Advanced Level in Law (A-Level prospectus) pre-legal studies in UK: Part 3 — Tort Law

Abstract: Tort liability can be imposed in many instances that include negligent behaviour towards a person or land, negatively affecting a person’s reputation or limiting freedom of movement. This module will aim to explain and take you through how and why liability can be imposed on a defendant, giving you an in-depth understanding of the nature of tortious liability. There are many torts that will be discussed in this module. They include, for example, libel, slander, nuisance, negligence, trespass, assault and battery. Thus, it is not possible to provide one definition that encompasses all torts, considering how each tort has its own specific characteristics. It is, therefore, best to think of the law of tort as the law of behaviour that is legally ‘wrong’ or ’tortious’, giving rise to an entitlement to a remedy for the claimant.

Introduction

The legal system operating in England and Wales is a common law system of law. The essential difference between a common law system and a civil law system (the predominant legal system in Europe) is that in the former judicial decisions are binding both on lower courts and on the court that has made the decision. This is called a system of precedent. Although there are no formal divisions within English law, one can distinguish roughly between Public and Private law. Within private law, there is again a rough divide between property law and the law of obligations. The law of obligations consists of contract, tort and restitution. In the compensation culture context we are primarily concerned with the law of tort. Tort law is concerned with civil wrongs. Undoubtedly the largest (and most dynamic) area of law within tort is the law of negligence. In the context of personal injury claims, the injured person will most likely sue in negligence, although there are other regimes which are also relevant. Negligence is a relatively new tort, and it has been largely developed by the judiciary. Its expansion throughout the late 19th and 20th century reflects the pressures which the rise of industrial and urban society has brought to bear upon the traditional categories of legal redress for interference with protected interests1 . Its flexibility means that it can be used by the courts to find liability in novel contexts. For the court to make a finding of negligence, the claimant must prove a number of things. Firstly it must be shown that the defendant owed the claimant a duty of care. The duty concept was generalised in the famous judgment of Donoghue v Stevenson2 ; in which the House of Lords rejected the previous law in which liability for careless behaviour existed only in a number of separate, specified situations, and embraced the idea of a general duty to “…take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…[i.e.] persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question”3 . The most recent authority on the question of establishing a duty of care is Caparo v Dickman4 . A court will find a duty of care if the claimant can show that the damage he suffered was foreseeable; that there was proximity between himself and the defendant; and that in all the circumstances it would be fair, just and reasonable to impose liability on the defendant. A denial of a duty of care means that even if the defendant was at fault, and his fault caused the claimant’s loss, there will be no liability — it is akin to immunity from liability for the defendant against the present and future claimants. The concept was used regularly in the early 1990s to deny liability, especially in actions against public bodies5 , however since a ruling of the European Court of Human Rights in 1998 English courts have been more reluctant to deny a duty of care, preferring to decide the liability question at the breach stage after full argument on the substantive merits of the individual case has been heard. Once the claimant has shown that the defendant owed him a duty of care, he must prove that the defendant was at fault — i.e. that he is in breach of his duty of care. Determining whether the defendant was at fault is a two-stage process. First, the court must determine the standard of care that the defendant owed the claimant. The standard of care will be the standard that the ‘reasonable person’ would adopt in the profession, occupation or activity in question. In determining this standard, the courts will often balance the degree of foreseeability or risk of harm against the cost of avoiding the harm, and the benefits to society foregone if the activity in question is not carried on6 . The standard is objective. In professional negligence cases (e.g. cases of alleged medical negligence), the standard is that of a reasonably competent person in the profession in question or the particular branch of it. In practice this means that the courts defer substantially to the standards set by the profession itself and supported by a responsible body of opinion7 . Setting the standard is a question of law. The court will then determine whether the actions of the defendant himself reached this standard. This is a question of fact.

Tort Law

3.1 The Rules of Tort Law

The law of tort deals with civil disputes between individuals and this module looks

at:

• Negligence
• Nuisance
• Negligent Misstatement
• Occupiers’ Liability
• Vicarious Liability

Definition of Tort

The Oxford dictionary states that tort is:

“A wrongful act or an infringement of a right (other than under contract) leading to legal liability.”

Public nuisance is a crime as well as a tort

The word tort comes from the French meaning ‘wrong’. Tort concerns civil wrongs leading to possible compensation.

The relationship between tort and contract include:

• Duties in tort are imposed by law and apply generally, but contract duties are agreed by the parties and apply to them only.
• Statute now imposes many contractual duties.
• There are potential overlaps, e.g., negligence and breach of implied conditions.
• Difficulties are created both by the exceptions to the privity rules in contract, and by the tort action for economic loss, which blur the distinctions between the two areas.
• Sometimes a claimant has a choice in which area to sue, e.g., in contract for private medicine where there is negligence.

Capacity in Relation to Tort

A claimant or defendant must have sufficient capacity in order to be a party to a civil claim. Although a minor does not have capacity for this purpose, a suitable adult can represent them on their behalf. This also applies to someone who is of unsound mind.

The Fault Principle

The general principle is that ‘there can be no liability without fault’, In Donoghue v Stevenson [1932] Lord Atkin stated that the law of tort is “‘based upon a general public sentiment of moral wrongdoing for which the offender must pay’”.

Most torts, although not all, require a standard of behaviour to be adhered to. A failure to meet this can lead to negligence or, if the other person’s rights have been infringed, could lead to trespass. Failure to meet the standard can result in a legal remedy being provided to the aggrieved person.

The best example of where a claimant would need to prove fault is the tort of negligence. Among the problems which such a claimant face are:

• Evidential difficulties it is not always possible to prove that the defendant was at faut even though damage has been suffered.
• The need in some cases, for example where the damage suffered is nervous shock, to bring the claimant within a recognised class of ‘victim’- failure may mean that although the actual damage is the same, some claimants may succeed while others fail.

Whitehouse v Jordan [1981]: The claimant was a baby who suffered severe brain damage after a difficult birth. The Lords found that the doctor’s standard of care did not fall below that of a reasonable doctor in the circumstances and so the baby was awarded no compensation.

Strict Liability

Not all torts require a standard of intention fault and the act alone is sufficient in order to be a tort. These are known as strict liability. Examples include:

Product Liability under Consumer Protection Act 1987

Directive 85/374/EEC, which was transposed into UK law in Part 1 of the Consumer Protection Act 1987 (CPA), imposes strict lability on producers for harm caused by defective products.

This means that people who are injured by defective products can sue for compensation without having to prove the producer negligent, provided that they can prove that the product was defective and the defect in the product caused the injury.

The Directive applies to consumer products and products used at a place of work.

Liability under Rylands v Fletcher [1868]

In Rylands v Fletcher (1868) an independent contractor who was employed by the defendants failed to seal mines they had located when digging to create a reservoir. As a result, when the reservoir was filled it water it escaped into the mines owned by the Plaintiff causing damage. The Plaintiff was successful both as part of the original claim and on appeal. Blackburn stated in this judgment that in order to succeed in this tort the claimant must show:

1. That the defendant brought something onto his land;
2. That the defendant made a “non-natural use” of his land (per Lord Cairns, LC)
3. The thing was something likely to do mischief if it escaped;
4. The thing did escape and cause damage.

This rule was undermined in Cambridge Water Co Ltd v Eastern Countries Leather plc [1994], however was confirmed to still have had a part to play in protecting the environment in the 21 century in Transco plc v Stockport Metropolitan Borough Council [2003].

Defences include:

• Consent
• Act of stranger — e.g., if a stranger over whom the defendant exercises no control causes the escape there then is no liability.
• Act of God — this will only succeed for conditions of nature ‘which no human foresight can provide against’ — e.g., extreme weather conditions.
• Statutory authority — if the escape is a direct result of carrying out the duty.
• Contributory negligence — damages may be reduced if the claimant is partly at fault for the escape.

Vicarious Liability

If an employee commits a tort during their employment the employer may be liable for that employee’s negligent acts or omissions under the principle of vicarious liability, even if they hadn’t authorised the act. However, the employer may escape liability if he can demonstrate that employee was acting ‘on a frolic of his own’. In order to be vicariously liable, the tort by the employee must also be established. No intention by the employer is required.

Limitation Periods

The Limitation Act 1980 sets down the time limits for bringing civil litigation claims:

Time will start to run as soon as the claim can be brought. Technically, this is the day after the relevant fact occurred, as the law disregards any part of a day.

E.g., a person has an accident in work on Monday 1 November. If they wish to make a personal injury claim time will start running from Tuesday 2 November. Therefore, the claim must be brought by 1 November within 3 years. However, if the last day occurs on a day when the court is not open, the claim must be issued on the first open day afterwards.

S33 LA 1980 gives the court discretionary power to extend these time limits. The court will consider all the relevant circumstances of the case and what stopped the claimant from bringing the claim within the specified time period.

E.g., if the claimant did not know the identity of the defendant; in a personal injury case, if the claimant’s injury was so serious that it justified him not bringing proceedings earlier; or, if the defendant did not know that the injury was attributable to the alleged default.

Remedies

Under common law damages are available as of right as a remedy. You will recall from unit 1 that equitable remedies are at the discretion of the court and these include specific performance and injunctions. Remedies are further considered Later in this module.

3.2 Theory of Tort Law

A duty of care may be imposed in situations where two parties are not in a contractual relationship. If harm is caused by someone’s negligence, damages may be due.

Over the course of this section we will be looking at various types of tort and, in particular, the following:

3.3 Liability in Negligence for Physical Injury to People and Damage to Property

Elements of Negligence

To establish negligence, an injured party must show 3 things:

- Defendant owed a duty of care to the Claimant

- Defendant breached that duty

- Claimant suffered damage as a result

The criteria came from the following case:

Donoghue v Stevenson [1932]: The claimant’s friend bought her a bottle of ginger beer from a café. The Claimant drank the ginger beer and then noticed a decomposed snail. She became ill and sued the café. She tried to sue the retailer; however, it was held that there was no contract between them as she did not purchase the beer.

Elements of Negligence

To establish negligence, an injured party must show 3 things:

• Defendant owed a duty of care to the Claimant
• Defendant breached that duty
• Claimant suffered damage as a result

The criteria came from the following case:

Donoghue v Stevenson [1932]: The claimant’s friend bought her a bottle of ginger beer from a café. The Claimant drank the ginger beer and then noticed a decomposed snail. She became ill and sued the café. She tried to sue the retailer; however, it was held that there was no contract between them as she did not purchase the beer.

This case created a general principle of liability in tort known as the ‘neighbour principle’. This emerged from the judgement given by Lord Atkin, who said:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbours who are persons so directly affected by your act that you ought reasonably to have them in contemplation, “

Examples of neighbours include:

• Fellow employees at work
• Friends and family at social gatherings
• Fellow road users when driving your car

Therefore, a claimant can recover for any personal injury caused by someone’s negligence.

Duty of Care

The first element is that a duty of care exists between the claimant and the defendant. It is therefore necessary to question whether or not such a duty does exist. In order to come toa conclusion, the House of Lords set out the requirements in Caparo v Dickman [1990] which state that the court should first look at previously decided cases (judicial precedent). If no similar case exists, the extent of the duty of care is questioned by several factors:

1. That harm was reasonably foreseeable
2. That there was a relationship of proximity
3. That it is fair, just and reasonable to impose a duty of care

Foreseeability

This involves the concept of the “reasonable man’, the objective test. If the reasonable man could not foresee injury, then no duty is owed: Bourhill v Young [1943] where a pregnant lady heard a car crash, Her husband had died. She did not witness the crash as it was 50 metres away but returned to the scene shortly after his body was removed and saw blood on the road. She went into shock and had a still birth. The defendant was not liable as she had not witnessed the actual crash.

Proximity

This is just the modern term which is used to establish the ‘neighbour test’. It requires that, in order to prove the existence of the duty of care, there must be some proximity fact establishing a relationship between the claimant and the defendant:

• Physical proximity (co-workers, fellow road users): the people around a defendant at any time.
• Legal proximity (solicitor, financial advisor, manufacturer): thus, a legal advisor must make certain that his advice to his client is not negligent, and a manufacturer must make certain that his product does not negligently injure the consumer. In such a relationship there may be no physical contact between the parties. They could be in contact by letter or telephone, but there is a relationship which can establish a duty of care.

Blood ties (family relationships): This is an important test in the area of nervous shock. This is demonstrated in: McLoughlin v 0'Brian [1982] where a family were involved in a car crash with one family member dying. The car behind was being driven by a friend who also had the son of the family in the car. As she witnessed the crash and saw the injuries she was entitled to claim for psychiatric injury. This should be contrasted with Bourhill v Young; had she not been related to the victims then her claim would have likely failed.

Alcock v Chief Constable of West Yorkshire [19921 this case was a result of the Hillsborough disaster where 96 people died and over 400 were injured at a football match. Sixteen claims were brought by people who witnessed the incident (some on television), however only 10 were sUccessful. Lord Oliver set out the distinction between primary and secondary victims. For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria:

1. A close tie of love and affection to a primary victim

2. Witness the event with their own unaided senses

3. Proximity to the event or its immediate aftermath

4. The psychiatric injury must be caused by a shocking event

Public Policy

If society as a whole does not recognise that a duty of care should exist in certain circumstances then, as a matter of policy, it will not be recognised. This is illustrated in the following case: Hill v Chief Constable of West Yorkshire [1988]. This involved the famous of case of the Yorkshire Ripper’ and was brought by the mother of a victim against the police as she believed them to be negligent in their detention and detention of Peter Sutcliffe (the Yorkshire Ripper).

Limitation of a Duty of Care:

Prior to the acceptance of the Caparo three-part test judges often in the past identified policy reasons as to the justification for refusing to impose liability in certain situations. There are many examples of policy based either on the particular class of defendant or on the circumstances in which the claim arises.

These are considered below:

• A lawyer owes a duty of care to their clients, Until Arthur Hall & Co v Simons [2000] advocates enjoyed an immunity from being sued for negligence. Following this case, the immunity was removed, and advocates can now be sued for negligence.
  With regard to work carried out by a lawyer, other than advocacy, it has always been possible to sue for negligence. Many past cases concern the preparation of wills:
  Ross v Caunters [1980] where the solicitor failed to tell the testator not to have his signature witnessed by the spouse of a beneficiary
  White v Jones [1993] where the solicitor was instructed to make a Will but failed to do so before the testator died.
• The police do not enjoy a general exemption from the ordinary law, but in some cases, it has been held that no duty of care is owed: Hill v Chief Constable of West Yorkshire [1989]. In some situations, a special relationship may arise however this does not mean that the duty of the police to suppress crime includes a duty of care to victims of criminal activities. Osman v Ferguson [1993]. A teacher had an obsession with a 14-year-old boy and took photos of him and followed him home. The police were informed but no action taken. The teacher then stopped the boy talking to another student thinking they were having a homosexual relationship. The teacher was suspended, and the police called on numerous occasions. The teacher had admitted to the police that he was unable to control himself and would do something criminally insane if not stopped. No action was taken, and he subsequently shot the boy, who survived and his father, who died. The police were not liable due to the blanket ban on negligence on the police following Hill v Chief Constable of West Yorkshire [1989]. However, there have been successful claims against the police in the past.
• Someone exercising a statutory power. Examples of a statutory duty of care include:
  • Trustees of charities under Trustee Act 2000
  • Education sectors
  • Under the Data Protection Act 1998,
  • Under Health and Safety at Work Act 1974
  • Section 34(1) of the Environmental Protection Act 1990 imposes a duty of care on any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste.

A breach of a statutory duty is not in itself sufficient to give rise to a cause of action in tort.

• In some situations, the emergency services such as the fire authority will enjoy immunity against actions for negligence. This is because no sufficient proximity or special relationship exists between the services and the injured party and therefore, no duty in common law exists. However, an emergency service may be liable if a named individual can be identified: Kent v Griffiths (2000].
• Crown Prosecution Service. This has been considered in two cases:
  Elguzouli-Daf v Metropolitan Police Commissioner [1995] where it took 22 days from finding out that the semen sample take as evidence of rape did not match that from the victim to release the accused from custody.
  McBrearty v Ministry of Defence and Others [1995] where a person was detained for 85 days following a bomb attack as he had residue of explosives on his hands but no other evidence.

Circumstances affecting the existence of the Duty of Care

Economic Loss

The Hedley Byrne case introduced the concept that a claimant could recover for economic loss arising from negligently made statements. However, the courts have always distinguished such an action from ‘pure economic loss’ arising out of negligent acts. The tradition was very clear — there was no liability for a ‘pure economic loss’. In the past this was based on policy and the idea that ‘economic loss’, for instance a loss of profit, was a concept applicable to contract law rather than tort. The principle has been quite clearly stated and illustrated in past cases.

Spartan Steel v Martin & Co (Contractors) Ltd [i973]. In this case the road outside a factory was being dug up and they accidently cut through a cable which impacted on the power supply. The claimants sued for damage to the metal being smelted when the power turned off and also loss of profits whilst being non-operational.

In the case Lord Denning explained the basis of the rule as follows: “It seems to me better to consider the particular relationship in hand, and see whether or not, as a matter of policy, economic loss should be recoverable or not.”

There appears to be an artificial distinction here created for policy reasons purely for the purpose of restricting any extension to liability. The distinction has the obvious potential to create unfair anomalies in the law. For instance, it might mean that an architect giving negligent advice leading to the construction of a defective building could be liable where the builder whose negligence leads to a defect in a building may not be.

Nevertheless, other cases have confirmed the principle that a pure economic loss arising from a negligent act is unrecoverable, Weller & Co v Foot and Mouth Disease Research Institute [1966]. A virus escaped and affected cattle. A claim was brought under Rylands v Fletcher (see later) but was unsuccessful.

Further erosion of the basic principle that pure economic loss is unrecoverable came as a result of Lord Wilberforce’s ‘two-part’ test, Anns v Merton London Borough Council [1978] where the council failed to notice the foundations of flats were insufficient when carrying out an inspection, Lord Wilberforce introduced the two-stage test:

“in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter-in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negate, or to reduce or limit the Scope of the duty or the class of person to whom it is Owed or the damages to which a breach of it may give rise.”

Because of the availability of the Anns two-part test, the s0-called ‘high water mark’ was then reached in respect of recovery for a pure economic loss. Junior Books Ltd v Veitchi Co Ltd [1983]. This case concerned subcontractors of the plaintiff who had been contracted to install a floor. The floor was faulty, and the plaintiff brought an action for negligence for loss of profits. Lord Fraser’s explanation of the reasons for liability was that “the proximity of the parties is extremely close, falling onty just short of a direct contractual relationship”.

Almost immediately judges considered that the relaxation of the principle concerning recovery for economic loss had now gone too far and they tried to limit the scope following various further cases. Anns was eventually overruled (and is now covered by the Caparo test) and thus back to a more restrictive attitude towards economic loss.

Psychiatric Damage

This is a complex area which has both expanded and contracted. It must involve an actual psychiatric condition, e.g., post-traumatic stress disorder, temporary grief or fright is insufficient. Originally, cases failed on the floodgates’ argument and fear of faking.

The rules are as follows:

Deliberately caused shock is always actionable. Wilkingson v DowntOwn [1897. The defendant made a joke to the wife of a friend that her husband had been in an accident and had broken both of his legs. She suffered shock to her nervous system and weeks of incapacity. As his false representation was a ‘wilful injuria’ and malicious the injury caused was not too remote and her claim succeeded.

Primary Victim: primary victims may not necessarily suffer any physical injury, however if they suffer shock or were at risk of harm, this will be sufficient. Traditionally this included those who were present at the scene. The test is a subjective one and therefore, if one person is more susceptible to shock than another, it would not impact on claim.

Secondary Victim: Although not a primary victim, this category includes someone who witnessed the incident, or its immediate aftermath and they have a close tie or love and affection for the victim. The probable limit of this is in: McLoughlin v O’Brian [1982] and this can be contrasted with: Alcock v Chief Constable of South Yorkshire [1992]. The test is an objective one, i.e., what would an ordinary man have done’ and therefore if the secondary victim was more susceptible to shock than another this would not be taken into consideration. In Page v Smith [1996]. The claimant was in a car accident which triggered his ME to become chronic and permanent. He was awarded E162,000 in damages. Had he just witnessed an accident and not known any of the victims of the accident then his claim may have failed through lack of “love tie and affection’ to the victim.

In Alcock the judges were reluctant to allow claims because of a lack of both proximity in time and space to the incidents at Hillsborough and turned down claims from people who had identified bodies in the morgue sometime after the events of the match, Lord Oliver said that in order for a ‘passive witness’ to claim psychiatric damage, four factors must be taken into account:

• Relationship: A close tie may be presumed in certain relationships such as parents/children /spouses.
• Physical proximity: for secondary victims their claims must arise from shock at being present at the scene of the event or its immediate aftermath.
• See or hear the event or its immediate aftermath: it is not sufficient just to be told about it. Furthermore, most television broadcasts would not suffice either, as in the Hillsborough situation. This is because as there were so many victims it was not possible to identify deaths of recognisable individuals. However, if the only primary victims involved were the relatives of the secondary victims their claim may succeed.
• Sudden shock: In order to be successful generally the shock has to be associated with a single traumatic event.. Therefore, it is unlikely to be Successful where psychiatric injury is sustained by a secondary victim over a gradual series of events.

The principles established in Alcock were applied in McFarlen v Caledonia Ltd [1995] where the claimant was unsuccessful in claiming psychiatric injury when he assisted in putting out a serious fire on an oil rig as at no point was he in physical danger.

Although the distinction between primary and secondary victims is still part of the law, its importance was questioned in: White v Chief Constable of South Yorkshire Police [1999] which also involved the Hillsborough disaster, however the claims were brought by the police in attendance that day and not the public.

Omissions

The law does not include any general liability for omissions or failing to act. Historically, this is because showing that somebody failed to prevent harm is much more difficult that showing that they caused it; and ft is hard to define the situations in which it could be said that a defendant should act and there is a distinct possibility of unfairness in doing so. For instance, should a person who sees someone drowning be obliged to jump in to attempt a rescue even if he cannot swim himself?

The law has, however, recognised a number of exceptions where there will be a duty to act and liability resulting where a party then fails to act:

The defendant owes a duty by a contractual or other undertaking: In general, liability in this instance will arise as a result of an omission, the failure to act according to the terms of the contract. The duty might also arise from the specific character of an actual undertaking. An example is a passenger injured in a car accident because the driver failed to apply the brake. The duty of care arises from the negligent driving rather than the failure to apply to the brake.

The defendant owes a duty because of a special relationship with the claimant:

Clearly in certain situations the nature of the defendant’s duty arises because of the potential danger to the public presented by the activity carried out by the defendant. This duty is particularly appropriate to public bodies. In such a case the defendant may have a duty to act and a failure to act will lead to liability: Barrett v Ministry of Defence [1995]. The Claimant’s husband died after drinking an excessive amount of alcohol during a drinking competition whilst serving the navy and staying on their base in Norway. The claim was successful as the MOD had breached their duty of care by allowing excessive drinking which practice. The damages were reduced due to contributory negligence.

Trespassers to Land

There is a limited duty of care owed to trespassers of land by the oCCupier. Revill v Newberry [1996]. The owner of an allotment had taken to sleeping in his shed following various break ins., One night he shot the thief through the shed door. Both were charged with their crimes, however the allotment owner escaped criminal conviction. The thief brought a civil action for his injuries and was successful but had his damages reduced due to contributory negligence.

Until the Occupiers Liability Act 1984 was introduced, trespassers could only rely on the common law to bring a claim against an occupier. This was extremely limited and generally there was no duty of care towards trespassers unless the occupier had deliberately or recklessly inflicted damage or injury.

Rescuers

For the defendant to successfully raise the defence that the claimant made a voluntary acceptance of the risk, the claimant must have had a genuine free choice, freedom of will and no feeling of constraint.

The fact that the claimant has engaged in or attempted a rescue does not mean that he has voluntarily accepted the risk: Haynes v Harwood [1935]. A horse and cart which had been left unattended bolted when a boy threw a stone. A police officer was injured, and the owner of the horse was liable as she shouldn’t have left them unattended.

However, if there is no actual danger then a claimant in such circumstances may indeed, have voluntarily accepted the risk of harm, Cutler v United Diaries (1933]. The claimant entered afield to calm some horses; however, his claim was unsuccessful as there was no immediate danger to persons or property so there was no need to intervene.

The courts do look favourably on people who have attempted a rescue and suffer injury as a result even where there was no duty to rescue the person in distress. It should be noted that rescuers do not usually act voluntarily and instead feel compelled to act by the situation.

There are two tests:

1. A person who creates a dangerous situation is liable for all the foreseeable consequences of his negligence.
2. The courts have decided as a matter of policy that a rescuer deserves favourable consideration on moral grounds.

The rules have been extended to impose liability for injury to members of the emergency services. Ogwo v Taylor [1987] where a fireman suffered burns and injury when attempting to extinguish a fire set by the defendant who was burning off paint from the fascia boards on his home.

In Hale v London Underground [1992] where a firefighter assisting the fire of 1987 at the Kings Cross Station collapsed from exhaustion and suffered post-traumatic stress disorder and depression.

Breach of the Duty

In order to ascertain whether a defendant has breached their duty of care, the courts will look at whether an ordinary reasonable man would have done the same. In addition, the courts will take into account various other factors.

Likelihood of Danger

The more likely the harm, the more caution is required: in Bolton v Stone [1951] where a cricket ball was struck and went over the fence hitting someone on the head. It was held that as the ball had only gone out of the stadium 6 times in the last 30 years the likelihood was remote, and no further precautions should have been made.

The Vulnerability of the Claimant

If the risk of serious injury is higher than normal, then further caution is required. In circumstances where the risk of serious injury is higher, more caution is required. For example, employees’ age, disability, experience, etc. Paris v Stepney Borough Council [1951). The claimant had lost an eye in the war. He was employed as a mechanic and a piece of metal went into his only eye and rendered him blind, It was held that goggles should have been supplied.

The Utility of the Defendant’s Action

If the purpose is socially valuable and important, abnormal risk is more justified: Watt v Hertfordshire County Council [|1954]. A firefighter was injured following loading cutting equipment onto a normal lorry rather than the specialist vehicle as it was urgently needed at a serious road accident. The claim failed.

Cost of Avoiding the Harm

The cost of eliminating the danger is not a valid defence. However, the court does recognise a balance between the risk and the cost of elimination. If the risk is very remote and the precautions to be taken to eliminate it are very expensive, the defendants may be justified in doing nothing. However, the greater the risk the less consideration is given to the cost of the measures which the defendants could have taken to guard against it.

Ultimately, the courts will look at whether the defendant had acted reasonably in the circumstances. This is seen in: Latimer v AEC I19531, Sawdust had been put down on an oily factory floor following an exceptionally heavy storm. The claimant slipped and injured his ankle; however, the defendant was not liable despite the sawdust not going over the whole floor.

Proof of the Breach

The burden of proof is on the claimant to show that the defendant was negligent. The standard of proof is on the balance of probabilities.

This allows a claimant to produce evidence of a conviction for any criminal offence arising out of the situation which led to the action for negligence. For example, if the defendant was convicted of careless driving and the claimant was claiming for damage as a result of the same accident, he can use the conviction as evidence in his trial. This shifts the burden of proof to the defendant to show he wasn’t negligent.

Res Ipsa Loquitur

This means the thing speaks for itself — it is a means of establishing negligence where proof is hard to come by.

The doctrine in effect means that the defendant has to prove that he was not negligent if the plea is raised successfully. Scott v London & St Katherine Docks Co [1985] where heavy bags of sugar fell from a crane and injured the claimant. It was difficult to establish the breach as the claimant could not prove what happened. Res lpsa Loquitur was applied, and the court held that this accident was not the sort of thing which would occur unless someone had been negligent.

There are 3 essential aspects to the plea:

1. At all material times events leading to the damage were under the control of the defendant;
2. The incident is of a type usually associated with negligence.
3. There is no other explanation.

The application has been seen in two contrasting cases:

Ward v Tesco Stores [1976] where the claimant fell on spilt yoghurt on the floor at Tesco. Pearson v North Western Gas Board [1968). The gas main outside the claimant’s house exploded, killing her husband and destroying the house. The gas board was able to show they had not been negligent as they had taken all reasonable precautions to prevent gas leaks.

Damage and Causation

There must be a causal link between the breach and the loss. This means that it must be proved that the defendant’s breach of the duty of care resulted in the claimant suffering the loss. This is divided into causation in fact and causation in law.

Causation in Fact

The courts will look at the facts of the case and one test they apply is the ‘but for” test, i.e. would the claimant have suffered “”but for” the defendant’s negligence? If the answer is ‘no’, then the defendant is liable. To demonstrate this, we can look at the case Barnett v Chelsea & Kensington Hospital [1969]. Here Mr Barnett had gone to the hospital with severe stomach pains and vomiting. The nurse telephoned the doctor on duty who said to send him home and he died 5 hours later of arsenic poisoning, Even if the doctor had seen him and diagnosed the illness correctly, he would stilL have died.

However, the ‘but for’ test does not solve all problems.

In cases where there are several causes of injury the claimant need only show that the defendant’s negligence made a material contribution to the damage.

The position is more complicated when the claimant’s second injury occurs when he is doing something that he would not have been doing had it not been for the first injury. Baker v Willoughby [1970] where the claimant was first knocked down by a car and suffered injury to his left leg which left him with mobility issues. Three years later he became a victim during an armed robbery where he sustained gunshot wounds to the same leg. The leg was then amputated. The court took the view that if Mr Willoughby had not been negligent in his driving to begin with, the complainant would not have lost his leg and he was therefore liable for the overall injury.

Jobling v Associated Diaries [1982] where a butcher slipped on the floor and suffered a slipped disc at work. He was put into a different role due to his inability to carry out heavy lifting but saw a 50% drop in his wages. It transpired he had a pre-existing spinal disease which was not part of the accident and he would have been unable to work even if the accident had not oCcurred. He was therefore only awarded damages and partial earnings for 4 years.

Causation in Law

If the defendant is liable in fact, it is necessary to decide whether it is recognised in law.

Factors taken into consideration:

Remoteness of Damage

The defendant’s act may cause the damage, but he will not be liable if the damage is too remote. Therefore, if the damage is not of the kind, type or class foreseeable, then the defendant will not be liable. This is seen in the following case: The Wagon Mound [1961] where oil leaked from a ship into the Sydney Harbour and a spark from welding set it on fire. The events and damage could not be reasonably foreseen and therefore the claimant was unsuccessful when claiming for damage to the wharf.

If the kind of damage can be foreseen, the defendant will be liable.

Novus Actus Interveniens

The defendant’s negligent act may be just part of the chain of causation leading to damage to the claimant. If, after the defendant’s original negligent act, a new act happens which overrides his negligent act, this is known asa ‘novus actus interveniens’, a new act intervening. This will have the effect of transferring the liability from the defendant to whomsoever caused the new act.

The intervening act may be that of the claimant himself:

Mckew v Hollan & Hannen & Cubitts (Scotland) Ltd [1969] where the claimant injured his back and hips at work due to his employee’s breach of duty. His legs were prone to giving way, yet he attempted to go down steep concrete steps. Realising he was not going to be able to get to the bottom he jumped 10 steps and broke his ankle leaving him with permanent disability. The employer admitted breach to the first injury but not the second. The claimant’s action amounted to a novus actus interveniens as his attempt to go down the stairs unaided was unreasonable. The defendant was therefore not liable for the injuries resulting from the incident on the stairs.

Sayers v Harlow Urban District Council [1958]. The claimant was locked in a public toilet for 15 minutes so decided to try and climb over the door. She stood on the toilet roll holder and slipped causing injury. The Council were found liable; however, her damages were reduced due to contributory negligence.

The act may also be of an intervening third party: Topp v London Country Bus Ltd [1993]. A minibus had been left in a layby with the keys in the ignition overnight. The employee didn’t turn up to collect this for his shift and the bus was stolen. The thieves ran over a woman on her bicycle; however, it was held that this was not foreseeable, and the bus company did not owe a duty for the third party.

The position may be different if there is a special relationship between the claimant and defendant if the defendant has assumed responsibility for the claimant: Stansbie v Trowman [1948] a decorator was left at a home he was working in alone. He went out for 2 hours but left the door unlocked during which time a thief entered and stole various items. It was held that the decorator was liable as he had a duty to take reasonable care when leaving the premises unoccupied.

The ‘Eggshell Skull Rule

The defendant ‘must take his victim as he finds him’. This means that if the claimant has a special sensitivity and suffers more than the ordinary person would have then this is no defence. This is demonstrated in: Robinson v Post Office [1974). An employee was injured at work and suffered from tetanus. He was given an anti-tetanus drug; however, the doctor didn’t conduct a test first to check for an allergic reaction and gave him the full dose instead of waiting 30 minutes from the test dose. It was held that the allergic reaction he did sustain would not have been visible after 30 minutes, so the employer was still liable for the reaction to the treatment.

3.4 Liability in Negligence for Economic Loss and Psychiatric Injury

Whilst physical damage and personal injury fall within tort and compensation will be payable for them, economic loss is not so easy to claim as this tends to fall more within the remit of contract law.

Traditionally, negligent statements were only actionable under the tort of deceit and the statement had to be fraudulent.

The House of Lords eventually accepted that there should be a duty of care to the investor and any third parties: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]. In this case a reference was given by the bank to an advertising agent who was entering into a contract with a client where they would be personally liable if the client defaulted. The reference was favourable; however, it included an exclusion clause and when the client defaulted the advertising agency tried to sue the bank. The claim failed and the bank could rely on their exclusion clause. However, the House of Lords ruled the pure economic loss would arise if 4 conditions were met:

1. a fiduciary relationship of trust & confidence arises/ exists between the parties;

2. the party preparing the advice/information has voluntarily assumed the risk;

3. there has been reliance on the advice / info by the other party, and

4. such reliance was reasonable in the circumstances.

Elements of Negligence Misstatement

A duty can therefore apply even where there is no contractual relationship and liability for an economic loss can be imposed. Strict guidelines for when the principle could apply were laid down by the House of Lords:

1. There must be a special relationship between the two parties-based on the skill and judgement of the defendant and the reliance placed upon it.

2. The person giving the advice must be possessed of special skill relating to the type of advice given-so the defendant ought to have realised that the claimant would rely on that skill.

3. The party receiving the advice has acted in reliance on it and in the circumstances it was reasonable for the claimant to rely on the advice.

The claimant must prove that he relied on the statement and the defendant knew he was relying on it or knew that the reliance was highly likely.

Claimant’s Reliance

It is only fair and logical that if there has been no reliance placed on the advice given then there cannot be liability on the defendant for giving it. Where there is a foreseeable reliance on advice that has been given, there will be a duty of care owed. Inevitably for a claim to succeed it must be shown that reliance on the negligent given advice was indeed reasonable. Chaudhry v Prabhakar [1989)

Defendant’s Knowledge

The second test is obviously whether the defendant knew or ought reasonably to be expected to know of the reliance on the advice given. This means that the defendant must have known that the claimant would have relied on the advice and Known what action the claimant was likely to take following the advice being given. Caparo Industries plc v Dickman [1990]

The defendant must know who is likely to rely on the advice and also the type of undertaking that is to be based on the advice. Smith v Eric S Bush (A Firm) [1989]. A mortgage valuation failed to note that the chimney of a house had structural damage. The question arose as to whether the valuer who was employed by the lender was also responsible to the borrower who was not a party to their contract. It was held that they were as the borrower was a private individual using the property as a family home, however the outcome may have been different had it been a business property.

There is generally no liability to a claimant who relies on the information intended for another person. Goodwill v British Pregnancy Advisory Service [1996] where a woman brought a claim after she conceived a child with a man who had undergone a vasectomy which was unsuccessful. He had not been notified of the risks of reversal. It was held there was no duty of care to her.

Development of Negligent Misstatement

It has been seen that the courts are sometimes willing to extend the situations in which damages will be awarded for negligent statements. Spring v Guardian Assurance plc [1994] where a past employer provided an unreasonable reference for a new employment position.

3.5 Occupiers’ Liability

Occupiers’ liability concerns the liability of an ‘occupier’ of land or premises for the injury or loss or damage to property suffered by claimants while on the occupier’s premises.

Occupiers’ liability is a recent tort and is found in two statutes:

1. the Occupiers’ Liability Act 1957- which is concerned with the duty of care owed to all lawful visitors; and
2. the Occupiers’ Liability Act 1984 — which is concerned with the duty owed to people other than lawful visitors, the major group here being trespassers.

The law overlaps with that of negligence and the claimant is entitled to sue in both: Ward v Tesco Stores [1976] (see above).

Liability to Lawful Visitors

Who is an Occupier?

An occupier has no statutory definition in either the 1857 or 1984 legislation. However, s1(2) of the 1857 Act states that the rules apply “.in consequence of a person’s occupation or control of premises””, As there is no firm statutory test, the courts will therefore look to the common law, Wheat v E Lacon & Co Ltd [1966]. The claimant’s husband fell down the stairs which were steep and narrow and unlit in a public house and died. It was held that both the Brewery and the Landlord had a duty of care.

It may be that there is more than one occupier. For example, the owner of the property and also a party who was in control of the premises such as a building contractor.

Who is a Visitor?

Although the common law did deal with the duty owed by occupiers, it was complex and varied, Therefore the 1957 Act was passed in order to simplify this. The Act introduced a common law duty to be applied to all lawful visitors.

s1(2) sets out the classes of people to whom the occupier owes a duty, and these

are known as ‘visitors’:

• Invitees — people who not only have permission to enter but whose entry is in the material interest of the occupier. E.g., friends making a social call or people invited onto land, for example, to give a quote for work.
• Licensees — these are people whose entry is to the material interest of the occupier, for example customers. They can include anyone with permission to be on the premises for whatever purpose.

An Implied licence can also be created in the following situations, for example:

Those entering under a contractual agreement which could occur in one of two situations:

a. Where the person has a direct contract with the occupier, for example, a painter, plumber, etc.

b. Where the person entering has a contract with a third party, for example, a sub-contractor. In this case they act as a licensee.

Those not requiring any permission to enter because of a legal right to enter, for example meter readers, police officers in execution of a warrant, etc.

The 1957 Act imposes no duty of care towards trespassers. A more limited duty is owed to trespassers under the Occupiers’ Liability Act 1984.

Definition of Premises

As with the definition of ‘occupier there is no fixed definition within either of the Acts. Again, there is some limited reference which is given in s1(3)(a) and this refers to a person having occupation or control of any “… fixed or moveable structure, including any vessel, vehicle and aircraft”.

As a result, the common law again applies and besides the obvious such as houses, buildings and the land itself, premises have also been held to include:

• Ships in dry dock
• Vehicles
• Aircraft
• Lifts
• And even a ladder!

The Common Duty of Care

SZ(1) sets out the extent of the duty as “an occupier owes the same duty, the common duty of care, to all his visitors except insofar as he is free to do and does extend, restrict, modify or exclude his duty to any visitors by agreement or otherwise”.

S2(2) sets out the nature of the 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”.

Liability to Children

Under s2(3) the occupier ‘must be prepared for children to be less careful than adults . the premises must be reasonably safe for a child of that age’.

Therefore, the standard of care is measured subjectively rather than objectively. What may pose a threat to a child may not be a risk to an adult. Children do not appreciate risks in the same way as adults and could be ‘allured’ into taking a risk by being attracted to the danger.

In Glasgow Corporation v Taylor [1922] a 7-year-old boy died after eating poisonous berries when visiting a botanical garden.

The courts will sometimes take the view that very young children should be under the supervision of a parent or other adult. In this case the occupier might find that he is relieved of liability. Phipps v Rochester Corporation [1955] where a 5-year- old boy was injured after falling into a trench when walking in open land with his 7-year-old sister.

Liability to Persons Entering to Exercise a Calling

With regard to professional visitors, s2(3)(b) states that in relation to activities carried n within the trade the occupier is entitled to except that “… a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it”.

Where tradesmen fail to guard against risks which they should know about the occupier will not be liable. Roles v Nathan [1963] where two brothers, chimney sweeps, died after ignoring various warnings from an engineer as to the risk of carbon monoxide and after being physically removed from the building and told to come back tomorrow they returned in the evening to finish the work without authorisation.

Liability to Contractors

The level of trust put into the contract must be reasonable. This may differ according to the scenario including the status of the parties (private individual or business) and the nature of the work.

The occupier may be expected to inspect the work. It is the occupier’s duty to ensure that a competent contractor is chosen who has public liability insurance cover. Gwilliam v West Hertfordshire NHS Trust (2002]. The hospital held a fayre and contracted with an entertaining company for a splat wall (trampoline bouncing onto Velcro). The splat wall was not set up correctly and a 63-year-old lady injured herself. It was held that the hospital should have checked the insurance of the contractor.

Defences

Under s2(1) the occupier is free to extend, restrict, modify or exclude his duty to visitors and there are various methods of achieving this:

Warnings

Under s2(4)(a) a warning will not absolve the occupier of liability unless .. in all the circumstances it was enough to enable the visitor to be reasonably safe.’

What amounts toa sufficient warning then will be a question of fact in each case. In Roles V Nathan [1963] a warning that access over a footbridge was unsafe as it was rotten was not acceptable as there was no other means of access, so the visitor had no choice but to go over the same.

Exclusion Clauses

In article 4, Contract Law, you will learn that a clause may be inserted into a contract which aims to exclude or limit one party’s liability for breach of contract or negligence. E.g. in a car park you will find notices avoiding liability for damages to cars.

S2(1) of the 1957 Act allows an occupier to exclude liability ‘by agreement or otherwise’. The use of exclusion clauses, however, will be subject to various restrictions:

• You cannot exclude liability to a person entering under a legal right.
• Visitors must have had a chance in advance to agree to the exclusion.
• If a child is unable to read or understand the terms it will not apply.
• Consumer Rights Act 2015 states you cannot exclude liability for death or personal injury.

You cannot exclude the minimum standard of care to trespassers under the Occupiers Liability Act 1984.

Consent

S2(5) provides that an occupier is not liable to a visitor for risks which the visitor willingly accepts.

Liability to Trespassers

Under the common law trespassers were dealt with harshly and therefore the 1984

Act was introduced to provide a limited duty of care mainly towards trespassers.

An example of a case before the legislation was enacted is British Railways Board v Herrington [1972] where a 6-year-old boy was electrocuted and suffered severe burns when he wandered from a park onto a live railway. Under previous case law the occupier would have been found not liable if the Lords had followed precedent. However, they used the 1966 Practice Statement to allow them to depart from their previous decisions and found that the railway board, who had known about the gap in the fence but not fixed it, were liable.

By s1(1)(a) a duty applies in respect of people other than visitors (who are covered by the 1957 Act) for injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them.

Damage to property is not covered under the 1984.

The occupier will only owe a duty under s1(3) if:

(a) he is aware of the danger or has reasonable grounds to believe it exists; (a subjective test)

(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger (in either case whether the other has lawful authority for being in that vicinity or not); (subjective test) 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. (objective test)

According, to s1(4) the duty is to “… take such care as it reasonable in all the circumstances’ to prevent injury to the non-visitor ‘by reason of the danger concerned’.

This was applied by the Court of Appeal in: Revill v Newberry [1996] (referred to above)

As with negligence, an objective test is applied, i.e the ordinary man. The facts of each case will be considered and how serious the risk was. If the risk were significant then greater precautions would be required. Various factors will be considered such as how easy it is to put the precautions in place, the type of premises, whom the risk is applicable to, i.e. is it a child or an adult?

Ratcliff v McConnell & Others [1999] — the claimant became paralysed after diving into the shallow end of the college pool in the evening after he had been out drinking with friends. Although the pool had signs to state the depths, the college were still liable as they were aware that the pool was often used by students in the prohibited hours. The damages were reduced by 60% due to contributory negligence.

The mere fact that the occupier has taken precautions or fenced the premises does not in itself indicate that the occupier knew or ought to have known of the existence of danger.

Defences

S1(5): the occupier may give an effective warning to the trespassers

S1(6): the consent of the trespasser is also a defence as no duty is owed for risks ‘willingly accepted’.

3.6 Nuisance and the Escape of Dangerous Things

Nuisance is anything that disturbs the free use of one’s property, or that renders its ordinary use uncomfortable. In tort law it is a wrong arising from unreasonable or unlawful use of property to the annoyance or damage of another or of the public.

What is Nuisance?

Nuisance is defined as ‘continuous, unlawful and indirect interference with a person’s enjoyment of land or some right over, or in connection with it’.

It is thus a legal action to redress harm arising from the use of one’s property.

The two types of nuisance are private nuisance and public nuisance.

• A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without an actual trespass or physical invasion to the land.
• A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community.

Private Nuisance

Private nuisance is a continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or in connection with it. Lord Lloyd in Hunter v Canary Wharf [1997] stated that private nuisances are of three kinds.

They are:

(1) nuisance by encroachment on a neighbour’s land;

(2) nuisance by direct physical injury to a neighbour’s land; and

(3) nuisance by interference with a neighbour’s quiet enjoyment of his land.

The claimant must prove the following in order to succeed with a claim of private nuisance:

Substantial Interference

The claimant must show that he has suffered a substantial interference with his enjoyment or use of land, or material physical damage to the land or things on the land.

In order to rely on physical injury to the property it must reduce the value and must be ‘more than merely trifling’. This must be distinguished from personal discomforts as illustrated in St Helen’s Smelting Co v Tipping [1865] where the claimant purchased a manor house with 1300 acres of land which was situated a short distance from the defendant’s copper smelting business. He brought a nuisance action against the defendant in respect of damage caused by the smelting works to their crops, trees and foliage. The defendant argued that the use of property was reasonable given the locality and the smelting works existed before the claimant purchased the property. Where there is physical damage to property, the locality principle has no relevance. It is no defence that the claimant came to the nuisance.

This also makes it clear that where actual physical damage is caused as a result of the activity, the issue of locality is not relevant. In St Helen’s Smelting Co v Tipping [1865] the fact that the industrial use which caused physical damage occurred in an industrial area was held to be irrelevant.

The interference may be over a short period or a long period of time. Generally, the latter is more likely to be successful, however, provided it is continuous, an isolated incident can still lead to nuisance. Castle v St Augustine’s Links Ltd [1922) where golf balls were constantly being hit onto a road close to the course due to the location of one of the holes. This was held to constitute a public nuisance.

The Interference was Indirect.

The interference must be indirect. A simple example to illustrate this arises from a garden bonfire. The lighting the bonfire may not be a nuisance, however the indirect consequence of that activity is the smoke which goes onto neighbour’s washing and through their open windows.

The Defendant’s Conduct was Unreasonable or Unlawful

The claimant must prove that the defendant’s conduct was unreasonable. The rule is sic utere tuo ut alienum non laedas (so use your own property as not to injure your neighbour’s).

The court will take the following factors into account in assessing the reasonableness or otherwise of the defendant’s use of land:

• The locality: It was stated in Sturges v Bridgman (1879) that: “What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey.”
• The utility of the defendant’s conduct: If the community will benefit then it is unlikely to be a nuisance. In Harrison v Southwark Water Co [1891] building work carried out at reasonable times of the day did not amount to a nuisance, however in Adams v Ursell [1913] a fried-fish shop was a nuisance in the residential part of a street.
• Motive: It is not necessary to establish malicious behaviour on the part of the defendant, but it may be regarded as evidence of unreasonableness. In Christie v Davey [1893] the plaintiff had been giving music lessons in his semi-detached house for several years. The defendant, irritated by the noise, banged on the walls, shouted, blew whistles and beat tin trays with the malicious intention of annoying his neighbour and spoiling the music lessons. An injunction was granted to restrain the D’s behaviour, In Brodford Corporation v Pickles (1895] the plaintiff deliberately diverted water flowing through his land, away from his neighbour’s property as he intended to force them to buy his land at an inflated price, It was held that he was committing no legal wrong because no-one has a right to uninterrupted supplies of water which percolates through from adjoining property.

How Practical is it to Stop Nuisance?

In Moy v Stoop [1909] an elderly woman living in apartment took action against neighbour for the constant crying of a baby. It was held that the mother was not doing anything wrong and the baby was not being neglected. As there was no treatment for the crying there was no nuisance.

The Degree and Duration of the Damage

The interference must be continuous, and an isolated incident can be a nuisance if arising from a continuous state of affairs. The cause could be over a long-time span, but very short time spans have also been accepted.

The Effect on the Claimant’s Land

If the claimant’s own use of land is hypersensitive to the interference he may fail as the real reason for the loss of use or enjoyment may not be from the defendant’s activity. In Robinson v Kilvert [1889] the claimant’s paper which was being stored was unusually sensitive to heat. The defendant was not liable as the conditions in the factory were not unusual.

However, if the defendant can show that the damage would have been caused regardless of the sensitivity of the land, the claim may succeed. McKinnon Industries Ltd v Walker [1951] where the claimant’s orchids which he grew for commercial reasons were damaged by the defendant’s steel business causing noxious fumes and smut.

There are times when a nuisance may arise from natural causes. Where this occurs, the occupier should take reasonable steps to ensure that the nuisance is diminished in order to prevent the harm taking place. Leakey v National Trust [1980] where natural falls of land from the defendant’s property caused damage to the claimant’s property. She had previously notified the defendant of cracks and had offered to pay half. The defendant was liable.

Who Can Sue?

Only a person who has a proprietary interest in the land affected by the nuisance will succeed in a claim, e.g. as owner or reversioner, or be in exclusive possession or occupation of it as tenant or under a licence to occupy.

Malone v Laskey [1907] — The plaintiff was using a toilet when the lavatory cistern fell on her head because of vibrations from machinery on adjoining property. Her claim failed as she was merely the wife of a mere licensee and had no proprietary interest herself in the land. However, today she would be able to claim in negligence.

However, the wife of a homeowner would be able to sue as she has a beneficial interest in the matrimonial home, per Lord Hoffman, Hunter v Canary Wharf [1998].

Who May be Sued?

Creator of the nuisance: Any person who creates the nuisance Can be sued, whether or not that person is the occupier of the land at the time of the action, Occupiers: Occupiers who adopt and continue to allow nuisances on their land may also be liable, even if such nuisances were created by predecessors in title, trespassers or third parties. Example: Sedleigh Denfield v O’Callaghan [19401: http://osclinks.com/4342

Landlord: A landlord may be liable for nuisances emanating from land, e.g. if the landlord had knowledge of the nuisance before letting, or where the landlord reserved the right to enter and repair the premises. For example: Tetley v Chitty [1986] when the Council granted permission for a go-kart track on council-owned land they were liable in nuisance for noise.

Remedies for Private Nuisance

• Injunction: An injunction will only be granted at the discretion of the court, For example, an injunction was refused: Miller v Jackson [1977] Where a cricket club was liable for the nuisance created by balls being hit out of the ground.
• Damages: In cases of nuisance by encroachment or damage to land, the measure of damages will be the diminution in the value of land; in cases of interference with enjoyment the measure will be the reduction in amenity value. The cost of repairs or other remedial works is also recoverable.
• Abatement: This is the remedy of self-help, e.g. removing over-hanging tree branches, which are a nuisance.

Public Nuisance

In A-G v PYA Quarries (1957] Lord Justice Romer stated that Public nuisance is an act “which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”.

It is primarily a crime, prosecuted by the Attorney-General. An individual may also bring an action where he can show that he has suffered special and peculiar damage over and above the rest of the public: Halsey v Esso Petroleum [1961] The claimant lived down the road from Esso Petroleum and claimed that emissions are an offensive smell; that they damage his linen and car’s paint and that he is also kept up at night by the noise from the trucks. It was held that this was nuisance and an injunction was granted at night.

The factors required to prove public nuisance are similar to those of private nuisance. One main difference is that public nuisance is not limited to damage caused to the land owned by the claimant. Attorney-General v Gastonia Coaches [1977] see here for the case summary: http://osclinks.com/4343

An example of public nuisance would be unreasonable use and obstruction of the highway.

Defences

• Statutory authority: If it can be shown that the activities complained about by the claimant were authorised (expressly or impliedly) by a statute then this will be a defence. In Allen v Gulf Oil [1981] Parliament intended a refinery to be constructed and there was a statutory immunity in respect of any nuisance which was an inevitable result.
• Prescription: If the nuisance has continued for 20 years without interruption the defendant will not Liable if s/he pleads a prescriptive right to the nuisance. In Sturges v Bridgman [1879] a Doctor built a consulting room next to a confectioner’s workshop which had been operating for over 20 years; the court held that the prescriptive right began on the use of the room.

Rylands v Fletcher

Generally, the rule under Rylands v Fletcher is a strict liability tort, and no intent or negligence needs to be shown; however, it is not actionable per se and some damage must be shown for the rule to apply.

The Rule was stated in the case of Rylands v Fletcher (1868), by Blackburn J., (in the Court of Exchequer Chamber), and states:

“The person who, for his own purposes, brings onto his land and collects and keeps there anything likely to do mischief if it escapes, must keep it 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”.

The circumstances of the case were that the defendant employed independent contractors to construct a reservoir on his land and to use the waterpower for his mill. In the course of construction, the contractors came across some disused mineshafts and passages filled with earth and marl which, unknown to the defendant and the independent contractors, communicated with the claimant’s mines. When the reservoir was filled, the water escaped through the shafts and flooded the claimant’s mine. It was found as a fact that the defendant had not been negligent. Nevertheless, the defendant was held liable, first by the Court of Exchequer Chamber and secondly on appeal to the House of Lords where the judgment was confirmed but the rule was restricted to damage due to a non-natural user of the land.

The case related to an escape of water, but the rule has been applied to various kinds of ‘escape, for example:

• Electricity (National Telephone Co. v Baker (1893),
• Yew trees (Crowhurst v Amersham Burial Board (1878)),
• Wire fencing (Firth v Bowling Iron Co. (1878),
• Sewage (Jones v Llanrwst U.D.C. (1911),
• Explosives (Rainham Chemical Works v. Belvedere Fish Guano Co. (1921), and even
• Gypsies (Attorney General v Corke (1933) where the defendant allowed gypsies to occupy his land, living in caravans and tents. The gypsies fouled and caused damage to adjoining land. It was held that the rule in Rylands v Fletcher applied since although it was lawful to allow gypsies on the land, it was not a natural use of the land. However, it may be that, with gypsies, the tort of nuisance may be more appropriate (Page Motors v Epsom B.C. (1980) and also, animals, chemicals, industrial use of gas and electricity and even, but exceptionally, humans.

There are several important points to observe in the rule.

(a) The defendant is liable notwithstanding his employment of a competent independent contractor, and whether or not there is any default by the Contractor.

(b) There must be an actual ‘escape’ or leakage from the defendant’s land of the dangerous or harmful thing, beyond the boundaries of the land and the dangerous thing must move from the defendant’s land to the claimants.

In Read v Lyons [19471, for example, the claimant was employed as an inspector of munitions factories. She was injured by a shell, which exploded whilst it was being manufactured, She claimed under the Rule in Rylands v Fletcher (because she could not prove negligence) but failed because there had been no escape of the dangerous thing over the boundaries of the defendant’s land. The House of Lords gave the opinion (obiter not part of the decision) that the making of munitions in wartime was a natural usage of land.

(c ) Things ‘naturally on land’ are excluded from the Rule and these include thistles. insects, rats (unless their numbers increased as a result of defendant’s acts or omissions), rocks (when these crumble and fall naturally there is no liability on the defendant, though it would be otherwise if the fall were due to negligent quarrying or if increased falls resulted from quarrying). Liability for such things may, however, be actionable in nuisance or trespass. Many things are brought on to land by landowners, and the question arises as to whether their introduction and use amounts to ‘non-natural usage’.

In Giles v Walker (1890], the occupier of land ploughed it up, and shortly afterwards a large crop of thistles grew up. As a consequence, thistle seeds were blown on to the land of the neighbours. Held: that the rule of Rylands v. Fletcher did not apply. The defendant had not brought the thistles on to his land, for they had accumulated there naturally. The claimant could, however, possibly have succeeded in nuisance.

(d) The act must be a ‘non-natural’ use of the land. Natural usage includes the working of mines and the planting of trees, though if these are poisonous and they escape, the defendant will be liable. The storage of water in quantities and the storage of electricity have been held as non-natural.

Crowhurst v Amersham Burial Board [1878]. Yew trees were planted by the Defendants on the boundaries of their land, The yew tree branches protruded over the land occupied by claimant. The claimant’s horse ate some leaves and was poisoned and died. Held: that defendants were liable, for it was a non-natural use of land to plant such poisonous trees, and the branches had ‘escaped into claimant’s field.

Defences:

The defences to this tort are:

(i) Act of God. The defendant may evade liability if he can prove that there was an escape due to what is described as an Act of God, for example, an extraordinary rainfall that could not reasonably have been anticipated (Nichols v Marsland, [1876].

(ii) Act of a Stranger. The defendant can evade liability if he can prove that the escape was due to the unlawful act of a third party (‘stranger) over whom the defendant had no control.

Rickards v Lothian [1913]. R, the lessee of a building, sub-let the second floor to L. A third, unknown, person blocked the waste pipes of a washbasin on the fourth floor (which was in R’s control) and turned the tap on. L’s stock on the second floor was damaged by the overflow of water. It was held that R was not liable since the damage was due to the act of stranger, which R could not reasonably have prevented.

(iii) Default of Claimant. Where the escape of the dangerous thing was caused by the default of the claimant.

(iv) Consent of the Claimant. Where the claimant voluntarily consented to the presence or existence on the defendant’s land of the dangerous thing or source of the mischief. For example, fire extinguishers, water pipes or water cisterns in a block of flats. Common benefit is evidence of consent.

SV Prince of Wales Theatres Ltd. [19431. The defendants leased to P a shop in a building used as a theatre, The theatre, with knowledge of P, contained a water-sprinkler system against fire risk, the system extending to P’S shop. During a frost, water poured from the system, damaging P’s stock. P claimed damages under Rylands v Fletcher”,. Held: that the water-sprinkler system had been installed for the common benefit of the claimant and the defendant; the rule in Rylands y. Fletcher did not, therefore, apply and, as there was no negligence on the part of defendant, there was no liability under that head either.

(v) Statutory Authority. A local authority or public-utility corporation may escape liability if the terms of the statute are clear (Green v Chelsea Waterworks Co. [1894]. This, however, does not apply to escape of water from reservoirs (Reservoirs Act, 1975). Green v. Chelsea Waterworks Co. [1894]. The defendants were authorised by statute to lay a water main. The main burst and flooded the claimant’s premises. Held: that statutory authority precluded liability under Rylands v Fletcher; and as there was no negligence on the part of the defendants, they were not liable under that tort either.

3.7 Vicarious Liability

Vicarious liability is not an individual tort in the same way that we have looked at other torts such as negligence or nuisance. It is a means of imposing liability for a tort onto a party other than the tortfeasor, the party causing the tort. This often relates to employers being responsible for the actions of their employees.

Justifications for Vicarious Liability

Most of the justifications are due to the victim of the wrong having a means of gaining compensation:

The employer has a degree of control over their employees and may well have requested that the actions were carried out on their employer’s behalf.

• The employer should not be careless when hiring and selecting staff.
• The employer has a responsibility to ensure their staff are adequately trained.
• In return for the benefit received by the employer from the employee carrying out their duties, they should also bear the burden when something goes wrong.
• Most employers can claim off insurance when being sued, whereas an employee will not usually be covered by such policies.
• It may be easier to identify the employer rather than a specific employee responsible.

Who is an Employee?

It is important to distinguish between employees and independent contractors as employers are only responsible for the former. The parties’ intention and conduct will be looked at together as they can conflict.

Contrast, for example: Ferguson v Dawson Partners [(1976] where although the builder was hired as a labour only subcontractor tor tax and NI purposes, however because he was treated in every other way as an employee, it was held he was not a ‘contractor. In Massey v Crown Life Insurance [1978] although there was a detailed written contract, the parties’ intention prevailed.

Various tests for establishing an individual’s employment status have been developed:

The Control Test

This test is the oldest of the available tests and derives from the days of ‘master and servant’ laws. Various key features were identified in Short v JW Henderson Ltd. [1946] including how the ‘servant’ is selected, what control the ‘master has over the method of working and whether the master can suspend or dismiss the payment of wages.

The Organisation Test

This test was established by Lord Denning in Stevenson Jordan and Harrison Ltd v McDonald & Evans [1969]. The test ascertains whether a person is fully integrated into the business and if they are, they are an employee. If the work is not integrated and is only an accessory, then they are not an employee.

The Multiple Test

Ready Mixed Concrete v Minister of Pensions [1976] — A delivery driver for a mixed concrete company used his own vehicle, however the contract stated it must be painted in the company colour and the contract also set out his wages and expenses. There were also various other rules regarding keeping his vehicle in repair. This case involved payment of national insurance and the rate at which this was paid depended upon whether he was an employee or independent contractor. The court therefore looked at the terms of the contract and the obligations on each party rather than whether they had called the worker an employee or contractor.

Furthermore, a contract of service will be deemed employment when:

(1) a person agrees to a perform a service for a company in exchange for remuneration; and

(2) a person agrees, expressly or impliedly, to subject himself to the control of the company to a sufficient degree to render the company his “master,” including control over the task’s performance, means, time; and

(3) the contractual provisions are consistent with ordinary contracts of service.

In this case, despite the requirements of the logo and upkeep of the vehicle, the driver was able to perform the service (i.e. delivery of concrete) with his own choices, i.e. he could choose what vehicle he owned and could make his own choices on other matters in order to complete the task. He was therefore an independent contractor.

Subsequently modifications to the test have been applied and factors might include:

• The ownership of tools, plant or equipment
• The method of payment.
• Tax and National Insurance contributions.
• Self-description.
• Level of independence.
• Benefit of any insurance available.

The Course of Employment

It is often difficult to ascertain whether an employee is acting in the course of employment and unfortunately there is no test for this. However, in Joel v Morison [1834] Parke B state that “the servant must be engaged on his master’s business, not ‘on a frolic of his own.”

An employer will usually be liable for:

(a) an act which is wrongful which he has authorised the employee to carry out (i.e. he knew it was wrong but authorised it anyway).

(b) acts which the employer authorised where the employee has carried them out in an unauthorised way or a method which was prohibited by the employer;

(c ) acts of a criminal nature.

Authorised Acts

In the case of (a) above, the employer would be primarily liable.

Wrongful Modes of Doing Authorised Acts

When an employee is outside the course of his employment he is sometimes said to be ‘on a frolic of his own’. When acting on a ‘frolic’, the employer will not be vicariously liable.

In the following cases it was held that the employer was vicariously liable for torts of the employee:

Century Insurance Co v Northern Ireland Transport Board [1942)

A petrol tanker driver, smoking a cigarette threw away a match, causing an explosion.

Rose v Plenty [1976]

A milkman employed a 13-year-old assistant despite being told not to by the employer. The assistant was injured by the milkman’s negligent driving. As the act here was done for the employer’s business the employer was vicariously liable.

In the following cases it was held that the employer was not vicariously liable:

Beard v London General Omnibus Co. [1900]

A bus conductor drove a bus injuring a pedestrian. As he was going down side streets and not on the usual bus route the employer was not liable.

Twine v Bean’s Express Ltd. [1946]

A hitchhiker had been given a lift contrary to express instructions and was fatally injured. Lord Greene MR said that the servant was doing something totally outside the scope of his employment, namely, giving a lift to a person who had no right whatsoever to be there.

Hilton v Thomas Burton (Rhodes) Ltd. [1961]

Workmen drove seven or eight miles for tea, immediately after finishing their lunch in a pub. The van overturned, and a passenger was killed.

Criminal Acts

An employer will not usually be liable for the criminal acts of employees. However, if the employee performs their duties in a criminal manner, an employer may be liable.

Morris v Martin L td. [1965]

A fur coat sent to cleaners was stolen by the employee whose job it was to clean the coat, The cleaners were liable for the theft.

The Effect of Vicarious Liability

The injured party has the choice of suing both the employer and the employee. In practice the employer is often used as the chance of recovering damages is higher as they are usually insured.

One of the common law duties imposed on an employee is to indemnify the employer. This means that he may have to pay back any compensation paid by the employer as a result of the employee’s negligence even though this isn’t usually a term of the employer’s insurance policy.

The employer would probably be entitled to dismiss the employee on grounds of misconduct.

Activities:

Look at this article on the liability of a school: http://osclinks.com/4345 and see how you can apply it to vicarious liability.

Look at this Supreme Court Judgement: http://osclinks.com/4346 of Cox v MoJ [2016].

Look at this article on vicarious liability http://osclinks.com/5407

3.8 Defences

Inevitable Accident

This was defined by Sir Frederick Pollock as:

“Not avoidable by any such precautions as a reasonable man, doing such an act then and there, could be expected to take.”

If the defendant can prove that the accident occurred despite him exercising reasonable care, he will escape liability.

Act of God

Act of God amounts to a claim that an accident occurred as a result of natural forces outside the control of the defendant or anyone else. As such it may be a defence to a claim of liability under Rylands v Fletcher. It will only succeed for condition of nature “which no human foresight can provide against …’ e.g., extreme weather conditions.

In Nichols v Marland [1876] the defendant diverted a natural stream on his land to create ornamental lakes. Exceptionally heavy rain caused the artificial lakes and waterways to be flooded and damage adjoining land. The defendant was held not liable under Rylands v Fletcher as the cause of the flood was an act of God.

Statutory Authority

If the defendant carried out an act which is permitted by an Act of Parliament this will usually provide a complete defence. The wording of the statute must be checked and if the authority is absolute there will be no liability providing the act was committed reasonably and there was no alternative method available.

Volenti Non-Fit Injuria (consent)

This is a complete defence, unlikely contributory negligence which only reduces damages, and if successful then a claimant will recover no damages. The defence succeeds because there is a voluntary assumption of the risk of harm by the claimant and a simple translation would be that no injury is done to one who freely consents to the risk.

Distinction must be drawn between:

• An intentional infliction of harm — which is negated by consent, for example where a patient signs a consent form in respect of an operation there is no battery; and
• A negligent infliction of harm — in which for the defendant to avoid liability for his otherwise negligent act the claimant must voluntarily accept the risk of injury.

It must be remembered of course that before the defence can be applied successfully it must be shown that the defendant did in fact commit a tort.

Contributory Negligence

In cases where a claimant suffers damage partly through his own negligence as well as through the negligence of the defendant then contributory negligence may be used to reduce the damages by the extent to which the claimant was responsible for his own loss or injury.

Contributory negligence was originally a complete defence so that no damages at all were payable if the defence succeeded.

The Law Reform (Contributory Negligence) Act 1945 changes the nature of the rule so that damages could be altered according to the extent to which the claimant had contributed to his own harm, Damages will then be reduced proportionately accordingly.

For a successful claim a defendant must prove:

• Fault on the part of the claimant (that he failed to take reasonable care for his own safety); and
• That negligence by the claimant (.e. a failure to take reasonable care) was a cause of the damage suffered.

A person fails to take reasonable care for his own safety if:

1. he is partly to blame for the accident. Fitzgerald v Lane [1989] see here for the case summary: http://osclinks.com/4429
2. he puts himself in a dangerous position which exposes him to the risk of involvement in the accident in which he is harmed. Davies v Swan Motor Co (Swansea) Ltd. [1949] where Davies was killed after standing on the steps of dust lorry down a narrow lane when it passed a bus.
3. a claimant might also place himself in a position that is not dangerous, but which involves circumstances making it more likely that he will suffer harm. An example is where a claimant knows that a driver is drunk but nevertheless accepts a lift. Also, a claimant might place himself in a position which is not dangerous in itself but then fails to take precautions to avoid danger and in doing so increases the amount of harm suffered. For example, not wearing a seatbelt Platform Home Loans Ltd v Oyston Shipways lLtd. & Others [1999].

In certain situations, the courts are relatively slow to put blame of contributory negligence to the claimant:

Children

If the claimant is a child, he will be judged on the standard of an ordinary child of the same age. The courts are generally reluctant to find contributory negligence.

Employees

The courts are often lenient; however, they will find the claimant as having contributed to the negligence where they haven’t complied with regulations. E.g., not wearing protective clothing under health and safety legislation.

Rescuers

The courts are sympathetic to rescuers as a matter of policy and they are reluctant to find a rescuer as being contributorily negligent when attempting a rescue. However, there are cases where rescuers have been found contributorily negligent.

Doctrine of Alternative Danger

This is also known as the ‘dilemma principle’. It is used where the claimant has found themselves in a situation where they must decide as to what course of action to take. Each could inevitably lead to injury and the claimant must choose the best option.

There is an important limitation: if the damage would have been just as great had the claimant not been negligent, his damages will not be reduced.

The defendant must therefore establish that the claimant had contributed to the cause of his injury either by being partly to blame or that he contributed to the damage suffered.

3.9 Remedies

Damages:

• Compensatory Damages — The aim of these damages is to put the injured party back in the position they would have been had the tort not have been committed. This is the principle of restitutio in integrum.
• General Damages — This is compensation for losses which have arisen and losses which may arise in the future. For example, in a personal injury case for the injuries sustained, a lower quality of life, as well as loss of earnings or opportunities in the future. It is often difficult to put a figure on these losses.
• Special Damages — These are for expenses where a figure is available, and the losses have been incurred prior to the trial. For example, travel expenses, medical prescriptions, insurance claims, etc.
• Benefits — If the claimant receives any social security benefits as a result of the loss/injury the defendant may be ordered to pay some of the damages back to the government under the Social Security Administration Act 1992 as revised by the Social Security (Recovery of Benefits) Act 1997. This results in the claimant being paid partly from the social benefits and partly from the defendant. The claimant will receive what they are entitled to; the government will be reimbursed; and the defendant will not benefit from his wrongdoing.
• Nominal damages — Nominal Damages are awarded in certain cases where, although the claimant has not sustained actual loss or injury, nominal damages are intended as a statement that the type of conduct the defendant engaged in should not be permitted. For example, if you own a large plot and a neighbour continually cuts across your property line, you may not have sustained any damage, but an award of “nominal” damage will vindicate your right to exclusively occupy your land.
• Contemptuous Damages — This is usually the smallest coin of the realm and these damages are awarded where, although the claimant was successful, the claim should not have been brought as there was no merit in the same.
• Exemplary (punitive) Damages — ‘Aggravated damages’ are awarded where the circumstances in which the tort was committed warrant higher damages than normal to reflect the greater injury to the claimant. These are distinguished from exemplary which, although are awarded due to the conduct of the claimant, they are punitive in nature. The former is awarded where the conduct shocks the claimant and the latter is where the conduct shocks the court.

Injunctions

The court may be able to restrain a party from committing a breach of contract by injunction. This is an equitable remedy which is at the discretion of the courts. There are three types of injunction:

• A prohibitory injunction orders a defendant to refrain for doing something. A court will grant these even if it would be onerous on the defendant to comply with the same without giving very much benefit to the claimant.
• A mandatory injunction orders a defendant to reverse the effects of an existing breach. Before awarding this the court will apply ‘balance of convenience’ test. If the hardship to the defendant to comply with the injunction would outweigh the consequential advantages to the claimant, it will be refused.
• An injunction quia timet (“because he fears”) is given to prevent something the claimant fears might happen, or to ask for an interlocutory injunction, which is designed to regulate the position of the parties pending a hearing.

In Conclusion

The final method of demonstrating the truth and importance of seeing the common law of torts as based upon the infringement of primary rights is to examine other systems which do not have the same conception. Comparative law, although a dangerous business, sheds light upon the nature of the common law which is a result of the method of its creation. Not only are French and German law structurally different from the common law, this has repercussions for the outcome of many concrete cases which diverge markedly from those which would occur within the common law.