Tort

Cover
Half Title
Title Page
Copyright
Dedication
Guide to the Book
Preface
Acknowledgments
Table of Contents
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of EU & International Legislation
1 The Nature of Tortious Liability
	What is tort?
	Principles of Liability
	(1) Compensation
	(2) Fault
	(3) Retributive justice
	(4) Deterrence
	(5) Economic efficiency (market deterrence)
	(6) Loss distribution
	Conclusions
	The Interests Protected by Tort
	(1) Personal harm
	(2) Harm to property
	(3) Harm to reputation
	(4) Harm to financial interests
	(5) Harm to the due process of law
	The Role of Tort in the Law of Obligations
	The distinction between tort and contract
	The distinction between tort and restitution
	The Impact of European and Human Rights Law
	Tort in Modern Society
	Tort and other compensation systems
	Why not tort?
	Cost
	Time
	Risk
	Difficulty
	Absence of litigation consciousness
	Proposals for reform
	(1) A mixed system
	(2) No-fault liability
	(3) Insurance
	Tortious liability: conclusion
2 Negligence: The Duty of Care
	Introduction
	Definition of “Negligence”
	Studying Negligence
	An Overview of Negligence
	The Duty of Care
	An overview
	The historical background
	The first step: identifying a general principle
	Lord Atkin’s “neighbour principle”
	The second step: applying the general principle
	The decision in Hedley Byrne
	The decision in Dorset Yacht
	Lord Wilberforce’s “two stage test”
	The third step: refining the principle
	The modern approach
	The Caparo criteria
	(1) Foreseeability
	The foreseeable claimant
	Is an unborn child a “foreseeable claimant”?
	(2) Proximity
	(3) “Fair, just and reasonable”
	Applying the Caparo criteria: factors relevant to the imposition of a duty of care
	Misfeasance and Non-feasance
	Non-feasance: no duty to rescue
	Non-feasance: no general duty to prevent others from causing damage
	(1) Special relationship between the defendant and the claimant
	(2) Special relationship between the defendant and the third party
	(3) Creating a source of danger which is “sparked off” by a third party
	(4) Failing to take reasonable steps to abate a danger created by a third party
	The Type of Defendant
	(1) Local authorities
	Policy arguments
	Statutory functions and the intention of Parliament
	"Policy matters" and "operational matters"
	When does a local authority “assume responsibility” for a claimant’s welfare?
	Human rights issues
	The “child abuse” cases: a partial accommodation of human rights law
	The decision in Z v United Kingdom
	The decision in D v East Berkshire NHS Trust
	Jain and Rabone: negligence and human rights kept separate
	The education cases
	(2) Other public servants
	The police
	1. Cases where the police owe a duty of care
	2. Cases where policy reasons preclude the existence of a duty of care
	The fire brigade
	The coastguard
	The ambulance service
	The National Health Service
	The armed forces
	(3) Advisory bodies and regulators
	Ship classification societies
	Scientific advisory bodies
	Sports regulators
	(4) The legal profession
	The old law
	Arguments for advocates’ immunity
	The decision in Hall v Simons
	The Article 6.1 Controversy: Is the practice of striking out negligence claims contrary to ECHR art.6?
	Duty of care: conclusion
3 Negligence: Economic Loss
	Introduction
	Definition of “pure economic loss”
	“Pure” and “consequential” economic loss
	An illustration: Spartan Steel
	Policy considerations
	(1) Tort law should not undermine contract law
	(2) The desire to avoid “crushing liability”
	Pure Economic Loss Caused by Negligent Activities
	The traditional approach
	A brief period of expansion: Anns and Junior Books
	The decision in Anns
	The decision in Junior Books
	The “Activity” Cases: Principles of the Modern Law
	(1) No recovery where contractual intentions are undermined
	The impact of the Contract (Rights of Third Parties) Act 1999
	The retreat from Junior Books
	(2) “Defective product economic loss” generally not recoverable
	Apparent defects: exceptions to the general rule
	(i) A landlord may owe a common law duty of care to his tenant for personal injury caused by an apparent defect
	(ii) A claimant may recover where the defect is a potential source of liability to neighbouring landowners
	The “complex structure theory”
	The impact of the Defective Premises Act 1972
	(3) No recovery unless the claimant has proprietary interest in damaged property
	The “Will Drafting” Cases
	The decision in Ross v Caunters
	The decision in White v Jones
	The limits of the Will Drafting principle
	Pure Economic Loss Caused by Negligent Statements and Services
	The old law
	The “Hedley Byrne principle”
	(1) “Special relationship” and “assumption of responsibility”
	When will a “special relationship” normally arise?
	Can a “special relationship” arise in a purely social context?
	Must the defendant be “in the business of giving advice”?
	Employment references
	Provision of services (the “extended Hedley Byrne principle”)
	Pensions advice
	The “assumption of responsibility” doctrine and the Caparo test
	Can there be an “assumption of responsibility” where the defendant expressly disclaims responsibility?
	The limits of the “assumption of responsibility” doctrine
	A summary of the current law
	(2) “Reasonable reliance”
	Reliance must be reasonable
	Reliance must, in fact, take place
	Do you have to prove reliance in relation to the provision of services?
	Economic loss: conclusion
4 Negligence: Psychiatric Illness
	Introduction
	Definition of “psychiatric illness”
	Types of claimant
	Historical Development
	The old law
	The “impact theory”
	The law expands: Hambrook v Stokes
	No further expansion: Bourhill v Young
	The emergence of the modern law: McLoughlin v O’Brian
	Lord Wilberforce’s “control mechanisms”
	Modern Law: preliminary issues
	Psychiatric illness resulting from personal injury
	Psychiatric illness resulting from property damage
	Policy considerations
	Foreseeability of psychiatric illness
	Foreseeability: primary victims
	Foreseeability: secondary victims
	Primary and Secondary Victims
	“Primary victims”
	There may be a requirement of “actual danger”
	In any event, the claimant’s fear for his or her own safety must be reasonable
	“Secondary victims”
	Secondary Victims: The Alcock “Control Mechanisms”
	(1) Proximity of relationship
	(2) Proximity in time and space
	(3) The means by which the psychiatric illness is caused
	No liability where the claimant is merely informed about the accident
	No liability when informed about the accident by live television coverage
	Psychiatric illness caused by a defendant harming or imperilling himself or herself
	(4) The “sudden shock” requirement
	The Impact of White
	(1) Employees
	(2) “Unwitting agents”
	(3) Rescuers
	Rescuers who suffer physical injury
	Rescuers who suffer only psychiatric harm
	Psychiatric Illness Law: Proposals for Reform
	“Close ties of love and affection”: the “fixed list”
	The “just and reasonable” proviso
	The “actual danger” proviso
	Defences
	Liability for psychiatric illness: conclusion
5 Negligence: Breach of Duty
	Introduction
	The “reasonable person”
	The standard of care is objective
	The standard of care is a “hypothetical”, not an “average” standard
	Factors Relevant to the Standard of Care
	Foreseeability of harm
	The magnitude of the risk
	(1) The likelihood of harm
	(2) The seriousness of the consequences
	The burden of taking precautions
	The defendant’s financial circumstances
	The utility of the defendant’s conduct
	The Compensation Act 2006 and Social Action, Responsibility and Heroism Act 2015: the deterrent effect of potential liability
	Common practice
	The “Learned Hand” test
	Special Standards of Care
	Children
	Defendants acting in an emergency
	Participants in sport
	The Professional Standard of Care
	The Bolam test
	The standard of the “reasonable skilled person”
	The relevance of common practice and professional opinion
	The limits of the “Bolam principle”
	Disclosure of the risks of treatment
	Policy issues in medical negligence cases
	Proof of Breach
	Civil Evidence Act 1968
	Res ipsa loquitur
	When does the maxim apply?
	(1) The occurrence must be one that will not normally happen
	(2) The defendant must have control of the thing which causes him harm
	(3) The cause of the occurrence must be unknown to the claimant
	What is the effect of the maxim?
	Breach of duty: conclusion
6 Causation and Remoteness
	Introduction
	Factual Causation
	The pragmatic approach
	The “but for” test
	Problems with the “but for” test
	Concurrent Causes
	“Indeterminate cause”
	“Cumulative cause”
	Consecutive or Successive Causes
	Proof of Causation
	The “all or nothing” approach
	The ”material contribution to injury” approach
	The “vindication of rights” approach: Chester v Afshar
	The “material increase in risk” approach
	Contribution between defendants: The Compensation Act 2006
	When will the “material increase in risk approach” apply?
	The “Material Increase in Risk” Approach: Conclusion
	Novus Actus Interveniens
	Intervening act of a third party
	Natural or “instinctive” intervention
	Negligent intervention
	Intentional acts of wrongdoing
	Intervening act of the claimant
	Remoteness of Damage
	The old law
	The modern law: The Wagon Mound (No.1)
	Foreseeability of the “kind of damage”
	Foreseeability of the “way the damage is caused”
	Foreseeability of the “extent” of the damage
	The “Eggshell Skull” Rule
	Causation and remoteness: conclusion
7 Employers’ Liability
	Introduction
	The development of employers’ liability
	Personal Liability
	The nature of the duty
	(1) Provision of competent staff
	(2) Provision of adequate plant and equipment and a safe place to work
	(3) Provision of a safe system of work
	The modern scope of personal liability
	Stress in the workplace
	Breach of Statutory Duty
	Construing Parliamentary intention
	(1) Protection of a class
	(2) The nature of the legislation
	(3) Alternative remedies
	Further considerations
	(1) Is the duty owed to this particular claimant?
	(2) Has the defendant breached his or her duty to the claimant?
	(3) Did the breach cause the damage concerned?
	(4) Is the damage of the kind which the statute intended to prevent?
	Defences
	Breaches of EU legislation (the “Eurotort”)
	Vicarious Liability
	(1) The employee committed a tort
	(2) The relationship between the tortfeasor and the employer
	Factors identifying “employees”
	The terms of the contract
	Control
	The relationship as a whole
	Relationships “akin” to employment
	Lending an employee
	(3) A close connection that links the relationship between the tortfeasor and employer and the commission of the tort—Acting in the course of employment
	Prohibited and criminal conduct by employees
	The application of the Lister “close connection” test
	Summary
	Liability for the torts of independent contractors
	Can vicarious liability be justified?
	Employers’ liability: conclusion
8 Occupiers’ Liability
	Introduction
	The old law
	(1) Contractual entrants
	(2) Invitees
	(3) Licensees
	(4) Trespassers
	The need for reform
	Occupiers’ Liability Act 1957
	The scope of the 1957 Act
	(1) The Act covers damage to property as well as personal injury
	(2) Liability under the Act may be limited by an express term of a contract, or by a notice given to visitors
	(3) The Act is thought to apply only to the “occupancy duty”
	Definition of “occupier”
	Definition of “premises”
	Definition of “visitor”
	Persons entering by authority of law
	Persons exercising rights of way
	Implied permission
	Limitations on permission
	The “common duty of care”
	Discharging the common duty of care
	Children
	Professional visitors
	Giving a warning of the danger
	Entrusting work to independent contractors
	Exclusion of liability
	(1) Displaying a notice on the premises
	(2) An express term of a contract
	The contract’s effect on third parties
	The Unfair Contract Terms Act 1977
	The Consumer Rights Act 2015
	A minimum non-excludable standard of care?
	Liability to Non-Visitors
	The old law
	Occupiers’ Liability Act 1984
	Tomlinson v Congleton BC
	Applying the 1984 Act
	Defences
9 Strict Liability Statutes
	Consumer Protection Act 1987
	Introduction
	The Common Law Position
	The scope of Donoghue v Stevenson
	The duty of care
	Breach
	Causation and remoteness
	The type of loss recoverable
	Particular problems relating to defective products
	(1) What is a product?
	(2) Has there been intermediate examination or interference?
	(3) The manufacture/design distinction
	The need for change?
	Consumer Protection Act 1987
	Who can sue?
	Who is liable?
	(1) Producer—ss.1(2) and 2(2)(a)
	(2) Own-brander—s.2(2)(b)
	(3) Importer into EU—s.2(2)(c)
	(4) Supplier—s.2(3)
	What is a product?
	What is a defect?
	What damage?
	Defences
	(a) The defect is attributable to compliance with a requirement imposed by law
	(b) The defendants did not at any time supply the product to another
	(c) Supply by the defendants was not in course of their business
	(d) The defect did not exist in the product at the relevant time, i.e. when it was put into circulation
	(e) The development risk defence
	(f) The defect was a defect in a finished product (X) in which the product in question had been comprised AND was wholly attributable to the design of X or to compliance with the producer of X’s instructions
	Contributory negligence
	Exclusion clauses
	Limitation periods
	Causation and remoteness
	Assessment of the Impact of the Act
	Continuing practical problems
	Standard and non-standard products
	Use of settlements
	Breach of Statutory Duty
	Reform of the Product Liability Directive
	Animals Act 1971
	Dangerous/non-dangerous species
	Dangerous species
	Non-dangerous species
	Defences
	(i) Fault of the victim
	(ii) Voluntary acceptance of risk
	(iii) The victim is a trespasser
	Conclusion
10 Nuisance and the Rule in Rylands v Fletcher
	Introduction
	Nuisance
	Private Nuisance
	What amounts to a private nuisance?
	“Reasonable user”
	Factors determining reasonable user
	(1) The nature of the locality
	(2) Duration and frequency
	(3) Utility of the defendant’s conduct
	(4) Abnormal sensitivity
	(5) Malice
	Who can sue?
	Rights in the land
	Losses incurred prior to acquisition of a right to land
	Landlords
	The Human Rights Act 1998
	Who can be sued?
	(1) The occupier of the land
	(I) The occupier exercises control over the creator
	(II) The occupier has adopted or continued a nuisance created by a trespasser
	(III) The occupier has adopted or continued a nuisance created by an act of nature
	The measured duty of care
	(IV) The creator is the occupier’s predecessor in title
	(2) The landlord
	(I) Where the landlord participates directly in the commission of or authorises the nuisance
	(II) The landlord knew or ought to have known of the nuisance before letting
	(III) The landlord covenanted to repair, or has a right to enter to repair
	Must the nuisance emanate from the defendant’s land?
	Relevant defences
	(1) Statutory authority
	(2) 20 years’ prescription
	(3) Inevitable accident
	(4) Act of a stranger
	Ineffective defences
	(1) Coming to the nuisance
	(2) Utility
	(3) Jus Tertii
	(4) Due to many
	Relationship between Private Nuisance and Other Torts
	The relationship between private nuisance and negligence
	The relationship between private nuisance and trespass to land
	Public Nuisance
	Obstructions on the highway
	Projections over the highway
	Particular damage
	The Rule in Rylands v Fletcher
	What is the significance of Rylands v Fletcher?
	Transco and the role of Rylands in modern society
	Liability under the rule in Rylands v Fletcher
	(1) The defendant brings on his lands for his own purposes something likely to do mischief
	(2) If it escapes
	(3) Non-natural user
	(4) Foreseeability of damage of the relevant type
	Who can sue?
	Who can be sued?
	Defences
	(1) Claimant’s default
	(2) Unforeseeable act of stranger
	(3) Act of God
	(4) Statutory authority
	(5) Consent
	Remedies
	(1) Injunctions
	(2) Abatement
	(3) Damages
	Personal injury
	Economic loss
	Damage to chattels
	Remoteness
	The Human Rights Act 1998
	Conclusion
11 Trespass
	Introduction
	Trespass to the Person
	Battery
	(1) It must be intentional
	(2) It must be direct
	(3) Immediate force
	Assault
	(1) Reasonable apprehension of harm
	(2) It must be intentional
	(3) It must be immediate and direct
	Can words amount to an assault?
	False imprisonment
	(1) A complete restriction of the claimant’s freedom of movement
	It is unnecessary to show the claimant knew of the imprisonment
	(2) Without legal authorisation
	The Rule in Wilkinson v Downton
	Trespass to the Person: Defences
	(1) Consent
	Refusal of consent
	Limits to consent
	(2) Necessity
	(3) Self-defence
	(4) Provocation?
	(5) Contributory negligence?
	(6) Lawful authority
	Can Trespass to the Person be Committed Negligently?
	Protection from Harassment Act 1997
	What is “harassment”?
	Remedies
	Malicious Prosecution
	Misfeasance in public office
	Trespass to Land
	(1) Direct and unjustifiable interference
	(2) Possession of land
	Trespass to Land: Defences
	(1) Licence
	(2) Necessity
	(3) Justification by law
	Trespass to Land: Remedies
	(1) Self-help
	(2) Order for possession of land
	(3) Mesne profits
	Trespass to Goods
	The requirements of trespass to goods
	(1) It must be intentional
	(2) It must be direct
	(3) Actionable per se?
	(4) Possession
	Defences
12 The Economic Torts
	Introduction
	Regulating competition: the scope of the economic torts
	Inducing a Breach of Contract
	The defendant must know of the existence of the contract
	The defendant must know that the induced conduct will amount to a breach
	Knowledge of the contractual terms
	Knowledge of the legal effect of the induced conduct
	The defendant must “intend” to induce the breach
	What counts as “intending”?
	Must the defendant intend to cause loss?
	What counts as “inducing”?
	Defences to inducing a breach of contract
	Where the defendant has an equal or superior right to the third party’s performance
	Where the defendant has statutory authority to interfere with the contract
	Where the defendant has a moral or social duty to interfere with the contract
	Causing Loss by Unlawful Means
	The defendant’s actions must be “unlawful” in the relevant sense
	The defendant’s actions must affect the third party’s freedom to deal with the claimant
	The defendant must intend to cause the claimant loss
	Ways of committing the unlawful means tort
	The “interference with contractual relations” scenarios
	The “intimidation” scenario
	The modern torts applied: the OBG v Allan appeals
	Mainstream Properties Ltd v Young
	OBG v Allan
	Douglas v Hello!
	Conspiracy
	Unlawful means conspiracy
	What must the conspirators intend?
	What counts as “unlawful means” for the purpose of establishing this tort?
	Lawful means conspiracy
	The economic torts: conclusion
13 Defamation
	Introduction
	Libel and Slander
	Types of slander actionable per se
	(1) Imputation of a criminal offence punishable by imprisonment
	(2) Imputation of professional unfitness or incompetence
	(3) Imputation of unchastity or adultery by a female (abolished by the Defamation Act 2013 s.14(1))
	(4) Imputation of a contagious disease (now requires special damage: Defamation Act 2013 s.14(2))
	The General Requirements of Defamation
	Judge and jury?
	(1) Is the statement defamatory?
	Innuendo
	(2) Does the statement refer to the claimant?
	Group defamation
	(3) Has the statement been published to a third party?
	Who can sue?
	(1) Any living human being
	(2) Companies
	Who cannot sue?
	(1) Governmental bodies
	(2) Political parties
	Conclusion
14 Defences to Defamation
	Introduction
	Truth
	Honest Opinion
	Condition one: statement of opinion
	Condition two: the statement must indicate, in general or specific terms, the basis for this opinion
	Condition three: honest
	Privilege
	Absolute privilege
	(1) Statements in Parliament
	(2) Reports, papers, votes and proceedings ordered to be published by either House of Parliament
	(3) Judicial proceedings
	(4) Reports of UK court proceedings
	(5) Communications between certain officers of state
	Qualified privilege
	Traditional common law qualified privilege: the duty/interest test
	What is a legal, moral or social duty?
	What is an interest?
	Examples
	Common law qualified privilege and the media: the Reynolds test
	The application of reynolds
	REFORM?
	Qualified privilege under the Defamation Act 2013
	Section 4: publication on matter of public interest
	Section 6: peer-reviewed statements in scientific or academic journals etc
	Qualified privilege under the Defamation Act 1996
	(I) Reports of parliamentary proceedings
	(II) Reports of judicial proceedings
	(III) Registers
	(IV) Other matters covered by the Defamation act 1996 S.15 And sch.1
	Offer of Amends Under the Defamation Act 1996
	Innocent Dissemination
	Internet defamation
	Reform: Defamation Act 2013 ss.5, 8 and 10
	Limitation
	Remedies: Damages and Injunctive Relief
	Damages: controlling the level of damages awarded
	Aggravated and exemplary damages
	The impact of defamation Act 2013 s.11
	Procedural reforms
	Interim injunctions
	Malicious or Injurious Falsehood
	Defamation: conclusion
15 Privacy (or Misuse of Private Information)
	Protection of privacy by existing torts
	The impact of the Human Rights Act 1998
	The Current Legal Position
	(1) Rejection of a stand-alone tort of invasion of privacy
	(2) The “extended” breach of confidence action
	Campbell v Mirror Group Newspapers Ltd
	McKennitt v Ash
	(3) Application of the two-stage test
	(i) Is the information private?
	(ii) Balancing art.8 and art.10
	Remedies
	(i) Damages
	(ii) Interlocutory injunctions
	Conclusion
16 General Defences and Extinction of Liability
	Introduction
	Defences
	(1) Consent
	(i) Consent
	(ii) Voluntary assumption of risk
	(A) AGREEMENT
	(B) Full knowledge and acceptance of the nature and extent of the risk
	(C) Voluntary choice by the claimant
	Other uses of “consent” in negligence
	(A) Setting the standard of care in negligence
	(B) Exclusion clauses
	(iii) Leave or licence
	(2) Illegality
	Establishing the test for illegality
	The wide policy ground and joint criminal enterprise
	Rationalising the illegality defence: the Law Commission and Patel v Mirza
	(3) Contributory negligence
	The statutory position
	(i) Was the claimant acting negligently?
	(ii) Did the claimant’s actions contribute to the damage suffered?
	(iii) To what extent should the claimant’s damages be reduced? What is “just and equitable” in these circumstances?
	(A) Failure to wear a seatbelt
	(B) Failure to wear a crash helmet
	(C) Negligent valuation cases
	Multiple defendants
	(4) Inevitable accident
	(5) Mistake
	General defences: conclusion
	Extinction of Liability
	(1) Limitation of Actions
	Personal injury claims —Limitations Act 1980 ss.11, 12, 14 and 3
	Section 11
	Section 14
	Section 12
	Section 33
	Defamation—Limitation Act 1980 ss.4A and 32A
	Defective products—Limitation Act 1980 s.11A
	Limitation problems
	(I) Deliberate concealment
	(II) Disability
	(III) Latent damage: property damage or financial loss
	The burden of proof
	Reform
	(2) Waiver
	(3) Accord and satisfaction
	(4) Judgment
	(5) Death
	General defences and extinction of liability: conclusion
17 Remedies
	Introduction
	Damages
	Types of damages
	(1) Compensatory
	(2) Contemptuous
	(3) Nominal
	(4) Aggravated
	(5) Exemplary or punitive
	The three kinds of punitive damages
	(I) Oppressive, arbitrary or unconstitutional actions by government servants
	(II) Conduct calculated by the defendant to make a profit which may well exceed any compensation payable to the claimant
	(III) Expressly authorised by statute
	The “cause of action” test
	(6) Restitutionary
	The relationship between tort damages and damages under the Human Rights Act 1998
	Actions for Personal Injury
	Pecuniary loss
	(1) Loss of earnings
	Discount rate
	(2) Lost years
	(3) Loss of earning capacity
	(4) Deductions
	(I) Charity
	(II) Voluntary payments by the defendant
	(III) Insurance
	(IV) Sick pay
	(V) Pension
	(VI) Social security benefits
	(5) Expenses
	Cost of a carer
	(6) Other damages
	Non-pecuniary loss
	(1) Pain and suffering
	(2) Loss of amenity
	(3) Injury itself
	Assessment
	Interest
	(1) Pecuniary loss
	(2) Non-pecuniary loss
	Alternatives to lump sum payments
	(1) Provisional damages
	(2) Interim payments
	(3) Periodical payments
	Indexation
	Actions on Death
	(1) Action by the deceased’s estate
	(2) Action by the deceased’s dependants
	Fatal Accidents Act 1976
	(1) Is the claimant a dependant within s.1(3) of the Act?
	(2) Was the claimant financially dependent on the deceased?
	Assessment
	Deductions
	Damages for bereavement
	Actions for Loss or Damage to Property
	Joint and Several Liability
	Assessment
	Settlements
	Other Remedies
	Self-help
	Injunctions
	Prohibitory and mandatory injunctions
	Interim injunctions
	Quia timet injunctions
	Remedies: conclusion
Index
	A
	B
	C
	D
	E
	F
	G
	H
	I
	J
	K
	L
	M
	N
	O
	P
	Q
	R
	S
	T
	V
	W
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