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Kirsty Horsey and Erika Rackley Tort Law Kirsty Horsey and Erika Rackley VNIVfiRSIT-¥ PRB&& Contents in full TABLES OF CASES xxxi TABLES OF LEGISLATION xlix LIST OF ABBREVIATIONS OF COMMONLY CITED WORKS liii 1 Introduction 1 1.1 Introduction 1 1.2 What is tort law? 2 1.2.1 What interests does tort law protect? 3 1.3 The disparate aims of tort law: a case study on Woodroffe-Hedley v Cuthbertson 8 1.3.1 Doing (corrective) justice 10 1.3.2 Compensation 11 1.3.3 Deterrence 16 1.3.4 Vindication 17 1.4 Tort law and the Human Rights Act 1998 18 1.5 A note on terminology 19 1.6 Conclusion 20 End-of-chapter questions 20 Further reading 21 PART I The tort of negligence 23 2 Introduction to the tort of negligence 28 2.1 Introduction 28 2.2 Mapping the historical development of the tort of negligence 30 2.3 Explaining the historical development of the tort of negligence 36 2.3.1 The influence of social and political thinking in an age of principles 36 2.3.2 A positive response to victims of workplace injuries 37 2.3.3 Supporting infant industries 37 2.4 The role of the modern law of negligence 38 xx CONTENTS IN FULL 2.5 The elements of the tort of negligence 39 2.5.1 Duty 40 2.5.2 Breach 41 2.5.3 Causation and remoteness 42 2.5.4 Putting it all together 42 2.6 Case example: X, Y v London Borough of Hounslow 47 2.7 Conclusion 56 End-of-chapter questions 56 Further reading 56 3 Duty of care: introduction and basic principles 58 3.1 Introduction 58 3.2 From Donoghue to Caparo—a brief history of the duty of care 61 3.3 Establishing a duty of care: Caparo Industries v Dickman 63 3.3.1 The three-stage 'test' 63 3.3.2 The Caparo three-stage test—uncovered 67 3.3.3 The incremental approach 69 3.4 Where does this leave us? 70 3.5 Conclusion 72 End-of-chapter questions 72 Further reading 73 4 Omissions and acts of third parties 74 4.1 Introduction 75 4.2 Acts and omissions 76 4.2.1 Control 80 4.2.2 Assumption of responsibility 82 4.2.3 Creating or adopting risks 84 4.3 Summary of when a duty of care may be found in respect of omissions 85 4.4 Liability for acts of third parties: the general rule 85 4.5 When is there liability for acts of third parties? 86 4.5.1 A special relationship between defendant and claimant 86 4.5.2 A special relationship between defendant and third party 89 CONTENTS IN FULL xxi 4.5.3 Creating a source of danger 91 4.5.4 A failure to abate a known danger 91 4.6 Summary of when a duty of care may be found for the actions of third parties 93 4.7 Conclusion 94 End-of-chapter questions 95 Further reading 95 5 Psychiatric harm 97 5.1 Introduction 98 5.2 What is psychiatric harm? 99 5.3 The general exclusionary rule 100 5.4 The'primary'and'secondary'victim distinction 102 5.5 Primary victims 103 5.5.1 The'stress at work'cases 106 5.6 Secondary victims 107 5.6.1 Relationship with the immediate victim 111 5.6.2 Proximity to the accident 112 5.6.3 Immediate perception and'shock' 113 5.7 Other potential claimants 114 5.7.1 Rescuers and employees 114 5.7.2 Involuntary participants 119 5.7.3 Communicators of shocking news 120 5.7.4 Self-harm by the defendant 121 5.8 Proposals for reform 122 5.9 Conclusion 123 End-of-chapter questions 124 Further reading 124 6 Public bodies 126 6.1 Introduction 127 6.2 The general exclusionary rule 128 6.2.1 Why are the judiciary reluctant to allow recovery'' 129 xxii CONTENTS IN FULL 6.3 The current position 1^1 6.4 The background to D v East Berkshire Community NHS Trust 135 6.4.1 The Osman case 135 6.4.2 The Z and TP& KM cases 139 6.4.3 The implications for domestic law 141 6.5 The emergency services and armed forces 142 6.5.1 The fire service 142 6.5.2 The ambulance service 146 6.5.3 The police 147 6.5.4 The coastguard 156 6.5.5 The armed forces 157 6.5.6 Duty: the emergency services and armed forces—at a glance 157 6.6 Other types of public body 158 6.6.1 Justiciability 158 6.7 The recognition of new types of claim—'messed up lives'? 163 6.7.1 Education-based claims 163 6.7.2 Social claims 165 6.8 Conclusion 167 End-of-chapter questions 167 Further reading 168 7 Economic loss 170 7.1 Introduction 171 7.2 What is'pure'economic loss? 172 7.3 Exceptions to the exclusionary rule: Hedley Byrne v Heller 176 7.4 Claims for pure economic loss in negligence before Murphy 178 7.5 Extending Hedley Byrne 183 7.5.1 A special relationship 183 7.5.2 Voluntary assumption of risk 184 7.5.3 Reasonable reliance 187 7.6 Beyond Hedley Byrne: the 'will cases' and a more flexible approach 190 7.7 Conclusion 195 End-of-chapter questions 196 Further reading 196 CONTENTS IN FULL xxiii 8 Breach 197 8.1 Introduction 198 8.2 A test of reasonableness 199 8.3 An objective standard 201 8.3.1 Children 204 8.3.2 Common practice 205 8.3.2.1 TheSo/amtest 206 8.4 'In all the circumstances of the case' 209 8.4.1 Emergencies 209 8.4.2 Sporting injuries 210 8.5 Setting the standard of care 211 8.5.1 Probability that the injury will occur 211 8.5.2 Seriousness of the injury 213 8.5.3 Cost of taking precautions 214 8.5.4 Social value of the activity 214 8.5.5 A balancing act 215 8.5.5.1 The Compensation Act 2006 217 8.6 Establishing breach 218 8.7 Conclusion 220 End-of-chapter questions 220 Further reading 221 9 Causation and remoteness 222 9.1 Introduction 223 9.2 Factual causation—the 'but for' test 226 9.2.1 Explaining the test 226 9.2.2 Problems with the test 227 9.2.2.1 Multiple potential causes 228 922 2 'Unjust'results 232 9.2.2 3 Indeterminate causes 238 9 2 24 Loss of chance 239 922 5 Uncertain actions 243 9.2.3 Multiple sufficient causes 244 9.3 Legal causation 246 9.3.1 Remoteness 247 9.3.1.1 The 'egg shell skull' rule 250 xxiv CONTENTS IN FULL 9.3.2 Intervening acts 250 9.3.2.1 Later negligent acts 251 9.3.2.2 Acts of the claimant 252 9.4 Conclusion 253 End-of-chapter questions 254 Further reading 255 10 Defences to negligence 256 10.1 Introduction 256 10.2 Consent 257 10.2.1 Voluntary assumption of r'isk/volenti non fit injuria 259 10.3 Illegality 263 10.4 Contributory negligence 267 10.4.1 Did the claimant fail to exercise reasonable care for their own safety? 268 10.4.2 Did this failure contribute to the claimant's damage? 269 10.4.3 By what extent should the claimant's damages be reduced? 269 10.5 Conclusion 271 End-of-chapter questions 272 Further reading 272 PART II Special liability regimes 275 11 Occupiers' liability 279 11.1 Introduction 280 11.2 The Occupiers' Liability Act 1957 281 11.2.1 When is a duty owed? 282 11.2.1.1 'Occupation or control of premises' 282 11.2.1.2 Visitors: by invitation or permission only 284 11.2.1.3 Premises: including 'any fixed or moveable structure' 285 11.2.2 What is the duty owed? 285 11.2.3 Discharging the duty 286 11.2.3.1 Children 287 11.2.3.2 'Persons in the exercise of a calling1 289 11.2.3.3 Warnings 289 11.2.3.4 Notices excluding liability 291 11.2.3.5 Faulty execution of work 291 11.2.3.6 Other defences 293 CONTENTS IN FULL xxw 11.3 The Occupiers' Liability Act 1957—annotated 293 11.4 The Occupiers' Liability Act 1984 295 11.4.1 Establishing a duty 296 11.4.1.1 Awareness of (or reasonable grounds to believe in the existence of) danger 300 11.4.1.2 Knowledge of (or reasonable grounds to believe in) the presence of a non-visitor in the vicinity of danger 301 11.4.1.3 Reasonable expectation of protection against the risk 302 11.4.2 Discharging the duty 302 11.5 The Occupiers' Liability Act 1984—annotated 302 11.6 The Occupiers' Liability Acts 1957 and 1984 at a glance 304 11.7 Conclusion 306 End-of-chapter questions 307 Further reading 308 12 Employers' liability 309 12.1 Introduction 310 12.2 An employer's personal non-delegable duty of care 312 12.2.1 Competent staff 314 12.2.2 Adequate material 315 12.2.3 A proper system of working (including effective supervision) 316 12.2.4 A safe place of work 317 12.3 Breach of statutory duty 318 12.3.1 Does the statute give rise to a claim in tort law? 319 12.3.2 Has the duty been breached and does the harm fall within the scope of the duty'' 323 12.4 Vicarious liability 325 12.4.1 The employer-employee relationship 329 12.4.2 Atortiousact 332 12.4.3 'In the course of employment' 333 12.5 Conclusion 338 End-of-chapter questions 339 Further reading 339 xxvi CONTENTS IN FULL 13 Product liability 341 13.1 Introduction 342 13.2 Defective products—claims in contract 343 13.2.1 The limits of contractual protection 346 13.3 Defective products—claims in negligence 348 13.3.1 The scope of liability under Donoghue 350 13.3.1.1 Duty 350 13.3.1.2 Breach and causation 351 13.3.2 The limits of liability under Donoghue 353 13.4 Defective products—claims under Part 1 of the Consumer Protection Act 1987 355 13.4.1 Bringing a claim 356 13.4.2 What is a'defect'? 357 13.4.3 Causation and limitations 365 13.4.4 Defences 366 13.4.5 Overall effect of the Consumer Protection Act 1987 368 13.5 Part 1 of the Consumer Protection Act 1987—annotated 369 13.6 Taking a claim under Part 1 of the Consumer Protection Act 1987—at a glance 373 13.7 Conclusion 374 End-of-chapter questions 375 Further reading 375 PART III The personal torts 377 14 Trespass to the person 381 14.1 Introduction 382 14.2 Battery 385 14.2.1 Intention 386 14.2.2 Direct and immediate force 387 14.2.3 Unlawful (though not necessarily hostile) touching 388 14.3 Assault 389 14.3.1 Intention 390 14.3.2 Reasonable apprehension of unlawful touching 390 14.3.3 Immediate and direct threat 391 CONTENTS IN FULL xxvii 14.4 False imprisonment 393 14.4.1 Intention 393 14.4.2 A complete restriction of movement 394 14.4.3 Without legal authorisation 396 14.5 Intentional infliction of emotional or psychiatric harm 397 14.5.1 The rule in Wilkinson
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