraordinary or unusual use of land, building on Transco.

Nuisance Physical injury to the land Is it reasonably foreseeable this will actually damage the land?

Bernie v Melania

Rylands v Fletcher

Compare with facts of Cambridge Water

Similar analysis to Donald’s claim but added issue Problem with this claim: Not damage to land, damage to personal property Is it a fixture or a chattel?

Defence of act of third parties

If Bernie wants to sue for his gnomes, need to claim in negligence No breach of duty because she was storing in a special drum

Causation problem because Melania didn’t cause it

Duty of care for acts of third parties is very difficult to establish, only where there is creation of the risk (Smith v Littlewoods) or they are under your control

Claim for psychiatric injury will be unsuccessful → not medically mecognised

Ted v Melania

Personal injury Where the harm is personal injury, not liable unless you have been negligent.

Claim in negligence → Melania has no duty of care to Ted Goldman v Hargrieve created the danger → under liability for omissions and acts of third parties

Ted doesn’t have interest in the land

Ted v Donald

Occupier’s liability → identify which statute, 1957 or 1984 1957 Act common duty of care

Damage form the state of the premises, not an activity It is straightforward claim, big hole in the land.

Has Donald discharged the duty with sufficient warning?

Had Donald breached his duty of care? Missing info: reasonableness test of whether Donald know or ought to know about the danger Tesco

Defective Premises Act 1972 s 4 not applicable, only about pure economic loss

Melania v Donald

3 kinds of private nuisance, need to stake out which one → Interference with use and enjoyment What is a reasonable interference? Question of sensitivities → doesn’t make it unreasonable Robinson If it wouldn’t be an unreasonable interference with other people Esso smells is question of degree, difference between chemical smells and ordinary cooking smells But if Donald is malicious after being informed by Melania → the cases are hard, Bradford v Pickles doesn’t impact the analysis

Christie v Davies and fox farm case malice is relevant, then sensitivities may be taken into account Not a clear area of law e.g. Band practice, reasonable to practice once a week, increasing frequency can become unreasonable → injunctions are flexible, allows court to address these problems

Donald, Bernie & Melania v Hilary

Privacy → Hilary misusing private information

Personal space privacy → video camera Donald has a reasonable expectation of privacy in his home

Defences: Article 10 justification, policy questions Campbell justifications → exposing a crime Proportionality considerations

Is mistake relevant? Didn’t mean to live stream, accidentally misused private information No cases about this yet

Is knowledge of the person’s reasonable expectation of privacy required?

Harassment → defence of detection of crime (Hayes v Willoughby there must be a rational connection between the reason for the harassing conduct and the logic why you are trying to detect the crime, requires good faith) - Must be repeated Going through bins could be trespass

Eadie LJ in Moseley, they got the information wrong, would be different if it was actually true where there might be . This is a debated point.

Claimant doesn’t have to know about the harassment at the time

Nuisance Per se unreasonable to cause physical damage

The Tort of Nuisance

Is the defendant’s interference with the claimant’s land reasonable or not?

Private nuisance = a claim between two private persons, not public nuisance. The action is successful where D has interfered unreasonably with the use or enjoyment of land of a person who has some sort of property interest in that land. Damaging land would interfere with the use and enjoyment of it.

Nuisance is a tort against land = It is interested in injuries to and interferences with land. It is not interested in personal injury at all, doesn’t care that you have been injured from things coming onto your land.

This tort fundamentally relates to land → damage to it or interference with someone’s use or enjoyment of their land. There is a distinction between causing physical injury to someone’s land vs causing unreasonable interference with their enjoyment and their use of the land.

Lord Lloyd in Hunter v Canary Wharf: Three ways to commit private nuisance 1. Nuisance by encroachment onto land → something on A’s land physically spreading across onto B’s land, e.g. tree roots, wall on edge of properties falling down. 2. Nuisance by direct physical injury to a neighbour’s land → some physical harm inflicted on land but not by creeping across the border in encroachment. 3. Nuisance by interference with a neighbour’s quiet enjoyment of land

“ENJOYMENT AND USE OF LAND”

Doesn’t have to be an ongoing situation: This interference is often ongoing, but that is not a doctrinal requirement. Individual occurrences can satisfy the tort if they are serious enough → Can satisfy this core doctrinal question with a one-off as long as the single instance of interference is sufficiently serious.

What degree of interference can you inflict on other people? Nuisance only targets those that go beyond the level the court thinks is acceptable. Private law action of nuisance doesn’t care if the world is polluted in general, all it cares about is your remedy. But nuisance can be used to achieve a public aim to a certain extent. How do we reconcile private law between two individuals with collective shared interests in land as a whole? We must separate individual prejudices from what ought to be legally relevant. Balance between the claimant and the defendant is vital. The law can’t punish every interference with someone’s land, must put up with a certain level of noise, smell etc. How do we define ‘live and let live’? Whose standards are used as a benchmark of acceptability? Nuisance forces us to accept a degree of give and take in the world, settle on some reasonable boundary that nuisance is policing.

Nuisance often deals with environmental harms → creating an unwanted environment through smells, noises, smoke, fumes, pollution from waste etc. It is not necessarily a doctrinal requirement that there is even an emanation from D’s land. D can create nuisance in many ways other than creating smells and noises.

Thompson-Schwab v Costaki (1956, CA)

D ran a brothel on the street corner. No emanation from D’s property, no physical or environmental interference with C’s use or enjoyment of the land. Lord Hoffman: We can have a metaphorical understanding of emanation, something connected with D’s behaviour that interferes with use and enjoyment of land.

• Duty? Nuisance doesn’t involve any argument about a pre-existing duty like the tort of negligence. Like the trespass torts, it is assumed that C’s interest in the enjoyment of their land is worth protecting against unreasonable interference by D. Just because we don’t need to show a preliminary duty in that sense as we do in nuisance, in practice the same sorts of considerations/logic come in under a different doctrinal cloak.

• Fault? Strong case to be made saying nuisance is a tort of strict liability. C doesn’t have to prove fault, just the key doctrinal question of whether or not the interference with C’s land is reasonable and beyond that which they could be expected to put up with. It is absolutely no defence to an action in nuisance to say you were being reasonable and not negligent (in the sense of the tort) with the use of your land. This would greatly narrow nuisance actions. Where the court says what you’re doing is an actionable nuisance, cannot answer yes but not being negligent with my pig farm.

• Harm? Although from the cases it is difficult to clearly say whether nuisance is vindicatory or compensatory, doctrinally it requires proof of harm. Does the tort of nuisance vindicate this right of enjoyment of my property, or is it compensating my loss? Nuisance is grounded in recognition and acceptance of the right to private property, which contextualises the defendant’s behaviour.

We normally associate vindicatory torts with torts that are actionable per se. How does nuisance relate to trespass? Nuisance and trespass are different because of the proof of harm requirement in nuisance. Doctrinal distinction of directness → trespass is direct intentional interference with someone’s land, nuisance is indirect or unintentional interference that is non-trespassory.

Miller v Jackson (1977, CA)

Defendant cricket club next door built a 15 ft fence, but occasional cricket ball landed in the claimant’s garden. C framed the case as negligence or nuisance, both were successful.

Denning: Trespass not available because hitting the cricket ball is the wrong sort of intention – not an intentional interference, not intending to knock cricket ball into C’s garden, just the result of it. The nuisance is not the ball coming over the fence, it is the playing of the cricket. Family living in fear of cricket balls in their own property, stopped using the garden and back of the house because cricket ball once came through the window and hit somebody. Being terrified of being hit by cricket ball = unreasonable interference

The court saw individual instances from the playing of cricket as an ongoing event as a whole. Courts can choose varying levels of abstraction for how they want to view D’s behaviour. There was an ongoing nuisance of the playing of cricket even though the cricket wasn’t being playing every second.

A TORT AGAINST LAND

‘Harm’ = injury to the land, including intangible interference (smoke, noise, smells etc). Personal reaction is an important part of the tort. But land relates the damages to the lesser value of the land, don’t get more from your personal reaction. Damage to chattels is only recoverable where the harm to the chattel is consequential on damage to the land itself. If just causing nuisance to the chattel, the tort is of no use.

Limits claimants to those with proprietary interest in the land being affected. It matters whose name is on the lease, or who is contributing to the mortgage etc.

Khorasandjian v Bush (1993, CA) (overruled)

This case came before the Protection from Harassment Act 1997. Mentally unstable D repeatedly telephoned C with aggressive and pestering messages and behaviour. They used to be friends, but the friendship broke down. CA allowed a claim in nuisance, granted injunction. However, C lived with her mother, was just a licensee and had no property right. Dillon LJ: It shouldn’t be right that she could only sue in the house she had been harassed in if she had a property right to it. Not fair to say can’t harass the mother but the daughter is fair game. Peter Gibson J, dissenting: Nothing in the common law has suggested that someone in her position gets access to the tort of nuisance. Boundary of the tort.

Hunter v Canary Wharf [1997] AC 655

HL overturned Khorasandjian, restated the requirement that you can’t bring an action unless you have some sort of property right in the land that is affected.

Facts: The 500 plaintiffs were residents who lived in Poplar in East London, sued the developers. Claim 1: Building of Canary Wharf Tower interfered with their television signal. Claim 2: Building of the Limehouse road made a huge amount of dust settle on their property. While some were owners and tenants of the affective properties, many had no proprietary interest at all.

Claimants won in the CA. CA said as long as you have a substantial link with the land such as occupation, that was enough. Didn’t need full property right.

HL allowed the appeal.

Lord Goff: ‘Substantial link’ is too vague, encompasses all the family relatives. Does it include the au pair, resident nurse, upstairs lodger? Would then extend to workplaces. If that is the case, a problem is what is special about your house? The law being more certain is better. ‘In any event, the extension of the tort in this way would transform it from a tort to land into a tort to the person, in which damages can be recovered in respect of something less than personal injury and the criteria for liability was founded not upon D’s negligence, but upon striking a balance between the interests of neighbours in the use of their land. In my opinion, this is not an acceptable way to develop the law.’

‘Policy’ as coherence was important in Hunter. Losing the value of my land and making me dislike my land = focuses on my discomfort, even if we then say the way to calculate that is by the diminished value of the land. If we were to allow this sort of claim, that undercuts the tort of negligence where these harms cannot be claimed. Doing damage to the overall architecture and hierarchy of interests between the torts.

Lord Hoffman: The previous courts misunderstood the distinction between nuisance to do with damages to the land, and nuisances about the use and enjoyment of land. If the second category is extended, it is not a way of getting around the problem.

Lord Cooke, dissenting: happy to say occupation is enough. ‘It would seem weak to refrain from laying down a just rule for spouses and children on the ground that it is not easy to know where it is to draw the line regarding other persons.’

Is the key restriction on nuisance to those who do not have proprietary rights compatible with Article 8 ECHR? Interference with land you occupy but the action that should protect you doesn’t? HL emphasised that it is a tort against land, not persons.

Damages are measured objectively → Calculated by the diminished value of the land, not the sum total of the personal discomfort suffered. It doesn’t depend on how many people are on the land. Can’t get more damages because your wife and kids live in the house with you, makes no difference if the property is inhabited by one or one thousand people.

Tying the action to land defines what rights are automatically protected at all: Scope of nuisance is automatically limited by what property rights you do and do not have in your land. • Views from your land, D can block the view all they want unless you have an agreement with them not to → restrictive covenant. No right to the view. Some rights can be acquired as an easement, e.g. air and light. No natural arising right to passage of air, no automatic right to natural light, but can turn into an easement over time. • Aesthetic value → Open question: what about ugly building, aesthetic horror? Think about offensive artworks, when can you bring an action in nuisance? • No right to privacy, no right not to be overlooked into your building or being viewed on your land by neighbour’s periscope. Griffiths J in Bernstein v Skyviews: constantly being watched has ongoing nature which might be different, but open question. • Water flowing onto your land → owner/occupier has absolute right to appropriate or divert water that flows through undefined channels on or under their land. Fear of floodgates issue if you did have these rights, too many people can sue. Dicta from Lord Chancellor Harwick: If that were the case, there would be no great towns.

Some rights you clearly have without having to acquire it:

• Physical integrity of your land and buildings → natural right not to have the condition of your land physically damaged. Extends to buildings and fixtures on the land, different with movable property (chattels). To be regarded as physical damage, needs change in the land itself that renders the article less useful/valuable (Hunter) Ex: Smith v Inco (2011, Canada) Committing an arguable nuisance against D, raised nickel content of C’s soil but didn’t affect the value of the land is not actionable. Interfered with the land but didn’t actually lessen the value of it (like Rothwell in negligence, must interfere and change).

• Natural right to reasonable comfort and enjoyment of the land.

• Right to have your land supported in its natural state by your neighbours. Can’t just dig a big hole along the boundary and your land slides into it. This right goes so far that it can necessitate the taking of positive action to make sure I am supporting your land if I am aware actually or constructively that there was a danger of loss of support. Ex: Holbeck Hall Hotel Ltd v Scarborough CC (2000, CA) Defendant Council failed to stop the cliff under C’s hotel from eroding. The hotel catastrophically fell, destroyed entirely.

Even the plaintiffs who did have an interest in the land in Hunter lost their case. Had standing to bring action but did not have any right to sue for interference with – nothing protected by the tort of nuisance. The right they were claiming was being interfered with wasn’t a right they had at all. HL said TV reception isn’t something you have a natural right to on your land, nothing being interfered with that you have a right to protection of. Majority saw TV as analogous to views from your land. A basic principle that I can build on my land what I like unless agreed otherwise. Rationale for this view: Too many people would sue if that were the case.

Lord Hope: The jist of the complaint is that this building is on the land. But fundamental principle that you ought to be allowed to put up a building on your land. It was not designed to interfere with the plaintiffs’ signal, wasn’t done maliciously.

But what if it was from an activity you are doing on the land, and not a building? No fundamental right to do whatever you want on the land, different from building what you want. What if you are using electrical equipment that interferes with the signal?

Bridlington Relay Ltd v Yorkshire Electricity Board (1965, HC)

D ran a power line close to C’s property and interfered with TV signals there. Denied a claim here, but Buckley J held that such interference did not constitute legal nuisance because it was a purely recreational facility (sound studio), not interference with health, physical comfort or wellbeing on the plaintiffs.

Lord Goff in Hunter did not rule out the possibility that the ability to receive TV signals free from interference might one day be recognised as so important a part of an ordinary householder's enjoyment of his property that such interference should be regarded as a legal nuisance.

Third parties committing the nuisance

Is D’s property interest in the land necessary? There is no doctrinal requirement that D does a thing on their land that interferes with C’s land.

Hussain v Lancaster County Council

Landlord’s tenants repeated racially abused the claimant. CA suggested that it can be nuisance.

Lippiatt v South Gloucestershire CC (1999, CA)

Third parties committed a nuisance CA doubted the decision Hussain. There is nothing to stop it being a nuisance if you are doing it from the street, doesn’t matter that you don’t have a property interest in the street, the key is that C has a proprietary right on the land they are being nuisanced on. Both cases where there was an attempt to hold the landlord or somebody else liable for the actions of third parties. The nuisance was people on your land going and doing a thing on someone else’s land.

UNREASONABLE INTERFERENCE

How do we know something is unreasonable interference? The balancing exercise takes into account a range of factors:

1. Type of harm

What flavour of nuisance are we talking about? This is a key distinction, tells us which of the particular features of a case are relevant or irrelevant.

- If the nuisance = interference with use and enjoyment of land, the locality/neighbourhood becomes relevant. - If the nuisance = material physical damage to the land, the locality is irrelevant, doesn’t matter what neighbourhood you’re in if what I am doing is causing physical interferent with your land. For physical damage, the law automatically presumes that it is unreasonable interference.

St Helen’s Smelting Co v Tipping (1865) 11 HLC 642

Plaintiff sued for nuisance when vapours form a nearby factory damaged his trees. Lord Wenslydale: Nuisance isn’t concerned with trifling inconvenience; only those interferences which ‘sensibly diminish the comfort and enjoyment or value of the property which is affected’. Lord Westbury LC: “If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop.” If you live in a noisy neighbourhood, D is not instantly creating an actionable nuisance against you because they are doing that same sort of thing. Locality of your land becomes highly relevant for use and enjoyment.

Sturges v Bridgman (1879, CA)

Noise from D’s grinding machinery in a sweet shop. ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.’ Key idea that me not liking sound or smell etc because of enjoyment of land affected, it matters where the land is. But this doesn’t mean that you can’t commit nuisance in those situations, just that the bar is higher for the standard the courts are looking for → the nuisance is something beyond the background level in the neighbourhood.

Thomas v Merthyr Tydfil Car Auction (2013, CA)

Case about noise, C successfully pointed out how the noise was greater than you would expect all things being considered.

Locality is viewed in broad terms; court comes up with whether it is a residential, commercial or agricultural area. Nuisance asks deep questions about social life, and what should or should not be going on.

➢ Thompson-Schwab (brothel case) In the wrong street, e.g. ‘a good class, residential street’, brothels cause social distaste amongst people. ➢ Laws v Florinplace (1981, HC) (sex shop case) The fact that it was in Pimlico scuppered the claimants’ case.

Planning permission:

Does planning permission amount to authorisation? This is how the law generally regulates what you are allowed to go with the land. Does a council decision adequately balance public and private concerns?

Gillingham DC v Medway (Chatham) Dock Co Ltd [1993] Ch 19

Refused application for an injunction to restrain heavy noise-generating traffic to D’s successful dock that the claimant Council actually gave them planning permission for.

Buckley J: Planning authority can, through its development plans and decisions, ‘alter the character of a neighbourhood’. That may have the effect of rendering innocent activities which prior to the change would have been actionable nuisance. Took the planning decision essentially to have balanced the public and private interests.

Wheeler v JJ Saunders (1994, CA)

Extension of a pig farm, tried to rely on them having planning permission, court said it was irrelevant.

Coventry v Lawrence [2014] UKSC 13

Criticised Gillingham decision.

Lawrence moved into a bungalow near a stadium around which Coventry, who held the appropriate planning permissions, organised various motor-racing events since 1976. Majority rejected the relevance of planning permission to the question of liability in nuisance, happy to abandon Gillingham. When deciding whether there has been unreasonable interference, that planning permission is irrelevant.

Lord Neuberger: Planners took into account other factors that were irrelevant to this central doctrinal assessment → Political and economical considerations can be taken into account in the planning decision but had no place in the assessment of the law of nuisance. Planners can assume that if they allow something through and it is an actionable nuisance, the person who suffers it can get the protection of the law of nuisance. The planners’ decision should not be taking away that protection.

Lord Carnwarth, dissenting: We are talking about large-scale planning decisions. Argued that in cases like Gillingham and Hunter, the planning authority had altered the character of the neighbourhood. This is a decision to redevelop a whole area, not just a domestic affecting one person.

What the relevance of D’s own conduct to the character of the locality? Can D say that this is a noisy neighbourhood because I am making a noisy neighbourhood? - Ignoring D’s conduct is unfair to D, they are part of the locality. It can be taken into account if it can be done without creating a nuisance or lowering the level of nuisance. - You don’t get to rely on your own activity ‘to the extent that those activities are a nuisance to the claimant, they should be left out of account when assessing the character of the locality’. If it can’t be done without creating a nuisance, it won’t be taken into account when assessing the character of the locality.

But how stable is this distinction between property damages and cases of use and enjoyment if it is all measured by the value you lose in the land? What is special about physical interference that means it doesn’t matter where it happens?

2. Foreseeability of harm

Is foreseeability relevant to nuisance? Historically not relevant because nuisance was viewed as a strict liability tort, didn’t matter whether D was at fault.

Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264

C sued in negligence, nuisance and rule in Rylands v Fletcher for damage done to the well on their land. Water was polluted by chemicals that the defendant letter manufacturer used on their land. It collected on the land and seeped into the ground, got into the aquifer and travelled 1.5 miles to reach C’s well to poison it. Unknown that the chemicals could get into the aquifer, and even if it had been known, the person was 1.5 miles away so no one would think it could travel that far and get onto someone else’s land.

No successful action. Fault is not required, but that doesn’t mean a D in nuisance can be liable for a type of harm they can’t foresee. Lord Goff confirmed that foreseeability of harm is a requirement for any claim in nuisance in cases where the remedy you are looking for is damages.

Wagon Mound (No 2) (1967, PC) → case of public nuisance. Foreseeability is a requirement for the recovery of damages in both nuisance and the rule in Rylands v Fletcher. The broader hierarchy of interests is relevant here. Personal injury requires foreseeability of harm, property can’t have greater protection.

Where the remedy sought is an injunction, that presupposes that the nuisance is ongoing. Can’t get an injunction unless the thing is still happening. Once the claim has been brought, D must know what is happening at that stage, so foreseeability is not a problem in cases of ongoing interference.

For one-off nuisances, foreseeability is important because it narrows down the scope of potential liability in nuisance.

3. Abnormal sensitivity

It is irrelevant that C has a particular sensitivity. Whether the interference is unreasonable is judged objectively. Abnormal physical and mental sensitivities of C are irrelevant. Also using your land in a particularly sensitive way is irrelevant.

Barr v Biffa Waste [2012] EWCA Civ 312

Carnwarth LJ: The standard the court seeks to apply is that an interference is ‘such that an ordinary person could not reasonably be expected to put up with it’. Court emphasises that there is no magic fixed threshold or minimum bar.

Robinson v Kilvert (1889) 41 Ch D 88

D’s manufacturing process caused the temperature of C’s floor to rise, damaging his store of special brown paper. C’s action was unsuccessful. Court denied the action, says this incremental rise in temperature would not have damaged normal paper. Special paper doesn’t give you special protection.

MacKinnon Industries v Walker (1951)

C’s flowers killed by smoke from D’s property. Action was successful, court noted that the orchids were not unusually sensitive, but just ‘flowers of ordinary sensitivity’.

What is an abnormally sensitive use of your land? The fundamental principle of abnormal sensitivity is that my choice in how I use my land should not impose an excessive burden on you in how you own your land. Law says cannot use your land in a way that unreasonably burdens the other person.

Foreseeability is not useful here → surely the more sensitive I am the more foreseeable it is that your behaviour actually harms me.

4. Fear

It is not enough to simply be scared or disgusted about what D is doing on the land.

Birmingham Development Co v Tyler [2008] EWCA Civ 859

C sought injunction when D left an exposed wall which C though was dangerously unstable, fear of the wall falling onto their land was argued to diminish their use and enjoyment of the land.

Rimer LJ: Insufficient for you to have an honestly subjective fear. C was clearly afraid this wall was going to fall and do them harm, but must have objective evidence that there is something to be afraid of is required. ‘What is required is proof that the fear is well-founded: that is, that the property or activities are actually dangerous, although it is not necessary to do more than prove that on the balance of probabilities.’

5. Malice

Question of motive → does it matter if you are trying to inflict nuisance on your neighbour? Generally, motive is irrelevant for the purpose of tort.

Bradford Corporation v Pickles [1895] AC 587

Mr Pickles sued by City of Bradford for siphoning off water that ran under his land which would have gone into a reservoir that was supplying the city. He did this to force the council to buy his land for a greater price.

There is no right to free-flowing water on or under your land. The fact that he siphoned it off made no difference, no actionable right to be protected there. Doesn’t matter if the guy did it just to be malicious. Choices of what you do with your property right, does Bradford contain a broad principle that you can do whatever you want?

Christie v Davey [1893] 1 Ch 316

Where there is a tangible right, malice really does matter. D tried to disrupt the music lessons given by their neighbour. The lessons went on for 17 hours per week. D commenced a series of noises in his house whenever the playing of music was going in on P’s house, including ‘knocking on the parting wall, beating on trays, whistling, shrieking and imitating what was being playing in P’s house on a piano’. This retaliatory action was a nuisance. They are suing each other for the nuisance.

North J held that the piano lessons were not a nuisance. D’s behaviour was only a nuisance because ‘what was done by D was done only for the purpose of annoyance, and in my opinion it was not a legitimate use of D’s house’. Doing it solely to ruin his neighbour’s enjoyment.

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

D arranged to have his son fire a shotgun at the boundary of P’s land to unsettle the silver foxes P was farming. Firing shots during the mating season led to the vixens miscarrying or eating their young, ruined P’s business.

C won even though D was entitled to shoot on his land. Not entitled to do something intended to damage the other party. Malicious interference is never reasonable, live and let live ceases to apply. Any amount of malicious interference should not have to be put up with, goes beyond the bounds of what you have to put up with so long as it is a protected right. Abnormal sensitivity doesn’t matter if the interference is malicious.

6. Social utility of D’s conduct

It is irrelevant that D’s activity may be beneficial to the wider society. Private benefits such as bringing jobs is irrelevant.

Dennis v Ministry of Defence [2003] 2 EGLR 121

Claim in actionable nuisance because jets were flying over land, which was on the training route for the pilots. Not so much a private good, but the public good. D’s argument that this is nationally good, public benefit of air force training is rejected by the court.

Question of liability, is there an actionable nuisance? Court takes a different approach to the question of public benefit → you are liable but the remedy is damages rather than an injunction.

WHO CAN BE SUED FOR NUISANCE?

1. Creating the nuisance 2. Occupying the land on which the nuisance occurs 3. Authorising the nuisance

Occupier

The occupier is only liable for adopting or continuing the nuisance. This is because often the nuisance was created by a third party trespasser or is a result of the natural state/feature of the land. Law will only hold you accountable where you either adopt the nuisance or continue it, i.e. don’t take reasonable steps to remove it once you become aware of it.

Not an absolute duty, but a duty to take reasonable measures: Only reasonable steps are required to abate the nuisance. Won’t hold someone liable where what is required is something beyond reasonable.

Sedleigh-Denfield v O’Callaghan [1940] AC 880

Trespassers laid a pipe in a ditch on the defendant Council’s land. D’s employees used the pipe from time to time to channel the water and put a grate on top of the pipe to stop it getting blocked. In a heavy storm, the pipe was blocked because the grate was fitted negligently. Water flowed onto P’s land.

Held that D was aware, or ought to have been aware of the nuisance through the actions of their servants. The nuisance was not the pipe itself which was on D’s land, it was the unforeseeable water flowing onto P’s land.

Goldman v Hargrave [1967] 1 AC 645

D liable for failing to put out a fire that started after lightning stuck his land, fire then spread to P’s land. The person sent by D to sort out the problem just cut the tree down and left it to burn out. Wind blew the flames over.

Privy Council said there is a general duty to remove or reduce hazards, whether man- made or arising naturally. Occupier can be liable for a naturally occurring nuisance. But this duty is exceptionally subjective to the resources of the defendant and ability to deal with this. Knowledge of the risk, foresight of the harm and (subjective) ability to abate it all relevant.

Leakey v National Trust [1980] QB 485

Burrow Mump (big hill) suffered a landslip after a storm. Soil and trees fell on C’s land. Court applies Sedleigh-Denfield and Goldman. The applicable duty here is to take reasonable care to stop the nuisance, tailored to the subjective resources of the defendant. On the facts, the National Trust was taken to have known and to have been easily able to carry out the remedial measures.

Holbeck Hall Hotel Ltd v Scarborough CC (2000, CA)

Duty is further tempered by requirement that the extent of damage must be foreseeable, not just the type of harm. Hotel on cliffside, land beneath slowly wore away. Huge chunk of land sheared off into the sea, catastrophic degree of damage far beyond what was foreseeable by D.

Cocking v Eacott [2016] EWCA Civ 140

D had retained control and possession of a property that she allowed her noisy, nuisance- creating daughter to live in. Court held that the mother was liable for continuing or adopting the nuisance by failing to stop it without undue delay. The judge said the duty was not only limited to reasonable means, was tied to D’s resources. Not a duty to stop it as long as you have money and time to do it, but rather just an absolute duty to stop it. Dr McGrath questions this → there is a difference between nuisance created naturally and your daughter shouting and keeping a barking dog is that in the latter case you can remove by getting the tenant out. Goldman massive outback fire more uncontrollable.

Authorisation

Landlords in general can only be held responsible for the resulting nuisance where they have authorised it. Can authorise in one of 2 ways: - Directly and actively participating in the nuisance. - Where there was a very high degree of probability bordering on virtual certainty that letting the property to the tenant would result in the nuisance.

Coventry v Lawrence (No 2): The landlord did not participate in motor racing directly, and letting to people who would carry out motor racing would not in themselves instantly create an actionable nuisance. This case ramps up the degree to which you need to know something is going to happen.

DEFENCES

Coming to the nuisance is not a defence → doesn’t matter if it was going on before. D can’t say “you can’t sue me because you were aware that it is going on beforehand.” What if C changes their behaviour and thereby makes D’s activity a nuisance?

Sturges v Bridgman (CA)

Defendant confectioner grinding up sugar for 20 years without it being a nuisance to his neighbour. Neighbour is a doctor, later he built a consulting room shed at the back of his garden close to the border with D to see patients. Only at that point the grinding became a nuisance. The court allowed the claim. Doesn’t matter if the nuisance only arises because the claimant changes the way they use the land and comes to the nuisance.

Miller v Jackson

Majority were happy with Sturges, doesn’t matter if C changes their behaviour, ‘coming to the nuisance’ is still not a defence. Denning, dissenting: ‘The thoughtless and selfish act of an estate developer in building right up to the edge of it’, what was he expecting would happen?

Coventry v Lawrence [2014] UKSC 13

The second point in Sturges may now be different where C changes their behaviour and that turns D’s action into an actionable nuisance.

Lord Neuberger in obiter: The rule against ‘coming to the nuisance’ only works where C uses her property for essentially the same purpose as that which was being used by her predecessors since before the alleged negligence started. Five criteria: - ‘It can only be said to be a nuisance because it affects the senses of those on the claimant's land - It was not a nuisance before the building or change of use of the claimant's land, - It is and has been, a reasonable and otherwise lawful use of the defendant's land up to then before C changed their behaviour - It is carried out in a reasonable way - It causes no greater nuisance than when the claimant first carried out the building or changed the use.’

1. Acquisition of right by prescription

A right to carry out the nuisance-generating activity may be acquired after 20 uninterrupted years of the claimant putting up with it. Not just putting up with the activity generally, need to put up with the actionable nuisance itself for 20 years.

Coventry: Confirmed this point in relation to noise, can acquire a right as long as you are putting up with the actionable negligence.

Clock doesn’t start until the claimant actually knows of the ongoing nuisance. What is being acquired here is a full property right – easement. The interference must be certain and uniform, can’t vary in intensity and frequency.

Dennis v MoD: Defence is defeated, the sounds of the training jets were simply too irregular in the period complained of to become an easement.

2. Statutory authorisation

If D’s conduct is authorised by statute, there will be no action by nuisance → Allen v Gulf Oil (1981) However, the activity must be undertaken without negligence, D must have shown reasonable regard for other persons. Modern statutes that grant such authorisation almost certainly include a statutory compensation scheme for those effected. Available remedy is shifted away from common law and into the statutory regime.

Civil Aviation Act 1982 s 76(1) gives statutory immunity from actions in trespass or nuisance to those operating planes. Peires v Bickerton's Aerodromes Ltd [2017] EWCA Civ 273: Helicopters simply taking off, turning around and landing does not get around this immunity. The wording cannot be stretched to mean it only gave immunity to flights that were reasonable to begin with. The whole point of statutory authorisation is that it is a recognised as a nuisance.

Tony Weir argues that low-level local regulation and administration cannot authorise a nuisance → need full Parliamentary statutory authorisation.

Barr v Biffa Waste: No answer in smell-based claim that D’s actions had received regulatory approval at all times from the Environment Agency. Carnwarth LJ: ‘Simply because failure to comply with such regulation would suggest unreasonable user, the converse was not true. Approval by regulatory agencies did not suggest reasonable user short of full statutory authorisation.’

3. Necessity

Southport Corp v Esso Petroleum [1953] 2 All ER 1204

D jettisoned 400 tonnes of oil to lighten his ship, which was stranded with the crew on board in the estuary. At first instance, Devlin J said the defence of necessity is available if the nuisance-causing conduct protected human life, but not if it was only intended to protect property. Prepared to accept on the facts that there was a sufficient risk to human life. Lost the case on other grounds. The fuel washing up on the shore which caused nuisance could be done in order to protect the crew.

4. Act of a trespasser

Smith v Littlewoods Organisation Ltd [1987] 1 AC 241: No general liability for nuisance caused by a trespasser where there is not some additional factor such as knowledge of or control over the situation so as to render the occupier liable.

5. Contributory negligence

Available as a defence via the Law Reform (Contributory Negligence) Act 1945.

REMEDIES

There are distinct remedies for nuisance. Does this mean it is really covering harms negligence cannot? Remedial differences between nuisance and all other torts → injunction and/or damages. Hierarchy of remedies between injunctions and damages: In what circumstances is it permissible to say you should award injunctions or damages?

Available damages: - Past or finished nuisance gets damages, monetary compensation for the interference. - Ongoing nuisance can get injunction from court instead of or in addition to damages. But when should damages be awarded instead of an injunction? Where you can award damages instead of an injunction for ongoing nuisance, D is arguably able to buy the right to harm C and interfere with their property. This raises questions about the protection ought to be given to property.

Shelfer v City of London Electric Co [1895] 1 Ch 287

Sets down the rules governing when you get damages instead of an injunction. Plaintiff complained of ongoing nuisance caused by D’s machinery vibrating. CA overturned the decision at first instance not to award an injunction.

Smith LJ set out four criteria to form the working rule as to when damages are more appropriate than an injunction. Only where the injury is: (1) small (2) capable of being estimated in money (3) can be adequately compensated by a small money payment, and (4) where the case is one in which it would be oppressive to the defendant to grant an injunction

Miller v Jackson (cricket case)

Majority held that it was appropriate to take public interest into account when considering whether to injunction D’s behaviour. In this case, the public interest in playing cricket should prevail, plaintiff given damages instead.

Kennaway v Thompson [1981] QB 88

Involved increased noise from motorboat racing. Trial judge awarded damages for past and future nuisances. CA thought they weren’t bound by anything other than Shelfer, which made no mention of balancing public interest against awarding the injunction and awarded a limiting injunction → told D to cut down the number of races they were putting on.

Dennis v MoD [2003] 2 EGLR 121

P was awarded substantial damages of almost £1m on the basis that the public interest in fighter pilots being able to train outweighed the private interest in unmolested property rights.

Coventry v Lawrence [2014] UKSC 13

The tension in Kennaway and Dennis was considered at length in obiter.

Lord Neuberger: Starting point – the power to award damages in lieu of an injunction is a classic discretion, shouldn’t be fettered/constrained in any way. While prima facie position is that an injunction should be granted, Shelfer can only offer rough guidance, was not a fixed set of rules. The mere fact that not all the Shelfer criteria was satisfied is no reason not to still award damages. Public interest is usually a relevant factor in cases, public interest relevant both ways round for employees and for claimant given a remedy. Where the remedy is an injunction, other people will always be affected → free rider point.

When considering remedies, the granting of planning permission should be given greater weight (although not relevant when considering the reasonable user). ‘The existence of a planning permission which expressly or inherently authorised carrying on an activity in such a way as to cause nuisance by noise or the like, can be a factor in favour of refusing an injunction and compensating the claimant in damages. This factor would have real force in cases where it was clear that the planning authority had been reasonably and fairly influenced by the public benefit of the activity, and where the activity cannot be carried out without causing the nuisance complained of.’

Lord Sumption: Where planning permission was required for D’s activity and had been granted, defeats an injunction as a matter of principle. In remedies, planning permission means the remedy is damages, not an injunction.

CALCULATION OF DAMAGES

Lord Hoffman emphasises that this is rooted through valuation and harm in the sense of diminished your use and enjoyment of the land and discomfort with what D is doing. Remedies for ongoing nuisances after Coventry is going to be damages, so the precise nature of how we calculate becomes very important. In Hunter, it depends on personal comfort in fact, but the damages are for the loss of amenity value in the property.

Lord Hoffman suggested that loss of amenity in contract cases are relevant.

Dobson v Thames Water (2009, CA)

Waller LJ calculating the measure of damages in cases where: ‘There is (1) no loss of market value or other pecuniary loss, (2) no physical damage to the property and (3) no loss of income from its use/letting, but is simply (4) loss of amenity.’ The ‘actual impact’ on the occupiers of the land will, in practice, be relevant to the assessment of such damages in many cases. It doesn’t matter how many people are in occupation.

Anslow v Norton Aluminium (2012, HC)

Smell from an aluminium plant. No reliable data on the reduction in rental value of properties, which was used in Hunter. The court adopted the assessment of loss of amenities in personal injury cases to calculate damages in nuisance. Whatever the doctrinal mechanics, if in practice the way the damages are being valued is the same as they would be in personal injury cases, the law is perhaps not as coherent as it claims to be.

Lord Neuberger in Coventry: Move away from an assessment of diminution of the value of the land. In appropriate cases we should look at the value of C’s loss of ability to enforce their right. Measure this by asking what benefit D received from being able to carry out their nuisance, i.e. licence fee for doing the nuisance-generating activity.

Cambridge Water: Type of harm and remoteness remains relevant, acts as a key control mechanism. Damages are awarded subject to restriction that the damage is reasonably foreseeable, assessed objectively. Must be the right foreseeable type of harm. Noise causing windows to smash can’t be recovered. Causation is still required → harm must actually be caused by D’s actionable negligence.

The award of damages to the property holder in nuisance also concurrently satisfies ‘just satisfaction’ under the HRA 1998 Article 8 claim that would be owed to anybody else in the house. Article 8 claim rules out any additional award beyond damages for nuisance. Ex: My brother without property right also lives in house. Damages to me also satisfied just satisfaction that is due to him.

The rule in Rylands v Fletcher

Imposes a purportedly strict liability where D accumulates something dangerous on their land that escapes and causes damage. What does it mean to say Rylands is a ‘strict’ liability rule? Don’t have to prove D is negligent, no obvious fault requirement.

Strict = one does not have to show fault, no-fault liability. Sometimes can presume causation and ease C’s initial case by inferences from D’s conduct. Tort law doesn’t like strict liability, so the rule is narrow. Tony Weir says negligence is the expansion of the requirement of fault into tort law, other torts take on the characteristics of negligence.

Rylands v Fletcher

D builds a small reservoir on their land to supply their business with water. Their independent contractors didn’t realise that an old tunnel network at the bottom of the reservoir connected to C’s mine. The reservoir fills with water; water bursts through and floods C’s mine, damaging C’s land.

C lost at first instance → no fault on D’s part and the injury was not direct so no success in trespass. Isolated escape of water bursting out once appeared to rule out an action in nuisance.

Blackburn J: Found D liable on appeal “We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the Plaintiff's default; or, perhaps, that the escape was the consequence of vis major or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.”

Fault clearly isn’t relevant, gets around the problem that D wasn’t negligent as they didn’t know the reservoir connected with the mine. D could only escape by showing that something other than D themselves, including their independent contractors, had caused the escape. Here they couldn’t. Justification for this strictness lies in D’s failure to ensure that something he knew would do harm to C’s land if it escaped, did escape.

This was appealed to HL. Lord Cairns: The key for liability here is that the purpose for which D had been using his land is a ‘non-natural use’. Had it been an ordinary use of the land, there would have been no liability in the absence of negligence.

This point has been conflated with the test set out by Blackburn J’s framework, add onto it and read together as a single test.

(1) D must have accumulated something dangerous on his land (2) D must have accumulated the dangerous thing on his land = ‘non-natural’ use (3) The dangerous thing must escape from D’s land No liability for escapes caused by acts of God or malicious third parties; no liability for death or personal injury.

Development

How effective is Rylands as a general principle? Do the requirements of liability stand up to critical scrutiny or is this the common law allowing facts of the case to shape the law rather than identifying the principle? General trend of the law is severe restriction of the potential scope and development of liability, court chooses the narrower possible option rather than the broader one.

REQUIREMENTS:

1. You need to have brought a dangerous thing onto your land

Dangerous thing = anything that is not naturally on the land to begin with, must have brought it on, applies broadly This is treated very expansively by the courts → Chair-o-plane fairground ride, electricity and explosions all accepted as dangerous things.

Musgrove v Pandelis: Car in a garage whose petrol tank had exploded. Wing v London General Omnibus: The principle does not apply to road accidents, that is the province of negligence.

If a natural thing accumulates in an unnatural way because of D’s actions (e.g. water), then there can be an action. The requirement seemed at one point to have ceased as a separate criterion and fallen into the second requirement of a natural use because the definition was so broad.

Transco plc v Stockport MBC [2004] 2 AC 1

Municipal water pipe supplied block of flats. Defendant council was sued when a water pipe supplying flats burst and caused damaged to C’s gas pipe. Restated that it must actually be ‘dangerous things’, can’t just assume all things are dangerous. More things don’t satisfy the rule, so C can’t rely on it under Rylands and must reframe their claim to nuisance or negligence.

Lord Bingham: requirement of a dangerous thing remains relevant. The rule’s its effect is to impose liability in the absence of negligence for an isolated occurrence, so the test for mischief or danger should not be easily satisfied.

2. You must have accumulated it on your land

Lord Cairns → non-natural user Unreasonable use of D’s land, vs nuisance (unreasonable interference with C’s land even if the activity generating that interference is reasonable itself). Non-natural use of land = something extraordinary, abnormal or unusual. Rickards v Lothian: Water spilling out of an overflowing toilet is not within the rule in Rylands.

This requirement allows courts to apply Rylands flexibly, taking into account the broader social context of D’s actions. The underlying idea is a special use of land. If it is not unusual, unlikely to satisfy the requirement.

British Celanese Ltd v AH Hunt (QBD, 1969)

Storing strips of metal for use in your factory wasn’t deemed a non-natural use when they caused havoc by blowing across into the neighbouring electricity station. Stacking metal like this wasn’t a special use of land, no increased risk to it. Needs to be a clearly special use or doing something that increases the possible risk to the claimant. Time and place of the activity is relevant.

Read v J Lyons [1947] AC 156

C (munitions inspector) was injured by explosives that D stored on their land when he was walking around the factory. Viscount Simon in obiter: Because this was during WW2 and C was an inspector of munitions, the storage of explosives was a natural use of land in a way that it wouldn’t be the case outside of wartime.

Musgrove v Pandelis (KBD, 1919): There were fewer cars at the time. Storing a car in your garage at that time was a special use of land that it no longer is now.

Expansion of the term:

Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264

A use of land cannot be called natural simply because it provides some broader social benefit, e.g. employment. Held that courts are more willing to find things to be a non-natural use, you can broaden out the requirement and expand the use of the term ‘non-natural’. Storage of large quantity of chemicals is an ‘almost classic case of non-natural use’. Lord Goff introduces foreseeability in nuisance, prepared to relax non-natural use because he was adding in another test.

Contraction of the term in more recent cases:

Transco plc v Stockport MBC [2004] 2 AC 1

Claim rejected on the basis that the supply of utilities is not an extraordinary use. The mere fact that it was a big pipe wasn’t extraordinary.

The court has turned to who should bear the risk of D’s behaviour? → Shift to more explicit reasoning in terms of who is bearing the risk. Relevance of D’s ability to insure against harm from D’s dangerous thing escaping.

Lord Walker: Rejected the idea of natural user as a utilitarian balancing exercise.

Lord Hobhouse: The mere fact that you can insure against something isn’t enough to justify restricting C’s ability to plead something under Rylands even if it is a natural use. Who knows whether the considerations underlying the availability of insurance map on to what the court thinks is appropriate for the test of non-natural user.

Lord Bingham: “I think it clear that ‘ordinary user’ is a preferable test to ‘natural user’, making it clear that the rule in Rylands v Fletcher is engaged only when D’s use is shown to be extraordinary and unusual.”

Gore v Stannard [2012] EWCA Civ 1248

Large stack of tyres on D’s land caught fire. C’s action failed. Court unwilling to regard storing tyres (given that D’s business was supplying tyres) as an extraordinary or unusual use of land, building on Transco.

3. The dangerous thing must escape

Key restriction on Rylands rule for becoming a broader principle of liability for dangerous things.

Read v J Lyons: The fact that the injury to C had occurred on D’s land was held to be fatal to the claim → Never escaped from the land on which the explosives had been accumulated.

Claim in Transo defeated: Lord Scott focused on the fact that the water on D’s land causing the tunnel to collapse hadn’t actually escaped at all.

Courts were willing to take a broad view of what was actually escaping, however it became clear in Gore v Stannard that this is wrong → it must be the accumulated thing itself that escapes. Not the actual tyres that escaped, the fire escaped. The fact that the fire was caused by the tyres wasn’t the thing accumulating on the land escaping. After Gore, there will only be liability where it is the fire that was deliberately accumulated on D’s land. Not something accumulated that then caught fire. Musgrove would be decided differently now.

Jones v Festinog Railway Company (1868)

Fire-powered steam engine’s sparks set light to P’s property. The fire is in the steam engine already, so successful in arguing that the fire was accumulated and had escaped. Chose narrower test. Fires Prevention (Metropolis) Act 1774 s 86 Statutory defence rules out occupiers’ liability for fires that begin accidentally, not negligently → From Musgrove, this defence does not apply where a claim is based in Rylands.

After Gore, no special application of Rylands in the case of fire. Liability for spread of fire now requires proof of negligence.

REMOTENESS

Blackburn J in Rylands assumed D was liable for all of the natural consequences flowing from the escape. If that were the case, this would be a very strict liability. Lord Goff in Cambridge Water challenged that, just as he had imposed a constraint of reasonable foreseeability for the nuisance claim. It is not that the escape that must be foreseeable, but the extent and type of harm that is caused needs to be foreseeable. This is measured at the time the risk is created. If the dangerous thing escaping causes an unforeseeable sort of harm, no luck for C.

THE MODERN PLACE OF RYLANDS

A separate principle or has it been subsumed? Lord Goff in Cambridge Water: ‘It would lead to a more coherent body of common law principles if the Rylands v Fletcher rule were to be regarded essentially as an extension of the law of nuisance to cases of isolated escapes from land ...’ Attempt to recategorise Rylands as simply a specific instance of nuisance that deals with one-off incidents. In Transco, the Lordships were invited to abolish the rule altogether and say it was absorbed into negligence, but they refused to do that. Narrow as it may be, it was still an active principle within the common law. Lord Bingham: ‘The rule in Rylands v Fletcher is a sub-species of nuisance, which is itself a tort based on the interference by one occupier of land with the right in or enjoyment of land by another occupier of land as such.’ The effect of Cambridge Water and Transco has been to doctrinally shift Rylands into nuisance, just a particular set of rules within nuisance. But Rylands remains distinct from nuisance. Maybe Rylands is just a strain of nuisance that better deals with isolated incidents of escape.

Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyds Rep 533

Lighting fireworks was risk, fiery debris coming onto boats This is inherently risky, so it is unreasonable use of land Judith doesn’t really agree, shouldn’t blur the line between nuisance and Rylands in one- off situations → nuisance doesn’t generally cover one-offs.

In nuisance the interference is unreasonable (looks at interference with the claimant). In Rylands the use of land is unreasonable (looks at the defendant’s conduct).

- Accumulation or inquiry of natural user is irrelevant for nuisance, not a requirement. - In Rylands, it makes no difference if the escape is due to the act of a third party (independent contractor). From nuisance, a third party creating a nuisance on your land generally doesn’t make you liable. - Emphasis on foreseeability shows claimant’s particularly sensitivities probably won’t be relevant in Rylands.

Rylands is probably now a sub-species of nuisance. But if this is the case, C in an action relying on Rylands must have a property interest in the affected land (same discussion in Hunter relevant for Rylands).

RECOVERABLE HARM

Damaging C’s land is clearly recoverable. • Personal injury: Transco and Gore v Stannard suggests no damages available for personal injury in the absence of negligence. • Damage to chattels: If it is not consequential on damage to land, same rule as nuisance. What justification is suitable to explain the degree of protection this gives to non-bodily interests over bodily interests? It seems C’s land gets more protection than their body, a reversal of the normal hierarchy of interests. In Transco, whilst economic loss caused by injury to property that is not consequential damage to the land is not recoverable, financial loss incurred to protect your land from the dangerous escape may be recoverable = preventive damages.

DEFENCES

Generally, all the defences speak to disproving causation → demonstrating that D did not cause the escape,. Once you take fault out of the equation and satisfy all other requirements, all you are left with as a defence is to say they didn’t cause it.

• Act of God

Blackburn J: It is a defence to the escape in Rylands that it is the result of an act of God, natural forces beyond D’s control.

Nichols v Marsland (1876)

Cause of the escape of water from D’s ornamental lakes was an unusually heavy rainstorm that D could not have anticipated. But allowing acts of God has been constrained in the following years, because the defence now is not that the particular event could be anticipated, but that the possibility of there being a heavy rainstorm couldn’t be foreseen.

Greenock Corporation v Caledonian Railway (HL, 1917)

D constructed a concrete pool. Diverted a stream to fill the pool. A violent rainstorm caused the pool to overflow and flood a nearby town. The basis of liability here is not whether you created a risk, but whether you controlled that risk properly. Whether you ought to have appreciated the possibility of the event happening. Flavour of negligence rather than strict liability.

• Act of a stranger

The escape is the result of an unforeseeable act of a third party against which D couldn’t reasonably be expected to guard. The third party must be someone over whom you don’t have control → Mainly trespassers, independent contractors or employees not likely to be strangers. At what point does someone with permission to go on your land do something which takes then out of your control? It must be something you can’t reasonably expect D to take guard against → negligence- type analysis.

Could you have done better to stop third party from mucking about on your land? Two contrasting cases:

Northwestern Utilities Ltd v London Guarantee and Accident Co (PC 1935)

D ought to have foreseen the risk of the third party’s building work causing their gas to leak and ignite. This was sufficient to defeat the claim.

Perry v Kendricks Transport (CA, 1955)

Unbeknownst to D, someone removed the cap from the petrol tank of a rusting bus on their land. Two boys (strangers) threw in a match and caused the petrol tank to explode, injuring the plaintiff. Court held that the defence was available here.

• Statutory authorisation if properly construed

Liability may be defeated by statutory authorisation. This requires clear construction of the statute to that effect.

• Claimant’s own act

From Blackburn J’s original set of principles, it is a valid defence to say that the claimant was wholly responsible for the escape, or for exposing themselves to the danger of the escape. Similar to nuisance, an abnormally sensitive claimant cannot recover.

• Contributory negligence

Where C is only partly responsible, there is an open question as to whether contributory negligence is available. Would this defence have been available to D before the 1945 Act?

Problem Question

Huge plc operates a factory assembling office furniture in a residential area in Bigtown. They make vast profits and are a major employer in the town.

Alice owns a house close to the factory, which she occupies with her family. Intense smells emanate from factory the on the first working Monday of every month, when machinery is cleaned. The smells prevent the family eating in the house and cause serious nausea. Windows have to stay closed even on the hottest day. Alice is away from home on business on the first Monday of every month and so is not disturbed. She thinks her family is making an unreasonable fuss and does not want to fall out with her friend who manages the Huge factory.

Between 1979 and 1999 (when a better alternative comes onto the market) Huge use a chemical known as di-xpc to prepare wooden surfaces. They keep the di-xpc in a large tank, which Huge maintain according to very high standards. For many years, small quantities of di-xpc leak from the tank through a hairline crack in an inaccessible location under the tank. It soaks through the floor to an underground stream. From here it reaches a well on the property of Gillian, a farmer. Farmer Gillian has always used that well to irrigate her crop of organic lettuce, which have suffered no harm from the di-xpc. In 2001, the government body that regulates the labelling of produce as organic, bans the presence of di-xpc in organic lettuces. Gillian loses her organic status. She will not be able to recover her organic status until the di-xpc is removed from her water supply. It is anticipated that it will be 15 years before all of the di-xpc will naturally make its way from the Huge factory to Gillian’s well. It is technically possible to remove the di-xpc, but very expensive.

Farmer Gillian has also recently learned that her neighbour Farmer Bruce has diversified into mining and quarrying on his land and has for some months been extracting coal from a seam that also runs beneath her land 250 feet underground. This makes no structural difference to her land, but she is quite annoyed he did not tell her about this.

Advise the parties of their rights and liabilities in tort.

Alice v Huge plc

Who is the claimant and who is the defendant? Who can sue and who can be sued? D = Huge plc C = Alice’s family Alice doesn’t want to bring a claim, so her family will try, but they need a proprietary interest in the land. Question of whether they can sue without her. Hunter defines proprietary interest as exclusive possession. Why do you need to have a property right to sue? E.g. lodger stays for one year. But it is a tort against land, not against the person. Not suing for personal injury, you are suing on behalf of the land.

Nuisance = unreasonable interference with C’s use and enjoyment of the land Cambridge Water Chemicals seep into the ground and travelled along the aquifer to poison C’s well. Action unsuccessful because it was not foreseeable.

It is foreseeable that the smells would interfere with the family. Sensitivity of claimants and locality etc. are relevant to the reasonableness question. Locality of the area → St Helen’s Smelting Co v Tipping (1865, HL) The locality is residential area. This is only relevant for use and enjoyment of the land. Where there is physical damage of the land, locality issue is irrelevant.

What if Huge plc had planning permission/statutory authorisation? Coventry v Lawrence says planning permission is not a defence.

Is it unreasonable use of your land? Once in a while is less interference, duration is a question to raise. Is this an ongoing nuisance or one-off event? Does it affect Alice’s use and enjoyment if she is not event there?

Network Rail v Morris (2004, CA) says it is foreseeability issue If Alice is thinking they make an unreasonable fuss, does that mean the family is particularly sensitive? Robinson v Kilvert (1889, CA) says if it is not a nuisance to the ordinary person, then you can’t sue.

What if Huge plc starts maliciously making these smells? Hollywood Silver Fox Farm v Emmett (1936, HC) → malice cancels out sensitivity Inconsistent with Bradford Corporation v Pickles (1895, HL), maliciousness is irrelevant if you have a right to do it. If you don’t have a right and it is illegal, then it doesn’t matter how good your motive is. Christie v Davey (1893, HC) if there is an actionable right

Coming into the nuisance is not a defence.

Remedies: Damages and injunction Coventry v Lawrence when is it correct to award damages rather than an injunction? Lord Neuberger: Injunction should be the primary remedy. But take public interest into account, may outweigh private interest (Dennis v MoD) Shelfer criteria aren’t hard and fast rules, a good guideline but court has discretion to award damages instead of an injunction. Smith LJ set out four criteria to form the working rule as to when damages are more appropriate than an injunction. Only where the injury is: (1) small (2) capable of being estimated in money (3) can be adequately compensated by a small money payment, and

(4) where the case is one in which it would be oppressive to the defendant to grant an injunction

Coventry Lord Neuberger says nuisance must affect the senses of the person on the land.

Gillian v Huge plc

Similar facts to Cambridge Water What are Gillian’s claims against Huge plc? Can potentially sue under Rylands v Fletcher 1. Brought something dangerous on the land? The chemical is not necessarily dangerous, Gore v Stannard (2012) case about tyres accumulated on land going on fire, falls on first stumbling block because tyres not inherently dangerous themselves. 2. Non-natural use? Gathering a lot of chemicals is probably a special, non-natural use (Transco is the highest recent case exploring this). Tony Weir pointed out that if it is a dangerous thing accumulating on your land, almost always foreseeable that if it escapes it will cause harm. 3. Escape from D’s land onto C’s land?

If is it not Rylands v Fletcher could still argue for nuisance. Probably need more info to know if it was more foreseeable than Cambridge Water. But in Cambridge Water didn’t know that chemicals can travel in the aquifer. After that, you do know that chemicals can travel underground. Foreseeability is relevant in Rylands.

Is there a prescription point? Defence of ongoing for 20 years possible? Sensitivity point of her lettuces being organic.

Consider nuisance if Rylands doesn’t work.

Gillian v Bruce

This is not a nuisance (hasn’t affected her enjoyment, no actionable damage) or Rylands v Fletcher (nothing accumulating on Bruce’s land). If land falls through perhaps Holbeck Hall (CA).

Remedies

Once a claimant has established the elements of their claim, and there is no (complete) defence to the claim, the question then is how that harm should be remedied. Speak to the principle that the courts use in assessing damages. How will the courts go about taking things into account or not taking things into account?

Different kinds of damages may be awarded: The main remedies in tort are damages and injunctions. Damages = legal remedy available ‘as of right’ to a successful claimant. Injunction = equitable remedy available at the court’s discretion, not automatically granted if successful.

Possible tort actions: (a) Action by living claimant C is alive and suing for their loss. If claimant is dead, two actions come into play alongside each other, are not necessarily mutually exclusive: (b) Action by administrator of deceased claimant’s estate suing in the deceased claimant’s name → Law Reform (Miscellaneous Provisions) Act 1934 s 1(2) Allows ghost of C to sue in their own right for losses that C suffered up to their death. Only includes losses suffered by the deceased, also claims subsisting against deceased. (c) Action by dependants of deceased suing in their own names Dependents have right to sue when they lose support from the victim’s death but their action is also derivative → Fatal Accidents Act 1976 Comes into play once C has died, otherwise it doesn’t exist.

COMPENSATORY DAMAGES

Usually awarded as a lump sum calculated once and once only → often creates difficulties.. C must take reasonable steps to ensure that the losses they are claiming are kept to a minimum.

Purpose of compensatory damages:

Lim v Camden & Islington Area HA [1980]: Damages intend to restore what C has lost and put them back into their pre-tort position, restitution in integrum (restore to a whole condition). Aim is to put C back in the position they would have been in had the tort not happened to them, the goal is full compensation.

Lord Blackburn in Livingstone v Raywards Coal Co (1880): The measure of damages is “that sum of money which will put the party who has been injured, or has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation.”

Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997]: In a case of deceit or negligent misrepresentation, C is entitled to be put into as good a position as if no representation had been made, but not to be put into as good a position as if the statement had been true.

Representative Claimants v MGN Ltd [2015] EWCA Civ 1291

Misuse of private information derived from intercepting voicemail messages left on the Rs’ telephones. The final awards were aggregate figures and amounted to the largest awards of damages made for misuse of private information. Argument that the damages were excessive failed → the assessment of general damages is not an exact science.

Damages for personal injury:

1. Financial/pecuniary loss

Loss of earnings, medical/case expenses. Awarded as a lump sum. Damages payments are once-and-for-all, so need estimated loss of future earnings or earning capacity, and cost of future care. General vs special damages (unknown vs known, really about pleading!) Sum subject to deductions as well as a discount rate.

Gratuitous care not deducted. Hunt v Severs (1994): C can also recover on behalf of other people for costs incurred in his care. Benevolence from D is more difficult. No imperative to seek treatment on the NHS, but NHS can recoup via statutory powers.

Croke v Wiseman (1982): Assume national average wage unless there are particular features of the claimant → What about education + family?

The multiplier/multiplicand method:

Multiplier = figure representing the number of years the loss will continue Multiplicand = figure representing the annual loss (net of deductions) the claimant will suffer

Complicating factors:

• Vicissitudes of life (change of fortune) Jobling v Associated Diaries [1982] AC 794 Damages are not payable for loss of earnings after the time P suffered from the spinal disease unrelated to the accident.

• Inflation Wells v Wells [1999] 1 AC 345 Lord Steyn’s 100% principle → a victim of a tort is entitled to be compensated as nearly as possible in full for a pecuniary losses. A general discount rate is applied to the sum to make sure inflation doesn’t eat the money. It is now negative because we need to add money into C’s pot.

• Future earnings? Flora v Wakom (Heathrow) Ltd [2007] 1 WLR 482 D must comply with periodic payments no matter how the market performs or how long C lives, courts don’t care about affordability.

• Loss of life expectancy Pickett v British Rail Engineering [1980] AC 136 Damages will include loss of earnings in those ‘lost years’. C’s awareness of reduction in life expectancy is under ‘pain and suffering’ damages.

• Deductions Collateral benefits are deducted to reflect the actual loss → money you get as a result of being injured are deducted so D is not overpaying. Insurance is not deducted, C was savvy and have their own resources. Third-party benevolence, e.g. charity, is not deducted because we want to incentivise that behaviour.

2. Non-financial loss

The court assigns costs to the physical and psychological effects of: i) The injury itself → based on published tariff ii) Pain and suffering → subjective assessment, reflects what C experienced, so no recovery if you didn’t know. What about painkillers? iii) Loss of amenity (loss of the experience of life) → objective assessment, you recover even if you didn’t know (West v Shepard) ‘actuality of the deprivation’.

Stipulated rises in the value of non-pecuniary damages awards of up to 33% for the most serious injuries. Top limit of award for ‘catastrophic injuries’ is £200k.

H West & Son v Shephard [1964] AC 326

Seriously injured plaintiff unable to appreciate or enjoy a damages award. A large sum of money would be awarded to a plaintiff who had no awareness of what she had lost. Loss of amenity component is calculated on an objective basis, so the plaintiff is entitled to a full award.

Heil v Rankin [2001] QB 272

The goal is fair, just and reasonable. Benefits that come from luck or C’s own prudence, e.g. gifts, charity, insurance, will not be deducted from damages. Social security and other state benefits will be deducted/recovered.

3. Aggravated damages

A type of compensatory damages which are focused on C’s hurt feelings. They are compensatory in nature, not punishing the defendant but compensating a loss (particular additional injury to C’s dignity caused by D’s actions). This is really to do with an uplift for non-pecuniary loss, only really relevant in defamation.

Kralj v McGrath (QBD, 1986) Medical malpractice case during woman giving birth. Court suggests that aggravated damages are never appropriate in the context of negligence.

NON-COMPENSATORY DAMAGES

Exemplary damages:

Damages that are more that the loss you suffered. Punitive damages are imposed over and above compensatory damages to teach D a lesson → One of the functions of the tort system is deterrence. Other common law jurisdictions have a wider range of cases in which punitive damages can be awarded. In the US, even juries are allowed to award punitive damages.

Punitive damages are generally unpopular in English law, many people anxious about using tort law as punishment. So what are punitive damages for, and why do they exist?

More of a deterrence if you label it punitive rather than compensatory, the label sounds more bad. Criminal law partly depends on condemnation of the language of ‘crime’. Punitive damages pass a statement on D’s conduct. Not about what C suffered, focus is on D. Deterrence element should be secondary because it is an empirical claim, no one knows the extent to which it does have an effect.

Punishing someone’s conduct, argument that it is not the function of private law to do that. This seems to be punishment with a lower bar of proof. There is a lower standard of proof than in criminal law → balance of probabilities rather than beyond reasonable doubt is enough to satisfy tort.

Judith is comfortable with tort law punishing people, there is nothing inherent in the system of private law which makes it impossible + forbids punishment. We have just made a policy choice. Useful tool for when we want to say something about someone’s conduct.

Comes down to what we identify as the function of tort law. Strict view that tort law is just about compensation can be seen in Rookes and Cassell, rather than about punishment and deterrence Punitive damages vs torts of trespass where there is no harm → seems comparable, trying to protect the right = deterrence. If you have vindicatory damages, do you need punitive damages?

Rookes v Barnard [1964] AC 1129

Established the tort of intimidation. Lord Devlin doesn’t like punitive damages, thinks they should be exceptional and only awarded in discrete areas. HL gave three restricted situations in which exemplary damages are appropriate: - Oppressive, arbitrary or unconstitutional actions by servants of the government (e.g. police, prison officers), usually trespass to the person or malicious prosecution. - Where the conduct has been calculated to make a profit, e.g. defamation cases (newspaper says we will print that anyway because it will sell, wider circulation). - Exemplary damages specifically authorised by statute.

Are these categories good/logical? Should civil law/private law be used to punish people? Douglas v Hello did not get punitive damages, just very high damages.

Cassell v Broome [1972] AC 1027

The judges did not support exemplary damages. There can be no more development for the law of punitive damages, only the already recognised torts allow punitive damages. Very restrictive.

Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122

Reverses Cassell, says there can be development. Held that the Rookes categories could be extended. There is a role for exemplary damages. It depends not upon the name of the tort or cause of action, but the nature of the conduct involved. Exemplary damages are awarded on the basis of D’s conduct (irrespective of whether it injures C’s feelings like in aggravated damages).

Lord Nicholls argues for broadening out the reach of punitive damages, Rookes categories too restrictive → Under Rookes, if not calculated to make a profit, e.g. revenge, there would not be exemplary damages.

Maliciousness is hard to prove, need intentional element (intentional torts and criminal law manage to do this). Maybe this means that it is worse/more serious than calculated profit.

Hypothetically, after Kuddus C can get punitive damages for anything, but this is nearly impossible in a negligence action.

AT v Dulghieru [2009] EWHC 225 (QBD)

Unlawful imprisonment and sexual exploitation of foreign women coerced into prostitution with a view to making profits for D. Lord Devlin: Damages awarded in order ‘to teach a wrongdoer that tort does not pay’, not just reverse D’s gain with restitutionary damages so that he loses nothing.

Exemplary damages not yet recognised for misuse of private information, but they probably should be → Money made from the tort will exceed the amount of compensation that has to be paid out. No other common law jurisdictions use these restrained categories, have much broader bases. If other countries have rejected this, why are we still only allowing it for calculated profit?

Contemptuous damages:

Awarded to indicate that although C has technically been successful, the action should never have been brought. Costs award in C’s favour is also unlikely.

Reynolds v Times Newspapers (2001)

Former Irish PM awarded 1p and ordered to pay the newspaper’s costs when he won his libel action.

Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024

Liverpool goalkeeper sued The Sun over allegations that he accepted bribes. Technically defamed him but other evidence suggested C’s lack of integrity. Also ordered to pay newspaper’s costs.

Nominal damages:

Nominal damages are awarded where C was held to have had their rights violated but will not actually suffer any loss. Won’t be awarded costs. Here the claimant gets something beyond moral knowledge of court saying that he was wronged, this allows torts that are actionable per se to get some sort of functional utility.

Watkins v Home Secretary (2006)

HL held nominal damages are only permissible in relation to torts which are actionable per se, e.g. trespass.

Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79

False imprisonment case. There was no evidence that he had suffered damage during the period of unlawful detention due to his being unlawfully detained, and that he would have suffered the same unhappiness and distress had been lawfully detained. C suffered no actionable loss.

Restitutionary damages:

D causes C a little loss by his tort, but D makes a big profit, the profits are stripped from the tortfeasor. AG v Blake (HL, 2000) ‘Spycatcher’ novel

New kinds of damages? Shaw v Kovac [2017] EWCA Civ 1028 If an individual’s suffering was increased by knowing that his or her 'personal autonomy' had been invaded through want of informed consent, then that could be reflected in the award of general damages.

DEATH AND DAMAGES

When a tort causes a fatality, there may be serious financial consequences for those close to the victim.

Law Reform (Miscellaneous Provisions) Act 1934 s 1(1): “All causes of action subsisting against or vested in [the deceased] shall survive against, or, as the case may be, for the benefit of, his estate.” Tort actions (except defamation) can survive the death of the claimant or defendant.

Hicks v South Yorkshire Police [1992] 2 All ER 65

Only pecuniary and non-pecuniary losses suffered by the deceased between the accident and death and funeral expenses are recoverable. Where death is instantaneous, the damage and death are one and the same, so cannot claim damages for mental suffering caused by C’s own awareness of his reduction in life expectancy.

Loss of expectation of life → Administration of Justice Act 1982 s 1 ‘shall take account of any suffering caused or likely to be caused to him by awareness that his expectation of life has been so reduced.’

Fatal Accidents Act 1976 s 1(1): “If death is caused by any wrongful act, neglect of default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”

Allows the dependants of the deceased to have the benefit of a claim against the wrongdoer if the deceased himself would have had a claim if he had not died.

Loss of dependency/support:

Action by the dependants for loss of support → derivative action on C’s death. If C had sued before they died, there is no action remaining that the dependants could get the benefit of. If C hadn’t sued yet, this action comes into effect under Fatal Accidents Act 1976.

This is a claim for pure economic loss to a limited, statutorily-recognised number of people. The money that the deceased would have given to this limited class of persons had you not caused them to die.

Fatal Accidents Act 1976 s 1(3) lists ‘dependants’ In this Act “ dependant ” means— (a) the wife or husband or former wife or husband of the deceased; [F2(aa)the civil partner or former civil partner of the deceased;] (b) any person who— i. was living with the deceased in the same household immediately before the date of the death; and ii. had been living with the deceased in the same household for at least two years before that date; and iii. was living during the whole of that period as the husband or wife[F3or civil partner] of the deceased; (c) any parent or other ascendant of the deceased; (d) any person who was treated by the deceased as his parent; (e) any child or other descendant of the deceased; (f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage; [F4(fa)any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;] (g) any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

Pollock CB in Franklin v South Eastern Railway [1858]: “Damages should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of life.”

Damages are based upon C’s reasonable expectation of support from the deceased currently or in the future.

Knauer v Ministry of Justice [2016] UKSC 9

Moves the point at which the court applies the multiplier to the point of trial, not the point of death. The correct date at which to assess the multiplier should be the date of the trial. Otherwise, the deceased C would suffer a discount for early receipt of the money when in fact the money would not be received until after trial.

However, Law Commission, Claims for Wrongful Death (Law Com No 263, 1999) [3.46]: Recommends including those who are ‘wholly or partly maintained by the deceased immediately before the death or who would, but for the death, have been so maintained at a time beginning after the death’.

Bereavement:

S 1A (as amended by Administration of Justice Act 1982 s 3) fixes a lump sum for spouses and parents of a minor who never married at £12,980. S 5 → Contributory negligence by the deceased is taken into account in the calculation of damages. Smith v Secretary of State for Justice [2017]: Human rights claim – co-habitees are allowed to claim for bereavement as well.

INJUNCTIONS/DAMAGES IN LIEU

C hopes to obtain an order that D ceases a particular activity. Appropriate in cases where the tort is of an ongoing nature. Grant of injunction is rare, there is a high bar for convincing the court that the tort will happen. • Prohibitory and mandatory injunctions • Quia timet injunction → can be granted if C can prove that the tort is highly likely and imminent. • Interim (interlocutory) injunction → C wants to prevent damage until the dispute can come to trial. HL in American Cyanamid v Ethicon (1975) sets out the principles for granting this: o There is a serious question to be tried o Balance of convenience must favour granting the injunction • Final injunction → sought to prevent reoccurrence of the tort.

Coventry v Lawrence (SC, 2014)

In nuisance, courts more willing in the future to give damages rather than award injunction. This is a process of downgrading the Shelfer criteria (discretion to award damages instead of an injunction). The courts will take into account matters other than the Shelfer criteria, e.g. public interest.

DECLARATIONS

Can ask court to declare that what you are about to do is okay (won’t infringe any legal rights) or is unlawful, and if they do it we can go straight to damages.

Ashley v Chief Constable of Sussex Police (HL, 2008) Court can give a declaration for a wrong that already happened. A man was wrongfully shot by the police, the family wanted the legal stamp that what happened to him was a wrong.

Is an award of damages adequate?

What is the effect of tort law in practice? Remedies and calculation of damages is where we can see if tort really ‘walks the walk’. To what extent can damages restore C to the position he was in before the tort was committed? Compensatory damages are quantified in financial terms. But physical damage cannot be restored by money. Loss of amenity is objectively calculated, even if C is unaware. Secondary objectives of damages + wider aims of tort: punishment, deterrence, doing justice, righting a wrong. Examine punitive damages, the role of tort in determining behaviour, nominal damages, the role of insurance.

Are punitive damages really so bad if compensatory damages are so unclear? We award compensatory damages in a lump sum, take away a number of deductions to make sure you are not over-compensated. Want to take it to full compensation, but that is a very small target to guess 20 years in advance, difficult to calculate. Estimation of future loss is likely to be inaccurate → provisional damages and periodical payments better. You rarely receive full damages anyway, because courts are so careful not to over- compensate. Lump sum payments make courts cautious. If in practice, people are regularly over- or under-compensated, arguments around punitive damages lose power. What’s wrong with giving people more money nominally if in practice they are getting more or less all the time?

Why should we award damages for non-pecuniary losses in any case? We don’t do this in any other area of the law. Maybe this is what makes tort unique, but it is not immediately clear you ought to get recovery for them, it is difficult to guess.

Is there a role for restorative, person-to-person justice in tort, like in criminal law? Is tort worth it at all? Too difficult to award sensible damages. Maybe abolish tort for personal injuries but get payments from the welfare state.

Problem Question

David, aged twenty-five, is badly injured in a car accident caused by Ellen’s negligence. He spends a month in a private hospital, paid for by his rich aunt Harriet, but his condition subsequently worsens, and he then dies. He had not brought a claim against Ellen before his death.

David is survived by his wife, Fiona, and their son Graham, aged two. Fiona gave up work to look after Graham.

- Until his death David paid £500 per month towards his parents’ mortgage. - He also made regular donations to Oxfam.

Harriet has given Fiona £100,000 which she says is ‘to cover the tragic loss which you and Graham have suffered’.

Advise the parties as to their rights against Ellen.

Not David bringing the claim, his estate is. Compensatory damages: Victim/claimant making the claim can sue for pecuniary losses, non-pecuniary losses and aggravated damages (Thompson, about C’s distress, not punitive).

When assessing what loss C has suffered, we come to a figure through: It is a lump sum Cost of medical bills, time off work (how much you would earn per day) In Pickett, deducted living expenses because he died. Calculate annual loss → multiplicand x multiplier

PSLA damages calculated by judicial guidelines, index of body parts and types of injury, have set figure bracket given. Amenity loss (e.g. if you go horse-riding a lot and can’t anymore), age and gender also factor in to decide where you fit into the bracket. It seems very arbitrary. Complicating factors, so need to try to come to an imprecise sum.

1934 Act and 1976 Act. David’s claim will be brought by his estate. This is authorised by the Law Reform (Misc Provisions) Act 1934 s 1(1): “All causes of action subsisting against or vested in [the deceased] shall survive against, or, as the case may be, for the benefit of, his estate.” If cause of action vests in David when he died, his estate can bring it instead. They will claim for his injuries (on behalf of the deceased party). Then look at claim for his dependents.

David’s injuries: pecuniary losses and non-pecuniary losses.

David’s pecuniary losses He must earn some money because he supports people, so there must be loss of earnings. One month of loss of earnings can be claimed (for the period between the accident and death). Need more information to know how much that is. Medical costs for treatment in the private hospital → no substantive figures here. Just identify the categories within which he can claim.

Private hospital paid for by Harriet: Lim Poh Choo → you are entitled to private health care even if NHS is available. Hunt v Severs → C can also recover on behalf of other people for costs incurred in his care. Benevolence from D is more difficult.

David’s non-pecuniary losses If David was knocked unconscious by the accident, pain and suffering is assessed in a subjective way so he may not be able to feel it. Still gets loss of amenity for a month, but not sure if he gets a month of pain and suffering. Hicks case: 5 mins of pain and suffering is too transitory to count. If conscious enough to feel some pain and suffering, can claim for it.

Bereavement claims For these claims, we look at the Fatal Accidents Act 1976. Who is able to claim under the Act? S 1(3) says dependents are able to claim.

Harriet is not a dependent because she is rich, doesn’t rely on him, on the list but not factually dependent on him. Oxfam also does not count, so cannot claim for the regular donations, not on the list.

Dependents sue for future losses, which is dependency claim.

Separate bereavement claim: s 1A (as amended by Administration of Justice Act 1982 s 3) fixes a lump sum for spouses and parents of a minor who never married at £12,980. This can be claimed by Fiona. Child is excluded by the legislation, restrictive about who can actually sue. This restriction on bereavement damages is controversial. Doesn’t cover parents of grown-up children either. So David’s parents can’t make this claim. Interesting policies behind the act, why can’t children claim?

Fiona’s loss of earnings: Fatal Accidents Act 1976 s 4: Benefits don’t deduct from your damages. In assessing damages in respect of a person’s death in an action under this Act, benefits which have accrued or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded. Dependents can also claim for costs of care, e.g. if they took time off work to take care. Looking after the son is an obvious. What if the child have special needs that required extra care and attention? Probably thin skull rule, will not be too remote.

£500 per month towards parents’ mortgage: Can claim for the lost month and future months after David’s death too.

Fiona and Graham can claim as dependents. Parents can also claim as dependents. Fiona has extra claim of bereavement. Oxfam and Harriet get nothing.

£100k from Harriet to Fiona Need to get the money for their costs from somewhere anyway, whether from family member or bank. Benefits that come from luck or C’s own prudence, e.g. gifts, charity, insurance, will not be deducted from damages.

Vicarious Liability

Vicarious liability

This is a common law doctrine which allows C to hold D responsible for tortious acts committed by T (third party).

• It is a doctrine of strict liability → D is strictly liable in the sense that C doesn’t have to show that D was at fault. • D does not have to have any relationship with C. As long as C can satisfy the requirements for VL, D is responsible for T’s negligence or tort towards C. • This is a doctrine of general application, not limited to any one tort. Represents a broad exception to the idea that you are not liable generally in tort law unless you are at fault.

C still has to prove that T has committed a full tort against them, if you can’t prove that there is no point in asking if anyone can be vicariously liable. VL is a ‘secondary’ liability, it depends/comes down from liability owed by another party towards C.

VL is vital to the ‘proper’ functioning of the tort system. Its basic effect is to retarget the effect of liability away from a penniless tortfeasor who injured you to someone who has deep pockets – in reality, target someone who has insurance that can satisfy your claim. No point in suing people in tort if they can’t pay compensation. You want to vicariously sue someone in whom the tortfeasor stands in relation to.

Where D (employer) is vicariously liable, both D and their employee are jointly and severally liable for harm caused. This makes sure that C has their claim satisfied. It ignores the impecunious (penniless) nature of the employee but gives the employer a technical legal right to get that money back. ‘Gentleman’s agreement’ between insurers rules out recoupment from the employee in practice. Employer’s insurer won’t point to employee to pay back the money because of labour relations considerations.

If you’re willing to enjoy the fruits of someone’s labour, if that brings about tortious harm then perhaps you ought to share the burden of that cost → In reality, the employer bears, rather than shares the cost.

Rowlands v Chief Constable Merseyside (CA, 2006): Can be vicariously liable for punitive damages, can be held liable for more than C has loss.

Non-delegable duties

Duties that you owe to a class of persons, that you can’t fulfil by giving responsibility for fulfilling the duty to somebody else. D cannot ‘give away’ or satisfy by employing someone else to fulfil it. You will remain liable for breaching the duty regardless of whether you breached it, or you paid someone else to try and fulfil it and they breached it. Unlike VL, NDD is a primary liability, speaks to the primary liability of D. NDD deals with situations VL doesn’t.

NDD are exceptional in that they essentially impose a positive obligation to reach a particular result. Duty of care that we ordinarily speak about is a duty to take reasonable care. A NDD is a duty to see that care is taken → not a duty to do your best not to hurt somebody but a duty to make sure that person is not hurt.

The common law court treats NDD in a narrow and restrictive way → ought we recognise NDD at all? This duty must be restrictive, otherwise it will eat up a lot of the tort of negligence.

VL and NDD are broadly related in the sense that one imposes a liability you can’t get rid of, and one shifts the liability to someone else. However, they are doctrinally separate. Quintessential example of VL: Employer is liable for the torts of his employees which are carried out “in the course of employment”. An employer is not responsible for the torts committed by their independent contractors. Employee (servant) vs Independent contractor distinction is key here. If D pays an independent firm to do work rather than employ somebody to do the work, D is not responsible for tortious injury… unless X owes a NDD to the claimant, in which case it doesn’t matter that D paid an independent contractor to do it and they were negligent, that has not shifted the duty from D.

To what extent should changes in VL influence NDD? There is a sense in the cases that if you expand one you have to contract the other. But Dr McGrath argues that they do separate, unrelated things. The jurisprudence of one shouldn’t draw from or be influenced by the jurisprudence of another. (SC, 2017) says either you’re vicariously liable, or else you owe a non-delegable duty, a sense that these two are wrapped in one another.

JUSTIFICATIONS FOR VL

Why should one be liable for another’s tort? The scope of VL has increased and is increasingly fuzzy. The courts have struggled to articulate what justifies the imposition of VL on a defendant.

The general modern trend of the law seems to be moving away from clear rules and blackletter tests to open-textured policy-based decisions by high court judges. If that is true, we should challenge the courts abnegating from the responsibility of making any legal rules. Dr McGrath thinks over-reliance on juries undermines the rule of law.

Sexual abuse cases of children in educational establishments have proven a serious doctrinal challenge and driven the courts into a position of exchanging older, clearer doctrinal rules which were more easily rationalised for fuzzier policy-based tests as to when one is vicariously liable, all in the interest of getting the right results. Liability is the right result in these cases, but that has inevitable long-term consequences for the underlying law.

VL emerged as a rule that the master was responsible for the torts of his servant. Labour practices in 19th century also determined the basis of the rules to a large extent. That model of employment has broken down. There have been changes to longstanding traditional notions of what it means to be employed, struggle to come to terms with different modern labour and employment practices → Instead of employing someone to do the job, you pay an IC to do it. 19th century rule that ICs are different from employees is no longer applicable. Why shouldn’t you be responsible/liable for independent contractors in a world of outsourcing?

Five justifications assessment by Lord Phillips in CCWS for when we think about the first limb of vicarious liability → whether the relationship is close enough:

There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) The employee's activity is likely to be part of the business activity of the employer; (iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) The employee will, to a greater or lesser degree, have been under the control of the employer.

Compensation, employer being insured as a reason for holding someone reasonable. If the point of tort law is to compensate injuries, this is a good way of providing an effective remedy. It spreads out damages from one person’s pocket to distributive loss (distributing more widely in society).

VL is a very practical consideration, not so much a moral reason. The tort system would not work so well if you can’t sue the rich people who can pay. But in Cox Lord Reed says not all the factors are always weighed the same, in some cases doesn’t matter who has insurance, not a factor for courts to consider.

Factors (ii)-(iv) employee is carrying out the activity of the business, the business is putting them in the position to cause injury. Theory of tort law: employee gets the benefit of the work, so should bear the burden of risks from carrying out that activity → enterprise liability is a fair way to distribute the benefits and burdens. Running your business comes with fixed and immutable sets of risks depending on what the particular business is. If harm results from that, you ought to bear the loss. If you engage in a risky activity and that risk results, that’s your choice, no one forced you to go into business and create that risk. Furthering business interests → A more principled, normative reason.

Control very important when VL was first developed. It has become less realistic as skilled labour developed, delegating to employees and not directly controlling. In Cox, shows that control has lost importance.

REQUIREMENTS OF VL

Lord Philips in CCWS: T (third party, D2 in practice) must have committed a tort against C. This is the first thing C must prove against T, otherwise there is nothing to be vicariously liable for. There be a completed tort between C and T. Then, 1. There needs to be a relationship between D and T that is capable of giving rise to VL → sufficiently similar to an employment relationship 2. T’s act must be sufficiently connected to the relationship between D and T → in the course of his employment or sufficiently closely connected to the task T was carrying out for D. If you get that, there is VL.

Step 1: Identifying an ‘employee’

Distinguish between contract of service (employee) vs contract for services (independent contractor) If you have a contract of service with X, X can be held vicariously liable for your torts.

Leading approach to working out whether you had a contract of services in the 19th and early 20th century was the idea of control → Respondeat superior = the boss’s responsibility. The nature of the doctrinal test imposed reflected the justificatory force → you are liable vicariously because you controlled the activity of the person who caused the harm. The law was going towards a sense of agency → responsible because you have such a high degree of control over your servants, they are your agents. In common law, responsible for the authorised acts of your agents.

In controlling the person who caused the harm, you ought to be responsible for the resulting harm. Covered control over what the person did, and how the person was doing it (manner in which he shall do his work).

19th century justifications are a gross simplification of what it was to work for somebody. This breaks down when we look at skilled labour.

Cassidy v Ministry of Health (CA, 1951)

Court cannot say the hospital is in control of exactly what the surgeon does. Shifting the way they think about control, enough that they have control over when the person performs, not what the person is performing.

Denning dissenting: This is a non-delegable duty of the hospital to make sure people coming into the hospital do not suffer negligent harm.

Modern developments in malpractice and healthcare liability seem to be going back to this recognition of broader NDD owed by hospitals. We get a sense that VL and NDD live next to each other.

Control has been demoted from being the central test of liability, but still relevant. There are better ways to approach the question of “who is an employee”. Think of control not in a positive sense (when and how), but rather as negative control (stop you from doing something, can fire you).

Labels are not conclusive: Ferguson v John Dawson & Partners: It is about substance of the labour relationship, not the form. Can be an employee in the sense of VL without being an employee for tax purposes.

Stevenson v MacDonald (1952)

More diverse contractual relations since the 19th century. Also, people tend not to write contracts down. Courts look at the relationship and pull out the relevant features of employment.

Denning’s integration + organisation test: Was the tortfeasor integral to the business or an accessory to it? Was the activity itself central to the business? Are you doing something at the core of the business, or just something related and on the periphery?

This is endorsed in the Supreme Court in CCWS.

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

Cooke J’s entrepreneur test: Are you in business for yourself and happen to be working with D, or are you in business for the purported employer?

Extending the scope: Problem in sexual abuse cases was priests. VL was extended to not just employees, but those who were in a relationship with D that was ‘akin to employment’.

JGE v The Trustees of Portsmouth RC Diocesan Trust [2012] EWCA Civ 938

Catholic Church said priests are not employees, so no VL. This would have drastically limited the scope of tort law as a useful remedy for those who suffered sexual abuse at the hands of clergymen.

Ward LJ in CA radically extended the scope of VL to cover office holders such as religious ministers, who aren’t in a contractual relationship but when you apply the range of tests (control, integration, organisation), on all of them a priest is actually in a closer relationship to the church than an employee would be.

The courts say ‘fair just and reasonable’ is not its own test, it’s a way of working out whether the tests are the right tests. “He is in a relationship with his bishop which is close enough and so akin to employer/employee as to make it just and fair to impose vicarious liability. Justice and fairness is used here as a salutary check on the conclusion. It is not a stand alone test for a conclusion. It is just because it strikes a proper balance between the unfairness to the employer of imposing strict liability and the unfairness to the victim of leaving her without a full remedy for the harm caused by the employer's managing his business in a way which gave rise to that harm even when the risk of harm is not reasonably foreseeable.” Unanimously endorsed by the Supreme Court in CCWS.

Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319

A religious order ran a boarding home attached to a school where the lay brothers also taught. Repeatedly abused children in their care. CCWS was held vicariously liable for their members who were in a relationship akin to employment’. Lord Phillips: “The relationship between the teaching brothers and the institute had many of the elements, and all the essential elements, of the relationship between employer and employees. (i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. [Doesn’t matter that they were a voluntary organisation.]

(ii) The teaching activity of the brothers was undertaken because the provincial [head of the order] directed the brothers to undertake it. True it is that the brothers entered into contracts of employment with the Middlesbrough defendants, but they did so because the provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the institute. [Switch from sense of control to the integration + organisation test.] (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute's rules.” The fact that there wasn’t a contract, and the brothers gave all the money they earned from the institute rendered the relationship even closer than most employees with an employer.

But, bearing the 5 justifications in mind, was it fair to make D answerable for the tortfeasors’ actions? We seem to be turning around the way the doctrine is working. Relationship between the tortfeasor and the defendant can be broader than employment to justify VL. First limb has been broadened for priests, prisoners and foster parents.

In CCWS, the courts seem to just look at the nature of the relationship and decide if it is fair and just to impose VL on D. It is difficult to work this out in advance.

Cox v Ministry of Justice [2016] UKSC 10

‘Akin to employment’ category not limited to child abuse.

Prisoner dropped a big bag of rice negligently on woman’s back in prison kitchen. Could MoJ be liable for the negligence of a prisoner which had led to an injury to the claimant? Argument on behalf of MoJ: “The relationship between the prison service and prisoners working in a prison is fundamentally different from that between a private employer and its employees. The primary purpose of the prison service, in setting prisoners to work in prison, is not to advance any business or enterprise of the prison, but to support the rehabilitation of the prisoners as an aim of penal policy. It does not seek to make a profit, but acts in the public interest. Unlike employees, the prisoners have no interest in furthering the objectives of the prison service.” Lord Reed (leading judgment) rejected this entirely.

Rehabilitation is not the only purpose for incarceration. When they worked in the prison, it was a benefit to the prison service itself, who didn’t have to bring in independent contractors to provide the services. VL doesn’t require an alignment of objectives. Employees are not necessarily subjectively rooting for their employer. Doesn’t matter that the prisoners weren’t doing it out of a love for cooking, that’s not a requirement of employment generally.

Prisoners required to work for less than nominal wages meant that they were closer to the prison service than an employee would ordinarily be to their employer. Activities can have a multitude of underlying purposes (here especially rehabilitation), without this being fatal to a finding of vicarious liability.

The Prison Service creates the risk of their negligently causing harm to others within the ambit of their assigned activities.

Prison service’s other argument: It is not fair and just to impose VL on them for the acts of a prisoner. They argue that this is emerging out of the other tests as a freestanding test. The prison service needs to spend its small budget on the core of its mission. The court rejected this argument. Fairness and justice sometimes a useful cross check, but not a separate test in and of itself. The existing tests themselves examine whether it is fair and just if you satisfy them.

Armes v Nottinghamshire County Council [2017] UKSC 60

C sued for physical and sexual abuse at the hands of foster parents she was placed with by the defendant council in exercise of their statutory duty to put children in care.

Court held by a majority that the foster parents were in a relationship ‘akin to employment’ with the council, so the council could be vicariously liable.

Starting with Lord Phillips’ 5 justifications:

- It was clear that, given the degree of involvement in the mutual decision making over the children between the council and the foster parents, the foster parents were not carrying out their own business. Rather, they were integrated in a sense into the council’s wider remit. When looked at in the context of the statutory duties of the council, whenever a child was in a placement they still retained a degree of control over what and how the foster parents looked after the child.

- The placing of children in a situation where the foster parents were trusted with day-to-day care over them in circumstances where the council could not oversee that clearly created an inherent risk of abuse, despite the fact that the placement was, in the abstract, in the child’s best interests. It didn’t matter if it was in their best interest, it clearly just naturally creates a risk that a child may be sexually assaulted.

This was all sufficient to satisfy that the council could be vicariously liable for harm caused by foster parents to whom they gave children.

Dual vicarious liability?

The line of cases which extended the scope of the first limb was made easier by a set of decisions to do with a problem in modern labour where there is more than one employer. Series of decisions from mid- to late 20th century where the courts had to deal with the ‘loaned employee’ problem. A has employee E, loans to B to do work for a few weeks, and E does something negligent there. Which of A and B can be held liable?

Proportions the employers are liable at is 50/50 jointly + severally unless argued otherwise.

Mersey Docks v Coggins & Griffiths (HL, 1947)

HL said that it stays with the person who is doing the lending, the party whom the employee began their life with. Burden rests with the loaning employer. It will not always stay like that, but those are exceptions.

Viasystems v Thermal Transfer [2006] QB 510

CA held that in modern labour practices, it couldn’t be that easy. There’s no authority to say you can’t hold both possible employers (people in whom you stand in the right relationship to justify the imposition of VL) liable.

Difference of approach between May LJ and Rix LJ. May LJ: Holds close to Mersey Docks approach. In principle, you can have dual VL, but the test is still the Mersey Docks idea of control.

Rix LJ: Influenced by the recent line of cases, says there were more modern ways to think about engaging people and labour. Appropriate answer is to think about integration (from JGE, the question is whether it is fair to impose VL on this particular defendant).

Rix LJ’s reasoning is preferred in CCWS.

Step 2: Course of employment

The ‘Salmond’ test (from textbook): In the course of employment if… 1. Master had authorised the employee’s wrong [essentially law of agency, supported by Rob Stevens] 2. Or the employee did something they were allowed to do but used a wrongful mode of doing it.

Rose v Plenty [1976] 1 WLR 141

Milkman employed by the Milk Board couldn’t be bothered to walk from the milk float to the door, so paid a young boy to sit on the back of the milk float as they drive along and run up to the door with the milk. Goes around a bend too fast and injures the boy.

Can the employer be vicariously liable for the boy? The employer had expressly prohibited their drivers from doing this. Was this a prohibition on what you were allowed to do (scope of the employment itself) or a prohibition as to how you are allowed to carry out the employment?

Denning LJ and Scarman LJ majority held that it was the latter, so there was VL. IT was an improper way of doing exactly what the milkman was employed to do, and thereby furthers the employer’s business. Dissenting Lawton LJ said this was narrowing the circle of what your job is.

Deviation → doing something personal to yourself during the hours you are employed:

Century Insurance Co v NITB (HL 1942)

Employee Mr Davidson was delivering a truck of petrol to the general omnibus company. Got to the depot, put nozzle in the tank in the garage to unload the petrol. Lit a cigarette, drops it and creates explosion. Remained in the course of employment. Performing the task he was employed to do, despite the high degree of negligence.

Smith v Stages (HL, 1989)

Stopping off as you’re driving to work. When you’re on my time and you do something for your own personal benefit, does my responsibility for your actions cease? Courts say no, as long as it is a natural part of the course of your employment, e.g. guy standing there as the petrol unloaded, he did not clock out of his job and change hats when he lit the cigarette. Courts took a broad view of course of employment. If the employee was engaged in ‘a frolic of one’s own’, that was beyond the course of employment.

Second limb of the Salmond test vs sexual abuse cases:

Trotman v North Yorkshire CC (CA, 1999)

CA refused to find that sexually abusing children was simply a wrongful mode of caring for the children. Authorised to care for the children → an abuse of language and moral principle to suggest sexual abuse is just caring for a child very badly.

Definitive test: ‘Close connection’ test

Lister v Hesley Hall [2002] 1 AC 215

Lord Steyn: “The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.” Ultimate question is whether it is fair and just, the mechanism by which we are testing that is whether there is a sufficiently close connection with the employment. Lord Phillips refined this slightly in CCWS, the question is whether there is a close connection between the nature of the relationship between D + T and what has actually happened.

T was given general authority over the boys when they were in the home and able to run it as he saw fit, which comes with an inherent risk that the children would be abused. Court focused on those factors, not simply that he was given the opportunity to do it. It wasn’t sufficient that the employment gave him the opportunity to do it, but the fact that the job/relationship with D involved being entrusted with the care of the children. Not just enough to say it is personal just because T seems to be taking personal gratification in the activity.

Lister made a clear distinction between close connection, and mere opportunity to commit a tort.

Lord Hobhouse saw this as a non-delegable duty because of the vulnerable nature of the children. The employer owed a NDD to make sure the children weren’t abused, the children can sue Hesley Hall as a matter of primary liability, don’t need to rely on VL.

“Close connection” in practice

Hypothetical example in Lister: If the tortfeasor was the groundsman, not the warden, there could have been no liability. Nothing inherent in employing somebody to look after your garden creating a risk the children may be abused.

X v Kuoni Travel (QBD 2016)

Woman on a package holiday. Asked for directions from an electrician employed by the hotel, and he raped her. High Court says this was the ‘groundsman problem’ → just happens that the electrician met the woman through being employed. T was asked by D to be an electrician, this didn’t involve any contact with the customers and no degree of stewardship over the customers or relationship with them. This seemed to be decisive in saying that there wasn’t a close connection. The job had simply given T an opportunity to commit the tort, the tort wasn’t closely connected to the employment. Different from someone with access to the rooms, who was entrusted with the care of the guests.

Dubai Aluminium Co v Salaam [2003] 2 AC 366

Lord Nicholls says it is hard to spot if there will be a close connection in advance, we need an evaluative judgement from the court. Less clarity with the test now.

Bellman v Northampton Recruitment (QBD, 2016)

Court found that there wasn’t a close connection between the assault by one employee on another at the after-party to the office Christmas party. Plaintiff said there was a close connection because T punched him when they went back to having an argument about work. Court did not accept the argument, it was clearly outside the course of employment. At that point it had become personal to the tortfeasor. Was nothing to do with work anymore, not closely connected to the employment. Just a punch up between two people in their personal capacity. No longer on work premises. The Christmas party was an obligation of your employment, the afterparty was not. At that point, there had also been a break between work activity and personal activity of the afterparty.

Maga v Birmingham RC Archdiocese (CA 2010)

Non-Catholic child claimant was abused by a priest that he met during youth outreach work carried out by the priest open to all young people in the area. Priest did not have authority or relationship over him (like Catholic altar boy), wasn’t in the priest’s care. CA said there is VL, sufficiently close connection as the odd jobs the boy carried out were a result of his position as a priest. Court puts stock on the fact that C deferred to and respected the priest, which allowed the relationship to develop. The courts give careful consideration to the general evangelical nature of what it means to be a religious minister (trying to convert people to the religion, going out to attract children to the faith). Relevant factor is that some of the abuse took place in the church → geographically connected to the place of employment.

Mattis v Pollock [2003] 1 WLR 2158

A defendant nightclub owner was found vicariously liable where his doorman got into a violent argument with some people outside the club. The bouncer felt humiliated, ran back to his home nearby and got a kitchen knife, stabbed the claimant and seriously injured him. Enough to form a close connection → employed to keep order, encouraged to perform his duties in an aggressive, intimidating fashion. Emphasis on there being a seamless event, the tort is part of the person’s seamless activity. If the bouncer went home and thought about it for a few hours, there may be a difference. Deeper rational – liability is being imposed because the employer engaged in risky behaviour. Enterprise risk, choice to enter the market in this fashion has an inherent risk. When the risk eventuates in the world you ought to be liable.

Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11

Opportunity for Supreme Court to bring clarity to the law.

C was of Somali origin, asked at petrol station if he could print something off a USB stick on the way to a community meeting. Employee replied in offensive language that they didn’t do that sort of thing. They had a verbal altercation, employee subjected him to racial abuse then followed him to his car and physically beat him. Was the employer vicariously liable?

This case is to be read with Cox. Cox is about the first question, who has the right relationship, Mohamud is about whether the behaviour is in the course of employment. Upheld that what you are looking for is a ‘close connection’ from Lister.

Lord Toulson at [47]: “It was Mr Khan's job to attend to customers and to respond to their inquiries. His conduct in answering the claimant's request in a foul-mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him. What happened thereafter was an unbroken sequence of events. It was argued by the respondent and accepted by the judge that there ceased to be any significant connection between Mr Khan's employment and his behaviour towards the claimant when he came out from behind the counter and followed the claimant onto the forecourt. I disagree for two reasons. First, I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant. It was a seamless episode. Secondly, when Mr Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to petrol station. This was not something personal between them; it was an order to keep away from his employer's premises, which he reinforced by violence. In giving such an order he was purporting to act about his employer's business. It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee's abuse of it.”

Like Mattis v Pollock, did not leave it to the next day or anything like that, still one episode. Relevant that the racial assault began with Mr Khan shouting “don’t come back to this garage.” He was, in his mind, carrying out the task delegated to him, even if, as Lord Toulson put it, it seems an odd thing to simply say he thought he was carrying out the task he’d been delegated. Even if he carried out the delegated task in an inappropriate manner by following it up with violence, that is not enough to take it out of a close connection. “Mr Khan's motive is irrelevant. It looks obvious that he was motivated by personal racism rather than a desire to benefit his employer's business, but that is neither here nor there.” These exchanges were not personal, but a "gross abuse' of Khan's position in acting about Morrison's business.

If this decision is correct, it is difficult for Dr McGrath to see how employers or those in a relationship with T akin to employment have not ultimately become surreptitious insurers for claimants and are really just there as the person with the insurance, not because of any particular connection. If the law is sanctioning enterprise risk, where was the risk here? There is no enterprise liability rational, unlike the bouncer there is nothing inherently violent in being a petrol station attendant – Morrison was not taking any risks that violence may erupt from.

The court seems to be settling on risk creation and the task that has actually been delegated.

If it is about risk creation, does it matter in Mattis whether the bouncer stabs you as part of a seamless event or just stabs you because he came across you while working as a bouncer → if the risk of running a club and employing a bouncer is a violent altercation, does it really matter when that altercation takes place?

If delegated the task of minding the garage and interacting with customers, can it really be true that you have delegated as part of that some sort of situation in which your employee can racially assault somebody but still be doing the task you think you’ve given to them?

Sometimes relevant factors: • Who does C think T is? Maga • What has D asked T to do? Mohamud; X • How has D asked T to perform that activity? Mattis • What does T think they are doing? Mohamud • Has the tort become ‘personal’ to T? Bellman; Lister

Always relevant factors: geographical and temporal elements

Academic comment:

Morgan: Cox confirms that CCWS is not confined to abuse, and that it applies to new and emerging forms of enterprise and employment. This is particularly significant for business models such as Uber, and voluntary-sector organisations.

Mohamud appears to replace close connection with a test of "causal connection". It appears to dilute the requirement for vicarious liability that the risk of harm must be inherent in the employment. Warren v Henlys Ltd envisaged that a novus actus interveniens doctrine can be applied to the causal chain approach.

Bell: Introducing fluidity and expanding beyond simple employment is merely a reaction to changes in society's construction of business relationships.

Tutin: By expanding the scope of employers' liability, this could have the effect of incentivising employers to offer more training to and supervision of precarious workers to minimise the risk of wrongful acts or omissions in the course of a business' activities. Treatment of volunteers may give them more protection than employment law, e.g. Equality Act, divergence of contract and tort.

Maybe this is about hierarchy of rights? Tort affords more protection than contract.

Businesses must be able to delegate functions or roles in respect of which it has limited or no knowledge or competence to independent contractors. It would be contrary to public policy if businesses were held liable for the actions of others in areas in which it has no knowledge or competence and therefore they were unable to control the risk.

By linking liability to the risk attached to a business' activities, the doctrine emphasises the importance of enterprise risk in the law of tort. It may lead to the development of a more progressive contractual framework of employment and equality protection.

Plunkett: The court failed satisfactorily to address the limitations of the enterprise liability argument as it applies to charities and non-profit organisations. It is, after all, one thing to say that a body which engages another to advance their economic interests should be liable for the losses that they incur in the course of doing so, but another thing altogether to say that one which engages another to advance any interest, even those that they are under a statutory duty to pursue or are purely benevolent, should be liable for the losses incurred in the course of doing so, as only the former receives a form of gain from which they can be fairly said to be able to offset their losses.

NON-DELEGABLE DUTIES

Case involving non-delegable duties = D is held liable for their own breach of duty in respect of safeguarding the claimant’s welfare (even if they tried to get someone else to perform the duty).

Open list of recognised categories: Employers and employees, Rylands, escape of fire, withdrawal of support etc. Hospitals?

Woodland v Swimming Teachers Association and Others [2013] UKSC 66

Drew together the strands into two categories: 1) Hazardous activities 2) Assumption of responsibility for vulnerable people

The key features of the second, open category where a preceding relationship between C and D: - There is a positive duty on D to protect C against a certain class of risks. - The duty is personal to D.

Five tests following Woodland

Lord Sumption: 1) Claimant is especially vulnerable and dependent on the protection of the defendant 2) There is an antecedent relationship placing C in the custody of D or where D has assumed responsibility for positively protect C 3) C has no control over how D chooses to perform the obligations 4) D has delegated to T a core part of their positive duty 5) T is negligent in respect of the very function delegated

Is AoR any more convincing an explanation? What about parity with those who have a contractual claim? GB v Home Office (QBD 2015) for patients. What about Armes?

Problem Question

On Friday, Agnes decides that she would like to get a takeaway meal. She downloads a new app, called ‘WallaBUY’ to her phone. WallaBUY offers a service to customers where they can order a meal from their favourite restaurant, and it is delivered to their home via motorbike delivery riders. Agnes orders a burger, fries and milkshake on the app.

Upon receiving the order, WallaBUY notifies Methodius, one of the motorbike delivery riders, that he should collect it. The terms of Methodius’ contract with WallaBUY specify that he is an ‘independent contractor’, who agrees to deliver as and when required while on shift. He can choose which shifts he works, but he is not guaranteed to receive any orders. He is permitted to receive tips, but while on shift he cannot take on work for anyone else or get anyone else to cover his shifts. The app works by sending the order to whichever motorbike rider is nearest to the restaurant and available to deliver it. When he is on shift, Methodius is not required to wear a uniform, but he does have to wear a WallaBUY-branded helmet and use a WallaBUY-branded bag to convey the meals. The WallaBUY-branding includes the name of the company and their logo, which is a wallaby on a motorbike. Above the logo on both the helmet and bag, it says, in bold letters ‘I WORK WITH…’.

Methodius collects Agnes’ burger order, which is the last order before the end of his shift. He gets stuck in traffic, and is worried that he will be late to drop off the order. He therefore travels faster, exceeding the speed limit and driving somewhat erratically. Ursula is driving her moped the other way down the same road, and is forced to swerve out of the way of Methodius. She crashes her moped into a tree and is injured. Methodius does not notice this accident, and continues to Agnes’ house, where he delivers the order on time.

When she collects the order, Agnes gives Methodius a tip and asks ‘Is there any chance you would be willing to pop down the road to pick up dessert from our favourite cake shop, please? I’ll pay you double?’ Methodius agrees to drive one mile down the road to collect the cake. On his way back, he nearly injures Nicholas, who was getting out of his car. Nicholas gestures and swears at him. Methodius stops his motorbike, and tries to punch Nicholas in the arm, but misses. In return, Nicholas kicks Methodius so hard that Methodius’ leg breaks. Nicholas is not seriously injured but as a result of the incident has become the first person to be medically diagnosed with a pathological fear of wallabies.

Methodius cannot afford to take a day off work, and so he does not tell WallaBUY of his injury, but asks his brother Cyril to fill in for him on his next shift. Cyril is an inexperienced motorbike rider and does not entirely understand the app, but agrees to help his brother. He takes the motorbike and agrees to collect two orders from the same Thai restaurant, for two customers, Brigid and Felicity. Brigid has ordered Thai green curry, and Felicity has ordered chicken satay. When dropping off the orders, Cyril mixes them up and gives Brigid the chicken satay, which continues peanuts. Brigid did not know that she was allergic to peanuts, but, when she opens the container, she experiences a sudden and

severe allergic reaction. Brigid is hospitalised. On arrival at Felicity’s house, Cyril negligently crashes the motorbike into her parked car.

Advise the parties as to their rights and liabilities in tort.

Methodius: - An ‘independent contractor’ - Delivers as and when required while on shift - Can choose which shifts he works - Not guaranteed to receive any orders - Can receive tips - Cannot take on work for anyone else while on shift - Cannot get anyone else to cover his shifts - Not required to wear a uniform, but wears a WallaBUY-branded helmet and use a WallaBUY-branded bag to convey the meals

Ursula v WallaBUY (Methodius)

M exceeds the speed limit and drives somewhat erratically. Ursula is driving her moped the other way down the same road. Forced to swerve out of the way. She crashes her moped into a tree and is injured.

1) What is the tort that was actually committed? Go through the elements quickly Negligence, personal injury, owe duty of care to other road users Caused actionable damage by speeding. 2) Is M an employee of WallaBUY? Or relationship akin to employment. Uniform and branding: “I work with” not “I work for” Contract says IC but not conclusive, court looks at substance, not form. Can’t work for anyone else while working on his shift, makes him more like an employee. Doing an integral job, furthering the interests of the company by being a central part of what they do. 3) Course of employment? Yes, closely connected to the range of activities he is supposed to do, in the process of delivering the food.

Nicholas v Agnes/Methodius

Agnes’ order is his last before the end of the shift. Agnes gives Methodius a tip. Methodius agrees to drive one mile down the road to collect Agnes’ cake for double the pay. • If M breaching his contract by taking on other work? Contradicting a term of his contract of employment (implied do not hit the customers). • Now is M just an independent contractor for Agnes?

Nearly injures Nicholas, who was getting out of his car. Nicholas gestures and swears at him. M tries to punch Nicholas in the arm, but misses. Nicholas breaks M’s leg. Nicholas is medically diagnosed with a pathological fear of wallabies as a result of the incident. • M liable for assault • Psychiatric harm (Is he in the zone of danger? Maybe yes, because M is trying to punch him. But remoteness point, may be too remote.) • Agnes as employer? He is under her control, following instructions, getting paid? Interest doesn’t have to be a commercial/business interest or an employment relationship after CCWS and Cox, so not clear test. Worried it might catch Agnes here. • Dual vicarious liability? No principle saying not allowed.

Brigid v WallaBUY (Cyril)

Cyril fills in for M on his next shift. Cyril is an inexperienced motorbike rider and does not entirely understand the app. Cyril mixes up two orders and gives Brigid one which continues peanuts. Brigid did not know that she was allergic to peanuts. She experiences a sudden and severe allergic reaction, and is hospitalised.

• Can Cyril be in a VL relationship with WallaBUY? • Or maybe Rose v Plenty situation, M is still employee who delegated task to Cyril. Not allowed to do that, but that did not stop CA from finding liability in Rose.

Felicity v WallaBUY (Cyril)

Cyril negligently crashes the motorbike into her parked car. Cyril also mixes up her order, and possibly gives her the wrong one.

Essay Question

‘Critically evaluate the 2016 decisions of the Supreme Court in Mohamud v Morrison Supermarkets and Cox v Ministry of Justice.’

Cox v MoJ

This case is looking at the first limb → is there a relationship between the tortfeasor and the employer? Here it was a prison, prisoners were not employees and are forced to do a certain bit of work everyday. So needed to assess if it was a relationship ‘akin to employment’. Prisoner’s work was carried out for the benefit of the prison, integral to the prison because the prisoner was helping provide meals for everyone. The prisoners were paid so little (£11 per week) that it seems closer than a usual employment relationship.

This area of law has been blown up by the Catholic Church sexual abuse cases. Priests are not employees, and not in the course of their employment, so pushing the boundaries.

Armes case was possible because of Cox. Authority to place children in appropriate homes. Two grounds of appeal: non-delegable duties (council at fault themselves for the child), VL of foster parents. Given the degree of involvement, they had control of what the foster parents were doing, can come in and inspect the homes, have some say about medical provision and whether the child can stay with the parents. The council did the appropriate checks, no negligence in their choice of parents, proper processes were followed. Emphasis on control here is not so important after Cox. Risk creation argument, inherently vulnerable to put children in homes. Good moral result, but doctrine may be getting out of hand. Lord Hughes dissent: what’s the difference if the local authority gives consent for child to stay with their real parents temporarily or have a sleepover, seem to be putting/removing limits arbitrarily.

NDD case seems to be more convincing to me, but turns on level of control, council only has supervision control + role. Should consider NDD first, then VL. NDD = looking for fault, did someone breach a duty of care. Duty not to just take personal care, but that care is taken by anyone else you get to do the thing. Woodland: Hazardous activities or when there is assumption of responsibility Factors that tell us there is an assumption of responsibility where there is a previous relationship between D and C, must protect them against risks, personal obligation Lord Sumption gives five factors for when there seems to be assumption of responsibility: 1) Claimant is especially vulnerable and dependent on the protection of the defendant 2) There is an antecedent relationship placing C in the custody of D or where D has assumed responsibility for positively protect C 3) C has no control over how D chooses to perform the obligations 4) D has delegated to T a core part of their positive duty 5) T is negligent in respect of the very function delegated Usually a class of vulnerable people who you have control over, or who are relying on you. Providing someone safety or healthcare is usually the case here.

Mohamud v Morrison Supermarket

Controversial case M went to petrol station to ask to print a document. Employee made racial slurs, verbal altercation then employee followed M out to his car and beat him up. How can that be close to carrying out your employment?

If we go back to Rose v Plenty, even specifically told you cannot do this still held employer was vicariously liable. Sufficiently close enough connection because it was the employee’s job to interact with the customer. He was just interacting with the customer badly. Putting someone in the capacity of dealing with customers so taking on the risk. Trend of where court has imposed VL, it hasn’t been that random or unpredictable. Lister v Hesley Hall opening this out. You would think that intentional wrongdoing does not carry VL, negligence more understanding for imposing VL. Subjective court sympathy, emotionally driven to give maximum benefit to the claimant. Seems to just be able deep pockets, not really any principle justifications. Counsel for claimant argued that if you look like a representative you should be liable → courts rejected this. Agents have ostensible authority, not just uniform is enough.

Tort Law Notes

Part 2 out of 2

[132 pages]

Contents:

Negligence: General Duty of Care + Actionable Damage

Special Duty of Care Scenarios + Psychiatric Injury case list

Breach of Duty

Causation and Remoteness + Factual Causation case list

General Defences

Negligence: General Duty of Care

Who can sue whom, in what tort, for what damage and are there any defences?

Negligence elements: • Actionable damage → physical injury to the person and property damage • Owed a duty of care to the claimant • Breach of that duty as a result of the defendant not taking reasonable care • Causation + remoteness • Defences

Duty of care = duty to take reasonable care with respect to another. In English law, we don’t owe a duty of care in the abstract, no general duty to look after the welfare of other people. Must generate a duty of care before D is held liable → show that this particular defendant owed a duty of care to this particular claimant, not just that they owed a duty to someone.

General principles apply when establishing a duty of care. Particular situations have additional considerations that come into play. Special duty scenarios: - Psychiatric injury - Pure economic loss - Omissions and acts of third parties - Public authorities

Novel situations

The courts are prepared to recognise new duties of care owed in novel instances of negligence.

Donoghue v Stevenson [1932] AC 562

First time HL considers a general tort of negligence. Mrs Donoghue went for a trip to a coffee shop with her friend in Scotland. It is the friend’s round, buys a ginger beer in an opaque bottle. Finds a decomposing snail. She had not bought it, no contract there. Coffee shop owner not at fault, couldn’t check the bottle. Not inherently dangerous. At the time, no general proposition that manufacturers owe duty of care. 3:2 split in HL held duty owed in tort of negligence to Mrs Donoghue.

Lord Atkin: Argues that privity doesn’t matter. Tries to find a generalised principle, linking all the situations where you can find a duty of care. Then try to apply this to novel situation.

- Must take reasonable care to avoid acts/omissions that you can reasonably foresee as likely to injure your neighbour. - Neighbour = persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected - Uses device of proximity → Not just physical proximity, should extend to people so reasonably closely connected that you would owe a duty.

We now prefer Lord Macmillan’s incremental approach of looking at existing duties.

Lord Buckmaster’s dissent: Unfair for someone to be liable to someone they had no contractual relationship with. Concern about extension/containment of liability. Reasoning not on general principle, reasoning on incremental approach. Do we want to take the law further?

How do you determine whether D will owe C a duty of care in negligence? (i) First look at the decided cases. If you have an existing authority that works with the facts, go straight to that. In negligence, the common law ‘develops incrementally on the basis of a consideration of analogous cases where a duty has been recognised or desired’. e.g. Does a manufacturer owe a duty to take care not to cause reasonably foreseeable physical injury in manufacturing his/her products to those who might foreseeably use those products? Yes: Donoghue v Stevenson decides this. Also consider special duty scenarios. (ii) If the facts are not covered by the decided cases, then must to turn to general principle → Caparo test Identify and weigh the relevant factors which will determine whether it is fair just and reasonable to impose a duty.

Caparo Industries plc v Dickman [1990] 2 AC 605

Leading authority on how we identify entirely novel duty of care situations.

On the basis of a report, the claimants decided to take over a company they were already shareholders of because good investment opportunity. Report was wrong, sought to sue the auditors. Claim failed because a duty was not owed to the claimants in their capacity as investors. No duty of care was assumed in respect of investment advice. Report was made by auditors for the purposes of the AGM.

Lord Roskill: ‘The submission that there is a virtually unlimited and unrestricted duty of care in relation to the performance of an auditor's statutory duty to certify a company's accounts, a duty extending to anyone who may use those accounts for any purpose such as investing in the company or lending the company money, seems to me untenable.’

The claimants were not in the class of people duty was owed to → same people but different capacity. Report was not made available to them in their capacity as investors.

Three-stage test for duty advanced by Lord Bridge: 1. Parties must be in “proximity” 2. Damage must be reasonably foreseeable → Foreseeability that the conduct causes harm to the claimant 3. Must be “fair, just and reasonable” to impose a duty Emphasis upon “incremental” extensions of existing duties of care. We are mostly considering policy factors when imposing a duty of care.

Darnley v Croydon Health Services NHS Trust

Claimant suffered head injury, went to A&E. When he got there, hospital receptionist told him he would be seen in 4-5 hours. Correct information was that he would be seen in 30 mins. Meant to be 15 mins but 30 was reasonable. Claimant left, did not want to wait for so long. Later suffered long-term complications from the untreated injury.

Duty of care owed by receptionist to him? Looking at entirely novel duty of care so CA goes through Caparo test. Can’t ask in the abstract is a duty owed, must look at context and scope of the suggested duty and the range of consequences for which the defendant is assuming responsibility or is to be held responsible. Sales LJ: “The fair, just and reasonable view is that such information is provided as a matter of courtesy and out of a general spirit of trying to be helpful to the public, as the judge held, and that its provision is not subject to a duty of care in law such that compensation must be paid if a mistake is made. Imposition of such a duty would be likely to lead to defensive practices on the part of NHS trusts to forbid their receptionists to provide any information about likely waiting times.’ Concern that if they do impose a duty, no waiting times would be given at all because waiting times are unpredictable in busy times.

No general duty upon civilian receptionists to keep patients informed about likely waiting times. There comes a point when people must accept responsibility for their own actions. The claimant was told to wait. He chose not to do so, and left without informing anyone of his decision → placing emphasis on personal responsibility vs compensation culture.

McCombe LJ, dissenting: ‘It is the duty of the hospital not to provide misinformation to patients and that duty is not avoided by the misinformation having been provided by reception staff as opposed to medical staff.’ Agreed that there is no general duty, but on the facts there should be a duty because the information given was wrong, and imparted negligently.

Arguments for limiting liability

• “Floodgates” argument Fairness consideration to defendants: Sometimes class can be too wide, extent of liability too broad. Cardozo CJ: “Liability in an indeterminate amount for an indeterminate time to an indeterminate class.”

• Defensive practices Some positions have a need for discretion. In the context of public authority, there is a concern that if you impose a duty in certain circumstances it might impede the way in which people perform their jobs. If you are conscious of a duty of reasonable care, fear of liability might distract you from primary obligation, e.g. emergency services.

Hill v Chief Constable of West Yorkshire [1989] AC 53

Yorkshire Ripper serial killer Claim by mother of the last victim, alleged that police was incompetent by not arresting him. Argued that police were negligent, owed duty of care towards her. HL rejected duty of care. Police owe general duties to the public, but not individual duties to specific people like those who match description of likely victim. Police shouldn’t be worried about tort liabilities were exercising their public functions.

Michael v Chief Constable of South Wales Police [2015] UKSC 2

Lived near boundary of two police forces. Police did not respond on time to domestic violence call. SC held no liability of police. Don’t owe a duty to intervene, only reason to impose a duty would be if there were sufficient reasons to justify, not in favour of policy reasons. Recognised that there was claim available in human rights, where it succeeded, but not in negligence. Sales LJ concurring with majority in Darnley → what more generally will be the effect of imposing a duty, not just looking in terms of whether the claimant can win case.

• Avoiding conflicts of interest

D v East Berkshire [2005] UKHL 23, [2005] 2 WLR 993

Investigation by local and health authorities into alleged child abuse by parents. Allegations turned out to be unfounded.

Parents of young children sued the local authority, claiming that they suffered psychiatric harm as a result of the investigations. Do the authorities here owe duty to both the children (protecting the children) and in addition must take into account a duty to the parents while operating their investigation?

HL said no, parents’ claim failed. Couldn’t impose parallel duty on the local authority to the parents. Courts are astute not to create a conflict of interest → Primary concern should be for the welfare of the child. This rules out parallel duty to parents and carers because it would be inconsistent to be concerned with not causing stress to the parents. In situations where a duty points in one direction, we can’t impose a duty that veers off course.

Lord Brown: ‘I acknowledge [that the parents] are paying the price of the law's denial of a duty of care. But it is a price they pay in the interests of children generally. The well-being of innumerable children up and down the land depends crucially upon doctors and social workers concerned with their safety being subjected by the law to but a single duty: that of safeguarding the child's own welfare.’

We can’t just say that we feel it would be fair, just and reasonable to impose a duty. Need to explain factors why. Must substantiate policy considerations.

• Distributive justice?

White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1

Hillsborough Stadium had terraces where people stand when watching football. Negligence of police meant allowed too many people into the grounds. There was a crush, too many people in a confined area. 96 people died. Police accepted liability for deaths and injuries.

Alcock case → Claims for psychiatric harm brought by people who witnessed or were connected to people injured or died, were not themselves in danger. HL held that claims by family members of those injured or died generally failed, police did not have duty, established a range of restrictive criteria. In White, the majority of claims failed because of this.

This case was brought by policemen on duty on the day, alleged that they suffered psychiatric harm by witnessing the tragedy. CA held claims could proceed, duty could be owed in those circumstances. Law Commission asked to look into this because of public outcry.

HL overturned the decision, held no duty had arisen. Lord Hoffman:

Although an extension of liability to rescuers and helpers would be a modest incremental development and produce a just result, the common law should pay attention to distributive justice. Cannot heighten the sense of injustice by allowing police claim to succeed whereas family members’ claims fail.

Lord Goff, dissenting: Corrective justice approach → Just because facts are not connected does not mean they are the same.

• Human rights considerations

ECtHR has issued some judgments on liability of public authorities.

Osman v UK [1999] 1 FLR 193

Language of police having immunity piqued interest of the court because everyone should be equally liable in their civil proceedings.

Z v UK [2001] 2 FLR 612

The European court accepted unusually that it is not an immunity, only have a civil right if a duty is owed to you in the first place, and there is no duty.

Human Rights Act 1998 Article 6 → right to a fair trial

Since 2000, impossible to bring a claim under HRA about this. One issue of courts: should we develop tort of negligence taking into account the rights protected by it, e.g. Article 2 right to life. Or because we have HRA, do we not need it because there is a claim under HRA?

- Shift from X (Minors) v Bedfordshire Country Council etc [1995] 2 AC 633 to the position of D v East Berkshire [2005] UKHL 23.

Michael v Chief Constable of South Wales Police [2015] UKSC 2 The Commissioner of Police of the Metropolis v DSD and NBV [2015] EWCA Civ 646

Negligence: Actionable Damage

Actionable damage is essential element of tort of negligence, which is a loss-based tort. Standard we are complaining about from D is failure to take reasonable care, different from intentionally doing something.

PHYSICAL INJURY TO THE PERSON

D will normally owe C a duty to take care not to do a positive act X, only if it is reasonably foreseeable that D’s doing X will result in someone like C suffering some kind of physical injury.

Maitland v Raisbeck [1944] KB 689

Passenger on the bus suffered injury when it crashed with a lorry. Driver owed a duty of care towards passenger, but took reasonable care. Passenger simply being on the bus does not mean liability. Can owe a duty but there may not necessarily be liability Lord Greene MR: ‘The user of the highway is entitled to use it in a reasonable manner and to expect other people to do the same, but on the highway accidents happen when both parties have been reasonable and neither has misused the highway. If damage arises in those circumstances, the person injured must put up with it.’

What counts as actionable damage?

Hinz v Berry What counts as actionable damage in tort law? Mr and Mrs Hinz had 4 young children and 4 foster children, 2 months pregnant with 5th child. Family trip driving out in Kent, decided to stop and have a picnic, pulled over into a layby. Mrs Hinz took child across road to pick bluebells. Car’s tyre burst, killed Mr Hinz and caused children injuries. Mrs Hinz sued. Lord Denning’s general proposition about what you can cover for in such a situation: No damages for grief or sorrow cause by death, or worry or financial strain – feelings of emotion. Damages are recoverable for medically recognised psychiatric harm.

Lord Denning MR: ‘In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant.’ Must show some form of recognised psychiatric harm.

De minimis non curat lex

Latin maxim: The law does not care about the tiniest things.

Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281

In terms of physical injuries Exposure to asbestos → discovered later that it is carcinogenic. Claimants hadn’t developed any major illnesses, developed a scarring on inside of lungs, doesn’t lead into other illnesses. C argued that suffering this physical change = should be able to recover damages. C also tried to argue not just the plaque, but also have risk of developing related illness in future and have anxiety about it.

HL rejected the claim. The change did not amount to actionable damage. Damage = making C worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one's health or capability. Symptomless plaques and the risk of future illness or anxiety about the possibility of that risk materialising are not compensable damage, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensable physical injury and therefore has a cause of action.

Lord Hope: ‘An injury which is without any symptoms at all because it cannot be seen or felt, and which will not lead to some other event that is harmful, has no consequences that will attract an award of damages. Damages are given for injuries that cause harm, not for injuries that are harmless.’ There is a certain threshold before justified to bring a claim, the change must be more than negligible.

Greenway v Johnson Matthey [2016] EWCA Civ 408

CA reaffirmation of Rothwell in analogous case. People working in factories using platinum salt. This exposure could result in allergy. C claimed condition of sensitivity to platinum, not full-blown allergy → this is not a recognised medical condition. The physical change does not constitute actionable damage or injury because it is not in itself harmful. Sales LJ: ‘Platinum sensitisation is not a "hidden impairment" which has the potential by itself to give rise to detrimental physical effects in the course of ordinary life.’

PROPERTY DAMAGE

D will normally owe C a duty to take care not to do some act X where it is reasonably foreseeable that doing X would cause damage to property like C’s.

The Aliakmon

Carriage of goods by sea, damaged in transit because not stored properly. Contract for sale of the goods said C (buyers) only took ownership when they were delivered, dropped off at the end of the journey. But they were not owners during the time the goods were damaged. Claim failed because in property damage cases, must have legal ownership or possessory title to the property concerned at the time the loss or damage occurred. Here the remedy is with the seller, cannot make claim as to the property.

Marc Rich & Co v Bishop Rock Marine Co Ltd (‘The Nicholas H’) [1996] 1 AC 211

D determined the seaworthiness of ships. One such ship certified by D sank, and C’s cargo was lost. Applied Caparo → There was proximity and foreseeability, but it was not fair just and reasonable to impose a duty. Lord Lloyd, dissenting: ‘In physical damage cases proximity very often goes without saying. Where the facts cry out for the imposition of a duty of care between the parties, as they do here, it would require an exceptional case to refuse to impose a duty on the ground that it would not be fair, just and reasonable.’

Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37

Claimants treated for cancer, chemotherapy affected fertility. Sperm frozen, but damaged by negligence of the hospital. For the purposes of the claim in negligence, men had ownership of the sperm and the claim could proceed. CA rejected argument that it was personal injury, would be a fiction because it was not part of the body, removed already.

• Duty of care is the key control device within negligence. • There are general rules for property damage, personal injury, novel situations.

Some cases raise difficult special considerations, so different principles apply. We are arguing why is there something different about this case that would justify the imposition of liability. There may be more than one special scenario in a situation, in which case we must go through the process twice and examine the particular considerations on these facts.

1. Pure Economic Loss

“Pure” = not connected to personal injury or physical damage

Ex: Car crash and hit C, might cause damage to vehicle and personal injury. C may also suffer some consequential loss, e.g. not be able to work for a while, miss opportunities → consequential to the damage caused to C. Much wider group of people could suffer economic loss as a result of you causing the accident, e.g. each person in the traffic queue might themselves suffer loss as a result of that accident, e.g. miss job interview, sales call, flight. This is much more distant than the car hit in the first place who suffered direct harm. Law needs to place some limits on the circumstances in which you can sue where there is only pure economic loss that is not connected/consequent upon some property damage or physical image.

GENERAL RULE

No liability in negligence for pure economic loss. We must establish on the particular set of facts that there is a duty of care owed in respect of purely economic loss.

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

Illustration of the general rule and the difference between PEL and consequential economic loss. Claimants owned factory that makes things from steel. Defendants did some roads nearby and negligently cut the power line to the factory. As a result, C suffered three kinds of loss: 1) Damage to the steel being melted in the furnace at the time the power was cut → damage to property, recoverable. 2) Profits that could have been made on the steel in progress of being melted → profit lost, consequential from property damage so also recoverable. 3) During the period the power remained cut, they would have made four more melts and gotten profit → what they would have done, PEL not recoverable. Connected in a broad sense but no duty in respect of it because it is not consequential on any other property damage.

Lord Denning MR: Limits scope of liability ‘Whenever the courts set bounds to the damages recoverable - saying that they are, or are not, too remote - they do it as matter of policy so as to limit the liability of the defendant.’

Edmund-Davies LJ, dissenting: If they can recover some profit, they should be able to recover all of it → Thought it was artificial distinction between the two profits.

The boundary between property damage and pure economic loss

What does it mean to say you suffered property damage? Any damage to property or issue related to house could cause it to fall in value.

Dutton v Bognor Regis UDC (overruled)

Claimant bought a house that was built on top of a rubbish tip that was filled in. Foundations were laid and surveyed by a council inspector. Turned out there were defects in the foundations. If the surveyor had taken more care this would have been discovered at the time. Claim is against the council who sent the surveyor who failed to survey the property. C sues for either the cost of cure or the decrease in value of the house from when C bought it. Lord Denning MR: ‘The damage done here was not solely economic loss. It was physical damage to the house. If Mr. Tapp's submission were right, it would mean that if the inspector negligently passes the house as properly built and it collapses and injures a person, the council are liable: but if the owner discovers the defect in time to repair it - and he does repair it - the council are not liable. That is an impossible distinction. They are liable in either case.’

Anns v Merton (overruled)

Similar view taken. If you can say that your property is defective but has not yet caused you injury or damage, you should still be able to sue in respect of that.

The opposing view is that you may never suffer harm, just don’t have as valuable a house as you thought → pure economic loss.

D&F Estates Ltd v. Church Commissioners for England [1989] AC 177

Claim about negligently done plasterwork. Sought to recover for remedial work to fix the negligently done plaster and to cover cost of cleaning of carpets and other things in the house → No damage, just needed to be cleaned. Claims failed, no duty owed in respect of this. Must show you suffered actionable damage that resulted from the builder’s carelessness in the course of construction, can’t sue for harm that hasn’t been suffered. Cost of remedying to try and anticipate harm occurring is not recoverable.

Murphy v Brentwood District Council [1991] 1 AC 398

Leading authority, continued reasoning from D&F Estates. Council of Brentwood referred plans of the building of a house to some consultants. Consultant engineers failed to notice calculation errors in the design for foundations of the house so the council rubber stamped the plans. Damage to walls and piping in the house. Claimant decided to sell for £35k less because of the damage, claimed for difference in value for what the house would have been worth.

Anns is disproved, this is PEL. By recognising a duty of care owed in these cases involving defective houses, Anns has greatly and inappropriately expanded the tort of negligence in an act of judicial legislation.

‘Complex structures’ argument: Although you can’t recover just damage to walls because of defective foundations, may be able to recover for damage caused to another bit of the house (e.g. piping) as property damage. HL rejects this theory. If the walls crack and land on a Ming vase, can recover for damage to personal property within the house that is physically damaged → this is different from complex structure.

Stapleton, ‘The Gist of Negligence’ (1988) 104 LQR 213 Distinguishes between ‘preventive’ claims and claims arising from a condition of the property which has or will produce changes in the property itself. Murphy took the approach she advocates.

Instead, C may have a remedy in contract or statute in some situations.

Defective Premises Act 1972 Imposes statutory duties on the builders or people working in connection with the provision of a dwelling. There is liability for injury or damage caused to persons through defects in the state of premises.

S 1(1) A person taking on work for or in connection with the provision of a dwelling … owes a duty – (a) if the dwelling is provided to the order of any person, to that person; and (b) without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling [aka subsequent purchasers]; to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed. ...

High threshold → cracks in a wall does not make house unliveable.

Targett v Torfaen Borough Council [1992] 3 All ER 27

If you discover a problem before the harm occurs, can take steps to avoid it. Don’t have a right to sue for harm because you failed to take steps to avoid it.

Claimant rented his property with his family from the defendants. In order to get to front door, had to go up two flights of stairs. First flight of stairs had no handrail and no lighting provided. C complained about this before moving in. No other way to get to house. A few months after moving in, walking down the stairs and fell, injured his leg badly. Had no handrail, couldn’t see because of the lighting. In what circumstances can you sue in respect of a known danger? Murphy said it is up to you to avoid harm once you know of it.

Sir Donald Nicholls V-C ‘The general principle is, indeed, that such a person cannot recover compensation, because in the ordinary way his knowledge of the existence of the dangerous defect, at any rate in the case of goods, will suffice to enable him to avoid the danger. But knowledge of the existence of a danger does not always enable a person to avoid the danger.’ ‘The rationale of Murphy's case was that the Donoghue v Stevenson principle is not designed to compensate for losses arising from defects in quality as such; it is designed to compensate for losses arising from physical injuries to persons or damage to other property flowing from the use of a dangerous product when the user, usually through lack of knowledge of the danger, was unable to take steps to avoid the danger.’

Not merely the case that if you knew of the danger you can never sue. Can sue in this situation because there was no alternative.

Policy reasons

Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52

Wrongful birth case, illustration of general rule that pure economic losses are not recoverable. Can you recover the cost of raising a child who was conceived as a result of negligence by hospitals in cases of sterilisation? Accepted she could sue for personal injury of having to go through pregnancy and labour. 4:3 split General principle in Macfarlane v Tayside: It is impossible to weigh up the cost and benefit of raising a child → reaffirmed in Darlington. However, C should be able to get a new head of damage conventional award in recognition that she suffered a wrong that cannot be compensated for, £15k at the time.

Lord Bingham: ‘The fact remains that the parent of a child born following a negligently performed vasectomy or sterilisation, or negligent advice on the effect of such a procedure, is the victim of a legal wrong… ‘The conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory, award. It would afford some measure of recognition of the wrong done. And it would afford a more ample measure of justice than the pure McFarlane rule.’

This case is an exception to the reluctance of the court to recognise new heads of damage in negligence. Head of damage = a category of loss for which compensation can be legally claimed.

Minority said it is not about moral disapproval of raising a child, but it is impossible to calculate. Simply outside the scope of the duty of care.

ASSUMPTION OF RESPONSIBILITY

This principle is another way in which liability in negligence for PEL has been recognised.

A contract is a way you assume obligations, voluntarily consent to being bound by the contract. Each party owes the other rights and obligations. In tort, there might be circumstances where in absence of the contract we recognise D assuming responsibility and owing C a duty to take reasonable care.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

C were advertising agents working for a client company Easipower which wanted them to place various advertising orders, would be reimbursed by their client but possibly liable. Before agreeing, C wanted to check if the clients were good for the money, asked their bank to ask Easipower’s bank about the company’s creditworthiness. D is the client’s bank, gave favourable references as to the client’s creditworthiness, but made a disclaimer → said they were offering these references without responsibility. Turned out to be wrong, advertisers lost out, so sought to sue the bank whose statements they relied on. Claim failed on the facts because bank disclaimed their opinion, said they would not accept any responsibility for what they do with the statements. HL recognised that in principle there could be liability if C can show that D did assume responsibility.

Liability arises because D doesn’t have to give the advice and have the option to give a caveat. If you volunteer advice, you should be held responsible if someone goes on and acts upon it. Lord Reid: ‘A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on, would, I think, have three courses open to him. He could keep silent or decline to give the information or advice sought: or he could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection or inquiry which a careful answer would require: or he could simply answer without any such qualification…’ ‘… If he chooses to adopt the last course he must, I think, be held to have accepted some responsibility for his answer being given carefully, or to have accepted a relationship with the inquirer which requires him to exercise such care as the circumstances require.’

Scope = Not asking just generally about the relationship between the parties, but about the specific act. Lord Devlin: ‘It is a responsibility that is voluntarily accepted or undertaken, either generally where a general relationship, such as that of solicitor and client or banker and customer, is created, or specifically in relation to a particular transaction… Responsibility can attach only to the single act, that is, the giving of the reference, and only if the doing of that act implied a voluntary undertaking to assume responsibility.’

Lord Morris: ‘My Lords, it seems to me that if A assumes a responsibility to B to tender him deliberate advice, there could be a liability if the advice is negligently given. I say "could be" because the ordinary courtesies and exchanges of life would become impossible if it were sought to attach legal obligation to every kindly and friendly act. But the principle of the matter would not appear to be in doubt.’

Hedley Byrne elements: 1. Voluntary assumption of responsibility 2. Misstatement of something wrong that turns out not to be true, must have been made negligently.

3. There must be reasonable reliance on that statement 4. Claimant must have suffered a detriment/loss as a result of reasonably relying on the particular statement.

Playboy Club London v Banca Nazionale del Lavoro [2016] EWCA Civ 457

C operated casino in Mayfair, had a customer and wanted to check his credentials. Used a company called Burlington Street Services as a front to ask for creditworthy references from the customer’s bank. Got positive credit references, however turned out he was not good for the money.

Claim failed because the bank didn’t know who the claimants were. They were asked to provide a reference to Burlington, and true purpose of the reference for a gambling fund was not revealed. Can only assume responsibility if they knew what was going on.

Longmore LJ: ‘It was clear that Hedley Byrne's bankers were not asking for a reference about Easipower for their own purposes but for a customer (albeit unnamed) for the purpose of advertising contracts. In the present case the customer was identified by name as Burlington and the true purpose of the reference (for a gambling club) was not revealed. In these circumstances there cannot, to my mind, be an assumption of responsibility to the Club (rather than to Burlington) or indeed a responsibility for its use by the Club in trusting Mr Barakat in his gambling activities (a purpose of which the Bank was unaware).’

Express assumption of responsibility

Williams v Natural Life Health Foods [1998] 1 WLR 830

C agreed franchise deal from company, relied on predictions in the franchise brochure about how successful it was likely to be. Figures turned out to be inaccurate. Sued company and a director they considered personally liable as personally assuming responsibility. Didn’t have pre-contractual relationship with the director, company was wound up so they could only try to claim losses. Held, claim failed. C relying on the company’s representations doesn’t mean they can succeed in their claim against the individual.

Lord Steyn: ‘The test is not simply reliance in fact. The test is whether the plaintiff could reasonably rely on an assumption of personal responsibility by the individual who performed the services on behalf of the company…’

Even if there is an existing franchising agreement, doesn’t mean everyone in the company is also assuming responsibility.

Calvert v William Hill Credit Ltd [2008] EWHC 454 (Ch)

C was compulsive gambler. Betting companies have procedures in place where they can notify the company and ask them to stop taking bets from them, aka disqualify themselves. This protects people who can’t help themselves. C was assured when he notified D that these procedures would be followed through on. However, the procedures failed twice → they reopened the account on his request and he suffered losses. They did assume responsibility for him and a duty was owed. The fact they assured him and agreed to implement their procedure meant they assumed responsibility for his financial welfare.

However, just owing a duty is not enough → what was the extent/scope of the duty? Issue of causation: It was found as fact that because he was such a problem gambler, even if they had followed their procedures he would have gone elsewhere and still lost the money. Therefore, most of his claims failed.

Chaudhry v Prabhakar

Guy tried to impress a girl. She wanted to buy a car, he offers to help her but doesn’t know much about cars. He knows she is going to rely on whatever he says. She doesn’t want a car that was involved in an accident. Panel beater fixes cars that were involved in accidents, car she bought was worthless because it was pieced together from various pieces of cars. Do we hold them to how competent they are in real life or a higher standard? Held there would be a duty in this circumstance.

Although we are careful about imposing liability in informal situations/relationships, here is it justified because it is in connection with a specific costly transaction. There is liability on the facts in this case, but only on specific transaction.

Stuart-Smith LJ: ‘The plaintiff clearly relied upon the first defendant's skill and judgment, and, although it may not have been great, it was greater than hers and was quite sufficient for the purpose of asking the appropriate questions of the second defendant…’ ‘The first defendant also knew that the plaintiff was relying on him; indeed he told her that she did not need to have it inspected by a mechanic and she did not do so on the strength of his recommendation. It was clearly in a business connection, because he knew that she was there and then going to commit herself to buying the car for £4,500 through his agency.’

Assumption of responsibility implied from the relationship/circumstances

Henderson v Merrett Syndicates Ltd [1995] 2 AC 145

Lord Goff says can have concurrent duties/liabilities in contract and tort. 1. Tortious duty of care can exist irrespective of whether there is a contractual relationship. 2. May be relevant if there is a contract between them excluding liability in tort. C can claim that D breached duties in both contract and tort and choose whichever remedy is more advantageous, but can only recover loss once. Assumption of responsibility is not a duty in tort that arises because of the contract, even though it might map onto a contract.

Robinson v Jones (Contractors) Ltd [2011] EWCA Civ 9

Concerns the building of fireplaces when the house was being built. Defendant builders agreed to change plans and build a new fireplace. Claimant provided for various utilities and gas be provided to heat the fire. Utility company engineer found various defects with the fireplace, hadn’t been built in accordance with good practice and building regulations. C asked D to meet the cost of remedial work to put it right, D refused so C sued in tort and contract. Can both these claims sustain? As a matter of principle, can owe duties in both at the same time, but claim in negligence fails in this case because it was excluded in the contract. Even if you get concurrent obligations in contract and tort on the same set of facts, the sources of those duties are different. Jackson LJ: ‘Contractual and tortious duties have different origins and different functions. Contractual obligations spring from the consent of the parties and the common law principle that contracts should be enforced. Tortious duties are imposed by law, as a matter of policy, in specific situations.’

Lejonvarn v Burgess [2017] EWCA Civ 254

Recent CA decision D was architect, agreed to help out some people she was friends with. They wanted to redo their garden, got a quote from a landscape garden architect which was too much, so asked her instead. C agreed with D that she would do the first stage for free → arrange for contractors to carry out the hard landscape (redoing physical shape of the garden). D would be paid for second stage → soft furnishings. C unhappy with the work carried out by the contractor, so never reached the second stage. Claim succeeds → D was found to have assumed responsibility to the claimants. It is fair just and reasonable to impose the duty.

Even though it was a favour it was still a professional one. Expectation that she would be paid for later work. Even though there is no payment for the first stage, she could get paid in future depending on first stage’s success.

Hamblen LJ: ‘In particular, the context was a professional one. It was not informal or social. There was an obvious relationship of proximity. … She held herself out as having professional skills. She said she would perform professional services and did so. She was aware that the Burgesses would be relying upon her to properly perform those services and it was foreseeable that economic loss would be caused to them if she did not.’

Extensions of the concept of assumption of responsibility

Smith v Eric S Bush [1990] 1 AC 831

Concerned property valuer when buying a house. Valuer contracted with the bank, can the house buyer sue you even though no relationship? Yes, even in the absence of contractual relationship, can regard valuer as assuming responsibility. Assumption of responsibility can arise where you know that what you do will be relied upon, in this case by the purchaser. Lord Templeman: ‘I agree that by obtaining and disclosing a valuation, a mortgagee does not assume responsibility to the purchaser for that valuation. But in my opinion the valuer assumes responsibility to both mortgagee and purchaser by agreeing to carry out a valuation for mortgage purposes knowing that the valuation fee has been paid by the purchaser and knowing that the valuation will probably be relied upon by the purchaser in order to decide whether or not to enter into a contract to purchase the house.'

Spring v Guardian Assurance plc [1995] 2 AC 296

Employer gives negligence reference, and employee loses a new job offer. Employer may assume responsibility → Duty to take reasonable care as to what goes in the reference. By providing the reference, duty is not to negligently get facts wrong etc. because in all the circumstances there is little else the employee can do. Lord Goff: ‘An employer who provides a reference in respect of one of his employees to a prospective future employer will ordinarily owe a duty of care to his employee in respect of the preparation of the reference.

The employer is possessed of special knowledge, derived from his experience of the employee's character, skill and diligence in the performance of his duties while working for the employer.’

White v Jones [1995] 2 AC 207

A father wanted to write his will. After family disagreement, cut his daughters out of the will. Made with a solicitor. After a reconciliation, he changed his mind and instructed his solicitor to draft a new will including his daughters. Solicitor negligent, didn’t revoke and change the old will. Solicitor owes duty to father as his client. But father and estate doesn’t suffer any loss although money wasn’t split up the way he wanted. HL held duty was owed by solicitor to the beneficiaries in such circumstances. Lord Goff: ‘[The court] should in cases such as these extend to the intended beneficiary a remedy under the Hedley Byrne principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor's negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor.’ Concern about hollow duties. →What is the point of the solicitor having duty to father, when he will die and not be able to sue? The primary duty of the solicitor to his client is enforced by allowing the daughters to sue.

Duty of care without assumption of responsibility

To generate a duty of care in respect of pure economic loss without using the assumption of responsibility device → Caparo test extends the scope.

Customs & Excise Commissioners v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181

Customs seeking to recover unpaid tax, got court orders of freezing injunctions to freeze assets including money in Barclays Bank. Barclays let the money in the accounts be paid out, so Customs sued Barclays. Claim falls on the facts, but important point is HL deciding which test to apply → assumption of responsibility or Caparo test? Lord Walker: No voluntary assumption of responsibility in this case. ‘In the modern context the word “voluntary” is being used, it seems to me, with the connotation of “conscious”, “considered” or “deliberate”. In this case the appellant bank has not, in any meaningful sense, made a voluntary assumption of responsibility. It has, by the freezing order, had responsibility thrust upon it.’ Lord Bingham:

‘I think it is correct to regard an assumption of responsibility as a sufficient but not a necessary condition of liability, a first test which, if answered positively, may obviate the need for further inquiry. If answered negatively, further consideration is called for.’

Q1: Can we establish a duty of care using assumption of responsibility under Hedley Byrne? If yes, we have a duty. If no, not the end of the story. Q2: We can look at other justifications to impose duty of care from Caparo test.

Lord Bridge in Caparo: ‘It is necessary ‘to prove, in this category of the tort of negligence, as an essential ingredient of the "proximity" between the plaintiff and the defendant, that the defendant knew that his statement would be communicated to the plaintiff, either as an individual or as a member of an identifiable class, specifically in connection with a particular transaction or transactions of a particular kind (e.g. in a prospectus inviting investment) and that the plaintiff would be very likely to rely on it for the purpose of deciding whether or not to enter upon that transaction or upon a transaction of that kind.’ In PEL cases, the Caparo test’s proximity element seems to require the ‘assumption of responsibility’ doctrine, just without the voluntary element.

PROBLEM QUESTIONS

Wendy, a builder, builds a five-bedroomed detached house in Hampstead. She makes the foundations two metres deep. The standard practice in the construction industry is to make foundations three metres deep. Wendy also installs the central heating system and electrical wiring. Bernard purchases the new house from Wendy.

One week after Bernard has moved in, the electrical wiring short-circuits, causing a small fire that damages the wall paper and the carpet in the living room. A week later Bernard notices that some small, unsightly cracks have started to appear in the walls. These cracks have been caused by the fact that the foundations are too shallow to support the house properly. Bernard puts the house up for sale.

Florence, a successful law lecturer and potential purchaser, notices the cracks. She asks her friend Robert, a surveyor, to look at the walls. Robert believes that the cracks are merely superficial, the result of bad plastering. He advises Florence that there is no expense needed to rectify them. Florence takes his advice and purchases the house for its full asking price. As the foundations move further, the cracks widen. It will cost several thousand pounds to reinforce the foundations. Florence does nothing about the cracks, and the walls eventually fall down, injuring her and damaging her possessions.

Advise Bernard and Florence of their rights against Wendy.

Bernard v Wendy Murphy v Brentwood District Council Cracks in the wall because of shallow foundations. C sold house for less and claimed for pure economic loss. HL says not damage, just have someone less valuable than you thought you had. Can still use in the same way, just a bit defective. Property damage distinct from pure economic loss. Not property damage - you just have something less valuable than what you thought it was (drawing a distinction). Murphy says can’t cover for this. Also Bernard sells the house for full price so he didn’t really suffer loss anyway.

Defective Premises Act deals with houses that become uninhabitable because of a defect.

Applying Spartan Steel: can sue for the fire damages but not the cracks which have not constituted harm yet. Bernard can’t sue for the cracks in the wall. But can sue for fire damage to wallpaper and carpet. is it fair that law has this fire/crack distinction? Is there a contractual remedy?

Florence v Wendy

She can't sue the builder for cracks (Murphy) → Suffered pure economic loss. But can when wall falls down and injures her and her possessions. Weird incentive for the law to wait until the damage occurs. Should fix the damage before and avoid. Odd that you have to wait for physical damage before you can recover. Surely it is more efficient to fix the damage as soon as it creeps up

Florence v Robert

Bad advice = assumption of responsibility? Hedley Burn v Heller Credit check of a company, bank gave a reference without liability responsibility. Bank not liable because of that clause. Generally accepted test for pure economic loss: 1) Assumption of responsibility 2) Reasonable reliance on the advice 3) Loss or detriment

Caparo test 1) Reasonably foreseeable loss 2) Relationship of proximity 3) Fair, just and reasonable Barclays emphasis on the facts, not assumption of responsibility. But Playboy Club London v Banca Nazionale del Lavoro uses assumption of responsibility test and then Caparo test.

Lejonvarn v Burgess Woman doing landscaping work for her friends, no contract. If you are a professional giving advice about your area, courts are inclined to say you have assumed responsibility.

The fact she is a law lecturer impacts on reasonable reliance, should she have known to seek a second opinion? → these facts are put in there for discussion.

Lawrence, a man in his eighties, decides that he needs to make a will. He gives detailed instructions to Kevin, a solicitor, concerning who is to benefit and in what amounts. The main beneficiary is Lawrence’s friend, Mark, who is to receive £1,000,000. Lawrence deliberately leaves off the list his wife Emma, because Emma irritates him. Kevin, however, fails to prepare the will, and Lawrence dies.

Emma becomes entitled to all of Lawrence’s wealth, which includes money and properties. Emma decides to invest some of the money she has inherited. She asks her financial advisor, John, for his views. John advises her against buying shares in A1 Computers Ltd, because he hates the managing director of the company. Emma takes the advice, and puts the money into a savings account instead, where it earns a small amount

of interest. She also decides not to lease one of her properties to an A1 employee, because she doubts the financial viability of the company. The house remains unlet.

Emma also passes on John’s advice to her son, Frank, who was considering investing money in A1 Computers. The share value of A1 Computers triples during the next three months.

Advise Mark, Emma and Frank of their entitlement to recover damages for negligence.

Can Mark (intended beneficiary) claim against Kevin?

General Hedley Byrne, extended in Henderson v Merrick where you don’t even need direct relationship, even someone who will probably be affected. White v Jones extends even more. Father fell out with two daughters, took them out of his will. Amended relationship, asked solicitor to include them back in. Solicitor put it off and forgot, daughters couldn’t get money from will and sued the solicitor. Father had contract with solicitor, even if daughters acting for his estate because he didn’t suffer any loss. HL recognised there was a lacuna in the law. Said the solicitor must have known the daughters were included, stretched Hedley Byrne → Assumption of responsibility for people he did not know or have any dealings with. This was an omissions case, generally no liability for omissions. Also circumspect reasoning in Lord Goff’s judgment is “practical justice” and poor legal reasoning.

Should White v Jones be confined to its facts? In this problem question, it was a positive act of putting wrong person on will. Lots of critique but it is the law (it was a radical case), and has not been overturned.

Caparo is general duty of care test. Assumption of responsibility comes into pure economic loss, but can sometimes come into omissions cases like health and wellbeing.

Emma v John Remoteness and foreseeability issue → raised in Spartan Steel Hedley Byrne assumption of responsibility test Lejonvarn v Burgess

Frank v John Same problem as Playboy case Henderson v Merrett Syndicates [1995] expansion → no need for a relationship?

ESSAY QUESTION

Lord Pearce in Hedley Byrne & Co v Heller (1964): ‘How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the courts’ assessment of the demands of society for protection from the carelessness of others. Economic protection has lagged behind protection in physical matters where there is injury to person and property. It may be that the size and the width of the range of possible claims has acted as a deterrent to the extension of economic protection.’ Critically evaluate this statement as regards the development of the duty of care in cases of pure economic loss.

Break down and evaluate the quote, don’t just engage with it at a general level. Critically evaluate the statement - focused answer deals with each of the three specific claims in turn.

Are the courts assessing the demands of society for protection? - Courts develop duty of care to protect the demands of society - To some degree they look at the protection element - Possible reason is floodgate argument - Specific details of the case - But Donoghue v Stevenson - indicates that the law does care to develop

Economic protection has lagged (contrast property and physical) - Consequential injuries are acceptable but pure economic loss is not protected (Spartan Steel) - Generally no pure economic loss but exceptions → Hedley Byrne, White v Jones, Playboy, Barclays, buildings cases - Development of court to be more willing in finding duty of care

Size and width, the range of the possible claims - Are courts really concerned with floodgates - Words spread (advice restrictions) much more freely than damage to property

2. Psychiatric Illness

Practical considerations

• Indeterminate liability to third parties This is the primary challenge the courts are trying to get their head around. The number of possible claimants is innumerable, courts always afraid of opening floodgates. • Changing understanding of psychiatric injury Difficult for courts to plan and create solutions because so unexpected. It is also easy to fake psychiatric injury. Courts argue too much protection is not building a resilient population, we shouldn’t morally coddle. • Different courts respond differently Lower courts are not afraid to bend rules and make maverick solutions for sympathetic claimants because if there is a serious issue they are confident that the higher courts will remake the decision and fix it.

Pure vs consequential

Consequential psychiatric injury is ‘commonplace in personal injury cases’ whereas pure psychiatric injury cases are ‘unusual difficulty for the court’. Ex: McCafferty v Scotts Caravans; Johnson v Le Roux Fourie ➢ Psychiatric injury cannot be consequential on property damage. Ex: Attia v Brtish Gas; Yearworth v North Bristol NHS Trust

Pre-requisites for claiming psychiatric injury

Before you even think about claiming, there are threshold requirements to avoid floodgates and unmeritorious claims.

1. Proof of a recognised psychiatric injury Decided by diagnostic classification: - WHO Classification of Mental Disorders - American Diagnostic and Statistical Manual of Mental Disorders De minimis rule → must be more than mere grief, stress, general anxiety

2. Must identify type of claimant: • Primary victim • Secondary victim Primary victims are those involved “mediately or immediately” in the accident. Secondary victims are the rest (i.e. bystanders, witnesses). • Elevated primary victim • Fear-of the future • Stress-at-work • Residual category

Pre-Alcock requirements: 1. Reasonable fortitude or ‘customary phlegm’ → Bourhill v Young 2. Sudden horrifying event → Chadwick v British Railways Board; McLoughlin v O’Brian; Dulieu v White

PRIMARY VICTIMS

Persons risked foreseeable physical injury. in the zone of danger. Just need to be reasonably foreseeable that you could cause physical injury. Can claim for PI that occurs as a result. → Page v Smith • Thin skull rule → Take the victim as you find them. Linked to remoteness. Misapplied to reach this result. Thin skull rule is about saying some level of this type of injury was foreseeable. • Generous reasoning that physical and psychiatric should not be considered differently, no different between the two.

Included claimants: • Zone of danger → Page v Smith; Donachie v CC of Greater Manchester Police; McLoughlin v Jones • Guilt ridden → W v Essex CC; Merthyr Tydfil County BC v C, Hunter v British Coal Corp These are persons who become the unwitting agents of another’s negligence.

Excluded claimants: • Rescuers → White v CC of South Yorkshire Police; Chadwick v British Railways Board; Greatorex v Greatorex • Fear of the future → CJD Litigation; Pleural Plaques Litigation Cases where the actual harm occurred and the knowledge that it occurred happened at different periods of time

Duty of care

1) Reasonable foreseeability

Page v Smith; Dulieu v White; A v Essex CC; Smith v Co-op Group Ltd Not reasonably foreseeability of psychiatric injury, it is reasonable foreseeability of any injury, even just physical injury.

2) Proximity

Young v Charles Church; McFarlane v EE Caledonia; Fagan v Goodman [15:40] If no sense of being at risk, not sufficiently proximate Can’t allow so many claimants, it would be unmanageable.

3) Policy CJD Litigation; White CC of South Yorkshire

• No need to show reasonable fortitude → Page v Smith • No requirement of shock [15:43] Courts not consistent about shock, not clarified CJD requirement for shock vs A v Essex no requirement of shock

SECONDARY VICTIMS

Alcock requirements: 1. A close tie of love and affection 2. Witness the event with own unaided senses 3. Proximity in space and time to the accident (immediate aftermath) + Reasonable fortitude + Shock

Pre-Alcock requirements: Reasonable fortitude and a sudden, horrifying event . Not hard and fast rule, courts trying to find their way around these, but they still apply.

Court presumes close tie of love and affection in parental relationships and spousal relationships. Courts will not presume for siblings → need to prove and produce evidence. Courts unlikely to recognise close tie with pets.

Witness events with own unaided senses, not third party reports Alcock was not secluded, event was broadcasted on TV so hundreds of thousands of people could see it. When we don’t have parameters of the BBC licence agreement, such as live broadcast, is there a difference?

Time limits the courts set are quite arbitrary “personally present in the immediate vicinity of the aftermath” 3 hours not sufficiently immediate Alcock 8-9 hours driving up to Sheffield to see family members in morgue courts says not immediate enough.

Must be “shock” – ‘the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind’

ELEVATED PRIMARY VICTIM

Where there is no immediate victim, C is ‘elevated’ to the state of primary victim. AB v Leeds Teaching Hops NHS Trust; Farrell v Avon HA

Establishing the duty: • Reasonable foreseeability of psychiatric injury occurring • Proximity • No requirement of reasonable fortitude

• Unclear whether shock is required

Similar to primary victim test, but there is no actual primary victim, no one suffers physical harm Leeds Teaching Hospital; Farrell

Here is must be psychiatric injury that was foreseeable. If it is foreseeable, doesn’t matter how fragile you are mentally Shorter emotionally fragile woman, court found PI for her In neither case did the court talk about shock

Monk v Harrington [2008] EWHC 1879; [2009] PIQR P3 – primary victim status but need for reasonable belief in responsibility for the other’s injuries

FEAR OF THE FUTURE CLAIMANTS

No temporal immediacy to the shock so not in the ‘zone of danger’ → therefore not a primary victim CJD Litigation; Pleural Plaques Litigation Establishing the duty: • Reasonable foreseeability for person of normal fortitude • Proximity: assumption of legal responsibility • No real public policy reasons not to find a duty of care here.

In these cases, there was some physical harm but knowledge was not discovered until many years later. Actual harm may or may not materialise in future.

Grieves v FT Everard & Sons [2008] HL said Page v Smith did not apply to cases of anxiety at possible future injury. Followed approach to employers’ liability established in Hatton v Sutherland. Threshold question: Was psychiatric injury reasonably foreseeable in the particular employee? The claim failed.

OTHER CLAIMANTS

Residual group of ‘catch-all’ claimants Use Caparo analysis to figure out if there is a duty of care + Hedley Byrne assumption of responsibility test. Departure from normal primary/secondary victim classification.

1. Inaccurate medical advice given which caused psychiatric injury 2. C was not in the zone of danger but psychiatric harm was reasonably foreseeable + assumption of responsibility

Cases where a duty of care was found: AB v Tameside and Glossop HA

Butchart v Home Office Attia v British Gas Swinney v CC of Northumbria Police

Stressed at work

A claim is permitted where employees are overworked to the point of mental illness.

Hatton v Sutherland Hale LJ set out guidance (16 principles) to help determine circumstances when an employer will be liable for psychiatric harm caused by stress at work e.g. (4) Test is the same regardless of employment (11) An employer who offers confidential counselling is unlikely to be in breach If employer wants to find out whether they should be liable for employees’ PI, look at the principles to determine liability.

Test: Must look at whether the particular employee was particularly vulnerable that you know of. Lady Hale put test. We presume they are good to cope with work unless information given to employer says otherwise. Dissent not convinced the employer had enough information to know to do something, would need to look for problems.

Johnstone v Bloomsbury HA; Walker v Northumberland CC

Reasonable foreseeability

Duty arises where either: 1. Particular employee was vulnerable to a stress induced illness 2. It was objectively foreseeable, to a reasonable employer, that psychiatric injury could result from a particular task But also need to carry out Caparo analysis.

Melville v Home Office compared to: Pratley v Surrey CC Yapp v FCO

Blurring the lines between primary and secondary victims

Primary victim: • Physical or psychiatric injury foreseeable • No Alcock requirements • No requirement of shock (possibly unless C is a Page v Smith type victim) • Thin skull rule, no need to show reasonable fortitude

Secondary victim: • Psychiatric injury foreseeable • Alcock requirements • Must show sudden shock

• Reasonable fortitude

Always better to be regarded as a primary victim, because can claim if there is either foreseeable physical or psychiatric harm. Primary victims don’t have to prove the close loving relationship etc.

Indecision from House of Lords Lord Slynn (W v Essex): The categorisation between primary/secondary victims was not “finally closed. It is a concept still to be developed in different factual situations.” Allowed case to succeed on the basis the parents were both primary and secondary victims Lower courts: Farrell v Merton; Sutton and Wandsworth HA; Tredget v Bexley

➢ Immediate aftermath

Requirement of immediate aftermath softened in medical negligence cases If failure to meet requirement is bought about by D’s own actions Farrell v Merton Sutton and Wandsworth HA → Witnessing the effects of the negligence Foggart v Chesterfield and North Derbyshire Royal Hospital Trust

➢ Direct perception

Receiving bad news AB v Tameside and Glossop HA; Allin v City and Hackney HA; Galli-Atkinson v Seghal Witnessing the effects or consequences of the negligence Foggart v Chesterfield (mistaken vasectomy); North Glamorgan NHS Trust v Walters; Galli- Atkinson v Seghal In some cases they lift the requirement, sometimes they don’t – courts inconsistent. Taylor v Somerset Ha; Ward v Leeds Teaching Hospital; Brock v Northampton General Hosp Do allow lifting the requirement of direct perception in: AB v Tameside and Glossop HA; Allin; Seghal; Walters; Taylor; Ward; Brock

➢ Shock (most problematic)

• Drawn out seamless shock Tredget and Tredget v Bexley HA; North Glamorgan NHS Trust v Walters; Galli-Atkinson v Seghal; compared to Taylor v Novo;Wild v Southend Univ Hospital • Witnessing a body Foggart v Chesterfield; compared to Taylor v Somerset; Tan v East London;

Series of cases all involve injury to children and claimants are their parents Walters → Drawn out scene of shock is sufficient Tredget → Realisation only came of time how awful the circumstances were, unrealistic to separate out the elements of shock Seghal → Continuous events of shock, seamless

But not allowed in: Taylor; Wild v Southend Artifical and arbitrary distinction by the court Foggart → Not shock in old fashioned sense but allowed Taylor → Seeing the body after the event does not constitute shock.

Reform

Three big law reports from England, Scotland and Australia about areas of reform Law Commission Report No 249

Primary victim: Reasonably foreseeability Not just reasonable foreseeability for the particular C but whether injury to a class of persons to who C was one, was foreseeable Smith v Co-op Group Ltd

Is the test too wide? White; Johnson v NEI Inter Combustion Ltd; Corr v IBC Vehicles Ltd

Secondary victim: • Close tie of love and affection: updated list of presumed relationships, including siblings and unmarried partners • Immediate aftermath: described as a “blunt instrument” • Direct perception: arbitrary and artificial distinctions, “ungenerous attitude” of the court against hearing bad news • Normal fortitude ‘stalks the current law’, English law says the test for foreseeability is unusually should be brought under Caparo test • Shock: blunt and crude control mechanism, reports suggest we abolish this requirement.

Presumption of mental health changed in recent years, out-dated idea of how much of the population have good ‘phlegm’.

Problem Question

Francis is a professional mountaineer. He decides to perform a demonstration of his skills for the Mountaineering Society of Great Britain on Highbury Hill. The event is to be broadcast live on television. Many members of the Mountaineering Society, including Conor and Eloise, assemble at Highbury Hill to watch as Francis performs an ascent.

However, in assembling his safety equipment, Francis carelessly fails to check the ropes on his harness, one of which is badly frayed. Early on in his ascent, Francis loses his footing and slips. The frayed rope breaks, and Francis tumbles to the bottom of the hill, hitting Eloise. Eloise had earlier sneaked under the spectators’ safety barrier to get a

better angle for taking photographs (she is live blogging the event on Instagram). Remarkably, Francis is unhurt, but Eloise falls over when struck by Francis and is badly hurt.

Conor was standing close by Eloise at the time of the accident but manages to escape unharmed. He blames himself for not warning Eloise to stay behind the safety barrier, and feels responsible for her injury. Conor has always suffered from insomnia and for several months after the accident he experiences particularly severe nightmares.

Eloise’s girlfriend of ten years, Judith, is following Eloise’s updates on Instagram and Twitter while enjoying a pint of beer at the local pub. When the updates suddenly cease, Judith asks the pub landlord to turn on the TV to see what has happened. She sees scenes of uproar and carnage in the aftermath of Francis’ fall. Panicking, Judith telephones Highbury Hospital to ask if Eloise has been admitted. Samantha, a doctor at the hospital, answers the call. In the confusion, Samantha mixes up the hospital records and tells Judith that Eloise is dead. In fact, Eloise is merely paralysed. Judith quits her job as a high- flying lawyer to become Eloise’s full-time carer. The stress of looking after Eloise begins to take a toll on Judith, and Judith is diagnosed with depression.

Advise Judith and Eloise as to their potential rights in tort.

Eloise We don’t know if she has any PI, she has suffered physical injury. Spectator cases, Summer or Blake v Galloway → go down duty of care analysis Francis can sue for his physical injury against the mountaineering society. Defences of contributory negligence.

Conor Threshold question, does this amount to a recognised psychiatric harm? Severe nightmares don’t count. Causation issue, was it made worse Page v Smith Secondary victim, accident case, so must go through test. Bystander no close tie of love and affection. Macfarlane v Caledonia huge fire in an oil rig, nearby rig witnessed this. Court said no, graphic and serious disaster but no claim.

Judith Primary victims don’t owe duty of care to secondary victims, so she can’t sue Eloise. Can sue Francis for hurting Eloise Could be more graphic than editable BBC in Alcock, Alcock leaves the point open Close tie of love and affection → not spouses, but is it akin to marriage? Live streaming? She suffers stress → elevated primary victim. Causation problem, maybe not reaction to the injury itself but only Generally, people aren’t liable for giving others bad news. Duty of care debatable. So can’t sue Dr Samantha.

3. Omissions

When (if ever) will X owe a duty of care to Y in respect of a negligent failure to act?

Lord Diplock: No duty to rescue “The very parable of the good Samaritan…illustrates, in the conduct of the priest and of the Levite who passed by on the other side, an omission which was likely to have, as its reasonable and probable consequence, damage to the health of the victim of the thieves but for which the priest and the Levite would have incurred no civil liability in English law.” Ex: - Blind person stepping in front of traffic (AP v Strathclyde Police) - Preoccupied person about to walk off a cliff (Yuen Kun-Yeu v AG of HK) - Someone drowning in the sea while you are lying on the beach (Horlsey v MacLaren) - Child drowning in shallow water (R v Evan) - Alcoholic drinking themselves to death and you know they have problem (Barrett v MOD)

Policy Reasons

• Why burden me? Lord Hoffman in Stovin v Wise: “It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties… or natural causes.” Concern about placing an undue burden on people. We have individual liberty to behave and act as we want to. Duty of care for omissions infringes on this liberty. Rights-based analysis does not impose duty of care for omissions → If there was a duty to rescue, what is the corresponding right? No right to be rescued. Feminist legal theory perspective: individuality is a male norm, feminist more emphasis on collective society. Individualistic approach to society is not the only way however, can contrast with collective approach. This argument doesn’t make sense for councils → burdening one individual is different than burdening a council which has responsibility.

• Why pick on me? Why should I be picked out of a group of individuals to take on the burden and act, while taking on risk and potential legal liability?

• Value of altruistic acts Turning a moral act into legal duty diminishes the moral value of that act. Even if you have a legal duty to rescue, doesn’t definitely improve rates of rescue. Epstein: Hard to set out in a principled manner. Drawing the limits of duty to rescue are impossible. Heroism Act limits the duty of those who did heroic acts.

GENERAL RULE: No duty of care for ‘pure’ or ‘mere’ omissions.

Stovin v Wise [1996] AC 923

Norfolk County Council knew there was a bank of earth that restricted visibility and required removal, but had neglected to remove it. Car and motorbike crash as the result of poor visibility of oncoming traffic. No duty of care.

Smith v. Littlewoods Corporation [1987] AC 241

Someone broke into a disused cinema owned by L and started a fire and the cinema burnt down damaging a neighbouring cafe, billiards saloon and church. No duty of care Also involved third party + fire But no duty of care on policy ground → it would need a 24 hour guard, it would be far too onerous.

Topps v London Country Bus [1993] 1 WLR 976

Bus left with keys in ignition LCB left an unlocked minibus in a layby overnight for handover, unlocked and with the keys in the ignition but only for a small amount of time. Bus left unattended for 9 hours because the next driver was out sick. Thieves stole the bus, used for joyride, and ran over and killed a cyclist Mrs Topps. Drivers lost, so Mr Topps went after closest person, which was the bus company who owned the vehicle. Court found no duty of care.

These circumstances may have been transformed by the Caparo test.

ABC v St George's’ Healthcare NHS [2017] EWCA Civ 336

Huntington disease genetic disorder inherited by pregnant daughter from father. Liability of doctor to inform daughter she might have inherited the genetic disorder? Pure omission, no duty to inform of this blood disease.

The claim is arguable in principle: Novel duty of care – cases of genetics Role of regulation in the court’s decision (looked at medical advice, courts more inclined to extend duty of care here) Role of statute - ECHR

Difference between act vs omission

If you are doing an act and failed to act properly (i.e. didn’t complete), it is not an omission. Ex: Driving on absentmindedly and putting on makeup, fail to stop and drive into car in front of you. Ex: Park car and forget to put handbrake on, car rolls and kills someone → failed the act to park the car?

Wattleworth v Goodwood Road Racing Ltd [2004]

Race track inspected by FIA inspector. Saw installation of a bank to cancel noise which might be dangerous. Court said failure in the act of inspecting. Not omission of not doing something about the bank.

EXCEPTIONS

Exceptions to the general rules: - If a duty of care already exists, pre-existing relationship e.g. parent and child. - A certain level of control in Dorset Yacht, had control and then let them out of your control. - If A created the risk, e.g. Yetkin. - Assumption of responsibility, maybe is B was blind and A said “I will keep you safe” reassured B, or “I’ll tell you where to go”

1. Occupier owes positive duty to protect lawful visitors

2. D creates an inherent danger on or near a roadway

Haynes v Harwood

Coach driver didn’t bother to tether horses, left them outside. Local naughty children threw stones at the horses. Crashed into PC Harwood who was attempting to save a woman and child from the horses. Duty of care for omission is established. Horses are inherently dangerous → have a mind of their own, unlike cars.

3. D knows, or ought to have known, that a third party has created a hazard on D’s property that could harm C’s property

Goldman v Hargrave [1967] 1 AC 645

Occupation of land Mr Goldman owns large piece of land, lightning strike made 100-foot tree go on fire. Next day called contractor to do something about it but did no more than call. Later fire went onto neighbour’s land. Court found there was a duty of care. It was simple for Goldman to put out the fire and stop it spreading to his neighbour’s land.

4. D assumes responsibility to protect C’s property by contract or by some closely proximate relationship

Stansbie v Troman

Troman engaged to do decorating Stansbie leaves him in the house. He needed more wallpaper so left and didn’t put latch on house. Thief came in and stole things including valuable bracelet. Court found duty of care for failure to lock the door because of existing contractual duty.

5. D has duty to control/supervise/detain a third party

Barrett v Ministry of Defence [1995] 1 WLR 1217

Sailor very drunk, looked after by comrades but not well. Died from choking on vomit. Did not owe duty to stop him getting drunk but assumed responsibility from when they started taking care of him. There might be liability if you assume responsibility for someone’s welfare.

Problem Questions

Reckless leaves his car door unlocked whilst he goes to a betting shop next to the Happy Valley housing estate. The estate is notorious for car theft. Someone steals the car and runs over Sarah whilst driving it at high speed. The driver is never caught. Advise Reckless.

In Topp no duty of care because the area was not known to have thieves. More foreseeable here, but doesn’t affect proximity. Is there any link between Reckless and Sarah? Not near each other, Reckless did not have her in his contemplation.

Haynes v Harwood throwing stones at horses Duty of care owed but horses generally viewed as dangerous, need to take care of your own animals.

Tolly is the landlord of a public house. Lush, a customer, drinks large quantities of beer one night. On leaving the pub, Lush: (a) staggers into the road and causes a car accident, in which Iris, a driver, is injured; (b) gets into an argument with a pedestrian, John, and punches him; (c) falls into a river and drowns. Does Tolly owe a duty of care in any of these situations?

Where is the road? Lewis nursery case. But about a child. Identify relevant case, then look at what is different and whether that is legally relevant. Foreseeable and proximity seeing how much they to drink, but not good policy.

Barrett v MOD There is duty of care because they started looking after him, assumption of responsibility

4. Third Parties

When (if ever) will X owe a duty of care to Y to take care that third parties not cause Y harm?

What makes these cases difficult: • This is about finding the money. The actual wrongdoers are often people who do not have deep pockets. Often D is a public authority. Because we are dealing with public funds, courts anxious about allowing claimants to make claims out of the public pocket. • Causation difficulties Sometimes the damage can happen years later. Difficult to draw limits on duty and define the class of claimants.

Establishing the duty

Caparo analysis: 1. Is it reasonably foreseeable that C would suffer damage if D failed to control/supervise TP? 2. Is there sufficient proximity between C and D? 3. Is it fair, just and reasonable to impose a duty of care on D.

REASONABLE FORESEEABILITY

It must be reasonably foreseeable that the third party did what they did, not totally random or out of character. This hurdle is generally easy to overcome. However, not enough that it is reasonably foreseeable, need to fulfil other criteria as well.

Mitchell v Glasgow City Council [2009] UKHL 11

Neighbours in local authority house M killed by violent neighbour D, whom he had been in a long running dispute with, after council notified D that he was to be evicted following numerous complaints about his behaviour. No duty of care for council to warn that the other angry neighbour was on his way. Lord Hope: “The law does not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability.” Lord Brown: ‘The contention that the Council was under a positive duty to warn [Mr Mitchell], and that the Council is liable for [Mr Mitchell’s] death because of a mere omission to do so, appears to me plainly unsustainable.’

PROXIMITY

Relevant factors:

1. Degree of control

What degree of control can D reasonably exercise over TP’s actions? If there is more control in a relationship, courts more likely to find relationship sufficiently proximate.

Home Office v Dorset Yacht [1970] AC 1004

Prison officers failed to adequately supervise seven borstal boys in their custody. The juvenile delinquents try to escape island in the middle of the night using yachts left in the harbour which supervisor was asleep. They commandeered a boat and crashed it in the marina, causing a lot of expensive damage. The children have no money, yacht owners went after Home Office. 1. Reasonably foreseeable that boys would try to escape on boat. 2. Control: the supervisors were in custodial relationship with boys, so liable for anything they do. Duty of care established.

Palmer v Tees HA Mr Armstrong was a patient released from a mental facility, having previously disclosed to psychiatrist that he had sexual feelings towards children. Abducted, assaulted and killed a 4 year old neighbour Miss Palmer. Sued housing authority for not warning her about the neighbour. Proximity + policy issue → TP had been out of custody of D for over year before he committed the murder. No duty of care.

2. Capacity to warn C

Was D able to warn C of the TP?

Van Colle v CC of Hertfordshire Police

Prosecution witness had had several threats and notified police, murdered prior to trial of TP. Can’t identify him from others. Sufficiently proximate, but gets subsumed in the policy hurdle. No duty of care.

Smith v CC of Sussex Police

Mr Smith was attacked by former lover, frequently warned police that threats had been made against him. Police were informed but failed to respond to the report. Sufficiently proximate relationship because police had even interviewed Smith. Duty of care established.

3. Knowledge of TP’s propensity

If the local authority had specific knowledge, the court is more likely to find a proximate relationship. Hill → No knowledge who the Yorkshire Ripper was, so no proximity

Selwood v Durham CC

Mr Graham Burton made numerous specific threats against C, the senior social worker for his daughter, about attending meetings. Made it abundantly clear to doctors and others involved in his case that he did not like her and would harm her. Assumption of responsibility → There was protocol in this type of situation to make provisions to protect their staff, so courts more willing to allow. Duty of care established.

4. Temporal and geographic proximity

Webster v Ridgeway Foundation School

C arranged to have a fight with another student after school day on the school tennis courts. Webster didn’t know his opponent brought a lot of spectators. Other people joined in the fight and a non-pupil, WF, attacked C with a claw hammer causing serious brain damage. Duty of care established. Still under guardianship of the school. Ordinary knowledge you need to protect your students inside and outside of school in and around home time (close to school hours). It’s part of the school’s responsibility to ensure that pupils were safe within a reasonable time period after school on the premises.

Already existed in Bradford-Smart v West Sussex CC a duty of care for people who have been bullied by other people. Courts have previously found a duty of care for internal bullying.

In Webster, the person who injured him was outside of the school’s control, came onto school premises without permission + after school hours. Court willing to extend the duty of care on the basis of the Caparo analysis and a double check that the court have found a duty of care previously in similar situations → not too much of a leap of the imagination to create a new duty of care for those from outside the school provided it was on school premises within a reasonable timeframe after school hours.

Claim still failed on breach and causation.

5. Relational proximity

Was there some relationship of neighbourliness? E.g. Classmates, neighbours

Merthyr Tydfil County BC v C

Mother reported abuse of her children by a neighbour’s child. Assumed that council did something, allowed children out to play again half a year later. Council didn’t deal with it. Duty of care established.

6. Knowledge of C’s identity

Knowledge of C is not sufficient to establish proximity, even if D knew that there was some risk from the third party.

Michael v CC of South Wales

Ms Michael phones up police. D knew Miss Michael was at risk Police call handler failed to properly direct phone call and the delay in the police responding lead to the death of Ms. Michael. No duty of care.

Osman v Ferguson

Teacher formed an unhealthy attachment to a student. Teacher eventually followed student and father home, shooting both and killing the father. Police had been called and told about the harassment. No duty of care.

However, knowledge of C is not necessary to establish proximity. We can still establish proximity as long as C is in an identifiable class who is ‘at special risk’. Ex: Dorset Yacht → Yacht owners party of a class of people more likely to be at risk from TP Selwood → Social worker also in special class

Not sufficient that you have the characteristics that make you part of the class → Must have something more than general characteristics to get into the special risk class.

Hill v CC West Yorkshire Police

Mother of the final victim of the Yorkshire Ripper on grounds that the police had been negligent in their detection of Peter Sutcliffe. A number of failures by police. No duty of care. She was not a specifically identifiable victim even though she was in the bracket. Too wide a class.

Exception: Class of road users will all be deemed sufficiently proximate.

Carmarthenshire CC v Lewis (1955)

3 year old child wandered our of nursery and into the road, C was driving a lorry and swerved to avoid the child. Lorry driver dies. Duty of care established. The nursery ought have foreseen that a child escaping onto the road would lead to road user taking evasive action.

POLICY GROUNDS

• Omission Often these cases are omissions, as a matter of principle/policy, the courts don’t like to get people on omissions. UK system set up on individuality. Diminutive language → ‘mere’ omissions

• Conflict of duties Concern about defensive practices → Individual private duty prevents police from carrying out duties properly. Lord Brown in Van Colle & Smith: ‘The police are inevitably faced in these cases with a conflict of interest between the person threatened and the maker of the threat. If the police would be liable in damages to the former for not taking sufficiently strong action but not to the latter for acting too strongly, the police, subconsciously or not, would be inclined to err on the side of over-reaction. I would regard this precisely as inducing in them a detrimentally defensive frame of mind.’

• Size of the class ‘Floodgates’ argument → Potentially unlimited class of people, need to limit potential number of claimants. Cardozo CJ: ‘Liability in an indeterminate amount for an indeterminate time to an indeterminate class.’ There’s no way for the public body (or whoever is being found liable for the third party) to limit the scope/size of the class because it is not up to D about who gets impacted, it is the third party whom D has very little control over when they do the thing. To hold D liable would be unjust → policy considerations require it to be fair, just and reasonable.

In some of these cases involving third parties, normally third parties are undertaking criminal activity or are criminals in some way. Very difficult for D to limit the activities of the third party, particularly when TP is wilfully conducting themselves in a criminal manner. Ex: Hill → Yorkshire Ripper, no real way of limiting on the part of the police other than catching the culprit.

K v Secretary of State for the Home Department

Man granted indefinite leave to remain, went on spree of assault and rape, just because the secretary of state has granted the leave doesn’t follow they are liable for whatever activities go on after that. Difficult to limit the field of impact of somebody’s criminality. David Plunkett was Home Secretary at the time. Decided to let RM out. RM granted limited leave to remain, arrested and imprisoned for sexual misconduct, after release he was arrested and sentence for burglary, detained under Immigration Act. But released due to resource issues. Went on to rape C and another person and was arrested. No duty of care.

• Other means of compensation The availability of alternative compensation through the fund would go to suggesting there should be no duty of care and no negligence claim. However, the existence of the fund is not a definitive reason that will stop a claim where every other part of the negligence requirements are fulfilled → It just goes to the fact that it is less likely a duty will arise.

In Webster v Ridgeway Foundation School, the court said the Criminal Injuries Compensation Fund can be an alternative way of addressing the wrong and finding compensation for the victim. This is the better pot of money for the compensation to come out of when dealing with criminal activity.

• D is dealing with complex social problems. Resource diversion → placing undue burdensome duty on public authority to always have to think twice makes carrying out public services even more difficult. In these cases, the court recognises that the bodies involved are doing highly complex, difficult but important social functions. To impose an additional tort duty of care is a burden too far and may put off people from engaging in this kind of work. The courts are not just thinking about the individual factual situation before them, recognising that if they impose a duty in this particular case it may have a domino effect on other areas of activity of these local authorities. Careful about whether they impose a duty.

However, we can see a difference of approach when finding a duty towards workers (those who work in these difficult social functions) vs towards those who benefit from these various social functions. Ex: Selwood → “It is important that social workers that undertake difficult and sometimes dangerous work should be protected.”

5. Public Authorities

Because we have vicarious liability operating in this area, unlikely for there a direct liability claim to be successful.

Public authority = anything with a public function - Established by a statutory instrument - Carrying out statutory duties, required to do by law - Have statutory powers, i.e. discretion to do something according to statute - Liable to judicial review, have to adhere to ECHR

Trickier to impose a duty of care on public bodies than private persons: • Policy reasons → public pocket for private reasons Car accident would have the same liability whether driver was PA or private person. • Acts vs omissions → “should have done something for me” not convincing Private omissions cases already difficult to establish liability, PA omissions have additional layer of reasoning.

THRESHOLD REQUIREMENTS

Hurdles you have to get over to have claim heard by court → issue of justiciability Is this an appropriate issue for a court to be deciding on? - East Sussex principle: statutory duty does not give rise to common law duty - Policy vs operational decision - Can’t be a pure omission

1. Statutory duty doesn’t automatically create a duty of care

Just because there is a statutory duty/power and some sort of statutory instrument that requires the body to act in a particular way, doesn’t automatically mean there is a concurrent private law common law duty. Have to establish private law duty separately.

A duty of care does not arise automatically out of a statutory duty or power that the public authority exercised, or failed to exercise, for the claimant’s benefit.

East Suffolk Rivers Catchment Board v Kent

Case involved serious breaches to sea wall on East Suffolk coastline. ES had a statutory power (discretion) to repair the sea wall. They did so very incompetently, took 164 days to fix the damage when it could have been dealt with in 14 days. Mr Kent’s farmland on the coastline was saturated with salt water, making it unusable. Court didn’t find duty of care even though the way the PA operated was entirely unreasonable and fundamentally flawed.

Broad duty of care to public doesn’t give rise to a particular tortious duty → public vs private law distinction. Public law doesn’t provide compensation.

When we have exceptions to omissions, there is always something more which makes it liable in tort. Statute and public law tests such as irrationality will never be this something more. Turner J in Furnell v Flaherty: “It should now be taken as settled law that no liability will arise in negligence out of a mere failure, without more, by a public body to confer a benefit by its omission to fulfil a public statutory duty or to exercise a statutory power, however irrational such a failure may turn out to have been.”

Lord Hoffman in Stovin v Wise: a ‘statutory may’ does not give rise to a ‘common law ought’

When asking if statute creates a duty of care, depends on whether the statute intended to give a private law duty → question of construction/interpretation. Will not find DoC where it is not intended, except in rare circumstances.

Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057

Poor visibility on the road, failure to improve a road. Mrs Gorringe driving at 50mph as per speed limit Going over blind summit, at crest of the hill she spots a bus. Swerves to avoid the bus, wheels lock and slides into the bus. Crashes and suffers brain damage. No warning signs about blind summit and narrowing of the road, no contributory negligence on her part. No duty of care.

X v Bedfordshire CC Prolonged child abuse case, various authorities did nothing about it even though they had warnings. Statutory duty not enough on its own to give rise to common law DoC.

Jain v Trent Strategic HA [2009] UKHL 4

Health authority removed various patients from care home negligently Care home suffered severe economic loss, main source of income was patients No common law DoC

Neil Martin v HMRC HMRC failed to issue a particular certificate requested by C DoC was not found on basis of the statutory DoC, Mr Martin must establish something else to get DoC

2. Policy vs operational distinction

Policy decision = way of allocating resources Operational decision = how that is carried out once the policy is made

A pure policy decision made on the part of the local authority is non-justiciable, not capable of founding a claim on it. Barrett v Enfield LBC → When you make a policy decision, there’s a balancing of interests (budget, needs of community, social aims, risks of particular actions) so courts won’t get involved. Dorset Yachts → Operational decision about (failed) supervision of the prisoners is susceptible to the courts getting involved.

Laws LJ in Conor v Surrey: Policy decision to close the school vs operational decision to put children on a coach to go on a school trip

Smith v Ministry of Defence [2013] UKSC 41

Highlights distinction between operational and policy decisions retained in the law. Soldiers in unarmoured trucks. C suing MoD saying they should have provided more. Policy/non-justicable issue about budget spending and going to war. Claim brought by a number of family members who lost loved ones in Iraq, said MOD was negligent in the way it conducted operations in Iraq. Combat immunity, decisions in relation to combat cannot be assessed by the court Here courts make distinction between operational (on the ground) decisions and policy decisions (high level, e.g. budget) Litmus test for deciding if something is policy (resource allocation) or operational. Lord Mance, dissenting: Majority is suggesting a blanket immunity for PA. On fair just and reasonable analysis, should move away from Hill.

3. Pure omissions

When it comes to pure omissions, the courts tend not to find a duty of care. This prohibition operates in the case of public authorities as well as private individuals, even though the justifications for private individuals as to why no liability for omissions doesn’t make sense for PA.

ESTABLISHING THE DUTY

1. Did they make the situation worse? Not about exercising their duty, did something above and beyond their duty 2. Assumption of responsibility test → some sort of assumption of responsibility or impute/ascribe assumption 3. If policy is in favour of establishing a duty of care → carry out Caparo analysis of the situation and policy pushes you in favour of establishing a duty of care 4. Something in addition to the statutory duty

European Convention of Human Rights has helped find DoC where there previously may not have been. Not an immunity from lawsuits for PA, it’s not a bar/shield → The common law says there is no duty unless you establish it, not that there is an existing duty being blocked.

1. Making it worse

Capital and Counties Plc v Hampshire CC [1997] QB 1004

Involved three different claims. • Mr Monroe v London Fire Brigade Fire service failed to check neighbouring property, fire not fully put out and destroyed his property.

• Church of Jesus Christ v West Yorkshire Fire Brigade Not enough water to put out the fire

• Capital & Counties Big warehouse, fire service come in and switch off the sprinklers. Fire exacerbated and spread.

Fire services have a broad duty owed to the public at large to prevent the spread of fire. Sometimes there might be conflict between attending one fire or another one, must make decision. Shouldn’t be liable for the fires they can’t attend because not enough resources. Stuart-Smith gives example of Great London Fire, had to blow up houses to stop fire spreading. Duty to public at large doesn’t mean duty to particular person. Incompetent not enough, but only when they do something in addition to their duty that made the situation much worse → turn off the sprinklers.

Yetkin v London Borough of Newham [2010] EWCA Civ 776

Involves A11 big dual carriageway Decided to put shrubs in the middle (central reservation) to make things look nicer and improve air quality, entitled to do so under statutory powers. Failed to property trim the shrubbery, so Mrs Yetkin could not see the incoming car when she crosses the road. Distinguished from Gorringe, council had done something positive act, then failed to maintain it after they installed it → creation of the risk.

2. Assuming responsibility

Lord Hoffman said extra-judicially at the Bar Council law reform lecture:

A statutory duty is ‘simply irrelevant to whether a common law duty is owed’. The statutory duty does not give rise to duty of care, you have to do something in order to establish duty of care. Public body has to assume responsibility in some way.

Emergency service cases

Michael v Chief Constable of South Wales Police [2015] UKSC 2

About to be attacked by former partner. Call is not properly routed, took much longer than they would have done had they realised the seriousness of her call. 3:2 decision, two powerful dissents from Lord Kerr and Lady Hale Lord Toulson: Shouldn’t limit duties of care to society as a whole, burdensome on their budget and defensive practices. Also, proximity issue.

Lord Kerr, dissenting: Sufficient proximity in certain circumstances, e.g. exchange of information. No immunity so not that there can never be a duty of care, generated DoC in circumstances of this case. Also, in this case the victim is identified. In these situations there can be proximity. Critical about speculation by majority of defensive practices and direct funding → absence of empirical evidence. Every wrong deserves a remedy.

Police get off lightly, ambulance and fire service find themselves in more difficulty. Police have different task → dealing with a bigger problem of crime, balance various considerations in a way the other services don’t have to, particular difficulties involved with running a police service.

Kent v Griffiths [2001] QB 36

Mrs Kent suffering from bad asthma attach, husband and doctor both there. Called ambulance repeatedly to come and bring her to hospital. Ambulance failed to turn up within sufficient amount of time. In every ambulance there was a tracker, disappeared in this case which was dodgy. C suffered serious brain damage as result of not being able to breathe properly. Repeated calls made, and repeated reassurances that the ambulance was on its way to come. Because they made these promises, not possible to make alternative arrangements. Possibility that Mr Kent’s husband put her in his own car → would have taken her to hospital himself had he not been waiting for the ambulance service. Lord Woolf says this is different from Capital & Counties because made specific promises on the phone that they would come on time. Assumption of responsibility + resulting duty of care established.

Ambulance more individualistic/personal than fire brigade and police, dealing with one victim at a time. Don’t have broad duty of care like police. If they were called to mass injury of individuals more understandable. Health authorities are found to have a duty of care when there has been an assumption of responsibility. General principle → negligent omissions of nurse/GP/healthcare professional are capable of constituting breach of duty of care because of the way the health authority works. Generally by bringing into care = assuming responsibility, there can be direct responsibility.

Gold v Essex CC Negligent radiographer Take on care of a patient = have a common law duty of care

Barnet v Chelsea Hospital Four men were poisoned, sought treatment at hospital but were turned away. Hospital failed on causation, but duty of care as soon as you enter ER.

Neil Martin Tax deduction scheme Application for certificate, Mr Martin puts in the paperwork. HMRC goes ahead without his authority and completes registration card. Because they had done something, acted outside of authority and assumed responsibility, there is a duty of care found. Something being done in addition to the statutory duty.

Furnell v Flaherty Ecoli outbreak at petting zoo. HA aware of this but decided not to tell the farm so it kept on operating. Many people got sick from visit to the farm. No assumption of responsibility by HA so no duty of care.

Cases with no assumption of responsibility:

Road safety cases Stovin and Gorringe No assumption of responsibility to road users, responsibility arises out of statutory duty of care.

Land protection case East Suffolk and the flood defences, statutory power to act doesn’t mean assumption of responsibility to individual landowners along the coastline.

O’Rourke v Camden LBC Homelessness case Camden LBC given power by Parliament to provide shelter for homeless people Failed to provide shelter to Mr O’Rourke Brought claim, owe duty of care to provide shelter? No act giving rise to assumption of responsibility, so no duty of care.

X (minors) v Bedfordshire County Council [1995] 2 AC 633

Conjoined appeal of 5 cases, 2 involve child abuse and 3 involve educational assessments Title case 5 children severely maltreated by parents, clearly seen by teachers, nurses, neighbours etc. who told authorities. Knew the situation full well but failed to do something about it.

M v Newham Failed to properly investigate child abuse, police acted without consulting mother and made error that took 1 year to rectify. Courts did not establish duty of care. • Interdisciplinary issue, too difficult to put DoC on the council because so many different moving pieces involved • Complexity involved with at-risk children, additional private law duty result in defensive practices • There are other remedies than tort e.g. criminal • Incremental development • Fear of ‘sleep actions’, statute of limitations don’t apply for children, lots of grown children can bring claims later on Lord Bingham, dissenting: “I see the very considerable force in some of these points but they do not in the end persuade me that it would be just and reasonable on these grounds… Argues that fear of defensive practices are not substantiated → DoC would make them maintain standards when dealing with children

Barrett v Enfield London Borough Council [2001] 2 AC 550

Child removed from mother because got lots of injuries, shipped around different foster homes, little contact with mother and separated from half sister Suffered from psychiatric and physical injury Court distinguishes from Bedfordshire Council acting in loco parentis, got involved and have direct relationship with child so there is a duty of care. Also gave policy considerations: • General principle in law that you can’t see your parents if they did a bad job. Council acting as parents • Only have to deal with relationship between local authority and child • Issue not so delicate so not so worried about fallout • Reasonable that you care appropriately if they are in your care, defensive practices not an issue • Statutory procedure • Won’t open the floodgates, only one individual here

JD v East Berkshire 3 conjoined appeals about mistaken allegations JD: Mother had child removed incorrectly

RK v MAK: Child suffered from bruising of health condition, local authorities took child from parent’s custody, took a while to realise that it was a disorder and not child abuse. Child old enough to suffer from psychiatric injury. RK v AK: Brittle bone disease, fractures of child mistaken for abuse Focusing first on children now. Duty of care established by CA decision. “It will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse Ignoring precedent from HL before • Unlikely to encourage defensive practices • Cases must be judged on individual facts • Discount the idea of floodgates • The wrongs should be remedied. First policy claim, primary consideration is that these wrongs need to be remedied. • No other redress or compensation available in these cases

Wrongfully accused parents

Courts far less sympathetic. B v AG → father accused of abusing daughter, no duty of care. Can’t have parallel duty to parents and children to investigate child abuse. Brittle bones case → no duty to parents (found for parents under HRA) JD → Son suspected of victim of a Munchausens by Proxy disorder. Mother was nurse, people though she was making him have the allergic reactions. Court does not find duty of care to parents. • No DoC to parents because relationship between parents and local authority have always been relationship of irreparable differences, antagonistic relationship when investigating child abuse cases. Additional duty too difficult • Open up council to vexatious claims and increase burdens on local authorities • This is a necessary price to address a serious social problem • Priority is the protection of children

Education cases

Broadly speaking, there is a duty of care for educational needs assessment.

E v Dorset CC Failure to make assessment as to appropriate arrangement for child with dyslexia. Failed dyslexic assessment in and of itself not sufficient for DoC. Was DoC because went a step further and messed up on their promise of providing psychological services.

Christmas v Hampshire Failure to pick up of severe and specific learning difficulties Head teacher picked up on it, referred to specialist services. Pre-existing common law duty between pupils and teachers → DoC rested on this. DoC comes from the teacher-pupil relationship breached, existed prior to the assessment.

Phelps v Hillingdon London Borough Council [2000] 3 WLR 776

Educational assessment case, failure to pick up on specific learning difficulty dyslexia DoC found because requisite proximity existed No teacher-pupil relationship, but there was relationship with psychologist Particular educational psychologist was appointed by the council Was there sufficient proximity between psychologist and child? Court mixes up assessment of proximity with assumption of responsibility. Courts say that assuming responsibility = sufficient proximity By appointing this psychologist, not a policy decision but an operational decision appointing an incompetent psychologist.

Carty v Croydon LBC DoC for failure to assess special educational needs

ROLE OF THE HRA

Massive sea change in 1990s → Human Rights Act came in and changed subtly the way courts deal with these cases, big influence on these cases.

Lord Phillips in JD at [83]-[84]: Does not mean DoC has been expanded widely, only for children in care. Unlikely to extend further.

X v Hounslow LBC Two individuals X and Y lived in house under care of local authority. Youths assaulted them. • Legal tenancy was not enough to create proximity • Council did not assume responsibility or create the danger • There is a difference between children and vulnerable adults → statutory duty under Children Act 1989

Article 3: Freedom from torture ECHR found duty of care for these claimants

Article 8: Private life Video tape case → would have been very simply remedied, interference with Art 8 so found to be in breach of their DoC Brittle bones case → ECHR accepts complexity of the cases removing children from care, didn’t find DoC from Art 8 but did from Art 13 right to effective remedy. Removed from parents as a result of negligent acts, need a remedy here so found one from Art 13.

Article 6 Osman → Son stalked by teacher, who shoots him and his father Found DoC Barrett → said to ECtHR it was not a blanket immunity, gave lesson to ECHR who apologised for misunderstanding

LAW REFORM

Law Commission, Administrative Redress: Public Bodies and the Citizen (Consultation Paper no 187, 2008)

Law Commission suggestions were a failure, barred by Parliament, aka the government. We should distinguish between ‘truly public’ decisions that are complex, should be remedied by special statutory scheme. Anything else can be determined by tort law. Law Commission said the state of the law was untenable, suggested appropriate reforms but government doesn’t want to be liable. Sedley LJ in Home Office v Mohammed said this was “sent to the seabed by central government”. Described government not wanting liability imposed as a debacle.

Essay Question

‘The courts in general … ought to think very carefully before resorting to public policy considerations which will defeat a claim that otherwise looks like a perfectly good cause of action.’ In light of this statement, critically evaluate the current approach to the circumstances in which a duty of care may be owed by public authorities.

Why are there differences between dealing with PA and private persons? Lord Kerr dissent in Michael says no evidence that these considerations are true.

Hill → Osman (moving away from Hill) → Brooks (goes back to immunity) Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 Public policy considerations are brought into the judgments but not influential.

Identify contentious terms and what you understand them as. Organise essay around substantive points. Take a few public policy considerations and consider them in turn, e.g. justiciability threshold, child abuse cases

• Defensive practices • Policy, justiciable • Proximity questioning cause of action’s validity → Proximity issue removes “perfectly good” cause of action

Cases: Psychiatric Illness

McCafferty v Scotts Caravans Carbon monoxide poisoning, mental health issues linked with injury so courts allowed Consequential psychiatric injury

Johnson v Le Roux Fourie Plastic surgery went dreadfully wrong, courts allowed for psychiatric injury Consequential psychiatric injury

Bourhill v Young [1943] AC 92 Pre-Alcock requirement → Reasonable fortitude or ‘customary phlegm’ Pregnant fishwoman witnesses motorcycle accident + decapitation So disturbing she miscarries and suffers psychiatric injury Reasonable person would not have had miscarriage

McLoughlin v O’Brian [1983] AC 410 Mother did not see the disaster but saw aftermath and her daughter dying Sufficiently horrific event Depravation of liberty constitutes physical harm

Dulieu v White Landlady miscarried when she was shot at She was in the zone of danger, allowed to claim

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 Hillsborough stadium tragedy Plaintiffs suffered PTSD, various relationships and experiences Dispute whether the defendants owed a duty of care HL laid down specific proximity requirements that must be satisfied in cases where psychiatric illness results from the experience of witnessing a traumatic event → proximity of relationship, time + space, and perception. Claimants were parents, spouses, siblings, some witnessing on TV and some in the stadium themselves. No one was successful in their claim. Can recover for fearing other people’s safety, but under strict criteria Primary victim = ‘involved either mediate or immediately, as a participant’

Page v Smith [1996] 1 AC 155 Primary claimants must have been in ‘zone of danger’ Car accident Disease ME causing exhaustion This returned because of the accident Reasonable foreseeability: Foreseeable that car accident would cause physical injury Primary victim need not (always) prove foreseeability of psychiatric injury

White and Others v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1 Primary victim = exposed to danger and risk of physical injury Police sued their employer for PTSD in the aftermath of the Hillsborough stadium disaster. Chief Constable admitted disaster was caused by negligence, for which he was vicariously responsible. Accepted liability towards other officers more directly concerned with the events. HL said no distinctive duty is owed to a person simply by virtue of his employment relationship with the defendant or his status as a rescuer. Plaintiffs were not ‘personally threatened’ or in a relationship of love and affection with any of the deceased. Took out original Alcock definition including rescuers Alcock limited which family members could claim So should not allow firefighters to claim either. Not a type of recognisable psychiatric injury Greater class of people might recover Limited number of people can be injured in car accident, this is foreseeable. What about bystanders and people who hear from afar? PI might be prolonged by the litigation process Momentary lapse of concentration resulting in too many people allowed to sue them, disproportionate. Rescuers can’t be treated differently from people who can run away because it would allow others to claim. Rescuers can’t claim because not even families can claim. Explicitly addressed distributive justice concerns.

W v Essex Primary victim = ‘an unwilling participant in the event’ Involved child abuse Foster child abused the family’s own children Placed someone else in injury, guilt caused them psychiatric injury Was allowed, idea of the guilt-ridden claimant Allowed case to succeed on the basis the parents were both primary and secondary victims

Donachie v CC of Greater Manchester Police Primary victim Had to replace tags on gang member’s car Pre-existing hypertension was increased and he suffered psychiatric injury Risk of being hurt by gang members = in zone of danger

Merthyr Tydfil Guilt-ridden claimant Neighbour’s child sexually abused claimant’s children Reported to local authorities, but they did nothing Mother felt guilty for exposing her children to harm, allowed to claim for psychiatric injury

Hunter v British Coal [1998] 2 All ER 97 Proximity requirement

Water hydrant exploded when C backed into it, killed co-worker. Courts didn’t deem it was sufficient proximity Guilt-ridden claimant category seems to be limited to child abuse victims.

Greatorex v Greatorex [2000] 1 WLR 1970 Primary victim’s liability Rescuers are not primary victims Father came upon son’s accident, not allowed to claim for PI

Chadwick v British Railways Board [1967] 1 WLR 912 Helped pull victims out of train crash Suffered depression, allowed to claim Because he was in the zone of danger, deemed to be primary victim, even though he was a rescuer also.

CJD Litigation Fear of the future claimants are not primary victims Infected blood not known about until 20 years later Moreland J said it was reasonably foreseeable that regardless of your baseline personality you would suffer some PI from idea of the possibility of CJD.

Pleural Plaques Litigation Fear of the future claimants are not primary victims asperox not known about until years later

A v Essex CC Requirement of reasonable foreseeability of any injury might be problematic. Parents fostered child who turned out to be very violent and cause them mental harm. Risk of physical harm was there so allowed to make claim. Smith v Co-op Group Ltd Smith on paper round, cycles onto middle of the junction, lorry driver severely injures 13 year old boy. Driver got serious PI, foreseeable the boy could cause injury if not look both ways and cycle out.

Young v Charles Church witnessed colleague dying Unsafe system of work = sufficient proximity to expect duty of care

Fagan v Goodman Proximity question Did not have to do anything to avoid the accident she witnessed. She had no sense of being at risk, not sufficiently proximate

In re Organ Retention Group Litigation [2005] QB 506 Leeds Teaching Hospital Hospital, without permission of parents, harvested organs of children Children did not die as a result of hospital Secondary victim test wouldn’t work for claimants, no aftermath, merely discovered after the event their children’s organs were harvested Parents of deceased children whose organs were retained after post-mortem examination treated as elevated primary victims.

Farrell Mr Farrell arrived at the hospital and handed dead baby his son Hospital negligently mistook him for the father of a child who died Mr Farrell was elevated primary victim PI was foreseeable.

Grieves v FT Everard & Sons Ltd [2007] UKHL 39, [2008] 1 AC 281 HL said Page v Smith did not apply to cases of anxiety at possible future injury. Clinical depression resulting from the claimant’s fear, on discovering that he had asbestos fibres in his lungs, that he might in future develop a life-threatening disease. Brought an action for damages against his previous employers, who had negligently exposed him to the asbestos. Followed approach to employers’ liability established in Hatton v Sutherland. Threshold question: Was psychiatric injury reasonably foreseeable in the particular employee? D was unlikely to have specific knowledge of how C might react to his discovery that he was at risk long after he left their employment. They were entitled to assume he was a person of ordinary fortitude, and there was no evidence that a person might reasonably foreseeably suffer psychiatric injury in consequence of their negligence. The claim failed.

AB v Tameside and Glossop HA HIV, relaying sensitive information that was likely to cause distress risk of HIV poisoning, conveyance of this distressing information likely to cause PI

Foggart v Chesterfield Mistaken vasectomy Not shock in old fashioned sense but allowed

Butchart v Home Office [2006] EWCA Civ 239 Prisoner who was suicide risk, placed in cell with another suicide risk. Witnessed the suicide and the shock caused PI. Duty of care of prison mean he could make claim.

Attia v British Gas Can't have consequential PI for property damage. Stood and watched her house burning down from boiler serviceman, Court allowed her to claim, duty of care not to cause PI, did not specify if she was primary or secondary

Swinney v CC of Northumbria Police Landlady reported gang leader drinking in her pub to the police. Police negligently let info about the informer be given to the gang, and they threatened her causing PI. Police had duty of care to the informant.

Hatton v Sutherland [2002] 2 All ER 1 Hale LJ set out guidance (16 principles) to help determine circumstances when an employer will be liable for psychiatric harm caused by stress at work e.g. (4) Test is the same regardless of employment (11) An employer who offers confidential counselling is unlikely to be in breach Overturned in SC on a different point. If employer wants to find out whether they should be liable for employees’ PI, look at the principles to determine liability.

Barber v Somerset County Council [2004] 1 WLR 1089 If the employee did the amount of work that was agreed under the contract of employment, can the employer still have breached the duty owed by requiring the employee to perform that work? No, doesn’t promote efficiency within the enterprise and doing less than full duty for an indefinite period doesn’t fit with contractual arrangements. Teacher had work-related stress Got more work after job restructuring Suffered a breakdown

Johnstone v Bloomsbury HA Junior doctor in UCL hospital, worked 100+ hours each week and suffered various PI They ought to have realised issues with putting him other that stress, owed duty of care.

Walker v Northumberland CC Went on leave as a result of workload being deeply stressful While he was away no one helped his work and did not improve support CC owed duty of care

Melville v Home Office Prison officer responsible to take out bodies of prisoners who committed suicide. Had to retire and suffered nightmares. Here, objectively the conditions were stressful there was duty of care owed to him.

Pratley v Surrey CC If you are suffering with mental health issues, must tell employer. Otherwise won’t have a claim. Mrs Pratley was care worker, found the work deeply stressful. Got serious PI, because she hadn’t said anything to her employer, no duty

Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 Apparently robust employee, so no duty of care. No special protection for employees as secondary victims

Farrell v Merton Permanent brain damage of baby, primary victim of traumatic birth, secondary victim witnessing the traumatic birth Mrs Farrell's traumatic birth, baby suffered brain damage. Didn't meet the baby, taken away immediately. Not in the immediate aftermath because D delayed this trauma. So court will not apply the requirement.

Allin Told baby died but didn’t actually Didn’t see the baby so no direct perception But court found duty of care, ignored tests set out by precessors

Seghal Saw aftermath, didn’t directly witness the car accident, but found out afterwards in hospital her daughter was involved. Courts allowed, continuous events of shock, seamless

Walters v North Glamorgan NHS Trust (2003) Gave birth during seizure Baby died 36 hours later in her arms Only saw the effects of the negligence, but allowed Witnessing fit baby dying over 36 hours, drawn out scene of shock is sufficient

Taylor Husband got stroke during work Wife only found out afterwards, couldn’t claim Over 21 days Seeing the body after the event does not constitute shock.

Ward Wisdom tooth extraction gone wrong Mother didn’t directly witness but watched deterioration of child after. Not allowed.

Brock Bolts in skull pushed in too far, suffered brain damage Parents saw aftermath of the injury, but didn’t satisfy direct perception requirement.

Breach of Duty

Basic Test:

Alderson B in Blyth v Birmingham Waterworks Co (1856): ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’

Lord Mance in Baker v Quantum Clothing Group Ltd [2011]: ‘The question is not whether the employer owes any duty of care; that he (or it) certainly does. It is what performance discharges that duty of care.’

Duty to take reasonable care, but what does it mean to fail to take reasonable care? Need to uphold a certain standard of care, otherwise there is a breach of duty.

THE OBJECTIVE STANDARD

D cannot fall below the standard of the reasonable man in that scenario. When we talk about what is reasonable, it is an appeal to a fictional person, not based on a survey of what people on the street think is reasonable. It’s not the idea that we put people on the bus and bring them to the court, it is the application of an independent, legal standard.

Observation in dicta refers to “the man on the Clapham omnibus”. Lord Reed in Healthcare at Home v Common Services Agency: ‘The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years. [Its] most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person… ‘The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.’

However, the ‘reasonable person’ test does not eliminate all individual characteristics. What would the reasonable person in this scenario have done, given they have certain, limited characteristics of D? How does this compare with what D did?

Skills: Lack of skill is irrelevant, still held to objective standard.

Nettleship v Weston [1971] 2 QB 691

Facts: Claimant was giving some driving lessons to D. D tried their best but wasn’t good at driving. On following C’s instructions, D panicked and drove into a lamppost. C’s leg was injured.

Is D expected to reach a standard higher than what she was capable of? Is it open to D to say she was trying her best? No, no answer to say you weren’t good. Learner drivers are held to the same standard as a skilled driver.

Lord Denning: ‘It is no answer for him to say: "… I was doing my best and could not help it." The civil law … requires of him the same standard of care as of any other driver. … The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in mind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity.’

Rationale that there are a lot of standards of duty of care open to other people when driving on the road. Lord Denning emphasised the presence of insurance → although it seems unfair at first glance, she doesn’t pay and the innocent victim should get compensated.

Salmon LJ, dissenting: In this case the instructor was friendly with the driver, knew she was only learning and nervous about driving. The two parties clearly know she cannot provide more care, seems odd that it is almost strict liability rather than fault-based individual responsibility. No way this claimant could have expected a higher standard than what D gave.

Morris and Lewis article: Learning on the job is required for junior doctors. Can’t stop just because you can’t guarantee executing properly → Hospitals have insurance.

Age: When assessing the conduct of children, we ask what the reasonable child of the same age as D would do. We are taking into account a characteristic D can’t do anything about. It is a concession, but we are still comparing to an objective standard → what is reasonable at that age.

Mullin v Richards [1998] 1 WLR 1304

Two girls in school were fencing/play fighting with rulers. The rule shattered, C suffered eye injury. Court asked what the ordinary reasonable 15 year old schoolchild foreseen of the injury. Standard = what was to be expected of a reasonable 15 year old. Nothing more than a simple game, wisdom of hindsight or mature grown up was not here. No breach of duty by D.

Orchard v Lee [2009] EWCA Civ 295

C is lunchtime supervisor at school, was injured when a boy ran into her while messing about. D was running backwards, charging all over the place. Aikens LJ: ‘The question is whether a reasonable 13-year-old boy, in the situation that SL was in, would have anticipated that some significant personal injury would result from his actions in playing tag as he did.” Answer to the question is no, a reasonable 13-year-old boy would not regard such an injury as being sufficiently probably to lead him to anticipate it. Therefore, D did not fall below the standard of care required of him.

Youth is taken into account, but what about old age? e.g. Elderly drivers → driving has one standard for all road users, you shouldn’t be driving if don’t have the capacity.

Disability: This is limited. We will only take this characteristic into account for objective standard if D was not aware of debilitating condition.

Mansfield v Weetabix Ltd [1998] 1 WLR 1263

Defendant driver driving the van, crashed into C’s shop causing a lot of damage. In the course of his journey he was driving erratically. Unbeknownst to D, he was suffering from a kind of cancerous medical condition. Half unconscious at the time of the tort.

Should he be held to the standard of the reasonable driver without hyperglycaemia? No. Leggatt LJ: ‘The standard of care that [the driver] was obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive. To apply an objective standard in a way that did not take account of [his] condition would be to impose strict liability. But that is not the law.’ Negligence as a standard requires us to show fault, not a strict liability rule.

Compare with Roberts v Ramsbottom [1980] (crime case with similar facts). Criminal law takes different approach to tort, so rules are different. Crime requires total loss of control.

Dunnage v Randall

Uncle suffered from paranoid schizophrenia, set himself on fire by pouring petrol over himself. C tried to help put out the fire and got injured in the process. Claim against the insurers.

Could D be held to be in breach of duty? CA held duty was owed and breached. Shouldn’t factor in his disability here, need to impose objective standard. We can’t rely on the schizophrenia as excusing the conduct. Arden LJ: ‘The objective standard of care reflects the policy of the law. It is not a question of the law discriminating unfairly against people with physical or mental illness. The law takes the view as a matter of policy that everyone should owe the same duty of care for the protection of innocent victims. It would after all, in many cases, be open to a person who knows he has reduced abilities to take account of those abilities in what he does…’ Allowing D to escape liability would be the same as treating disabled people differently in a different way. ‘There will be hard cases, as this case may be one, where a person does not know what action to take to avoid injury to others. However, his liability is no doubt treated in law as the price for being able to move freely within society despite his schizophrenia.’ Contrasts with Mansfield, where nothing else could have been done to avoid the harm.

RELEVANT FACTORS IN MAKING ASSESSMENT

We ask what the reasonable person would do to take steps to avoid the risk. What are the relevant factors the reasonable person would take into account when making the assessment?

Timing: Standard = what should you have done at the time of the alleged breach, not what you would do now, knowing what happened.

Roe v Minister of Health [1954] 2 QB 66

Claimants were left paralysed after undergoing operations for which they underwent spinal anaesthetic. The glass tubes for the anaesthetic were corrupted/contaminated. Found that the way the glass operated and was administered (air got into it) made it go corrupted.

Must judge whether a breach had occurred would it have been known at the time of the breach. Learn from your mistakes prospectively, so need to allow. D was not negligent at the time because did not know the mistake. Denning LJ: ‘Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right. That is just what happened here. Dr Graham sought to escape the danger of infection by disinfecting the ampoule. In escaping that known danger, he unfortunately ran into another danger. He did not know that there could be un-detectable cracks, but it was not negligent for him not to know it at that time. We must not look at the 1947 accident with 1954 spectacles.’

Probability of harm: The reasonable person must foresee not only the event occurring, but also that injury is likely to follow. The reasonable person is not expected to take steps to prevent an event that is a remote possibility, very unlikely to happen.

Bolton v Stone [1951] AC 850

Game of cricket going on in D’s sportsground. Batsman hit a miracle ball over the clubhouse, hit C on the head. C sued, saying the cricket club should have taken precautions against this occurring, e.g. by putting up nets.

Was it a breach of duty by the club not to take steps to prevent this very unlikely, exceptional event from occurring? Court held this was not a breach of duty. What steps would the reasonable person take for this very unlikely event? Lord Porter: ‘Is it enough to make an action negligent to say that its performance may possibly cause injury, or must some greater probability exist of that result ensuing in order to make those responsible for its occurrence guilty of negligence? … It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken.’

Blair-Ford v CRS Adventures Limited

C was a teacher who accompanied children on school trip to adventure park for various activities. Sport called ‘welly wanging’ = throwing a wellington boot as far as you can. Grown man could throw harder so had to throw it backwards through his legs. Fell on his head and was paralysed. Sued the adventure park.

Globe J: ‘On the evidence I have heard, the risk of injury was not such that steps should have been taken to guard against it. In my judgment, the evidence of its likelihood was indeed “lacking such reality that it could be disregarded” and was at most “a mere possibility which would never influence the mind of a reasonable man”. There was no foreseeable real risk. Extremely sad though it be, this was a tragic and freak accident for which no blame can be established. In such circumstances, the social utility of the activity which gave rise to incident does not fall to be considered.’

Court didn’t need to worry in this case about consequences of recognising a breach of duty because never reached that stage.

However, D must bear in mind the extent of the harm as well as its probability when deciding whether it is justifiable to neglect a small risk.

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

Facts: Ships were undergoing repairs at a wharf. Welding caused sparks to fly off into the sea.

The Wagon Mound was a ship in the harbour being refuelled, had oil stored in it. Due to carelessness of the engineers, the oil overflowed and spilled into the harbour. The Oil drifted toward the wharf where the sparks were flying, caught fire. Caused significant damage to the wharf and to the claimant’s ships. Was it negligent to spill the oil? Should they have foreseen the risk occurring?

Court says that whether you are justified in disregarding/neglecting the risk must take into account the extent/magnitude of the risk and the degree of harm. Lord Reid: ‘But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it … [What Bolton v Stone] did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.’ Not liable for every foreseeable risk of harm, but cannot avoid liability if the gravity of the harm in question is great.

Gravity of harm:

Paris v Stepney Borough Council [1951] AC 367 (HL)

Claimant worked in garage as a mechanic. Only had one good eye, employers knew this. A piece of the metal flew off and hit him in his one good eye. He wasn’t wearing goggles and hit the metal with his hammer. Was it negligent not to provide him with goggles? Was it worse for him to suffer this injury, was it even more significant (gravity of the harm) even though the risk is the same?

Majority decided it was negligent not to supply him with goggles. Lord Macdermott: ‘If… the duty is that owed to the individual and not to a class, it seems to me to follow that the known circumstance that a particular workman is likely to suffer a graver injury than his fellows from the happening of a given event is one which must be taken into consideration in assessing the nature of the employer's obligation to that workman.’ D knew about C’s disability, specific precaution should have been taken in his case. Even if not negligent to not provide goggles to other employees, should have provided him.

Cost of precautions: What alternatives are there? Courts must bear in mind the cost of taking precautions against the harm.

Latimer v AEC Ltd [1953] AC 643

Accident at work → Claimant slipped in a factory, sued defendant (factory operator0=). There was a phenomenal rainstorm, owners of the factory sent 40 men to clean up the water. They used as much sawdust as they could find, did their best to render it safe in time for the night shift, but claimant nonetheless slipped on the residual water. C argued that it was negligent for them to open the factory for night shift without being absolutely sure it was safe.

Mere fact that D thinks they did their best is not enough. Court must judge if they did what was sufficiently reasonable. Lord Tucker: ‘Has it been proved that the floor was so slippery that, remedial steps not being possible, a reasonably prudent employer would have closed down the factory rather than allow his employees to run the risks involved in continuing work?’ It would cause huge financial losses, disproportionate when they have already gone to extensive lengths to clean up the water. Inefficient to ask someone to take extensive expensive steps for a very small risk.

Context: In the context which the alleged negligence occurred, what was reasonable to expect of D? There may be an inherent risk of injury in the circumstance, e.g. Spectators watching a cricket match know that the ball may come towards you at some time. However, steps may be taken to reduce the risk, and the grounds must do what is necessary to minimise the risk to the spectators in the stadium → Bolton v Stone.

Wooldridge v Sumner [1963] 2 QB 43

C was photographer at a horse race who tried to get close to the track to get photo. Didn’t know much about horses, was struck when jockey rode around the corner. Argued the jockey was negligent and should be liable for C’s injuries. No breach of duty. In a sporting context, there is inevitably a possibility/element of risk of injury, must allow for this. - It is about what appropriate standard was expected of the sportsman. - However, this must be assessed in light of the fact that spectators and participants anticipate some risk happening. - Only if they were intentional or in reckless disregard of another’s safety that there could be liability.

Blake v Galloway [2004] 1 WLR 2844

‘Horseplay’ Two boys messing around in an area of woodlands, threw bark at each other. D picked up the same piece of bark thrown at him and threw it back in retaliation. C suffered injury to the eye.

Even though it was not much of a game, there were nonetheless implicit terms. Both threw bark at each other, D did not throw something which may be outside of the scope, e.g. a rock. Dyson LJ: ‘The offending blow was caused by a piece of bark which was thrown in accordance with the tacit understandings or conventions of the game in which the claimant participated. It was thrown in the general direction of the claimant, with no intention of causing harm, and in the same high-spirited good nature as all the other objects had been thrown.’

The Scout Association v Barnes [2010] EWCA Civ 1476

C injured while playing a game called ‘Objects in the Dark’ with scout troop. C claimed that you could play this game without the dark element, which would make it less dangerous. But D argued that would defeat the point, don’t want to diminish the ‘fun’ element.

Ward LJ says that point can be overplayed → Is the benefit of added fun worth the added risk? He decided it was not worth it. Scouting would not lose much of its value if the game was not to be played in the dark. What steps can you take to remove the risk of injury? Lots of alternatives that won’t reduce fun significantly. Courts aware of context, but merely citing that you were playing a game doesn’t mean there is no liability.

We ask whether it is a departure from the reasonably acceptable standards of behaviour within the terms of the game. This is not the same as breaking the rules. Some acts of physical violence go beyond what is reasonably expected of participants and could be brought within battery or negligence.

Utility of conduct:

Context extends to the social utility involved. Moore-Bick LJ in Humphrey v Aegis Defence Services Ltd: ‘He appears to have been treating [relevant cases] as no more than authority for the proposition that the importance of the activity in question and the measures required to avoid the risk of harm, as well as the nature of the foreseeable harm, are factors which must be taken into account when deciding whether the defendant is in breach of a duty of care. In my view he was right to do so.’

Compensation Act 2006 S 1 Deterrent effect of potential liability A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might- (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.

There is a perception of a compensation culture in the public eye. However, this doesn’t exist in practice. Parliament was legislating here to deal with an imaginary problem, and this legislation has no effect. Particularly relevant in the context of public authorities → once we establish that the public authority owed a duty of care, the courts may have regard to the consequences of liability when considering what steps are required of the public authority. The courts were doing this before the Act anyway and were not required to do so by the Act either.

Social Action, Responsibility and Heroism Act 2015 S 1 When this Act applies This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care. S 2 Social action The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. S 3 Responsibility The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others. S 4 Heroism The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger.

Social action = acting for the benefit of society or any of its members Must have regard if they were acting: - for the social good - predominantly responsible towards safety/other interests - acting heroically → Do you act heroically simply from intervening, or does the court have to assess the quality of how ‘heroic’ your intervention was? Ambiguous wording is problematic → There is no definition of any of these terms/concepts in the legislation, and no reported cases so far. Only applies prospectively.

Legislation designed to stop discouragement of interventions by a perceived worry of being liable. This is about breach of duty. The Act doesn’t get engaged unless you establish a duty of care in the first place. There is no general duty of care owed to other people, or duty to rescue. So there aren’t many cases this would apply to at all.

The language is mandatory. However, there is no requirement for the court to expressly say they are referring to the Act, they just need to have regard to the utility of the conduct which they probably would have considered anyway. Courts have borne in mind the social utility of the context (Heroism Act 2015). Social utility can be factored in, but it is never a complete defence, won’t confer immunity and allow you to escape liability.

R Mulheron, ‘Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015’ (2017) 80 Modern Law Review 88

PROFESSIONAL STANDARDS

Why should a judge decide what a reasonable professional, e.g. doctor, might do? Judges are not similarly qualified, so should they question medical decisions?

Medical context:

Initial starting point is the Bolam test = Is there a responsible body of medical men who would back this?

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Electro-convulsive therapy was administered to the claimant at the mental hospital. Doctors did not apply any restraints other than to hold him down although it was what they usually do, no drug or proper restraints. Convulsions had risk of injury. C suffered various fractures to his pelvis from convulsing/spasms.

McNair J: ‘He is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art… Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig- headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.’ Is there a responsible body of medical men who would back this method? Medicine often has scientific developments, but can’t expect everyone to follow, so it is not about showing if there is any other argument/contrary opinion.

Bolitho v City and Hackney Health Authority [1998] AC 232

Doctors (or any profession) might club together. What if the responsible body of opinion are wrong? Should court defer to this body’s judgement or have their independent judgement?

Judge does not simply cut and paste the medical opinion into their judgment. Can subject it to logical scrutiny. Undue deference in the face of logic is not allowed.

Experience: In a professional context, we expect D to adhere to the standard of someone with the level of experience that the reasonable person in that position would have had. We expect the level of skill that should be possessed in that position. This is not open to learner driver, road users held to same objective standard no matter their skill/experience → Nettleship v Weston

FB v Princess Alexandra Hospital NHS Trust

Young girl just over 12 months only was admitted to hospital. Subsequently admitted to Great Ormond Street with meningitis and sustained permanent damage as a result. Claim that when she initially went to hospital, the junior doctor who saw her was negligent. Dr Rushd was a senior house doctor but not experienced in A&E so did not identify the relevant symptoms for an earlier diagnosis. What standard do we expect of the doctor?

‘The conduct of Dr Rushd in the present case must be judged by the standard of a reasonably competent [Senior House Officer] in an accident and emergency department. The fact that Dr Rushd was aged 25 and "relatively inexperienced" … does not diminish the required standard of skill and care. … Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard.’

We expect the appropriate standard of someone in that position, the level for which they are acting (not the level of experience). Background of experience doesn’t matter. Just judged on that level of authority in that position. Not just about individual defendant’s level of skill. But about the level in the profession.

But there must be a role for tort liability because of the severe consequences.

Disclosure of risk uses the Montgomery test, focuses on patient autonomy and bodily integrity. This is a major change in the law, though it doesn’t do away with the Bolam test → just doesn’t apply in cases about informing patients of risks.

Montgomery v Lanarkshire Health Board [2015] UKSC 11

Claim by mother seeking damages on behalf of her son. Son born with severe disabilities occurred after complications with his delivery. Mother was short and suffered from diabetes. Medical evidence says mothers with diabetes have large babies, expected delivery complications because she was very small. Traditional delivery would be difficult because the son would have been an issue anyway. Doctor believed traditional delivery was better, didn’t give her the choice to get C-section because didn’t inform her of the risks of natural delivery, thought the mother would then insist to opt for that.

Doctor took it upon herself to decide, so did not disclose. This case says Bolam test does not apply to the disclosure of risk.

Lords Kerr and Reed: ‘In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient's entitlement to decide whether or not to incur that risk.’

This case says Bolam test does not apply to the disclosure of risk. Doctors have a general duty to disclose the risks and get consent of the patient, alongside not being negligent in their actions during the operation. Doctor took it upon herself to decide, so did not disclose. Even though a body of responsible opinion would support doctor’s decision, it infringes this duty set out in Montgomery.

The trend in Montgomery is that it is not up to doctors to decide. Can offer opinion, but still need to set out relevant options. ‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.’

All material risks should be told to the patient. • What are the material risks a reasonable patient would want to know about? • What would the reasonable patient in their circumstances be wary of?

• What risks was the doctor aware that the patient attached importance to? Did the patient show a particular concern about an aspect?

In Montgomery, the mother would attach significant to the baby being born with all the disabilities. ‘The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’

Caveat: Would a tiny risk put someone off? There is a concern that there are some risks which some people don’t need to know about. Their Lordships deal with this worry. ‘The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient's health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision. It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions.’ In principle, doctor can still judge. This is arguably paternalistic.

Webster v Burton Hospitals NHS Foundation Trust

Simon LJ: ‘Without intending to summarise the effect of Montgomery, in general terms the doctor's obligation (apart from in cases where this would damage the patient's welfare) is to present the material risks and uncertainties of different treatments, and to allow patients to make decisions that will affect their health and well-being on proper information. The significance of the risks and uncertainties, including the possibility of alternative treatment, being sensitive to the characteristics of the patient.’

Montgomery in other contexts:

O'Hare v Coutts & Co

Financial services context, should Montgomery apply more broadly? Are the reasons offered in Montgomery applicable to any unbalanced information or just patients? Should it be up to me to make the decision whether or not to run the risk? This is not a settled point. Kerr J: ‘The reasoning in Montgomery is not, in my judgment, irrelevant outside the medical context. … There is little consensus in the financial services industry about how the treatment of risk appetite should be managed by an adviser... As in the medical context, the extent of required communication with the client should not depend on the attitude of the individual adviser.’

Industry regulation standards:

Baker v Quantum Clothing Group Ltd [2011] UKSC 17

Facts: Concerned knitting factory industry. C suffered hearing loss from exposure in the factory. Argued that the employer should have taken more steps and offer ear protection. Employer was just complying with standard industry practice, is that enough for acting reasonably? At the time, there was some scientific evidence that needed to take more care with hearing protection.

Ratio: Held in this case industry standards are relevant for the court to take into account. Not complying with industry standards signifies standard was not complied with. However, courts must still independently judge if the standard of care has been satisfied. In some circumstances, courts may require higher standards than the relevant code of practice that exists.

Lord Dyson: ‘There is no rule of law that a relevant code of practice or other official or regulatory instrument necessarily sets the standard of care for the purpose of the tort of negligence. …. [But] to follow a relevant code of practice or regulatory instrument will often afford a defence to a claim in negligence. But there are circumstances where it does not do so. For example, it may be shown that the code of practice or regulatory instrument is compromised o because the standards that it requires have been lowered as a result of heavy lobbying by interested parties; o or because it covers a field in which apathy and fatalism has prevailed amongst workers, trade unions, employers and legislators… o or because the instrument has failed to keep abreast of the latest technology and scientific understanding. But no such circumstances exist here.’

Lord Kerr, dissenting: ‘[The employers] should have discovered that [the hearing loss] could be avoided by the provision of ear defenders at not unreasonable cost; and they should have provided their workers with those ear defenders. Because of their failure to do so, they were, in my opinion, guilty of negligence.’

PROBLEM QUESTIONS Is there a breach of a duty of care?

K, a twelve year old boy, with a mental age of five, is throwing stones into the sea. One of the stones bounces off a protruding rock and hits L, a swimmer.

Standard of a reasonable 12 year old boy. Don’t take mental age of 5 into account. Dunnage v Randall Court couldn’t take into account schizophrenia, because it was a known mental illness. Need to take responsibility for your actions. In Mansfield v Weetabix, once the driver lost consciousness he wasn’t an actor anymore and could not direct his actions. In Dunnage, CA says the actions were driven by D’s “deranged mind” but he still directed his actions.

Should we carve out area of law for children? But disability affecting mental age reduces age that could be taken into account would be a bit messy, then would be harder to say why we don’t take other disabilities into account. Court goes easier on children than the actions of adults. Orchard v Lee similar realm. Is it reasonably foreseeable that a stone will bounce off a rock and hit the swimmer?

If there is nothing special about this defendant, would a regular person be liable? Probably yes.

M, who suffers from high blood pressure, has a heart attack whilst driving his car. The car crashes, injuring N, a pedestrian.

Not unconscious, but also not in control. Not able to act in any chosen way. Does he know he had high blood pressure? Answer depends on various factors. Initial question if there is even a connection between the high blood pressure and causing the heart attack.

O, a fighter pilot, is driving his car at 25 mph along a quiet residential road when P, a small child, suddenly runs out from between two parked cars. O collides with P. Whilst an ordinary driver could not have avoided the collision, O, with his faster reflexes than the average person, could have swerved if he had been concentrating on the road ahead.

Does the reasonable man have the professional skills? No because he is not acting in a professional capacity. Only hold him to a higher standard if he is acting in a professional context. Bolam test more about in a professional context. *See Surtees v Kingston Driving 25 mph → If you exceeded speed limit more likely to find breach, if not over speed limit it doesn’t end there and need to continue to inquire.

Essay Question

Critically evaluate the approach of courts to the standard of care in cases of professional negligence, in the light of recent decisions.

- Discuss Montgomery, displaces Bolam and look at critical evaluation of the case - Is it a good idea to extend Montgomery beyond the medical context → should there be similar considerations in financial investments such as in O’Hare, or solicitor keeping client informed. Is expansion good? If they misuse information, doesn’t matter/no issue whether you were informed or not. - Baker v Quantum negligence in professional context, how did the court deal with the relationship between duty of care and regulations? Case about industry standards, professional negligence about certain industries, not just random accidents.

4 questions in negligence: 1. Did D owe C a duty of care? 2. Did they breach that duty? 3. Did the breach cause C’s loss or damage? 4. Is C’s damage actionable?

Once it has been established that a duty of care was owed to C, D breached this duty, and C suffered damage, it must then be determined whether that breach caused the harm/damage which C has suffered.

Lord Mance in the ‘Trigger’ Litigation: ‘Rules regarding causation … reflect a common sense understanding of what is ordinarily understood when we speak of a cause in a particular context.’

The law has developed two stages of analysis to the causal inquiry: a) Was it caused by the breach as a matter of fact (‘factual causation’)? b) If so, is it a legally relevant cause (‘legal causation’)?

Factual Causation

2 types of injury (type of injury you suffered has bearing on how the rules apply):

Divisible = You can say how much of the injury you suffered as a result of the cause, e.g. allergy injury 50% of exposure from one person and 50% attributable to someone else. The contributions to the injury can be apportioned according to contribution of various causes.

Indivisible = The contribution cannot be attributed to different causes, e.g. can’t say death was worse as a result, can’t proportion responsibility.

The ‘But For’ Test

General test: But for D’s act, would C have suffered their injury or loss? (causa sine qua non) If yes, we discount D’s breach of duty as a cause. If no, counts as a relevant factual cause. If we can take what D did out of the story, they are not a factually relevant cause. Causation cannot be proven unless the ‘but for’ test is satisfied. If not, B has not “caused” A’s injury.

Barnett v Chelsea & Kensington Hospital [1969] Arsenic in watchmen’s drinks, hospital turned them away because thought they were drunk. Doctors owed duty of care, breached, men suffered actual harm. Failed causation test – by the time the men got to the hospital it was too late to administer the antidote anyway. Claimant would have still suffered the same harm. Nield J: ‘Had all care been taken, still the deceased must have died.’

Ex: The Two Hunters Problem A is out hunting in the forest. Two other hunters, B and C, both at the same time negligently (in breach of duty) shoot in the direction of A, who is wounded. Both B and C are acting in breach of duty towards A.

Two possible questions (must be clear on what problem is engaged by the facts of a particular case): 1) Multiple causation = more than one potential cause in question. A is hit in the head by two bullets, both of which were sufficient to kill him. Therefore, the but for test cannot be satisfied. But for B’s breach of duty, would still have died because hit by C. Should B be able to escape liability because coincidentally C also breached a duty sufficient to kill A? Both would have been sufficient to kill A; separately neither satisfies the but for test. 2) Evidentiary gap = we don’t know if ‘but for’ B’s action, A would suffer the harm, i.e. we don’t know if it would have been caused. A is hit by a single bullet, impossible to determine whether it was from B or C’s gun. Should B be able to escape liability because we don’t know the answer to the but for test?

Exceptional Rule 1: Multiple Cumulative Causes

Multiple causes all of which have contributed to the harm suffered by the claimant. Rule: It is enough for C to show that D’s breach of duty materially contributed to the harm they have suffered. Material contribution = any meaningful exposure, more than so insignificant that the law would regard it as not contributing (easy to satisfy).

Bonnington Castings v Wardlaw [1956] C was exposed to silica dust during the course of his job and developed lung cancer. There were two sources of the dust, tortious and non-tortious exposures. Employers in breach of duty for exposing him to dust from the machine, because there were steps they could have taken to avoid it. Not in breach for dust from the hammer because there was no alternative. Test: In situation where both causes have contributed to the lung condition (cumulative), modify the ‘but for’ test → Did it materially contribute to the harm? If so, then the test is satisfied. Lord Reid: ‘What is a material contribution must be a question of degree… A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material.’ Court is satisfied that the exposure to the tortious dust contributed to the lung disease directly.

• When it is a divisible injury (get worse the more you are exposed), we allow causation to be established even if you have worked for several employers and exposed by each of them in breach of duty.

Holtby v Brigham & Cowan [2000] C developed asbestosis, a progressive disease, gets worse the more you are exposed. Court says that your exposure mirrors the contribution to the harm. Because of the nature of asbestosis, can attribute the extent of the harm. Stuart-Smith LJ: ‘The defendant is liable only to the extent of that [material] contribution.’ The extent of each employer’s liability is linked to the extent of their exposure. If D is responsible for 25% of your exposure, responsible for 25% of the harm you have suffered.

• When it gives rise to an indivisible injury (can’t say which percentage of the harm each cause is responsible for), it is enough to prove material contribution to the harm.

Bailey v Ministry of Defence [2008] Cumulative causes acting to create a weakness. C argues that D’s negligence in the operation and resuscitation, which meant that she was subjected to further procedures, led to her state of weakness. While in hospital, C developed pancreatitis which also contributed to her weakened state.

Was too weak to throw up properly, vomit blocked her airway, she suffered brain damage. Was the hospital liable for her brain damage? Judge decided both the negligence and pancreatitis contributed to her state of weakness, but he couldn’t apportion the responsibility. CA held MoD was liable because they materially contributed to the harm C suffered.

Williams v Bermuda Hospitals Board [2016] C suffered from appendicitis, delays in his treatment made his condition worse. He was already suffering from appendicitis and then the negligence made it worse, but the sequence of events did not make a difference to establishing causation. Lord Toulson: ‘Successive events are capable of each making a material contribution to the subsequent outcome.’ It doesn’t matter whether the tortious breach came first or not, have to ask whether each of them materially contribute to the harm suffered.

Both Bailey and Williams involved multiple cumulative causes, but where each cause has contributed to the harm itself. D’s breach materially contributed to the harm itself. The fact that another cause which was operating might have been sufficient by itself (and therefore posing a problem for the ‘but for’ test) doesn’t meant the claim fails. C can rely on material contribution to the harm.

Exceptional Rule 2: Evidentiary Gaps

A is hit by a single bullet. It is impossible to determine whether it was from B or C’s gun because of limits of scientific and medical knowledge. A cannot prove, on the balance of probabilities which defendant shot him. Won’t be able to establish that it is more likely that any one D caused it. How can the claimant recover?

Test: C must show a material contribution to the risk of the harm that was suffered Courts developed an exceptional test. It is a limited exception, only applies on particular facts, not a general abandonment of the rules of causation.

By shooting at A in breach of duty in the forest, B materially increased the risk of him suffering the harm. You are much more likely to suffer the harm of being shot in the head if two people shoot at you than if it’s only one.

McGhee v National Coal Board [1973]

Previous leading HL authority, now overtaken by asbestos cases. C developed dermatitis as a result of exposure to brick dust. Found from medical evidence that this exposure when he had to cycle home “caked in grime and sweat” materially added to the risk that the disease may develop.

Some exposure inevitable so not breach of duty, but didn’t provide adequate washing facilities, so he was exposed for a period he shouldn’t have been → That exposure while he was travelling from work was in breach of duty. Here all we know is that both the tortious and non-tortious exposure materially increased the risk of the disease developing. Not that dermatitis was worse, just increased risk because he was exposed for a longer period of time. HL held that McGhee satisfied causation by showing material increase in the risk of his disease developing.

Fairchild Exception

In exceptional, limited circumstances, where a) there are multiple potential causes, and b) the nature of the injury is such that science cannot prove which of several defendants actually caused it, C can satisfy causation if he can prove that each defendant’s breach has materially increased the risk of them suffering the harm which they did suffer as a result of the breach. This is a specific test in specific circumstances.

In evidentiary gap cases with same or similar agents, causation element of establishing liability can be established by proving material increase in risk of causing the harm that was in fact developed by the claimant. Fairchild does not justify relaxing tests for other elements of negligence → still have to prove that C was exposed to asbestos in breach of duty by D.

Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32

Leading case, applied and clarified McGhee.

Cs were exposed to asbestos dust during the course of employment with more than one employer. They contracted mesothelioma as a result of the exposure. Cs worked for a number of different employers, the cancer’s long latency period means the problem might be that only one of their former employers are still around. It was medically impossible to determine which of the employers had exposed Cs to the dust which had caused the cancer. Not divisible injury → not the case that the more exposure the worse it gets, you can get the disease from very limited exposure. Can also be exposed throughout career and not get the cancer.

This is evidentiary gap case. Answer to the ‘but for’ test is “I don’t know” because of limitations to science. Limited medical and scientific understanding means can’t point to whose fibre of asbestos caused the cancer.

CA applied the ‘but for’ test, held that Cs’ claims failed on the balance of probabilities. Lord Bingham: summarising CA decision against the claimants

‘Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable.’

HL creates an exception, says the cases should succeed. Lord Bingham: ‘The crucial issue on appeal is whether, in the special circumstances of such a case [where it is scientifically unprovable who caused it], principle, authority or policy requires or justifies a modified approach to proof of causation.’ Lord Rodger: ‘By proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness.’

No liability in the abstract for exposing someone to asbestos. This only applies where you have actually developed mesothelioma because it is only then that you have suffered the harm (cause of action in negligence requires actionable damage).

Assumed in Fairchild that if you prove material increase in risk, then you’re proving the liability of each D for the total harm (joint and several liability). C can sue any one of the defendants, they are all liable for the full amount, and then the defendant can pursue any other Ds who are also liable for a contribution. Can only cover full amount once but doesn’t matter which one you claim it from.

Barker v Corus [2006] 2 AC 572

C’s husband (died from mesothelioma) had been exposed to asbestos during periods of self- employment. Some of his exposure was his own doing.

1) If you are responsible for some of the exposure yourself, does that disqualify you from the Fairchild exception? HL held that C was entitled to recover on the basis of Fairchild. The Fairchild exception could operate even though not all the exposures (potential causes of damage) were tortious. A non-tortious source of risk did not have to have been created by someone who was also a tortfeasor.

2) Ds and their insurers took issue of the extent of D’s liability. When Fairchild does apply, how are damages to be assessed? Liability is proportionate to each defendant’s contribution to the risk → damages assessed by reference to the share of risk attributable to the breaches of duty by the defendants. C can only claim for each D to the extent of the contribution.

Lord Hoffman says that attributing liability according to the relative degree of contribution is a balancing act. We are creating an exception that helps the claimant, but that runs the risk of being unduly harsh on the defendant. ‘But when liability is exceptionally imposed because you may have caused harm, the same [justifications for the joint and several liability rule] do not apply and fairness suggests that if

more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.’

Lord Rodger makes strong dissent → argues that Lord Hoffman’s approach is inconsistent with the basis of liability in Fairchild. Not liable for causing risk, liable for actionable damage, causing harm. The damage is the cancer, not the risk of developing because you may never develop it. Because this is a potential cause of the damage, employer takes the risk. Makes no sense to say we limit the extent. Suddenly dramatically reduced damages Cs could obtain. ‘The desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me.’ The whole point of Fairchild was to create an exception in favour of claimants in this situation. We all assumed this was a question of whether the claimant get the full damages if they satisfy this test.

• Statutory exception within an exception

Compensation Act 2006

S 3(1) This section applies where— (a) a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos, (b) the victim has contracted mesothelioma as a result of exposure to asbestos, (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and (d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).

S 3(2) The responsible person shall be liable— (a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos— (i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or (ii) by the responsible person in circumstances in which he has no liability in tort), and (b) jointly and severally with any other responsible person.

Parliament disagreed with the Barker case → designed the section to target these cases and reverse Barker. S 3 is limited to asbestos-related mesothelioma, other facts that fall outside this are not covered by the legislation. Barker still applies to Fairchild exception cases outside of asbestos-related mesothelioma.

Sienkiewicz v Greif [2011] How do you go about proving in that situation where you had some exposure at work but also environmental exposure living in asbestos area?

First opportunity for the Supreme Court to consider Fairchild, Barker and the Compensation Act. Lord Phillips held s 3 applies. But the exception is contingent on the current evidentiary gap. S 3 does not preserve for all time benefit for mesothelioma sufferers from the Fairchild exception.

• Given that we have an exceptional test for causation, how does the Fairchild exception bear on insurance contracts, what impact does it have?

Durham v BAI [2012] ‘Trigger’ litigation When does liability arise? You can’t sue in negligence until you have suffered the relevant harm. In many cases, the cancer occurs years after you stopped working for the employer. The breach of duty exposure was while you were working for them, but you didn’t have a claim then. Fairchild test doesn’t fit so easily because it turns on exposure in breach of duty which we then treat as causative. Lord Mance says we have to interpret insurance contracts using a ‘sufficiently flexible approach’ to make them respond to the triggering of liability where the common law says must show material increase in risk. This meant the insurance contracts were triggered by the exposure, so you could make good the claim. This is a purposive, pragmatic approach adopted after scrutinising Fairchild.

• Limits of the Fairchild exception

The Fairchild exception was borne out of sympathy to claimants, but there are limits to when we can relax the rules. One major limit to Fairchild is that the agents involved must be the same or operating in substantially the same way.

Lord Rodger in Sienkiewicz: ‘It is important that judges should bear in mind that the Fairchild exception itself represents what the House of Lords considered to be the proper balance between the interests of claimants and defendants in these cases.’ Emphasises we should not go around creating more exceptions to causation, also we are not to relax other elements. Still have to prove duty of care was owed, that duty was breached, and that actual harm occurred.

Wilsher v Essex Area Health Authority [1988] Alleged negligence was one of several different potential causes of the RLF illness, premature baby had variety of medical conditions. Argued on behalf of the boy (relying on McGhee) that a potential cause = increase in risk. But we must police the boundary between having an evidentiary gap where due to the limitations of scientific knowledge, we can’t say which of several similar causes count as the relevant causes, and the claimant failing to prove their case.

HL endorses the reasoning of Sir Nicholas Brown-Wilkinson VC’s dissent in the CA: ‘No one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.’

Lord Rodger says in Fairchild (supported by Barker) that the exception only applies where: a) you have this evidentiary gap situation, and b) the potential causes are either the same (asbestos from different sources) or which operate in substantially the same way, and c) there is scientific uncertainty about how those agents then caused the injury. It is not that there is a number of different causes that might have in different ways caused the harm. Wilsher is just failing to prove your case, can’t discharge the burden of proof using these rules.

Heneghan v Manchester Dry Docks [2016] EWCA Civ 86 C had been exposed to asbestos and developed a lung cancer that was not mesothelioma. It was not asbestos-related mesothelioma so s 3 of Compensation Act did not apply. C was only entitled to 32.5% of their total damages. Only difference is different kind of lung cancer, but dramatically different outcomes. Barker continues to apply at common law to all Fairchild cases that s 3 doesn’t cover. The courts are willing to apply the exceptional principle established in Fairchild to diseases other than mesothelioma provided that the facts of a case are truly analogous to those in Fairchild. Where medical science cannot prove that a defendant has materially contributed to a disease, but can prove that a defendant has materially increased the risk of contracting the disease, Fairchild may be applied to establish the necessary causation.

Zurich Insurance v International Energy Group [2015] C only worked for the company while they were insured for 8 out of 27 years.

It was conceded that, throughout the course of his employment, Guernsey Gas had breached its duty to Mr Carré as their employee and that such exposure had materially increased the risk of his contracting mesothelioma. S 3 of the Compensation Act did not apply to Guernsey. Common law continues to apply even in asbestos-related mesothelioma cases. Following on from the ‘Trigger’ litigation, how does insurance respond to this? If the exposure that had caused his mesothelioma was during the 19 years when they weren’t insured, that’s no good for the claim. Court unanimous on the point that Barker has not been overruled as a matter of common law by the ‘Trigger’ litigation case nor by the 2006 Act exception for asbestos mesothelioma claims, remains as part of the common law of England. If applying Fairchild exception to any other scenario, liability will be proportionate as in Heneghan.

Exception 3: Loss of a Chance

Hotson v East Berkshire Area Health Authority [1987] C sued health authority responsible for the hospital, argued that the negligent delay in diagnosing him caused his harm. Judge found at first instance that there was a 75% chance when he came into the hospital he would have developed this condition anyway, even without the delay in correct diagnosis. Claim fails. - Must be able to prove your case on the balance of probabilities. - Loss of a chance of avoiding an unfavourable outcome is not in itself actionable.

Gregg v Scott [2005] Initial failure to diagnose correctly led to delay of about 9 months in C getting appropriate treatment. During that period, his condition deteriorated and the cancer spread. In cancer cases, survival for the purposes of a claim = living for 10 years after diagnosis. By the date of the trial it was 25% chance of survival. Alleged doctor’s negligence led to loss of a chance of 17% difference in chances of a favourable outcome. Can you sue for loss of a chance? By a majority, their Lordships say no, framing it as a loss of a chance not actionable in tort law personal injuries → this would be a radical departure from precedent. Majority says must prove on the balance of probabilities. His chance was originally 42%, in the first place it was more likely than not that he wouldn’t survive for 10 years. Must prove that it was >50% likely. Chances being reduced further from the negligent diagnosis is not actionable. If C’s chance when he walked through the door was >50% chance and the negligence reduced it, then it would have been more likely than not that the doctor’s negligence made a difference. Lord Nicholls (dissenting): Rejects how it all depends on what it was like at the first moment. ‘The loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of a 55% prospect of recovery. In both cases the doctor was in breach of his duty to his patient. In both cases the patient was worse off. He lost something of importance and value. But, it is said, in one case the patient has a remedy, in the other he does not. This would make no sort of sense.’

Allied Maples v Simmons & Simmons [1995] Different approach when it comes to economic loss, rather than personal injury. If the solicitors hadn’t acted negligently during the negotiations, would you have been able to negotiate with the third party for the outcome you wanted? Since it is a third party, they may still not have agreed if the solicitors weren’t negligent. When it involves decision-making of a third party, the court has to evaluate it in the same way as chances of recovering from a physical injury. The loss of an opportunity to bargain is a different question. When it comes to a financial claim, court can judge what you may recover, can prove negligence caused this much loss. This is reflected in the damages as opposed to being a barrier for factual causation. Stuart-Smith LJ:

‘The plaintiff must prove as a matter of causation that he has a real or substantial chance [of negotiating what he wanted] as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance [how likely it was] is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other.’

Approach to personal injuries is all or nothing, about whether you established the liability or not. Lord Nicholls (dissenting in Gregg v Scott): Approach to economic loss is a point in favour for changing the law on personal injury. ‘The law would rightly be open to reproach were it to provide a remedy if what is lost by a professional adviser's negligence is a financial opportunity or chance but refuse a remedy where what is lost by a doctor's negligence is the chance of health or even life itself.’

Exception 4: Disclosure of Risk

Test from breach of duty in Montgomery → doctors must disclose all material risks. Issue of duty to disclose risk. What if they don’t?

This is another causal exception – the importance of the duty and rights in question (patient autonomy) justify treating the breach as causing it even though C cannot say she would not have had the operation.

Chester v Afshar [2004] Operation carries a small risk 1-2% of paralysis. Afshar negligently failed to warn C about that risk. C developed this syndrome. Performed the operation without negligence. Breached duty to disclose but didn’t breach duty in carrying out the operation. But for D’s breach of duty, would she have suffered the harm? If D had warned her, she would have gone away and thought about it. Maybe she might have had it on another day. Majority said yes, she can recover. Relaxed the rules on causation because the patient’s autonomy (right to give informed consent and correlative duty on the part of the doctor to inform the patient of the risks) is so important that we should allow that to justify an exception here. Lord Steyn: ‘Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles.’ Lord Hope: ‘The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content.’ ‘The duty [to warn] was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.’ Creates exception to principles on policy grounds. Lord Hoffman (dissenting): C has simply not established that her harm had been caused by the operation.

‘The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail. The judge found as a fact that the risk would have been precisely the same whether it was done then or later or by that competent surgeon or by another.’ Problem in majority’s approach: Essentially saying that that day and that operation was ordained to have the problem → lightning strikes twice argument.

Correia v University Hospital of North Staffs NHS [2017] Chester is a very limited exception. C argued that her right to give informed consent was so important that if the operation is negligently carried out, then that vitiates her consent. Claim fails. Simon LJ: ‘The implications of a finding that a negligent act in the course of an operation vitiates consent would have potentially far reaching consequences.’

Diamond v Royal Devon & Exeter NHS Trust [2017] Chester only applies in the situation where C cannot say that they never would have had the operation, all they can say is that they wouldn’t have had it when they did. C still needs to prove causation, in the conventional sense, as a result of failure to provide informed consent.

Legal Causation

Once we pass the factual causation stage, need to decide if it is a legally relevant cause for the purpose of attributing responsibility. Legal causation is about the appropriate attributional imposition of legal responsibility for the claimant’s loss. Do we regard the breach of duty as being legally responsible for the claimant’s harm? Factual causation not enough by itself → The but-for test is potentially over-inclusive. Everything has prerequisites.

SUPERVENING EVENTS

Supervening = overtaking, overcome by a situation When if ever does some subsequent misfortune unconnected to D’s tort render what D did either irrelevant as a matter of law or make us stop the clock as to their liability?

Baker v Willoughby [1970] AC 467

C in car accident, crossing the road and D’s car hit him. Was left lame in his left leg. He sued D. After the cause of action, before the case got to trial, shot during armed robbery in the left leg. Suffered very serious harm, leg had to be amputated. Suing for pain and suffering, loss of amenity, to do with lame left leg. D argues you can only be liable up to the time you were shot. Argued that second event has overtaken D’s damage, he shouldn’t continue to be responsible for what he would have been liable for if C was still lame in his left leg, no longer lame in it. HL decision criticised for the breadth of the reasoning. Not good for D to say some worse thing happened so they didn’t have to be liable from then on. HL made D still liable for what C would have been like had the leg still been lame and not amputated.

Jobling v Associated Dairies Ltd [1982] AC 794

Baker v Willoughby was disapproved of in Jobling v Associated Dairies, although not on its factual outcome.

Accident at work, limited to sedentary work (work while seated) because he injured his back. Later aggravated that suffering in another fall linked to the original injury, so left unable to work. Soon after the relapse he developed a condition affecting his neck that rendered him unfit to work anyway, unconnected to the injury.  Unfit to work subsequently either way.

Are his employers liable for the fact that he is no longer able to work at all, or are they liable up to the point where he developed with condition that disabled himself anyway? Different from Baker because not another tort that has occurred, just condition that he has developed. Court says we do have to take into account the fact that the claimant has gone on to suffer a condition that would have disabled him anyway.

Lord Keith thinks there is distinction between Baker and Jobling. Insofar as Baker seems to suggest the court ignores anything that subsequently happens – that’s wrong. But on its own facts, Baker is defensible. We need to distinguish the nature of the subsequent misfortune. Where it is a tort, the first D cannot say C suffered another tort and as a result of somebody else who did something dreadful to C. D cannot limit their liability. Whereas where it is not connected to a tort, a natural event/condition occurring, court can’t shut its eyes to that. He would have been left disabled anyway, so we have to factor that in in limiting the extent of the damages from that moment onwards.

Gray v Thames Trains [2009] 3 WLR 167

Mr Gray was a passenger involved in a train disaster, developed PTSD. Thames Trains were admittedly liable for negligence for the original accident and C’s PTSD. C suffered from the condition in the forthcoming years. A few years later, he got into an altercation with a pedestrian. Driving in car, thought the pedestrian had gotten in the way of his car. While suffering from PTSD, he found a knife, tracked down the pedestrian and stabbed him to death. Convicted of manslaughter by diminished responsibility. Sued Thames Trains, argued all of it was attributable to them. He said he wanted to sue for loss of liberty and loss of earnings as a result of the consequences of having PTSD.

Could he claim for the consequences of PTSD after the 19th August 2001 (when he stabbed the man)? Court says no. The fact that he might have been able to claim for loss of ability to work as a result of his condition if he hadn’t killed the man doesn’t mean we disregard what we know has happened. Illegality defence + how we attribute responsibility, saying Thames Trains were responsible would seemingly absolve Gray in the civil law. From 19th August he wouldn’t have been able to work anyway because he was lawfully detained, his own responsibility for that was taken into account.

Always must look at what is the nature of the subsequent event. Does the law regard it as relevant in affecting the responsibility of the defendant for the original damage and its ongoing effect?

INTERVENING ACTS

Things that occur in between, novus actus interveniens In what circumstances do we say that the consequences of D’s breach of duty are not to be attributed to them? When is something that subsequently occurs so significant as to break the chain of causation? Think of consequences as a sequence of events, one link in the chain. Where something of such significance happens after D’s breach of duty but before C suffers harm, D may not be liable because we now regard the subsequent event (intervening cause) as being the true cause.

Lord Hoffman in Empress Car Co v National Rivers Authority [1999]: ‘The true common sense distinction is, in my view, between acts and events which, although not necessarily foreseeable in the particular case, are in the generality a normal and familiar fact of life, and acts or events which are abnormal and extraordinary. Of course an act or event which is in general terms a normal fact of life may also have been foreseeable in the circumstances of the particular case, but the latter is not necessary for the purposes of liability.’

1. Intervention of nature

External event, act of God etc.

Carslogie Steamship Co

C’s ship was damaged in a collision through the negligence of D. Given some repairs to make it seaworthy so that it could get to port where it would need to be repaired. Before it got to port, it encountered a big storm which caused severe damage to the ship. When it reached port, needed to be repaired, kept at the port for 30 days.

If only damaged by the original collision, would have only been detained for 10 days, but the repairs were carried out together concurrently. C sued for loss of ability to use the ship while it was out of action, loss of profit. Argued D’s damage from negligence meant lost profit for 10 days so should be able to claim. D argued that before they suffered the loss of the ability to use the ship as a result of the collision, it encountered a storm that meant it was always going to be out of action for 30 days anyway. Unconnected to their harm.

Ship was not detained for any longer than it otherwise would have been because repairs at the same time. The storm broke the chain of causation between D’s original negligence and C’s loss of use of the ship for 10 out of the 30 days. Lord Norman: The storm meant the ship had to be kept in port for 30 days while it was fixed. The original 10 days worth of damage did not affect that question. D were not liable for loss of ability to use the ship.

Rubenstein v HSBC

Mr Rubenstein trying to buy a house, hadn’t found one he liked. Wanted to put his money in bank account, asked HSBC to recommend the best opportunity to invest in. Only condition was that he didn’t want the capital to be at risk, need the money to buy a house, don’t want it do go down. HSBC negligently ignored that, recommended a product that was exposed to market risk. Rubenstein suffered losses caused by global financial crisis.

HSBC argued that the global financial crisis was such a significant unforeseeable event that they shouldn’t be held responsible for it. Such catastrophic intervention as to breach chain of causation between breach of duty and loss?

CA rejects the argument – the only reason he was exposed to the market forces was because of their negligence. His position was that he didn’t want the money to be at risk in the first place. It’s not whenever something interesting or significant happens that we regard the chain of causation as broken. You can’t run the argument that a subsequent event is of such order as to break the chain of causation if it is the very event you were meant to protect them from.

2. Intervention of third party

Need to evaluate the character of the third party’s intervention.

Lamb v Camden LBC

C owned a house which she let out to a tenant. Council was doing work on the sewer in the neighbouring road. Council’s negligence causes damage to C’s property. Workers damaged the water main, underground flooding caused damage to C’s house foundations, led to subsidence and cracks on the walls, tenant moved out. C lived in New York, moved furniture into storage. Some squatters moved in and caused damage to the property. She managed to evict them, then boarded everything out and moved away. But more squatters moved in and caused extensive damage to the property.

She sued the council, said the consequence of their original negligence has been the extensive damage to the house by these third parties. Council said that is damage by third parties, not responsible for it even though but for council’s negligence in the first place the squatters would not have been able to move in.

Claim failed. Although it was a consequence of council’s original negligence, C could have secured it more thoroughly and the nature of the squatters’ criminal intervention was not such that the council should be responsible for it. Oliver LJ: When it comes to the intervention of people, must take into account that they are autonomous individuals who may behave predictably or unpredictably.

Knightley v Johns [1982] 1 WLR 349

D overturned his car, had car crash at one end of a tunnel. Police responded, had to secure the scene because of the accident. The inspector forgot to close the tunnel. He orders claimant to drive through the tunnel to close it from the other end. Driving towards the onrushing traffic, C was injured in a collision with the traffic coming around a blind bend in the tunnel.

In this case, D was responsible for the original accident that meant the police responded. Foreseeable that the police would take steps. Argued by D that the inspector’s negligence in ordering the policeman to drive blind into the tunnel broke the chain of causation. Although D’s original accident was the setting for this, not causally responsible for the grave error of judgement by the inspector. The fact that the inspector negligently told him to do this is the real cause, broke chain of causation. CA accepted this argument, chain of causation was broken. It is about evaluating the character of the intervening conduct in question. Here it was a positive, negligent intervention telling him to drive that way. No longer unbroken sequence of events.

3. Intervention of the claimant

What the claimant has done bears some responsibility for the accident. Contributory negligence allows court to apportion responsibilities and reduce damages accordingly. If you say that what C did was so significant as to break the chain of causation, then the claim fails completely. C’s act was intervening cause novus actus interveniens.

We must look at the reasonableness of C’s conduct. If it is unreasonable, might be regarded as breaking the chain of causation. This is different from intervention of a third party because use of negligence is trickier → don’t owe duty to yourself, therefore must talk about reasonableness of the conduct instead.

McKew v Holland Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621

C is injured at work, leg was vulnerable and would occasionally give way from under him. C broke his ankle when descending a flight of stairs which didn’t have a handrail. Went down with his young daughter. As he reached near the bottom, felt his leg start to go and so he jumped to avoid injuring himself. When he landed, broke his ankle. Argued that he was injured because D’s original breach of duty leaving him with this predicament had led to him fracturing his ankle.

D argued that there were two acts that should be regarded as breaking the chain of causation: 1) Tried to argue that jumping in those circumstances was so significant as to break the chain of causation. Court rejected this, not so significant. If you feel your leg going from beneath you, reasonable to jump. Might be regarded as better than tumbling down the stairs.

2) Unreasonable for him to descend the staircase in this manner only holding onto his daughter, when he knew that his leg would occasionally go out from underneath him. Negligent not to take precautions in the first place. Court accepted this, breaks the chain of causation.

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

C was on a bus which was hit by D’s vehicle, suffered injury as a result. Had to go to hospital. Fitted with neck collar because of her injury. This meant she couldn’t wear her usual glasses, and couldn’t see as easily where she was going. Descending flight of stairs holding onto her adult son because she knew she couldn’t see very well. Lost her footing and was injured.

Claim succeeded because it wasn’t unreasonable for her to act in this way. The reason why she couldn’t see where she was going was because of the original accident, leaving her unable to wear her glasses. She had done her best → held onto her son. Different from still holding the young daughter when you knew your leg could go out at any time.

Intentional conduct

Intentional infliction of harm by the claimant on themselves, e.g. suicide. Different from Gray v Thames Trains because suicide is not a crime in and of itself, not criminally liable for the act.

Sedley LJ in Spencer v Wincanton Holdings Ltd [2009]: ‘Fairness, baldly stated, might be thought to take things little further than reasonableness. But what it does is acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue. In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, while it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tortfeasor.’ Fairness in attribution of legal liability and responsibility → We can regard the chain of causation as broken when really it was the claimant’s responsibility for their injury.

Reeves v Commissioner of Police

C was wife of a man who killed himself while in police custody. He was known by police to be a suicide risk, had attempted before. Accepted that police owed a duty of care to him to take reasonable steps to prevent him from killing himself. Police argued that the character of the act of intentionally killing him should break the chain of causation between their breach of duty and his death. HL rejects that argument. Lord Jauncey: Where the act which you are alleging to break the chain is the very point/object of the duty, it would not make sense to allow them to say his intentional act breaks the chain. The whole point of the duty is to take reasonable steps to prevent him from killing himself, otherwise the duty would be hollow.

Corr v IBC Vehicles [2008] 1 AC 884

C suffered from clinical depression after being involved in an accident at work – employers’ fault, he became disfigured as a result. D argued conscious decision by him to end his own life, deliberate intervention breaks the chain. Tried to distinguish from Reeves case because didn’t have specific duty to take reasonable steps to prevent him from killing himself.

Court rejected the argument, the reason he killed himself was a result of the accident. Might not be a specific duty in relation to the act in question but might be that the reason why C killed themselves was connected to the original accident. Chain not broken.

REMOTENESS

Even if there aren’t issues with chain of causations, may be argued that what has happened is too far away from what D originally did to justify imposing liability.

Wagon Mound (No 1) [1961] AC 388 (PC)

Cs owned the wharf, was damaged when D’s ship spilt oil into the harbour, caught fire from sparks from works being carried out. Argued that even if they were held to be in breach, this is such an unlikely thing to happen that it should be regarded as too remote a consequence of what happened in the original breach.

Disapproved CA’s previous approach. The test for whether a consequence is too remote or not is whether it was reasonably foreseeable. Viscount Simonds: As with breach, we are not saying did the individual D foresee it, we are asking what the reasonable man in their position would have foreseen. Lack of reasonable foreseeability is relevant if damage is direct. Some things which are a direct consequence in a chain of causation are ruled out if they are unforeseeable.

Essential factor in determining the extent of liability is whether the damage is of such a kind as the reasonable man should have foreseen. Characterisation of the type of damage suffered is important.

Hughes v Lord Advocate [1963] AC 837

Post office was carrying out works in an uncovered manhole. Covered the manhole with a little tent, put paraffin lamps around the tent to warn people but it attracts the boy’s attention. Left unattended after workmen had finished. Boy walks into tent. Foreseeable that the boy might fall into the manhole and be injured, the workmen should have done more. However, instead he caused a paraffin lamp to be knocked into the manhole and it exploded. The boy suffered serious burns. D argued that although some harm was foreseeable, shouldn’t be liable because the way in which he suffered the harm was not foreseeable. HL rejected this argument. What we need to know is “was harm reasonably foreseeable?” Although it was unpredictable how the harm was caused, did not justify a finding of no liability.

Jolley v Sutton London Borough Council [2000] 1 WLR 1082

Council was responsible for a patch of land next to a council estate. Boat left abandoned on this patch of land. Council knew about it and resolved to remove it but never did. The boat looked alright but was actually rotten. Two teenage boys decided to play with the boat, tried to fix it. Propped up the boat and worked on it. The boat fell on top of one boy. Council argued it was foreseeable that people would play on the boat but not foreseeable they would try to fix it. HL rejects this argument – must allow for the ingenuity of children, and no tension between reasoning in the Hughes case and the Wagon Mound case. Emphasised it is about the appropriate attribution of responsibility. There is no formula here. We must always ask was what occurred reasonably foreseeable? If it was just that the extent of the harm was greater, still have a complete tort. Chain of causation was not broken.

The ‘thin skull’ rule

What if I brush my hand against your head and cause you to suffer severe injury because you have an unusually thin skull? An ordinary person would not have been injured at all or suffered any actionable damage. Should it be open to D to say it was not reasonably foreseeable that this would lead to such extensive damage? Can D rely on C’s sensitivity to limit liability?

Smith v Leech Brain & Co [1962] 2 QB 405

C worked in a factory that involved molten metal. While working, there was a protective screen for when he was lowering things into the metal. But he would occasionally have to look around the screen in order to see what he was doing. On one of these occasions, a splash of metal (a droplet) landed on his lip and burnt him. That burn was the accelerating agent for cancer. He already had potentially cancerous cells, they were triggered from the burn. Went on to develop cancer which he died from. Were his employers liable for his accidents at work and the consequences of it? D argued they must apply reasonable foreseeability → this was an unusual event. Not reasonably foreseeable that burn would develop cancer. Argument rejected by the court. General rule = take your victim as you find them. If you suffered harm that is of greater extent than the ordinary person would have suffered, you can recover.

However, it must be a tort in the first place. If it wouldn’t otherwise have been a tort but you suffered harm, that may be a limit.

Tremain v Pike

C was working on a farm operated by D. Developed Weil’s disease which is a rare condition caused by exposure to rat’s urine. Unsure how this happened, perhaps some hay was contaminated. Argued that he should have been protected by his employers. Even if it is rare and unusual that he would develop it, should take your victim as you find them. Court rejected, too remote to be recoverable. Extent of the harm is not limited by reasonable foreseeability, but the suffering of any harm at all must be foreseeable.

Policy Limitations

SAAMCO case (HL)

Concerned lending by banks just before collapse of the property market in the 1990s. Banks lent money on the basis of these valuations, thinking the property was worth more than it actually was. If they default wouldn’t get money back because the asset wasn’t worth that amount. Claims against surveyors for negligently overvaluing property.

C argued that the valuers should be responsible not just for the difference in their valuation and how much the house was worth at the time of valuing, but when the banks took possession after the default and sold the properties at the time when the property market crashed more generally, they got much less than they otherwise would have. They tried to say that the negligent valuation led them to lend this money, so they should be liable for all the losses sustained in respect of each property.

D surveyors said they should only be liable for the difference in value. Exposure to market up and down had nothing to do with their negligence, beyond their liability. Court accepts this. Not liable for all the consequences, law imposes limits as a matter of policy. General fall in the property market was nothing to do with the surveyors’ negligence in the first place. It was what the banks were always going to be exposed to because they chose to be in the business of secured loans against properties, inherently take a risk in that respect. To hold the surveyor liable for all those losses even though some of them were not a consequence of the information being wrong would be inappropriate.

BPE Solicitors v Hughes-Holland

Endorses Lord Hoffman’s approach in SAAMCO. To allow the surveyor to be liable for all the financial consequences when you would have entered into it anyway (just wouldn’t have advanced as much money etc.) is contrary to policy. D is liable for consequences of your negligence, not everything that has happened after their negligence.

Scope of the duty

Restrictions of liability based upon the extent of the duty assumed.

Calvert v William Hill Credit Ltd [2009] 2 WLR 1065

Compulsive gambler asked William Hill to take him off the books and ban him from gambling. He asked them to reopen his account and they immediately agreed. D were held to owe C a duty and they breached it ,but weren’t liable for all his gambling losses. It was found that he would have gambled elsewhere anyway → he was always going to lose this money.

Wellesley v Withers LLP [2015] EWCA Civ 1146

Recruitment firm got investment from another company which would have added partners to their team. Idea of the investment was that investor would have option to withdraw after 42 months (3.5 years). Partnership agreement drawn up by solicitors Withers to reflect this understanding. Withers negligently got it wrong said they had the ability to withdraw the money within the first 41 months – exact opposite of what they wanted. Investor did withdraw their money much earlier than expected, limited C’s ability to expand into the US, would have gained more business if they had the investment to draw upon.

What is the firm liable for? Court held where you have a claim in both contract and tort (concurrent duties), principle of remoteness should be common to both. Tort = was it reasonably foreseeable? Contract = was within the reasonable contemplation of the parties? Where you have a contractual agreement between the parties, that gives them a chance to set the expectations, so contractual test for remoteness applies. The contractual test of reasonable contemplation applies where you have both tortious and contractual duties. Most of the time, this is beneficial to defendants because the test is narrower.

D won on the point of law, but still lost the case. Court held that it was within the reasonable contemplation of the parties that these opportunities would have come to Wellesley, so they still had to pay.

In legal causation, we must have at the forefront of our minds what is the appropriate attribution and imposition of legal responsibility? This is a major check on what would otherwise be expansive liability for negligence.

Problem Question

Ricky, a model train enthusiast, regularly uses a type of model glue which contains a chemical compound called Tortium. Tortium is used as an ingredient in a number of industrial materials, and Ricky was regularly exposed to the chemical when he worked as a plasterer for Clive’s Construction Ltd from 2001 until 2010.

In July 2015, Ricky started to find it increasingly difficult to breathe. His doctor negligently misdiagnosed chronic asthma and prescribed corticosteroids. Ricky’s condition deteriorated and in January 2016 he was correctly diagnosed with a rare form of lung cancer.

Medical experts agree that exposure to Tortium increases the chance of developing this cancer, although it is not known whether the disease is triggered by the inhalation of a single particle or by a build-up of particles in the lungs over time.

If his doctor had correctly diagnosed the disease when he first presented with the symptoms, the chances of Ricky responding to treatment and making a full recovery would have been somewhere between 45% and 55%. As it is, Ricky is certain to die in the next six months.

Advise the parties as to their rights and liabilities in tort.

General duty of care – employer/employee Breach of duty? They had not implemented something - assume breach is satisfied • Holtby v Brigham & Cowan [2000] (percentage of contribution) Multiple causes - material contribution to harm • Bonnington Castings Ltd v Wardlaw - materially contribute to the harm They would not be liable for the full cost of treatment but they would only be liable for the proportion of they contribution to the risk.

Fairchild - single particle exposure Asbestos exposure under more than one employer - could not pinpoint where the exposure came from → multiple negligent employers Compensation Act 2006→ mesothelioma “Indivisible harm” and evidentiary gaps - either you contributed, or you did not. Similar agents operating to increase the risk of harm Satisfies causation by showing the defendants individually materially increased the risk that the men would develop mesothelioma (can only rely on this where one has actually developed mesothelioma) Lord Bingham: If I am under a sole employer I have a decent chance of saying you’ve increased my chances over 51% If you have been unfortunate enough to be employed by two negligent employers - we do not want to hold it against you - bold appeal to fairness (White v Jones)

• Sinkovich reasoning • Reeves - suicide breaks the chain of causation unless there is a specific duty of care to protect that person

Barker v Corus Claimant’s husband had been exposed to asbestos, at some point during his self- employment working at private homes The fact that some exposure was non-tortious and included himself that did not exclude rule of the Fairchild principle Liability should be proportionate to the risk (dissent from Lord Rodger)

Section 3 Compensation Act does not apply Barker is still good law → Zurich 2015 tells us it is still good law Tortium - we do not know much about the lung disease - single particle or build-up Evidentiary gap - material increase in risk

Loss of chance - doctor diagnosis • Duty of care between doctor and patient • Breach of duty - negligently misdiagnosed • Causation - Gregg v Scott - have to go in with a more than 50% chance of recovery (arbitrary distinction drawn in this case) Lord Nicholls is quite uncomfortable with this position in law

Essay Question

Lord Mance in Employers' Liability Insurance ‘Trigger’ Litigation (2012): ‘Ultimately, there is no magic about concepts such as causation or causal requirements, wherever they appear. They have the meanings assigned to them and understood in ordinary usage in their context. A logician might disagree with a reference to causation or a causal link in a particular context, but that is not the test of meaning.’ Critically evaluate this view in the context of the courts’ approach to factual causation in tort.

In order to write a focused essay pick on the word choice Causation tests are not magic, not unusual - they are what we could expect causation to mean in its ordinary usage. “But for” is pretty normal general rule Exceptions to the rule… are they magic or crazy? Material contribution to harm - part of our ordinary usage to suggest this - Bonnington Divisible and indivisible harm Fairchild exception - material increase of risk? Compensation Act 2006 Zurich Intervening, supervening acts Gregg v Scott – probabilities

Causation and Remoteness: Cases

FACTUAL CAUSATION

Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428

Claimant was the widow of the deceased man, a watchman who was on duty during New Year’s Eve. Had a drink to celebrate. An unknown person laced the watchmen’s drinks with arsenic. They went to hospital because not feeling well, hospital just thought they were drunk so turned them away. Doctors owed duty of care, breached, and suffered actual harm. But failed causation test: by the time C got to the hospital it was too late to administer the antidote anyway. Claimant would have still suffered the same harm. Nield J: ‘Had all care been taken, still the deceased must have died.’ If the claimant would have suffered the harm anyway, would fail the test of causation.

Bonnington Castings Ltd v Wardlaw [1956] AC 613

Foundational authority in this area C worked in a factory involving steel. He was exposed to silica dust during the course of his job. There were two sources of the dust: - Pneumatic hammer he used in his work drilling into things - Swing grinder machine which produced the same dust No known way of preventing the dust coming off the hammer. There were devices for stopping the dust coming off the machine, but they weren’t kept free from obstruction, so they didn’t work. Employers in breach of duty for exposing him to dust from the machine, because there were steps they could have taken to avoid it. Not in breach for dust from the hammer because there was no alternative. C developed a lung condition and sued. Problem was that some of exposure which contributed to it was tortious and some wasn’t. Test: In situation where both causes (tortious and non-tortious exposures) have contributed to the lung condition (cumulative), modify the ‘but for’ test → Did it materially contribute to the harm? If so, then the test is satisfied. Lord Reid: ‘What is a material contribution must be a question of degree… A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material.’ Both exposures combined, but court is satisfied that the exposure to the tortious dust contributed to the lung disease directly.

Holtby v Brigham & Cowan Ltd [2000] EWCA Civ 111

Asbestos used in shipbuilding and heat insulation, later discovered to be carcinogenic. Cause different diseases that may be divisible or indivisible. C exposed to asbestos, developed a lung condition asbestosis arising from the exposure. It is a progressive disease, gets worse the more you are exposed to asbestos. Court says that your exposure mirrors the contribution to the harm. Because of the nature of asbestosis, can attribute the extent of the harm. If D is responsible for 25% of your exposure, responsible for 25% of the harm you have suffered. When it is a divisible injury, we allow causation to be established even if you have worked for several employers and exposed by each of them in breach of duty. Stuart-Smith LJ: ‘The defendant is liable only to the extent of that [material] contribution.’ But the extent of each employer’s liability is linked to the extent of their exposure.

Bailey v Ministry of Defence [2008] EWCA Civ 883

Cumulative causes acting to create a weakness. C admitted to hospital for an operation. She alleged that the way in which the operation had been carried out and her subsequent resuscitation had been negligent. This meant she was subjected to further procedures, which left her in a weakened state. Argues that D’s negligence led to her state of weakness. While she was in hospital, C developed pancreatitis which also contributed to her state of weakness. Was too weak to throw up properly, vomit blocked her airway, she suffered brain damage. Was the hospital liable for her brain damage? Judge decided both the negligence and pancreatitis contributed to her state of weakness, but he couldn’t apportion the responsibility → indivisible harm Brain damage is an all or nothing injury because it resulted from the state of weakness. Can you say in the situation of an indivisible injury, is it enough to prove material contribution to the harm? CA held MoD was liable because they materially contributed to the harm C suffered.

Williams v The Bermuda Hospitals Board [2016] UKPC 4

Privy Council endorsed Bailey.

C suffered from appendicitis, alleged that there had been delays in his treatment which had made his condition worse. Found that liability was established against the hospital because the fact that he was already suffering from appendicitis and then the negligence made it worse, the sequence of events did not make a difference to establishing causation. Lord Toulson: ‘Successive events are capable of each making a material contribution to the subsequent outcome.’ It doesn’t matter whether the tortious breach came first or not, have to ask whether each of them materially contribute to the harm suffered.

McGhee v National Coal Board [1973] 1 WLR 1

Previous leading HL authority, now overtaken by asbestos cases.

C worked with brick kilns making bricks. Gave rise to brick dust exposure, gathered on his skin. Developed dermatitis as a result of exposure to the brick dust. Inevitable that he would be exposed to the dust while working, but employers didn’t provide adequate showering facilities at work, so had to cycle home and shower. That exposure while he was travelling from work was in breach of duty. Some exposure inevitable so not breach of duty, but didn’t provide adequate washing facilities, so he was exposed for a period he shouldn’t have been → this was the breach of duty. Found from medical evidence that this exposure when he had to cycle home “caked in grime and sweat” materially added to the risk that the disease may develop.

Different from Bonnington v Wardlaw where both sources of the dust contributed to his lung disease. Here all we know is that both the tortious and non-tortious exposure materially increased the risk of the disease developing. Not that dermatitis was worse, just increased risk because he was exposed for a longer period of time.

HL held that McGhee was able to establish liability, satisfied causation by showing material increase in the risk of his disease developing.

Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32

Leading case, applied and clarified McGhee.

Cs were exposed to asbestos dust during the course of employment with more than one employer. They contracted mesothelioma (an invariably fatal, aggressive form of cancer) as a result of the exposure. Can get the cancer many years after exposure, so many Cs are already retired.

It was medically impossible to determine which of the employers had exposed Cs to the dust which had caused the cancer. Not divisible injury → not the case that the more exposure the worse it gets, you can get the disease from very limited exposure. Can also be exposed throughout career and not get the cancer.

Limited medical and scientific understanding means can’t point to whose fibre of asbestos caused the cancer. This is evidentiary gap case. Answer to the ‘but for’ test is “I don’t know” because of limitations to science.

Cs worked for a number of different employers, long latency period means the problem might be that only one of their former employers are still around. Cs wanted to be able to say that the one employer they can still find is liable. If you can round all the employers up, can sue them all together and let them sort it out amongst themselves.

CA decision: Applying the ‘but for’ test, held that Cs’ claims failed on the balance of probabilities. Should the claim fail simply because you happened to only work for one company? Multiple potential causes making the claim fail? Lord Bingham: summarising CA decision against the claimants ‘A and B owed C a duty to protect C against a risk of a particular and very serious kind. They failed to perform that duty. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable.’

In the special circumstance where there are multiple potential causes and science can’t say which one is the actual cause, it is enough for C to satisfy causation by showing that each D’s breach materially increased the risk of them suffering the harm which they did suffer as a result of the breach. Lord Rodger: ‘By proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness.’

Barker v Corus [2006] 2 AC 572

C’s husband (died from mesothelioma) had been exposed to asbestos during periods of self- employment. Some of his exposure was his own doing.

3) If you are responsible for some of the exposure yourself, does that disqualify you from the Fairchild exception? HL held that C was entitled to recover on the basis of Fairchild. The Fairchild exception could operate even though not all the exposures (potential causes of damage) were tortious. A non-tortious source of risk did not have to have been created by someone who was also a tortfeasor. In Fairchild the majority held that ‘the creation of a material risk of mesothelioma was sufficient for liability’.

4) Ds and their insurers took issue of the extent of D’s liability. When Fairchild does apply, how are damages to be assessed? This is an exceptional approach to causation, which is reflected when it comes to the extent of each D’s liability. Liability is proportionate to each defendant’s contribution to the risk → damages assessed by reference to the share of risk attributable to the breaches of duty by the defendants. C can only claim for each D to the extent of the contribution.

Lord Hoffman says that attributing liability according to the relative degree of contribution is a balancing act. We are creating an exception that helps the claimant, but that runs the risk of being unduly harsh on the defendant → it is really tough on an employer who is only responsible for a small but still material part of the exposure. Liability is being imposed here only because you increased the risk of causing the harm, not because you have definitely caused the harm. ‘The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.’

Because this is a potential cause of the damage, employer takes the risk. Makes no sense to say we limit the extent. ‘As a result [of the majority approach], claimants will often end up with only a small proportion of the damages which would normally be payable for their loss. The desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me.’ The whole point of Fairchild was to create an exception in favour of claimants in this situation. We all assumed this was a question of whether the claimant get the full damages if they satisfy this test. To rewrite the previous decision and say it is a special test for increasing the risk so you only getting a proportion of damages is a bad thing.

Suddenly dramatically reduced damages Cs could obtain, trade unions took up arms.

Sienkiewicz v Greif [2011] UKSC 10

Claim by daughter about mother’s death from mesothelioma. Ms Costello (the deceased) lived on the Wyrell, an area near Liverpool which has an industrial legacy. As a result, people who live on the Wyrell have a higher than average environmental exposure to asbestos. It was the general environment in that area. How do you go about proving in that situation where you had some exposure at work but also environmental exposure? First opportunity for the Supreme Court to consider Fairchild, Barker and the Compensation Act.

Lord Phillips held s 3 applies. Courts are usually justified in developing the law where they think there is not likely to be any Parliamentary intervention, now that Parliament has shown it is willing to legislate in this area, court should be cautious about extending and creating further exceptions.

If scientists can tell us which asbestos caused the claimant’s mesothelioma, then we would no longer need to rely on an exceptional test – revert to whether C could prove D’s breach caused the harm or not. The exception is contingent on the current evidentiary gap. S 3 does not preserve for all time benefit for mesothelioma sufferers from the Fairchild exception.

Durham v BAI (Run off) Ltd [2012] UKSC 14

‘Trigger’ litigation Often times the insurers are the people who are paying. When does liability arise? You can’t sue in negligence until you have suffered the relevant harm. In many cases, the cancer occurs years after you stopped working for the employer. The breach of duty exposure was while you were working for them, but you didn’t have a claim then. Might be undesirable if employers were liable but insurers didn’t have to pay because the liability only crystallised outside of the relevant period of insurance.

Whether the insurers are liable usually depends on the terms of the contract they had with the employers. Insurance contracts had various language, might have included causation or liability being incurred etc. Fairchild test doesn’t fit so easily because it turns on exposure in breach of duty which we then treat as causative.

Lord Mance says we have to interpret insurance contracts using a ‘sufficiently flexible approach’ to make them respond to the triggering of liability where the common law says must show material increase in risk. This meant the insurance contracts were triggered by the exposure, so you could make good the claim. This is a purposive, pragmatic approach adopted after scrutinising Fairchild.

Wilsher v Essex Area Health Authority [1988] AC 1074

Concerned baby boy born prematurely, in special baby care unit in hospital. Alleged negligence on behalf of doctors, resulted in baby being exposed to too much oxygen. That led to him developing very serious eye condition RLF. One of the potential causes was exposure to too much oxygen. But there were several other potential causes of this illness, particularly the variety of medical conditions he had. Alleged negligence was one of several different potential causes. Argued on behalf of the boy, relying on McGhee, potential cause = increase in risk.

But we must police the boundary between having an evidentiary gap where due to the limitations of scientific knowledge, we can’t say which of several similar causes count as the relevant causes, and the claimant failing to prove their case. If you suffered harm, it must be caused by something, one might be alleged negligence of D, but there might be other potential causes. Not everyone benefits from the exception.

Claimant had simply failed to prove his case. HL endorses the reasoning of Sir Nicholas Brown-Wilkinson VC’s dissent in the CA: ‘No one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.’

Lord Rodger says in Fairchild (supported by Barker) that the exception only applies where: d) you have this evidentiary gap situation, and e) the potential causes are either the same (asbestos from different sources) or which operate in substantially the same way, and f) there is scientific uncertainty about how those agents then caused the injury. It is not that there is a number of different causes that might have in different ways caused the harm. Wilsher is just failing to prove your case, can’t discharge the burden of proof using these rules.

Heneghan v Manchester Dry Docks [2016] EWCA Civ 86

C had been exposed to asbestos and developed a lung cancer that was not mesothelioma. Lord Dyson satisfied that Fairchild exception applied on the facts. But because it was not asbestos-related mesothelioma, s 3 of Compensation Act did not apply, so C was only entitled to 32.5% of their total damages. When Parliament legislated, they focused solely on the facts and not the legal principle. Only difference is different kind of lung cancer, but dramatically different outcomes because Barker continues to apply at common law to all Fairchild cases that s 3 doesn’t cover.

Zurich Insurance v International Energy Group [2015] UKSC 33

Mr Carré worked for the Guernsey Gas Light Company for 27 years. At the time, for some of the duration that he worked for the company, employer’s liability insurance (for potential claims by employees) wasn’t a requirement in Guernsey. He only worked for them while they were insured for 8 of the 27 years, when the relevant legislation came in.

It was conceded that, throughout the course of his employment, Guernsey Gas had breached its duty to Mr Carré as their employee and that such exposure had materially increased the risk of his contracting mesothelioma. Mr Carré later contracted mesothelioma and died in 2008. Guernsey Gas had been identified as only having had insurance for eight of the 27 years. S 3 of the Compensation Act did not apply to Guernsey. Problem of insurance responding to the liability.

Compensation Act doesn’t apply to Guernsey, so common law continues to apply even in asbestos-related mesothelioma cases. Following on from the Trigger litigation, how does insurance respond to this? If his exposure that had caused the mesothelioma was during the 19 years when they weren’t insured, then that’s no good for the claim.

Majority/minority split Court unanimous on the point that Barker has not been overruled as a matter of common law by the ‘Trigger’ litigation case nor by the 2006 Act exception for asbestos mesothelioma claims, remains as part of the common law of England. Still, if applying Fairchild exception to any other scenario, liability will be proportionate as in Heneghan.

Hotson v East Berkshire Area Health Authority [1987] AC 750

C was a teenager who was playing in a tree. Fell 12 ft and suffered severe fracture of his left femur. He was taken to hospital, various failings in diagnosing what was wrong with him, so took several days before he was correctly diagnosed. Went on to suffer vascular necrosis, a serious degenerative condition, led to disability in hip joints and likely to get arthritis in future.

Sued health authority responsible for the hospital, negligent delay in diagnosing him causing his harm? Judge found at first instance that given the nature of his original injury, there was a 75% chance he would have developed this condition anyway, even without the delay in correct diagnosis. It was a 75% chance when he came into the hospital, already more likely than not that he would develop this condition. If have to prove your case on the balance of probabilities, can’t on the facts of this case. Claim fails on both basis of whether they caused his injury and on whether you can sue for that 25% chance of avoiding the injury. Loss of a chance of avoiding an unfavourable outcome is not in itself actionable. Must be able to prove your case on the balance of probabilities.

Gregg v Scott [2005] 2 AC 176

Mr Gregg, found a lump under his arm. Doctor negligently diagnosed the lump as benign. It was in fact a cancerous lump. Initial failure to diagnose correctly led to delay of about 9 months in him getting appropriate treatment. During that period, his condition deteriorated and the cancer spread.

In cancer cases, survival for the purposes of a claim = living for 10 years after diagnosis. In this case, giving the nature of the cancerous lump, when he walked in to see the doctor he had a 42% chance of survival (making it 10 years from the diagnosis), whereas by the date of the trial it was 25%. Alleged doctor’s negligence led to loss of a chance of 17% difference in chances of a favourable outcome. His chance was originally 42%, in the first place it was more likely than not that he wouldn’t survive for 10 years. Must prove that it was >50% likely.

HL invited to change the law in this area. Gregg was still alive by the time it reached the HL, which was >10 years after the diagnosis. Key point of principle is whether you can sue for that loss of a chance. By a majority, their Lordships say no, cannot recover for loss of a chance → this would be a radical departure from precedent. Chances being reduced further from the negligent diagnosis is not actionable.

Majority says balance of probabilities, framing it as a loss of a chance not actionable in tort law personal injuries.

If C’s chance when he walked through the door was >50% chance and the negligence reduced it, then it would have been more likely than not that the doctor’s negligence made a difference. Lord Nicholls (dissenting): Rejects how it all depends on what it was like at the first moment. ‘The loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of a 55% prospect of recovery. In both cases the doctor was in breach of his duty to his patient. In both cases the patient was worse off. He lost something of importance and value. But, it is

said, in one case the patient has a remedy, in the other he does not. This would make no sort of sense.’

Lord Nicholls (dissenting in Gregg v Scott): Approach to economic loss is a point in favour for changing the law on personal injury. ‘The law would rightly be open to reproach were it to provide a remedy if what is lost by a professional adviser's negligence is a financial opportunity or chance but refuse a remedy where what is lost by a doctor's negligence is the chance of health or even life itself.’

Allied Maples v Simmons & Simmons [1995] 1 WLR 1602

Different approach when it comes to economic loss, rather than personal injury.

C were retailers, wanted to take over various assets including department stores for them to use. Asked D to act for them as solicitors. Solicitors messed up in redrafting a clause, led to significant liabilities for Allied Maples to do with the properties they were taking on. If the solicitors hadn’t acted negligently during the negotiations, would you have been able to negotiate with the third party for the outcome you wanted? Since it is a third party, they may still not have agreed if the solicitors weren’t negligent.

When it involves decision-making of a third party, the court has to evaluate it in the same way as chances of recovering from a physical injury. The loss of an opportunity to bargain is a different question.

Approach to personal injuries is all or nothing, about whether you established the liability or not. When it comes to a financial claim, money is of the essence. Court can judge what you may recover, can prove negligence caused this much loss. This is reflected in the damages as opposed to being a barrier for factual causation.

Stuart-Smith LJ: ‘The plaintiff must prove as a matter of causation that he has a real or substantial chance [of negotiating what he wanted] as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance [how likely it was] is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other.’

Chester v Afshar [2004] UKHL 41

Ms Chester suffered from chronic pain, went to see Mr Afshar (a surgeon) about an operation to cure it. Whenever the operation in question was performed, even with all competence and expertise, it carried with it a small risk 1-2% of paralysis. Afshar negligently failed to warn C about that risk, accepted on appeal that it was a breach of duty. Performed the operation without negligence. Breached duty to disclose but didn’t breach duty in carrying out the operation. C developed this syndrome.

There was causal problem because C said honestly that if he had warned her, she would have gone away and thought about it. She didn’t say she wouldn’t have the operation. But for D’s breach of duty, would she have suffered the harm? Maybe she might have had it on another day. Risk was present whenever you had the operation.

Majority said yes, she can recover. Relaxed the rules on causation because the patient’s autonomy (right to give informed consent and correlative duty on the part of the doctor to inform the patient of the risks) is so important that we should allow that to justify an exception here. Lord Steyn: ‘Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles.’ If the patient cannot say that they would never have had the operation, if that would always mean C fails on the point of causation, what is the point of the duty. Lord Hope: ‘The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content.’ ‘The duty [to warn] was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.’ Creates exception to principles on policy grounds.

Lord Hoffman (dissenting): C has simply not established that her harm had been caused by the operation. ‘The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail. The judge found as a fact that the risk would have been precisely the same whether it was done then or later or by that competent surgeon or by another.’

Problem in majority’s approach: If she had been warned, she would not have had the operation that she did. Majority is saying that that day and that operation was ordained to have the problem → lightning strikes twice argument.

Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356

Chester is a very limited exception. Concerned three-stage operation. Surgeon negligently failed to carry out the 3rd stage, reconnecting a nerve. C argued that her right to give informed consent was so important that if the operation is negligently carried out, then that vitiates her consent. Doctor wins in the CA. Simon LJ: ‘The implications of a finding that a negligent act in the course of an operation vitiates consent would have potentially far reaching consequences.’

Defences

Defences of general application, particularly applicable to negligence but also applicable to a range of other torts.

Who can sue whom, in what tort, for what damage and are there any defences?

What torts are engaged, consider each of the elements of the relevant torts, what damage C suffered (relevant in remedies) and defences. All the elements of the torts have been made out, D is not disputing that they did not fulfil one of the elements. Defence = D shows why they are not liable.

Look at claimant’s conduct → C’s role in the harm which they have suffered can be deemed to either be contributory to their harm (damages reduced) or taken through their behaviour to have behaved with such disregard to their own safety as to assume the risk of injury (cannot recover). Always think about in what circumstances particular defences are available, especially those that focus on the claimant’s conduct. D can exclude their liability via contract or notices. General application defence of illegality – Supreme Court has visited this topic several times in recent years, but currently we have a clear test.

Additional defences are specifically applicable to certain torts, e.g. nuisance claims (abatement), self-defence applicable specially to trespass torts.

CONTRIBUTORY NEGLIGENCE

C is partly responsible for the harm they have suffered. This defence is available when the claimant is partially at fault (blameworthiness) for the damage they suffered (causal link).

Before 1945, if D could show that C was in any way at fault for the harm they suffered, it was a complete defence to their claim → harsh particularly in road traffic cases, claim completely defeated from pedestrian not looking when crossing the road. This is no longer the case.

Law Reform (Contributory Negligence) Act 1945 s 1 (1) C is guilty of contributory negligence if he fails to take reasonable care of his own safety and that failure is causally related to his damage → suffered damage partly by fault of C and partly by D. (2) If the claimant is guilty of contributory negligence, his action will not be defeated, but his damages must be reduced. (3) The reduction must be to such an extent as the court thinks ‘just and equitable’, and this is determined by having regard to the relative blameworthiness of the parties and the causal potency of their acts. (4) C gets proportion of the total value of the claim.

Froom v Butcher [1976] QB 286

Car accident, C was not wearing seatbelt because didn’t like them and felt trapped. At the time of the case (60s-70s) not a legal requirement to wear a seatbelt. Involved in accident entirely fault of the other driver. Suffered broken finger, head and chest injuries. Because C wasn’t wearing a seatbelt, he suffered worse injuries than he would have, would not have suffered such severe harm. Lord Denning: ‘Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself.’ “Sometimes the evidence will show that … the damage would have been the same, even if a seat belt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that … the damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25%. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seat belt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15%.”

Key points: 1) Contributory negligence is a defence, only applies where C is in some way responsible for the damage they suffered. It is not a tort in itself. (Do not confuse with causation and material contribution.) You do not owe yourself or D a duty to take care of your own safety. Law requires you to take care, your damages will be reduced if you fail to do so. 2) We don’t talk about the duties of care in contributory negligence.

C’s damages were reduced by 20%. Accident caused by bad driving, but damage caused by bad driving and no seatbelt. Statute says “where any person suffers damage as the result partly of his own fault…” Causally irrelevant contributory negligence by the claimant has never been sufﬁcient to enliven the doctrine of contributory negligence. C is partly responsible here for the damage he suffered, injuries worse by virtue of him not wearing a seatbelt. Must look at the damage suffered, not the cause of the incident.

Froom has been extended to related contexts, such as a failure of motorcyclists and bicyclists to wear crash helmets → Isn’t this arguable more reckless, and we should make C contribute more?

Pitts v Hunt [1991] 1 QB 24

People were drunk and riding motorbike illegally. If you conclude C is 100% responsible for the harm they suffered, there can’t be any contributory negligence, damages must be partly the fault of C and partly of D. Contributory negligence only applies if we conclude the damages are shared between the two parties, there is fault on the part of both parties which caused the damage.

Corr v IBC Vehicles [2008] AC 884

Mr Corr suffered accident at work which left him disfigured. Became depressed and committed suicide. In causation, argument that his decision to commit suicide broke the chain of causation between D’s breach of duty and his death was rejected because the reason why he committed suicide was the depression which was attributable to D’s fault. D also argued C was contributorily negligent to commit suicide, damages should be reduced to reflect his decision to commit suicide.

Majority in court rejects argument. To conflate suicide with contributory negligence is ill- conceived. Lord Walker ‘s general point: causal potency = how powerful/relevant was C’s fault in the damage which was partly D’s fault. Lord Scott, dissenting: Policy debate. If you jump off a building and land on someone and injure them, you would be liable. Jumping off to kill yourself shows disregard for your own safety.

St George v Home Office [2009] 1 WLR 1670

C was addicted to drugs and alcohol. Led to condition where he could suffer fits. He was detained and suffered injury after falling from the bed. D’s negligence in not protecting him from risk of suffering injury Argued that C’s addiction which led to this condition of being prone to fits was partly his own fault, he should be contributorily negligent. CA rejected this argument. C’s fault must have contributed to the damage → Needs to be a potent cause relevant to what has happened. Too remote in time, place and circumstances.

Standard: What is the standard by which we are to judge the claimant in terms of assessing their conduct? C doesn’t owe a duty to anybody, so can’t talk about objective standard in terms of breach in the same way we did when assessing D’s liability. When judging what standard to expect of C in having regard for their own safety, to what extent should we take into account subjective characteristics of the claimant? Courts took age, disability + skill characteristics into account in a limited way when imposing a standard of care in negligence breach of duty?

Phethean-Hubble v Coles

C was 16-year-old boy riding bike on footpath, alongside a road subject to a 30mph speed limit. It was dark, C didn’t wear helmet, no lights on bicycle but there was some street lighting. D drove car along road on the same side as C. C rode his bike onto the carriageway at an angle into the car’s path. C suffered serious injury.

Judge at first instance found D was going too fast for the conditions, driving at 35mph, 26mph would be more suitable. Thought that D would have been able to avoid the collision if he exercised reasonable care, but the way C rode his bicycle meant he was 50% responsible. However, it would be “just and equitable” to reduce damages only by 1/3, not ½ because C was only 16, lacked maturity and judgment.

CA disagreed. We may only take into account the age of the claimant if the facts justify it in terms of the decision-making. Here C was just riding his bike badly, wasn’t attributable to his age. Judge was just being indulgent and sympathetic to C, no residual discretion to vary it.

Goudkamp: Discounts in a discretionary system are not determined in a scientiﬁc or mathematical way. In a problem question, should explain your reasoning as to what you think the appropriate shares of responsibility are → acknowledge factors that may influence the amount of damages she could claim. There is no one correct figure to arrive to, and we have to respect that, can disagree to a reasonable limit.

Jackson v Murray [2015] UKSC 5

Dark country road, two girls get off bus and try to cross the road. C stepped out from behind the minibus into the path of a car. Driver was going too fast, saw the minibus but didn’t think anyone would step out from behind it so did not keep a proper lookout.

Hits the child and causes severe injuries. If he was going at a reasonable speed and keeping a lookout, he would not have hit her. C also did not act with enough regard for her own interest. Lord Reed makes observation that the general application of the act’s apportionment section cannot be a precise measurement. Court held needed to make just and equitable reduction because of C’s contribution. You must decided the appropriate share attributed in light of other cases. On the facts, first instance decision gave 90% blame to the child, 13-year-old who ran out. CA said 70%, SC said 50%. When is it appropriate for an appellate court to interfere with a judge’s finding? 90% in this case was deemed as too harsh. Apportioning 90 or 70% of the blame is saying one party is mostly to blame, SC took issue with this. It is not the same as saying both were equally to blame.

This case doesn’t add much to the law. Here it was not overturned because of fact or law, ‘the apportionment of responsibility is inevitably a somewhat rough and ready exercise’.

The ability to reduce damages on basis of contributory negligence only applies where it was a defence to that tort prior to 1945:

Co-operative Group Ltd v Pritchard

C worked in a co-op store for 36 years. Erratic health but work record good. Had been off for 2 weeks, wanted another day off to rest but store manager refused when he called. Went to store with twin sister to talk to manager. Had verbal and physical altercation, bit the manager, then stumbled on a step on her way out. She sued for the assault by her manager. Equally she behaved badly, so can her damages be reduced? C was responsible for this confrontation but nonetheless suffered some injury and was off work as a result of consequences of the fall and general distress at the incident.

What do we mean by fault? Prior to 1945, contributory negligence not recognised as a defence to tort of trespass. CA holds contributory negligence doesn’t apply as a defence to this particular cause of action (assault and battery) and therefore the 1945 Act cannot apply either. The Act is designed to solve the problem of complete defence, not a general licence to reduce damages where we think D has behaved badly.

J Goudkamp, ‘Apportionment of damages for contributory negligence: a fixed or discretionary approach?’ (2015) 35 LS 621

The core rules that govern the doctrine of contributory negligence in Australia, Britain and Canada are essentially identical. Minimal evolution in the law subsequent to the introduction of apportionment legislation + high degree of uniformity among common-law jurisdictions suggests that there is widespread satisfaction with the law. US exception → contributory negligence by C is fatal to his action if his responsibility for his damage reaches a certain level (usually 51%).

Should judges have essentially free rein to determine the appropriate discount or should ﬁxed apportionment rules be adopted? Goudkamp argues that we lean too much towards discretionary apportionment, and fixed apportionment would provide consistent decisions.

HLA Hart, ‘Discretion’ (2013): When officials have discretion, “they will choose responsibly having regard to their ofﬁce and not indulge in fancy or mere whim…”

Glanville Williams: ‘fault not contributing to the damage cannot be taken into account’ The courts do not take into account the fact that the claimant risked the defendant’s safety or the safety of third parties. Such facts do not relate to the claimant’s responsibility for the damage they themselves suffered.

The Froom rules are the only well-established judge-made ﬁxed apportionment rules. Arguably, they do nothing more than explain what a ‘just and equitable’ reduction in damages is in seat belt cases. The courts will only depart from Froom in ‘rare or exceptional’ cases. Gawler v Raettig [2007] (HC): Where the defendant contends that the discount for contributory negligence should be increased above 25%, only a ‘conscious decision’ by the claimant to take a risk will render a case sufﬁciently exceptional to escape from the grip of the Froom rules. Froom is inapplicable where there is an act of contributory negligence additional to failing to wear a seat belt, such as accepting a lift from an intoxicated driver, travelling in a car with the knowledge that its brakes were defective or travelling in the boot of a car.

Statutory fixed reduction rules exist in some jurisdictions, e.g. Australia. Where B engages in specified behaviour, there could be rules that require the courts to reduce damages by a minimum or fixed percentage in certain situations. In South Australia, legislation provides for an irrebuttable presumption of contributory negligence where the claimant ‘relied on the care and skill of a person who was intoxicated’.

Goudkamp advocates for something similar to the Guidelines for the Assessment of General Damages in Personal Injury Cases published by the Judicial College. → This publication suggests brackets of awards of general damages for speciﬁc injuries. They are ‘“soft law” (merely suggestive) rather than “hard law”’ but ‘judges will tend to follow them’.

ASSUMPTION OF RISK

Volenti non fit iniuria = No harm happens to someone who is willing. C displayed such disregard for their own safety that they are deemed to have assumed the risk of the injury that results, so cannot sue anyone else for it. Accepting legal risk = Accepting the risk that you can’t sue, consenting to the legal risk of the injury happening. e.g. In a fight, not necessarily consenting to not being able to sue for any losses. Legal implications of consenting to that risk as well as the damages you may suffer.

The importance of the volenti defence is diminished after contributory negligence developments (partial defence so courts more ready and willing to use it than a full defence) → interpersonal responsibility is apportioned out by contributory negligence).

Illustrations:

Dan v Hamilton

One gets into a car; the driver is drunk and passenger says that’s fine. Volenti wasn’t made out. Difference between knowing a risk and accepting a risk → accepting that you won’t be able to sue this person.

Nelship v Weston

Driving instructor gets into car with learner driver. Not accepting the risk, nothing short of a waiver of liability is going to amount to volenti in this scenario. He also asked the learner driver for her insurance, indicating he wasn’t waiving.

ICI v Shatwell [1965] AC 656

C engaged in inherently dangerous practice in how they used explosives in a quarry. C’s conduct involved testing explosives in a way that they thought was a good idea but was contrary to regulations. Didn’t use relevant safety guidelines against their employer’s instructions. Court says this is a reckless venture, they were fully aware of the risk of what they were doing but did it anyway. Held that their claim couldn’t succeed by virtue of their own disregard for their safety on the facts.

Legislation Road Traffic Act 1988 limits the ability to rely on the defence of assumption of risk in road accidents in particular, but it doesn’t cover light aircraft.

Morris v Murray [1991] 2 QB 6

Two men went out drinking in multiple pubs. Not sure how much they drank at each pub. Decided to drive to the local airfield and go for a trip on a light aircraft. C is severely injured, and the pilot of the light aircraft dies. C tries to sue the estate of the pilot for negligence.

D argues that C can’t sue because they were drinking ‘drink for drink’ together. Getting into a plane with someone you know to be drunk is such a disregard for your own safety that you can’t bring a claim. CA found this. C couldn’t sue the estate of the pilot for negligence. He knew how drunk the pilot was, and risk of injury → the injury seems almost inevitable. The law shouldn’t help you when what you are doing is inherently irresponsible/risky. Compensation culture → acting irresponsibility.

Volenti can only apply if you have willingly assumed the risk.

Osbourne v London & North Western Railway Co

Ds argued that C was aware of the risks in question. Did you willingly assume the risk of injury? It is not enough to trigger the defence if you are aware there is a risk but don’t understand the full extent of it. Particularly important in the context of rescue cases → rescuer tries to help without fully realising the threat to their own safety. Need to be able to sue the person who created those circumstances. Not whether you knew there was a chance of injury, need to show lack of regard for your own safety and willing.

Emergencies: When asking if the defence applies, need to have regards to the circumstances → If you put concerns for your own safety to one side because you are responding to an emergency, not a question of being reckless but acting bravely and promptly.

Baker v Hopkins

D of contractors engaged to clean a well. D’s managing director gave the workmen a petrol pump to clear the water out of the well. Involved lowered the pump into the well to pump out the water. Use of a petrol pump engine gives off a lot of fumes. Thought that the fumes had cleared, but workmen went down the well and became ill from exposure to the fumes. Stuck down the well and unwell, doctor was summoned and fire brigade was called. Doctor tied rope around his waist and went down the well. Collapsed and was stuck. Died before reaching hospital. Could the doctor’s estate sue D for creating this dangerous situation? D argues the claimant doctor knew there was a dangerous situation, that was the reason they called for him. CA rejects the argument. When you are responding in an emergency which has been created by D’s negligence, you may not have primary regard for your own safety if you are trying to save someone else. Not open to D to say you went down and exposed yourself to the danger even though you were trying to save the men D himself had endangered in the first place.

Suicide:

Reeves v Metropolitan Police Commissioner [2000] 1 AC 360

Suicide while in custody, the deceased was a known suicide risk and police failed to take reasonable steps to prevent him. Police first argued he was of sound mind, his own act broke the chain → argument rejected. Voluntary assumption of risk by killing yourself? Their Lordships reject argument of volenti applying because it would render the duty hollow. People don’t consent to suicide, it is a final thing they feel driven to do. Where the duty does apply, cannot rely on volenti. Court says it is not an argument about accepting the risk, can’t allow defence on policy grounds. Duty of care was to take reasonable steps to prevent him from killing himself. His successful suicide would negate duty of care if police could rely on the complete defence and not be liable. However, the intentional act was contributorily negligent, so the court was able to apportion 50% to the claimant. Not a sympathetic approach to suicide victims.

Orange

Not every case involving suicide in custody generates liability. Husband of C kills himself in cell. Wasn’t regarded as suicide risk, was allowed to keep his clothing. Duty to take reasonable care in respect of their personal safety etc. is not of the same order as the specific obligation where you know that they are a suicide risk. Where there is a specific duty owed to prevent suicide, volenti is a defence of limited application.

EXCLUSION OF LIABILITY

Unfair Contract Terms Act 1977

S 2 limits the ability by virtue of contract + notice to restrict/exclude liability. 1) Cannot exclude liability for death or personal injury resulting from your negligence. Ineffective as a matter of law. 2) In the case of other loss or damage, exclusions must satisfy the requirement of reasonableness. 3) Important anticipation of defendants’ argument → s 2 simply provides that exclusion/restriction clauses will be ineffective in certain circumstances but doesn’t ban the inclusion of those clauses (often included for deterrent effect in contracts). Just because they signed the contract doesn’t mean they willingly assume the risks the terms provide. Merely agreeing to or being aware of an exclusion of liability is not of itself to be taken as indicating voluntary acceptance of any risk.

Consumer Rights Act 2015

Replicates the same provisions as above, but in the case of consumer contracts involving a trader, the correct provision is s 65 of the Consumer Rights Act, not UCTA framework.

ILLEGALITY

Ex turpi causa non oritur action = No action arises from illegal causes. Another way we may judge C’s conduct as a reason why their claim may fail even if all elements of the tort could be proven.

General proposition in Holman v Johnson Lord Mansfield CJ: Where we allow the defence of illegality to defeat a claim, not saying D is in a better position than C, but that court can’t entertain C’s leading evidence of illegal circumstances that gave rise to the tort. Peter Birks in Unjust Enrichment → Concern of stultification (being absurdly illogical), making the law look stupid. If we allow a claimant to bring evidence that they have been up to no good, it would undermine the credibility of the law.

Gray v Thames Trains [2009] 3 WLR 167

C suffered physical injuries in a train disaster in West London. Developed PTSD through negligence of the defendants. Later on he got into an altercation with a pedestrian. Drove to girlfriend’s parents’ house and got a knife, then followed the pedestrian and killed him. Convicted on manslaughter with diminished responsibility. Sought to sue for PTSD, loss of earnings and loss of liberty. Should court take into account the illegal act of manslaughter or shut its eyes to it? CA allowed the claim to succeed notwithstanding the illegality defence. HL overturned. Criminal justice system has held Mr Gray responsible for the death of his victim, so he suffers the consequences (loss of earnings and liberty) as a result of this crime. For private/civil law to attribute responsibility in another place would be inconsistent. Reaffirms idea of consistency.

CA decisions have shown some nuance in how they apply the defence of illegality.

Delaney v Pickett [2011] EWCA Civ 1532

C brought a claim against D who drove a car, C was injured caused by D driver’s negligence in car accident. When they were rescued from the car, D was found to have enough cannabis to make 170 cigarettes stuffed down his sock, and C have a package sufficient to make over 1000 cigarettes under his jacket. In possession of drugs, some debate whether they were going to supply or use. Court says the illegality defence did not apply here. The fact that they may or may not have been on this criminal enterprise was irrelevant to the fact that C was owed a duty of care by the driver D which he failed at. An illegal background to them being in the car was irrelevant, not like getaway drivers driving away from a robbery.

Joyce v O’Brien and Tradex Insurance Co

C fell off the back of a van driven by his uncle. Claim against uncle’s insurance. C and D were involved in the theft of ladders. Stole the ladders, were making their getaway and placed the ladders in the back of the van. Ladders too long so couldn’t shut the back door. C stood on the footplate at the back of the lorry holding the ladders and door in place. As they swung around a corner, D went too quickly, and C fell off. D drove on for a short distance and hid the stolen ladders in an alleyway before coming back to help his nephew. Defence of illegality did apply because they were in a joint criminal enterprise.

Impario delicto when they are both in it together the position of the defendant was stronger. Connection between the illegal conduct and the tortious conduct is looked at to see if the claim should be denied. Here there was a relevant causal nexus between the illegality and the tortious conduct because he was driving too fast and C was in the awkward position only because they were trying to make their escape.

Law Commission reform

Looked at role of illegality defence in private law. In the context of tort, recommended for the defence to develop incrementally in the courts. Recommended in the context of property rights in trusts, the abolition of the HL decision in Tinsley v Milligan. If C has to rely on their own illegal conduct to establish their claim, they cannot make good that claim. There should be legislative abolition of that, but not for other things because the court was reasoning well with the right answers. Patel v Mirza involved SC changing the law in an area scrutinised by the Law Commission. Notable for strident and emphatic dissent of reasons by the minority (outcome is unanimous).

Four Supreme Court cases: 1. Hounga v Allen (2014) Woman sought to sue her employers for various forms of discrimination. She had conspired in herself being illegally trafficked into the country to work for her employers. Held the claim was allowed because of importance of policy of protecting victims of human trafficking and importance of discrimination policies vindicating workers’ rights. 2. Les Laboratoires Servier v Apotex (2014) Involved foreign patent infringement. SC held that it is only conduct that is criminal or quasi-criminal which engages the illegality defence. Don’t cite Hounga v Allen, take stricter line in that if there is illegal conduct, the defence should rule out the claim. 3. Jetivia Anor v Bilta (2015) Considered operation of illegality defence. Most of the judges say they should resolve the tension between the conflicting authorities with more judges at some point. 4. Patel v Mirza (2016) 9 Justices considered the defence of illegality. Fundamentally disagreed on the reasoning. There is a majority for one approach. Split in reasoning → 5:4, 6:3, 5:1:1:2

In all four cases, the Justices offer fundamentally different reasoning although they have unanimous outcomes. Challenge is in working out what approach should be taken.

Patel v Mirza [2016] UKSC 42

Facts: C and D entered into agreement to place a bet on the price of shares of RBS. D claimed to have insider information about a forthcoming government announcement which would affect the bank’s share price. C agrees to pay £600k to D to place this bet over a poker night. The insider trading information was never used, no government announcement came. C asked for his money back, D says they entered into an illegal agreement so he can’t claim back the money and the defence of illegality applied. Court held that C could recover his money because the illegal transaction had not been carried through, the bets had not been placed, and no reason for D to keep the money between the two of them.

Claim succeeded by applying the test of proportionality as framed. A ‘judicial schism’ exists between those calling for the application of clear rules vs those who wish to address the equities of each case as it arises.

Ratio: Majority thought that articulating policy rationales = a more principled + transparent assessment which appears less arbitrary. Overruled Tinsley v Milligan → old principle = the defence of illegality would only apply if the claimant needed to ‘rely upon’ the circumstances of illegality in establishing their claim. • Lord Toulson suggested that the courts should take into account the underlying purpose of the relevant law which has been broken, any relevant public policy as engaged by the case and finally the proportionality of denying the claim given the illegality in question. • Andrew Burrows, A Restatement of the Law of Contract (2016) advocates considering a range of factors when deciding an “appropriate response”. • Lord Toulson: Idea of integrity and consistency of the system. “It would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality…”

Minority thought the existing law didn’t need to change, it was not necessary to reformulate the defence to resolve the appeal. Lord Sumption: Want clear rules rather than deciding in case-by-case basis. • Lord Clarke: C was able to recover on ‘the application of orthodox principles of unjust enrichment, rescission and restitutio in integrum…” The majority approach is almost like reviving a public conscience test. • Lord Mance: value judgment = unspecific, non-legal

• Lord Sumption: support to a statutory discretion given by Parliamentary legislation. Discretion would be a positive development, but it is not appropriate for the judiciary to create that discretion for themselves.

How do we work out whether the public interest would be harmed? a) What is the purpose of the rule that has been transgressed? Consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim. b) What other public policy might be impacted? c) In light of what C stands to lose if their claim is denied, is that a proportionate response to the illegality to which they are guilty? (Bearing in mind that punishment is a matter for the criminal courts.) Only where it would be a proportionate response should the claim be defeated.

Framing the test in this way makes it more transparent. Risk of formalistic approach producing arbitrary results that may seem unjust or disproportionate, e.g. using language of ‘relevant causal nexus’.

Still some uncertainty as to scope of Patel v Mirza and how it applies in the wide variety of illegality cases.

Henderson v Dorset Healthcare

After Patel C had various mental difficulties and killed her mother. Alleged that if she was better looked after by the defendant healthcare providers, she would not have killed her mother, alleged various breaches of duty. Can you say someone else is responsible for your criminal act? Similar to Gray v Thames Trains. Claim failed because of circumstances of illegality, held it wouldn’t be disproportionate. Although definitive SC decision, there still appears to be some debate. Jay J makes odd reading of Patel as not a definitive answer to illegality issues, but upholds Gray v Thames Trains. “… Generally supportive of an approach which examined the “policy reasons which justified the application of the illegality defence and to explain why those policies applied to the facts of the case”.

Essay Question

‘There is no rational justification for the defence of illegality. It should be abolished.’ Do you agree? Refer to recent case law in your answer.

Unprincipled law, how should it be reformed?

Holman v Johnson says not just illegal act, must also be immoral act. Lord Mansfield: The court doesn’t want to allow a wrongdoer to profit from his criminal act.

Don’t want to be in conflict with criminal law. Repercussions of a criminal sanction is more serious than tort law, so having tort law in harmony with criminal law makes sense. Broader notion of public policy ground, offensive to the public? Lord Sumption in Patel v Mirza cites a Canadian judge McLoughlin J: Doesn’t make sense for law to give with one hand and take away with the other.

Gray v Thames Trains Claiming for loss of things because sent to prison. Law can’t compensate you for being in prison. If you are out of the law by contravening it, you should be out of the law’s protection as well.

Rational justifications for defence of illegality? A lot of debate Pearson Brookes Prostitute getting taxi journey, didn’t pay because said he was aiding and abetting. Taxi driver tries to sue her. Would it be proportionate to deny him of the taxi fare?

Lord Sumption vs Lord Toulson in Patel v Mirza Would it be better to have a strict set of rules? Or should we listen to every case and taking them as they come. Not a lot of guidance from Lord Toulson’s approach. Just wants to provide a structured reasoning. - Underlying purpose of the prohibition - Public policy affected - Denial of claim proportionate response? Not hard and fast concrete rule, just guidance.

Patel v Mirza is restitution case, not tort case. But majority speech doesn’t say this is just applicable for restitution, laying it down based on Law Commission report which deals with all of private law.

Should the defence of illegality be abolished? No, it has important public policy justifications. Confusing area of law, may be reformed.

J Lee, Illegality: Familiarity and the Law Commission, S Green and A Bogg (eds.) Illegality after Patel v Mirza (Hart, 2018)

James Lee demonstrates in his research that Justices who had served with one of the Law Commissions were the most likely to refer to the Commissions in their judgments. He interprets from the reasoning in the illegality sagas that the Justices take very different views of the limits of judicial development of the law. A judicial appeal to academic scholarship can add to the persuasiveness of a judge’s argument by engaging with independent opinion as to the desirable development of the law. Lee concludes that the coherent development of the law depends upon the contributions of both the Commission + the Supreme Court. But the Commission + the courts must ensure their independence when it comes to developing the law and avoid interdependence, an over-familiar relationship is not desirable.

Illegality is a special case because it spans the field of private law. The Consultation Paper on The Illegality Defence in Tort (2001) acknowledges ‘Public opinion may not be in favour of any perceived increase in the ability of a criminal to sue for damages seemingly arising out of his or her criminal activity.’ Traditional approach from 18th century case law Holman v Johnson was that we want to avoid a claim which seeks to “enforce, advance or reward illegal conduct” → the idea of “thugs suing victims” But there was no place in the modern law for ‘outlawry’ (depriving a criminal of all of their civil law rights).

The Illegality Defence: A Consultative Report (2009) put forward that judicial development of the law was the appropriate route, and the Commission sought to encourage it.

Final report = The Illegality Defence (2010) A rare example of the Law Commission directing reform at the reasoning rather than outcomes in a particular area of the law.

Zurich Insurance v International Energy Group: “The courts need to recognise that, unlike Parliament, they cannot legislate in the public interest for special cases, and they risk sowing confusion in the common law if they attempt to do so.”

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