Q&A Series Torts Law FIFTH EDITION Cavendish Publishing Limited London • Sydney • Portland, Oregon Q&A Series Torts Law FIFTH EDITION Dr David Green Barrister Cavendish Publishing Limited London • Sydney • Portland, Oregon Fifth edition first published in Great Britain 2003 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5804 NE Hassalo Street, Portland, Oregon 97213–3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 3/303 Barrenjoey Road, Newport, NSW 2106, Australia © Green, D 2003 First edition 1993 Second edition 1995 Third edition 1998 Fourth edition 2001 Fifth edition 2003 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission in writing of Cavendish Publishing Limited, or as expressly permitted by law, or under the terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Cavendish Publishing Limited, at the address above. You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer. British Library Cataloguing in Publication Data Green, David, 1935– Tort – 5th ed – (Q&A series) 1 Torts—England—Miscellanea 2 Torts—Wales—Miscellanea I Title 346.4'2'03 Library of Congress Cataloguing in Publication Data Data available ISBN 1-85941-629-2 1 3 5 7 9 10 8 6 4 2 Printed and bound in Great Britain PREFACE The many changes that have occurred in the law of tort since the earlier editions of this work were published have necessitated a thorough revision throughout the book. Much new material has been added to topics such as product liability, occupiers’ liability, the application of the Human Rights Act 1998 to nuisance, and Rylands v Fletcher (1868) and breach of statutory duty. However, the author has kept in mind that, as stated in the introduction, the ideal reaction of the reader should be ‘I can do that—I know those cases’, rather than to marvel at the erudition of the author. The reception given to the earlier editions of this book suggests that students are in sympathy with its aims and find that it is of use in their battle with the examiners. The author is happy to be judged by these criteria. The author has attempted to state the law as of December 2002. David Green London December 2002 v CONTENTS Preface v Introduction ix Table of Cases xi Table of Legislation xxix 1 Vicarious Liability 1 2 Negligence—Duty of Care Generally and Restricted Situations 13 3 Negligence—Breach, Causation and Remoteness of Damage 47 4 Breach of Statutory Duty 59 5 Employers’ Liability 69 6 Product Liability 81 7 Occupiers’ Liability 95 8 Nuisance 109 9 The Rule in Rylands v Fletcher and Fire 129 10Animals 147 11 Defamation 157 12 Trespass to the Person, to Land and to Goods 173 13 Economic Torts 187 14 Remedies 199 15 General Defences 209 Index 219 vii INTRODUCTION The law of tort is a fundamental area of English law and, in addition to being a ‘core’ subject for the legal profession, a clear understanding of its principles is required for other areas as diverse as employment law and company law. It illustrates, moreover, another characteristic of English law, in that it is primarily a common law area, that is, its rules have been developed through the decisions of the courts rather than being laid down by statute. As a result of this, the student of the law of tort is faced with a bewildering array of cases and rules, and often finds difficulty in deciding what information is relevant to a problem. This book attempts to help students of tort. It is not intended as a substitute for lectures or for reading standard textbooks or law reports or articles; it is rather aimed at students whose problem is not that they feel that the legal input they have received is insufficient, but rather that it is too great and that they have difficulty in ascertaining what material is essential and what is of lesser importance. A careful study of the answers to the questions contained in this book should reveal those essential areas, and the student will see how basic concepts re-appear not only in questions designed to test that topic in depth, but in other questions which, at first sight, appear to be testing unrelated areas. Another function of this book is to illustrate how to answer questions in the law of tort. These answers are not intended to be perfect solutions, if such a thing exists. Rather, they are intended to illustrate the sort of well structured answer that would attract high marks using the knowledge that a well prepared student should possess. All the cases and principles cited should be familiar to the student—the author is attempting to show how, with the knowledge that the student has, he or she can present it in such a way as to gain the best possible grades. In particular, emphasis has been placed on the way in which the fundamental legal principles relevant to a question should be stated; it is a habit of both authors of suggested solutions and students to hunt through law reports or their minds to find a long-forgotten case which is on all fours with the facts of a question and triumphantly present it as the ‘right’ answer. As any examination question should be designed to test the student’s grasp of legal principles and ability to apply those principles to a factual situation, a moment’s reflection will show that, although such an approach may point to the correct answer as regards (say) liability, it will not attract the best possible grades. Thus, the author has tried, at all times, to cite cases with which the student should be familiar. An ideal reaction by the reader to the suggested solutions in this book should be ‘I can do that’, not ‘Gosh, how clever the author is; I could never write an answer like that’. ix x Introduction The questions used in this book are typical LLB examination questions, both as regards style and complexity. This book is not intended to replace lectures or standard textbooks. It is, however, intended to fill a need which, during decades of teaching law, the author has found does exist, namely, to enable the student to gain the best possible examination grades from whatever knowledge he or she possesses. The more reading a student does of lecture notes and standard textbooks, the more he or she should benefit from a study of this book. TABLE OF CASES A v National Blood Authority [2001] 3 All ER 289 83, 93 Abouzaid v Mothercare (UK) Ltd [2001] 1 All ER (D) 2436 83, 93 Acrow v Rex Chainbelt [1971] 1 WLR 1676 190, 192 Adams v Ursell [1913] 1 Ch 269 115, 119, 125 Addie v Dumbreck [1929] AC 358 102, 178 AG v Cole [1901] 2 Ch 205 112, 142 AG v Cooke [1933] Ch 89 150, 153, 156 AG v PYA Quarries [1957] 2 QB 169 116, 120, 132, 140 Al Saudi Banque v Clarke Pixley [1989] 3 All ER 361 21, 23 Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 Alcock v Wraith [1991] EGCS 137 11, 75 Alderson v Booth [1969] 2 QB 216 178 Alexandrou v Oxford [1993] 4 All ER 328 42, 44 Allen v Flood [1898] AC 1 195 Allen v Gulf Oil Refining [1981] AC 1004 133, 215 AMF International v Magnet Bowling [1968] 1 WLR 1028 98, 100, 106 Ancell v McDermot [1993] 4 All ER 355 42 Andreae v Selfridge and Co [1938] Ch 1 112, 126, 142, 143 Andrews v King (1991) The Times, 5 July 11 Angel v Bushell and Co [1968] 1 QB 813 158 Angus v Clifford [1891] 2 Ch 449 193 Anns v Merton London Borough Council [1978] AC 728 14, 15, 16, 28, 66 Archer v Brown [1985] QB 401 204 Armory v Delamirie (1721) 1 Stra 505 180 Ashton v Turner [1981] QB 137 212, 216 Associated British Ports v TGWU [1989] 1 WLR 939 190, 192 Associated Newspapers Group v Insert Media Ltd [1988] 1 WLR 509 188, 195 Aswan Engineering Establishment v Lupdine [1987] 1 All ER 135 26, 85, 89 Atkinson v Newcastle Waterworks (1877) 2 Ex D 441 61 Attia v British Gas [1988] QB 304 36 Atwood v Small (1838) 6 Cl & Fin 232 193 B v Islington Health Authority [1991] 1 All ER 825, HC; (1992) 142 NLJ 565, CA 2, 6, 10, 48, 51, 62, 70, 74, 90, 210 Baggs v UK (1987) Commission Report, 8 July 113, 122, 128 xi xii Table of Cases Baker v Willoughby [1970] AC 467 28 Bamford v Turnley (1860) 3 Bes 62 112, 115, 119, 125 Barkway v South Wales Transport Co Ltd [1950] AC 185 2 Barnes v Nayer (1986) The Times, 19 December 175 Barnett v Chelsea and Kensington Hospital Management Committee [1968] 1 QB 428 52, 54 Barrett v Enfield London Borough Council [1999] 3 WLR 79, HL; [1997] 3 WLR 628, CA 66, 67, 68 Bell v Department of Health and Social Security (1989) The Times, 13 June 104 Bellew v Cement Co [1948] IRL 61 115, 119, 125 Belmont Finance Corp v Williams Furniture [1980] 1 All ER 393 188, 192 Berkoff v Burchill [1996] 4 All ER 1008 169 Bisset v Wilkinson [1927] AC 177 193 Blyth v Birmingham Waterworks (1856) 11 Ex 781 2, 6, 10, 48, 62, 71, 74, 88, 90, 97, 99, 117, 120, 143, 210 Bognor Regis Urban District Council v Campion [1972] 2 QB 169 169 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 10, 53, 90 Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 53 Bolton v Stone