Tort Law PDF

Tort law
Vera Bermingham
Mary McLaughlin
Patricia Tuitt
This guide was prepared for the University of London by:
uu Vera Bermingham MA, PG Dip Law, Senior Fellow, UK Higher Education Academy
uu Mary McLaughlin LLM (QUB), MA (QUB), LLB (UU), PGCE (OU), PGCHET (QUB),
BA (Reading), DipTrans IoLET, FHEA, Teaching Fellow, University of London
uu Patricia Tuitt BA, LLM (London), Professor of Law and Executive Dean of the School
of Law, Birkbeck, University of London.
This is one of a series of module guides published by the University. We regret that
owing to pressure of work the authors are unable to enter into any correspondence
relating to, or arising from, the guide.
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Published by: University of London
© University of London 2018
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Tort law page i
Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII
Part I: Organising principles of tort law . . . . . . . . . . . . . . . . . . . 1
1 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 How to use this guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Impact of European Union law . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.5 Impact of the Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . 7
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2 What is tort? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Structure of tort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3 What interests are protected by the law of tort? . . . . . . . . . . . . . . . 13
2.4 Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.5 Aims and functions of tort . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.6 The defining characteristics of tort law . . . . . . . . . . . . . . . . . . . . 14
2.7 Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.8 What is actionable damage? . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.9 Damage excluded or limited from the scope of tort . . . . . . . . . . . . . 17
2.10 Claims for emotional harm and psychiatric injury . . . . . . . . . . . . . . 19
2.11 Defects and damage: ‘imminent risk’ . . . . . . . . . . . . . . . . . . . . . 21
2.12 No recovery in tort for pure economic loss . . . . . . . . . . . . . . . . . . 22
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3 Modern influences on tort law . . . . . . . . . . . . . . . . . . . . . . 27

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.1 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.2 The notion of fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.3 Why did preoccupation with fault come about? . . . . . . . . . . . . . . . 30
3.4 Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.5 Concerns about a compensation culture . . . . . . . . . . . . . . . . . . . 31
3.6 Proposals for reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.7 Human rights principles . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4 Vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.1 Vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.2 Establishing vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . 39
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
page ii University of London
5 Liability for omissions . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.1 No liability for an omission to act . . . . . . . . . . . . . . . . . . . . . . 51
5.2 When does English law impose liability for an omission to act? . . . . . . . . . . 52
5.3 Liability for acts of third parties . . . . . . . . . . . . . . . . . . . . . . . 53
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Part II: Negligence 1: defining the modern duty of care . . . . . . . . . . . 57
6 Basic principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.1 Elements of negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.2 The modern tort of negligence . . . . . . . . . . . . . . . . . . . . . . . . 60
6.3 Structure of the tort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.4 Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7 Development of the duty of care concept . . . . . . . . . . . . . . . . 63

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.1 When can a duty of care be assumed to exist? . . . . . . . . . . . . . . . . 65
7.2 The function of the duty of care . . . . . . . . . . . . . . . . . . . . . . . 65
7.3 Development of the duty concept . . . . . . . . . . . . . . . . . . . . . . 66
7.4 Summary of the duty concept . . . . . . . . . . . . . . . . . . . . . . . . 72
7.5 Novel situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
7.6 Duties of lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.7 Duty of care to unborn children . . . . . . . . . . . . . . . . . . . . . . . 73
7.8 Duty of care to employees . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
8 Setting the boundaries: problem areas in negligence . . . . . . . . . . 75

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
8.1 Duty concept: revisited . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
8.2 Duty concept: a control device . . . . . . . . . . . . . . . . . . . . . . . 77
8.3 Public bodies as defendants . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.4 Psychiatric injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.5 Pure economic loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
9 Psychiatric harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
9.1 Liability for psychiatric injury . . . . . . . . . . . . . . . . . . . . . . . . 83
9.2 Policy considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.3 Control devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.4 Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.5 Proposals for reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
10 Pure economic loss and negligent statements . . . . . . . . . . . . . . 91

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
10.1 Economic loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
10.2 Recovery of pure economic loss: Hedley Byrne . . . . . . . . . . . . . . . . 94
10.3 Economic loss cases (i): negligent statements . . . . . . . . . . . . . . . . 95
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10.4 Economic loss cases (ii): performance of a service . . . . . . . . . . . . . . 97

10.5 Slogans or practical guides? . . . . . . . . . . . . . . . . . . . . . . . . . 99
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
11 Liability of public bodies . . . . . . . . . . . . . . . . . . . . . . . . 103

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.1 Liability of public bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 105
11.2 What policy issues are relevant? . . . . . . . . . . . . . . . . . . . . . . 105
11.3 Relevance of statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
11.4 General illustrations of the question . . . . . . . . . . . . . . . . . . . . 106
11.5 The impact of the Human Rights Act 1998 . . . . . . . . . . . . . . . . . 106
11.6 Specific scenarios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
11.7 Other public policy considerations . . . . . . . . . . . . . . . . . . . . . 110
11.8 Education and social work . . . . . . . . . . . . . . . . . . . . . . . . . 110
11.9 Failure to exercise a power . . . . . . . . . . . . . . . . . . . . . . . . . 111
11.10 Liability in certain circumstances . . . . . . . . . . . . . . . . . . . . . . 111
11.11 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Part III: Negligence 2: breach of duty, causation and remoteness, defences

in negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
12 Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
12.1 Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
12.2 Falling below the standard of care . . . . . . . . . . . . . . . . . . . . . 119
12.3 Are decisions on breach questions of fact or law? . . . . . . . . . . . . . 123
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
13 Causation and remoteness of damage . . . . . . . . . . . . . . . . . 127

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
13.1 Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
13.2 The basic rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
13.3 Causation: situations to consider . . . . . . . . . . . . . . . . . . . . . . 130
13.4 Deficiencies in the ‘but for’ test . . . . . . . . . . . . . . . . . . . . . . . 131
13.5 Material contribution to the harm . . . . . . . . . . . . . . . . . . . . . 131
13.6 Material increase in risk . . . . . . . . . . . . . . . . . . . . . . . . . . 132
13.7 Consecutive causes of the same damage . . . . . . . . . . . . . . . . . . 134
13.8 Damages for loss of a chance . . . . . . . . . . . . . . . . . . . . . . . . 134
13.9 New and intervening cause . . . . . . . . . . . . . . . . . . . . . . . . . 135
13.10 Remoteness of damage: the basic rule . . . . . . . . . . . . . . . . . . . 137
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
14 Defences to negligence . . . . . . . . . . . . . . . . . . . . . . . . . 143

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
14.1 Contributory negligence . . . . . . . . . . . . . . . . . . . . . . . . . . 145
14.2 Volenti non fit injuria (consent) . . . . . . . . . . . . . . . . . . . . . . . 147
14.3 Ex turpi causa non oritur actio (illegality) . . . . . . . . . . . . . . . . . . . 149
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
page iv University of London
Part IV: Property and reputation . . . . . . . . . . . . . . . . . . . . . . 153
15 Defective premises: pure economic loss . . . . . . . . . . . . . . . . 153

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
15.1 Economic loss: acquiring defective property . . . . . . . . . . . . . . . . 155
15.2 Defects and damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
15.3 Reassertion of contract law . . . . . . . . . . . . . . . . . . . . . . . . 156
15.4 The ‘complex structure’ . . . . . . . . . . . . . . . . . . . . . . . . . . 156
15.5 The current position . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
16 Defective premises: occupiers’ liability . . . . . . . . . . . . . . . . 159

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
16.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
16.2 Occupiers’ Liability Act 1957: scope of Act . . . . . . . . . . . . . . . . . 161
16.3 The nature of the duty . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
16.4 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
16.5 Occupiers’ Liability Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . 167
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
17 The law of nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
17.1 The different forms of nuisance . . . . . . . . . . . . . . . . . . . . . . . 173
17.2 Private nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
17.3 Public nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
17.4 The relevance of the Human Rights Act 1998 . . . . . . . . . . . . . . . . 182
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
18 The rule in Rylands v Fletcher . . . . . . . . . . . . . . . . . . . . . 185

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
18.1 Rylands v Fletcher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
18.2 Who can sue? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
18.3 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
18.4 Damages for personal injury? . . . . . . . . . . . . . . . . . . . . . . . . 189
18.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
19 Elements of defamation . . . . . . . . . . . . . . . . . . . . . . . . 193

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
19.1 General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
19.2 Removal of the presumption in favour of trial by jury . . . . . . . . . . . . 195
19.3 Who can sue? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
19.4 Libel and slander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
19.5 The cause of action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Tort law page v
20 Defences to defamation . . . . . . . . . . . . . . . . . . . . . . . . 207

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
20.1 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
20.2 Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
20.3 Honest opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
20.4 Publication on a matter of public interest . . . . . . . . . . . . . . . . . 211
20.5 Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
20.6 Innocent dissemination . . . . . . . . . . . . . . . . . . . . . . . . . . 213
20.7 Unintentional defamation . . . . . . . . . . . . . . . . . . . . . . . . . 213
20.8 Protection for website operators . . . . . . . . . . . . . . . . . . . . . . 214
20.9 Protection for statements in scientific or academic journals . . . . . . . . 214
20.10 Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
20.11 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

Chapter 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Chapter 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Chapter 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Chapter 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Chapter 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Chapter 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Chapter 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
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Notes
Tort law page vii
Module descriptor
GENERAL INFORMATION
Module title
Tort law
Module code
LA2001
Module level
5
Contact email
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at: www.
enquiries.londoninternational.ac.uk
Credit value
30
Courses on which this module is offered

LLB, EMFSS
Module prerequisite
Legal system and method
Notional study time

300 hours
MODULE PURPOSE AND OVERVIEW

Tort law is one of the seven foundation modules required for a qualifying law degree in
England and Wales and is a core requirement of the University of London LLB.
This module introduces students to various sectors of liability in tort, with primary
emphasis on the tort of negligence.
MODULE AIMS
In the first part, students are introduced to the organising principles of tort law, such
as damage, fault and vicarious liability. For the majority of the module, students will
explore each element of the cause of action in a negligence claim, with particular
emphasis on the duty of care concept. The module builds on the duty of care concept
to develop students’ knowledge and understanding of principles of liability governing
pure economic loss, psychiatric harm and liability of public authorities. The module
also explores those torts aimed at the safe and quiet enjoyment of land and protection
of reputation.
LEARNING OUTCOMES: KNOWLEDGE

Students completing this module are expected to have knowledge and understanding
of the main concepts and principles of tort law. In particular they should be able to:
1. Demonstrate a critical awareness of the relationship between policy and principle

in common law and legislative provisions in the tort of negligence;
2. Explain the way in which the duty concept is used as a device to control liability for
pure economic loss, psychiatric injury and the liability of public bodies;
page viii University of London
3. Analyse the legal principles governing liability of occupiers of premises;
4. Explain the law of nuisance and the rule in Rylands v Fletcher;
5. Analyse the elements of a claim in defamation and the extent to which the
defences to defamation promote free speech.
LEARNING OUTCOMES: SKILLS

Students completing this module should be able to demonstrate:
6. A developed capacity for effective legal analysis and argument;
7. Enhanced reasoning skills in relation to moderately complex legal questions and

problems;
8. The ability to evaluate and critique standard legal materials and arguments;
9. The ability to conduct moderately complex research exercises and use research
evidence.
BENCHMARK FOR LEARNING OUTCOMES

Quality Assurance Agency (QAA) benchmark statement for Law (2015).
MODULE SYLLABUS
(a) The nature and function of tort law. The scope of tort, historical development
and relation to other branches of the common law, human rights principles and
European law.
(b) Organising themes. Damage, fault, vicarious liability.
(c) The principles of duty, breach and damage components of negligence.
(d) Elements of the duty test in the context of liability for psychiatric injury, pure economic
loss and on liability of public bodies.
(e) Defences to negligence.
(f) Defective premises and the law.
(g) The tort of nuisance and the rule in Rylands v Fletcher.
(h) Defamation.
LEARNING AND TEACHING
Module guide
Module guides are the student’s primary learning resource. The module guide covers
the entire syllabus and provides the student with the grounding to complete the
module successfully. It sets out the learning outcomes that must be achieved as
well as providing advice on how to study the module. It also includes the essential
reading and a series of self-test activities together with sample examination questions,
designed to enable students to test their understanding. The module guide is
supplemented each year with the pre-exam update, made available on the VLE.
The Laws Virtual Learning Environment

The Laws VLE provides one centralised location where the following resources are
provided:
uu a module page with news and updates, provided by legal academics associated
with the Laws Programme;
uu a complete version of the module guides;
uu online audio presentations;
uu pre-exam updates;
Tort law page ix
uu past examination papers and reports;
uu discussion forums where students can debate and interact with other students;
uu computer marked assessments – multiple-choice questions with feedback

are available for some modules allowing students to test their knowledge and
understanding of the key topics.
The Online Library

The Online Library provides access to:
uu the professional legal databases LexisLibrary and Westlaw;
uu cases and up-to-date statutes;
uu key academic law journals;
uu law reports;
uu links to important websites.
Core reading
Students should refer to the following core text. Specific reading references are
provided in each chapter of the module guide:
¢¢ Lunney, M., D. Dolan and K. Oliphant Tort law: text and materials. (Oxford: Oxford
University Press, 2017) sixth edition [ISBN 9780198745525].
ASSESSMENT
Formative activities are contained in the core and applied comprehension exercises
in each section of the module guide. There are additional online activities in the form
of multiple-choice questions. The core and applied comprehensions are presented in
a format that is similar to the format used in Part A of the examination. This, together
with online guidance, helps to prepare students for the requirements of the research
task and the examination.
Summative assessment is through a three hour and fifteen minute examination.

The paper includes both seen and unseen elements. Part A includes questions on
a previously seen research article and is worth 25 per cent of the marks. Part A is
designed to particularly test learning outcomes 6–9. Part B includes a choice of essay
and problem-based questions from which the student must answer three questions
out of eight and is worth 75 per cent of the marks.
Permitted materials
None.
page x University of London
Notes
Part I: Organising principles of tort law
1 Sources
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 How to use this guide . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Impact of European Union law . . . . . . . . . . . . . . . . . . . . . . . 7
1.5 Impact of the Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . 7
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
page 2 University of London
Introduction
The law of tort took its present shape in the 19th century. As it evolved, judicial
influence reflected changing economic conditions and social values. Although tort
is essentially a common law subject developed by judges, there are also a number of
statutory developments and the influence of European Community law to consider.
The Human Rights Act 1998 (HRA 1998), which gave effect in domestic law to the
European Convention on Human Rights (ECHR) with effect from October 2000, is now a
pervasive and increasing source of tort law.
Learning outcomes
Having completed this chapter, and the Essential readings and activities, you should
be able to:
uu appreciate the importance of reading cases as an aid to learning and
understanding the nature of tortious liability
uu identify cases which place less emphasis on the logical application of pre-existing
rules and focus more on social or economic considerations
uu explain the influence of the European Convention on Human Rights contained in
the Human Rights Act 1998
uu analyse the role of domestic courts in applying human rights principles.
Essential reading
¢¢ Lunney and Oliphant, Chapters 18 ‘How tort works’ and 17 ‘Death and damages’.
Tort law 1 Sources page 3
1.1 How to use this guide

The best way to approach this guide is as a series of detailed lecture notes relating to
each examinable topic.
The purpose of a lecture is to provide an overview (not a detailed analysis) of a topic,

highlighting the main themes, difficulties and controversies of the subject and
identifying the key cases, academic articles, policy reports and media and other sources
that shed light on a difficult problem or controversial issue. You must supplement the
module guide by drawing more detail from textbooks, by reading the full judgments of
cases in the law reports or (for less significant cases) reading extracts and summaries of
judgments in casebooks, by scrutinising relevant statutory provisions and by utilising
various media sources and other sources in the public domain.
1.1.1 Comprehension activities

The core and applied comprehension activities link to your previous learning and
extend your knowledge by challenging you to consider overarching concepts which
underpin arguments advanced by academic writers. The skills you acquire through
the completion of reading comprehension activities will further support your ability
to write examination answers which meet the higher conceptual marking criteria
– such as analytical thinking, application of the law and synthesis of materials. You
will find core comprehension activities at the end of each topic in the guide and you
are required to practise this type of activity to support your examination success.
Core comprehensions reinforce basic principles and key information, and applied
comprehensions contextualise important issues related to the topic.
1.1.2 Examination topics

The module guide is critical in identifying the range of topics that will be examined. All
topics in this guide are examinable topics but not all topics contained in the guide will
appear on any one examination paper. If a topic does not appear in this module guide,
it will not be examined. Students are required to answer four questions from a total
of nine. One of the four questions is a compulsory question based on an article which
students will have access to in advance of the day of the examination. The remaining
eight questions are a mix of essay and problem questions. Questions are designed to
test forensic problem-solving skills and research and critical evaluation skills.
1.2 Reading
1.2.1 Core textbook

All students must purchase the following textbook:
¢¢ Lunney, M., D. Dolan and K. Oliphant Tort law: text and materials. (Oxford: Oxford
University Press, 2017) sixth edition [ISBN 9780198745525] (referred to in this
guide as ‘Lunney and Oliphant’).
This textbook complements the module guide and you should use both resources to
complete your Essential reading tasks.
The core textbook provides a comprehensive and detailed account of the topics
covered in the respective chapters of the guide and includes a broad ranges of extracts
from relevant sources.
The core textbook is supported by an Online Resource Centre as referenced on the

back cover of the book.
1.2.2 Other books

Several other textbooks are identified below which you may wish to refer to as
supplementary sources of information. These textbooks are not referenced specifically
in the guide. You should use the table of contents or index of these books to locate the
topic you wish to read about.
Introductory textbook
Introductory textbooks are sometimes useful if you are finding a topic particularly
difficult to understand. They should be viewed only as a stepping stone to your
Essential reading.
¢¢ Horsey, K. and E. Rackley Tort law. (Oxford: Oxford University Press, 2017) fifth
edition [ISBN 9780198785286].
In-depth textbooks
In-depth textbooks include extensive exploration of central topics in the law of tort.
Some discussions included in these books are beyond the scope of undergraduate law
studies. Reading these books is not essential.
¢¢ Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law. (Oxford:
Oxford University Press, 2012) seventh edition [ISBN 9780199591985].
¢¢ Giliker, P. Tort. (London: Sweet & Maxwell, 2017) sixth edition

[ISBN 9780414060685].
¢¢ McBride, N.J. and R. Bagshaw Tort law. (Harlow: Pearson, 2015) fifth edition
[ISBN 9781292071237].
¢¢ Steele, J. Tort law: text, cases and materials. (Oxford: Oxford University Press,
2017) fourth edition [ISBN 9780198768807].
Useful collections of cases and materials

¢¢ O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and
Matthews’ tort: cases and materials. (Oxford: Hart Publishing, 2015) seventh
edition [ISBN 9781849465557].
¢¢ Horsey, H. and E. Rackley Kidner’s casebook on torts. (Oxford: Oxford University

Press, 2017) 14th edition [ISBN 9780198785279].
Academic articles
Topics that are examined by critical essay require you to make good use of academic
articles, together with primary legal materials, to support your argument. You can gain
a good mark in the examination – even a first class mark – if you use only the academic
articles that are referenced in the guide. However, additional credit will be given if you
can demonstrate that you have researched beyond the academic articles referenced
in the guide and have made good use of relevant articles.
Part A of the Tort examination, worth 25 per cent of the overall mark for the module,
is based on an academic article. The article will be available from the Online Library. A
copy of the article will not be provided; students are required to locate and download
the article themselves. A copy of the article cannot be taken into the examination and
no copy of the article will be provided in the examination.
Students are expected to read and familiarise themselves with the article in its
entirety. Students will answer four short questions about the article. Further advice
on answering the Part A questions will be provided in a Lecture Plus+ lecture in mid-
February. In addition, guidance from previous years on preparing for Part A is available
via the VLE.
1.3 Sources
In your study of this subject, you will have to consider the following sources of law.
1.3.1 Cases
Most of the law of tort is judge-made and is to be found in reported cases. Given
that tort law involves a wide range of common law authorities the sheer range of
authorities may seem overwhelming in the early stages of your study of tort but the
ability to identify important cases increases with experience. You can be guided by the
way in which particular cases are discussed in the textbooks and your module guide.
Reading cases in full is the most effective means of learning and understanding the
nature of tortious liability. It is essential that you understand the precedent and the
judicial reasoning in any case. Not all decisions are of equal authority and decisions
of the Court of Appeal are authoritative until reversed or overruled by the Supreme
Court. As you read the cases, you should note the facts of the case, the legal issues
involved and the decision of the court. Where there is a majority decision any
dissenting opinions should be noted as well as strongly expressed opinions of the
judges in the case, and where they occur.
In his Introduction to tort law, Tony Weir sets out the technique of reading cases:
In order to discover what a decision is an authority for, one must first understand the
relevant facts, and analyse the decision in the light of those facts, ignoring asides (obiter
dicta). The aim is to ascertain the rule (the ratio decidendi) that the judge must have had in
mind in order to reach his decision. Then one must decide whether that rule is applicable
to the case in hand, which depends on whether its facts are different enough to enable
the prior decision to be ‘distinguished’; if so, the judge may disregard the prior decision or,
if he thinks it right, extend it to the case in hand.
(Weir, T. Introduction to tort law. (Oxford: Oxford University Press, 2006) second edition
[ISBN 9780199290376] p.8)
Some cases are the source of important principles: the judgments are discursive,
discuss issues of policy and suggest lines of development for the future. These cases
may place less emphasis on the logical application of pre-existing rules and focus more
on social or economic considerations. Such cases have to be studied with care because
in answering a question, as in advising a client or employer, you have to be able to
judge how a court might decide a future case as well as describing what has been
decided in past cases. Tomlinson, below, is a case where judicial attempts to stem the
development of a damaging ‘compensation culture’† was an important consideration †
A culture in which people are
in the outcome of the decision. When you are reading cases you should also consider ready to ‘blame and claim’
how appropriate judge-made law is as a source of new developments. and sue for compensation,
even for relatively minor
Case law example incidents.
In Tomlinson v Congleton Borough Council [2004] 1 AC 46, concerns about the
emergence of a compensation culture and fears that the deterrent effect of tort
liability might lead to the withdrawal of social amenities of value to the wider
community were addressed by the House of Lords. The claimant in this case went
to a popular park with some friends on a hot day. Ignoring signs that swimming
in the lake was prohibited and the prominent notices reading ‘Dangerous water:
no swimming’ he dived into the water from a standing position. The stretch
of water into which he dived was shallow and he struck his head and suffered
injury which paralysed him from the neck down. Tomlinson accepted that on
entering the water he ceased to be a visitor and became a trespasser but he
claimed that the council was in breach of its duty to persons other than visitors
under s.1(3) of the Occupiers’ Liability Act 1984 (see Chapter 16). The defendants
were aware of the danger and the claimant argued that the warning notices and
other precautionary measures taken by the council were ineffective and did not
discharge the council’s duty under the Act.
The trial judge dismissed Tomlinson’s claim but the Court of Appeal found the
council liable. It held that on account of: the attraction of the lake to swimmers;
the frequency of exposure to danger; and the relatively inexpensive and simple
deterrents available to reduce the risk of persons entering the lake, the council
had not discharged its duty by issuing the warning notices, oral warnings and the
safety leaflets.
However, the House of Lords allowed the council’s appeal against the finding
of liability. Their Lordships held that even if swimming had not been prohibited
and the local authority had owed a duty of care, it would not have been required
to take steps to prevent Tomlinson from diving or to warn him against dangers
which were obvious. There was no risk to him from the state of the premises
or from anything done or omitted to be done on them. The risk of striking the
lake bottom from diving into shallow water was perfectly obvious and not a
risk against which the defendant might reasonably have been expected to offer
protection. The Court’s concerns about the deterrent effect of liability in tort and
the need for individuals to retain personal responsibility for their own safety and
anticipate risk can be seen in the following comments:
Lord Hoffmann [46]
… I think that there is an important question of freedom at stake. It is
unjust that the harmless recreation of responsible parents and children
with buckets and spades on the beaches should be prohibited in order to
comply with what is thought to be a legal duty to safeguard irresponsible
visitors against dangers which are perfectly obvious. The fact that such
people take no notice of warnings cannot create a duty to take other steps
to protect them… A duty to protect against obvious risks or self-inflicted
harm exists only in cases in which there is no genuine and informed
choice, as in the case of employees whose work requires them to take the
risk, or some lack of capacity, such as the inability of children to recognise
danger…
Lord Hobhouse [81]
… it is not, and should never be, the policy of the law to require the
protection of the foolhardy or reckless few to deprive, or interfere with,
the enjoyment by the remainder of society of the liberties and amenities
to which they are rightly entitled. Does the law require that all trees be
cut down because some youths may climb them and fall? Does the law
require the coastline and other beauty spots to be lined with warning
notices? Does the law require that attractive waterside picnic spots be
destroyed because of a few foolhardy individuals who choose to ignore
warning notices and indulge in activities dangerous only to themselves?
The answer to all these questions is, of course, no. But this is the road down
which your Lordships, like other courts before, have been invited to travel
and which the councils in the present case found so inviting. In truth, the
arguments for the claimant have involved an attack upon the liberties of
the citizen which should not be countenanced. They attack the liberty of
the individual to engage in dangerous, but otherwise harmless, pastimes at
his own risk and the liberty of citizens as a whole fully to enjoy the variety
and quality of the landscape of this country. The pursuit of an unrestrained
culture of blame and compensation has many evil consequences and one
is certainly the interference with the liberty of the citizen.
1.3.2 Statutes
Some statutes replace or partly replace areas of the common law (e.g. Occupiers’ Liability
Acts 1957 and 1984); some provide additional protection over a wide field; and some
effect minor amendments only. Product liability is not an examinable topic. Students are
not expected to learn the Consumer Protection Act 1987.
1.4 Impact of European Union law

European Union law has also had a profound impact on certain areas of tort law. The
area of product liability is a key example of this. The statute that governs product
liability, the Consumer Protection Act 1987, was passed in order to give effect to a
European Directive. And thus it is through the influence of the European Union that
what was then the common law regime relating to manufacturers’ liability expanded
to its present level of protection. The Act imposes strict liability for defective products
which cause personal injury and damage to private property. The most notable
feature of the Act is that it removes the need for those injured by a defective product
to establish fault on the part of the producer. There are other aspects of tort law
that are now almost entirely determined by European regulation, such as aspects
of employers’ liability for the health and safety of their employees. Neither product
liability nor employers’ liability are specifically covered in this module.
1.5 Impact of the Human Rights Act 1998

Of recent years, the most important influence on tort has come from human rights
principles enshrined under the ECHR, and contained in the HRA 1998. Human rights
principles have been especially influential in the area of defamation, where the right
to privacy has to be balanced against freedom of expression; in trespass to the person,
which engages the right to liberty and (potentially) the prohibition of inhuman
and degrading treatment and punishment and (most controversially) the tort of
negligence, which engages the right to life, the prohibition of inhuman and degrading
treatment and punishment and (potentially) the right to an adequate judicial remedy.
Human rights principles are now a much more pervasive source of the law of tort than
is European Union law. You will be familiar with the general principles of the ECHR from
your study of the British constitution. You will find references to the ECHR at various
points in this guide. Some relevant general principles are listed here: in some respects
the ECHR has introduced new ways of thinking into the domestic law.
uu Section 6 of the HRA 1998 makes it unlawful for a public authority to act in a way
which is incompatible with a Convention right. This section has its greatest impact
where the defendant to a tort action is a public authority such as a local council.
uu The courts are, however, themselves public authorities: they therefore have to take
account of the ECHR in developing the law, even in tort actions between private
citizens or private bodies such as companies, to ensure that the UK is not in breach
of the ECHR. This is perhaps most obvious in relation to the tort of defamation and
Article 10 of the ECHR (freedom of expression).
uu The ECHR is based on a series of Convention rights of a general kind that have to
be respected. This is an unfamiliar kind of classification in English law. In order to
provide compensation for an interference with Convention rights the courts may
do one of the following:
uu They may apply an existing tort. If a public authority in England kills someone
(contrary to Article 2) or tortures someone (contrary to Article 3) this plainly
falls within the existing English law of tort.
uu They may modify an existing tort. For example, Article 2 requires the state
to provide protection against being killed and Article 3 requires the state to
provide protection against inhuman and degrading treatment. An existing
English tort may have to be modified in order to provide the necessary
protection.
uu They may create a new right of action in damages. It should be noted that s.8
of the HRA 1998 provides that a person is not entitled to an award of damages
merely because a public authority has acted unlawfully under the ECHR,
and the court has a discretion to decide whether an award is necessary in a
particular case.
Case law example

A general right of privacy has traditionally not been recognised in English
common law. Since the enactment of the HRA 1998, privacy is now an emerging
area of law. Article 8 of the ECHR provides an explicit right to respect for a private
life for the first time in English law. The competing right to freedom of expression
under Article 10 of the ECHR is also increasingly offered protection by the law, but
this right may be regulated in order to protect the rights of others.
In English law, protection of privacy is based not on a distinct tort of infringement
of privacy but principally on an action for breach of confidence which takes
account of both Article 8 (right to respect for private and family life) and Article
10 (right to freedom of expression) of the ECHR. One of the concerns of the
courts is that if respect for a private life is defined too widely it could lead to
an undesirable restriction on the freedom of the press to report and comment
on matters of public importance. This means that when considering situations
where an individual claims a legal right to the protection of personal or private
information from misuse or unauthorised disclosure, the courts are required to
have regard to the ECHR.
In Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, Naomi Campbell, an
internationally famous fashion model who had courted publicity, volunteered
information to the media about her private life and averred publicly, but
untruthfully, that she did not take drugs. She sought damages for breach of
confidence and compensation for Mirror Group Newspapers’ publication of
details about her treatment for drug addiction at Narcotics Anonymous (NA) in a
newspaper article. The story was accompanied with covertly taken photographs
of Campbell leaving a NA meeting. She claimed that the publication of this private
information amounted to an interference with her right to respect for private life
and that there was no overriding public interest in publication of the information.
Mirror Group Newspapers argued that Campbell had misled the public in a
previous statement asserting that she did not take drugs and argued that their
publication of the fact that she had taken drugs and was seeking treatment was
necessary to set the record straight. The House of Lords conceded this point.
However, the publication of additional information relating to the fact that
she was receiving treatment at NA, details of that treatment and a photograph
of her leaving the clinic was an unjustified intrusion into her private life. Since
the details of the therapy for her drug addiction related to the condition of her
physical and mental health and the treatment she was receiving for it, they were
akin to the private and confidential information contained in medical records. In
balancing the competing interests under the HRA 1998, Campbell’s Article 8 right
to privacy outweighed Mirror Group Newspapers’ competing interest in freedom
of expression under Article 10. The particular facts in this case are important. The
Court attached significant weight to the photograph which accompanied the
article and found its inclusion in the publication added greatly to the intrusion.
If the article had been accompanied by a photograph taken on another occasion
the result may have been different.
BARONESS HALE OF RICHMOND [126]
My Lords, this case raises some big questions. How is the balance to be
struck between everyone’s right to respect for their private and family
life under article 8 of the European Convention on Human Rights and
everyone’s right to freedom of expression, including the freedom to
receive and impart information and ideas under article 10? How do those
rights come into play in a dispute between two private persons? But the
parties are largely agreed about the answers to these. They disagree about
where that balance is to be struck in the individual case. In particular,
how far is a newspaper able to go in publishing what would otherwise
be confidential information about a celebrity in order to set the record
straight? And does it matter that the article was illustrated by a covertly
taken photograph?
The fact that a report in a newspaper about treatment for drug addiction could
do great harm to a person was also relevant: Baroness Hale also noted that
recovering drug addicts are bound to be in a fragile state [157].
The weight to be attached to these various considerations is a matter of fact
and degree. Not every statement about a person’s health will carry the badge
of confidentiality or risk doing harm to that person’s physical or moral integrity.
The privacy interest in the fact that a public figure has a cold or a broken leg is
unlikely to be strong enough to justify restricting the press’s freedom to report
it. What harm could it possibly do? Sometimes there will be other justifications
for publishing, especially where the information is relevant to the capacity of
a public figure to do the job. But that is not this case and in this case there was,
as the judge found, a risk that publication would do harm. The risk of harm is
what matters at this stage, rather than the proof that actual harm has occurred.
People trying to recover from drug addiction need considerable dedication and
commitment, along with constant reinforcement from those around them. That
is why organisations like Narcotics Anonymous were set up and why they can do
so much good. Blundering in when matters are acknowledged to be at a ‘fragile’
stage may do great harm.
Activities
Activity 1.1
Core comprehension – compensation culture

Read the extract from Better Regulation Task Force, Better routes to redress on
pp.34–36 of Lunney and Oliphant and answer the following questions.
a. Define the term ‘compensation culture’.
b. How does the ‘have a go’ culture negatively impact upon society?
Read the extract from K. Williams ‘State of fear: Britain’s “compensation culture”
reviewed’ on pp.36–37 of Lunney and Oliphant and answer the following questions.
c. According to Williams, why is a growth in ‘compensation culture’ undesirable?
d. What are the main features of undesirable levels of formal disputes?
e. Concisely paraphrase in bullet points the issues inherent in these features.
f. In the discussion of ‘the numbers issue’, Williams identifies two considerations

related to empirical evidence on the existence of a compensation culture. What
are they? What does Williams conclude?
g. Explain why a well-founded claim should not be viewed as ‘part of the problem’.
h. How does the ‘compensation culture’ impact on potential defendants in legal

disputes?
i. Explain what is meant by ‘an expanding liability regime’.
j. Explain how an expanding liability regime would impact upon insurers’

underwriting and pricing policies.
Activity 1.2
Applied comprehension – challenging views of tort

Using the Online Library, find and read Lewis, R. and A. Morris ‘Challenging views of
tort: Part 1’ (2013) 2 JPIL 69 and answer the following questions.
You are encouraged to read this journal article in full to appreciate how empirical
research informs our understanding of the role of tort in modern day society and its
relationship to the insurance and social security systems.
a. Why do the authors argue that in reality the scope of actions in tort for personal
injury is severely limited?
b. From the statistical evidence provided for 2011–12 which two major areas of
insurance accounted for the dominant share of claims for personal injury?
Include the percentage of the market in your response.
c. Which argument is advanced to explain why only 0.5 per cent of 7.8 million
accidents in the home in 1999 resulted in a successful tort claim?
d. From the statistical evidence provided identify whether you are more likely to
receive compensation if you are the victim of a road accident or a workplace
accident. What would be the source of funds for your compensation?
e. In fewer than 40 words explain why tort and social security systems are closely
linked.
f. Which statistic is advanced to evidence the claim that insurers are the real
defendants behind the named litigant parties in the tort litigation?
g. Expressed as a percentage, how many adults have some form of before-the-

event insurance?
h. What percentage of tort claims are settled out of court?
i. What is meant by a ‘strict liability’ regime and from which legal source is strict
liability most commonly derived?
j. List the seven commonly held views about the scope of tort law which the
authors have challenged.
2 What is tort?
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Structure of tort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3 What interests are protected by the law of tort? . . . . . . . . . . . . . 13
2.4 Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.5 Aims and functions of tort . . . . . . . . . . . . . . . . . . . . . . . . 14
2.6 The defining characteristics of tort law . . . . . . . . . . . . . . . . . . 14
2.7 Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.8 What is actionable damage? . . . . . . . . . . . . . . . . . . . . . . . 16
2.9 Damage excluded or limited from the scope of tort . . . . . . . . . . . 17
2.10 Claims for emotional harm and psychiatric injury . . . . . . . . . . . . . 19
2.11 Defects and damage: ‘imminent risk’ . . . . . . . . . . . . . . . . . . . 21
2.12 No recovery in tort for pure economic loss . . . . . . . . . . . . . . . . 22
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Introduction
Very broadly, tort law is one of the methods by which people who have suffered
injuries are compensated. It deals with whether losses should ‘lie where they fall’ or
should be transferred to someone thought to be ‘to blame’ (not necessarily in a moral
sense) for what has happened. The person ‘to blame’ will often be insured or will be a
large company or government department and so the losses will often be spread more
widely. For example, when a person is injured by a careless motorist, the motorist’s
insurance company will pay the damages and the ultimate costs of the accident will
fall on the general community who pay insurance premiums.
Learning outcomes
be able to:
uu identify the interests protected by tort law
uu explain the role and functions of tort law
uu evaluate what amounts to actionable damage
uu identify the type of damage excluded or limited from the scope of tort.
Essential reading
¢¢ Lunney and Oliphant, Chapter 1 ‘General introduction’, Sections I ‘Historical
development of tort law’ and II ‘Theories of tort’.
Tort law 2 What is tort? page 13
2.1 Definition
Tort is a branch of the civil law (as opposed to criminal law) which provides a remedy
for a wrongfully inflicted injury or loss or for infringement of a protected interest.
†
However, this definition tells you nothing about what conduct is tortious.† You will Note: ‘tortious’ is
understand that only when you know what counts as injury or loss and what interests pronounced ‘torshus’.
the law protects. When tort law declares that an interest is protected it is said to
create a right on the part of the claimant against invasions of that interest. At the same
time it imposes a duty or obligation on a defendant not to invade that interest.
2.2 Structure of tort

There is no single principle of tort law but a series of different torts with different
origins and purposes. A glance at the chapter headings in your textbook will show
that the wrongs of tort are wide-ranging, comprising (inter alia) negligence, nuisance,
trespass to the person and defamation. You will discover from your study of tort that it
protects to different degrees and in different ways the physical integrity of the person,
property interests, reputation and economic interests. You will see that each specific
tort has different requirements for liability and that each ‘ingredient’ of the particular
tort must be met before a claim can be established.
2.3 What interests are protected by the law of tort?

Different torts deal with different types of harm or wrongful conduct. For example:
uu physical integrity is protected by the torts of negligence, public nuisance and

trespass to the person
uu interests in property are protected by the torts of negligence, private and public
nuisance and trespass to land
uu interests in the use and enjoyment of land are protected by the torts of
negligence, private and public nuisance and trespass to land
uu reputation is protected by the tort of defamation.
Tort protects these different interests against different kinds of interference, usually by
compensation – that is, an award of damages for wrongfully inflicted harm. Sometimes
an order will be issued by the court to stop the defendant engaging in the wrongful
conduct, such as, for example, where an indirect interference unreasonably affects the
claimant’s use or enjoyment of land, constituting an alleged nuisance. An order of the
court issued to a defendant is known as an injunction. Injunctions are most commonly
granted in the tort of nuisance. However, a party wishing to prevent publication
of material alleged to be defamatory is less likely to be successful in obtaining an
injunction because injunctions are very rarely granted in defamation claims.
It is important to note that the law of tort does not protect all interests. In some
situations where harm or loss is suffered as the result of another’s conduct there is
no right to sue because the interest is not one which the law protects. An example
of damnum sine injuria† arose in Bradford Corporation v Pickles [1895] AC 587 where the †
Damnum sine injuria means
plaintiff supplied water to the City of Bradford. The defendant, Pickles, owned land damage without legal injury.
through which water percolated in undefined, underground channels to land owned
by Bradford Corporation. When Bradford Corporation refused to buy his land at the
inflated price he demanded, Pickles began drainage work which diverted the water
feeding the Corporation’s reservoirs and diminished the water supply. The House
of Lords decided that Mr Pickles had not committed a tort because, although the
Corporation had suffered damage (damnum), it had not been able to establish a right
to the flow of water (as it was not in a water course, such as a stream). Pickles’ conduct
in diverting the water was a lawful act and Bradford Corporation had therefore
suffered no legal wrong (injuria).
2.4 Fault
Except in the case of instances of so-called no-fault liability torts, intention or
carelessness on the part of a defendant in a tort action must be proved. Carelessness
is the main species of fault in tort – this is why the tort of negligence is so dominant
a sector of liability – but intention must be proved in relation to other torts, such as
trespass to person, for example. The Consumer Protection Act 1987 imposes strict
liability for defective products which cause personal injury and damage to private
property. This means that those injured by a defective product do not need to
establish fault on the part of the producer.
2.5 Aims and functions of tort

The overriding purpose of the modern law of tort is to provide an injured claimant
with monetary compensation. There are two main mechanisms for compensating
innocent victims of actionable injury or loss. These are known as loss shifting and loss
spreading.
uu Loss shifting is where the loss that the innocent claimant suffers is shifted onto the
defendant by forcing the defendant to pay the claimant damages.
uu Loss spreading as a principal of compensation expresses the idea of so-called

distributive justice – the spreading of losses among a number of people. This
mechanism of compensation is more often underpinned by compulsory insurance.
Tony Weir notes that in most cases:
… The plaintiff is asking for money (damages). Generally he has been hurt in one way or
another and is claiming money as compensation for harm suffered (sometimes with a bit
extra if the defendant behaved very badly), though occasionally, and increasingly, he is
more intent on vindication or explanation rather than compensation. Usually, too, he is
claiming that the harm was wrongfully caused. Accordingly, we may say that the prime
function of the area of social regulation we call ‘tort’ is to determine when one person
must pay another compensation for harm wrongfully caused.
(Weir, T. A casebook on tort. (London: Sweet & Maxwell, 2004) 10th edition
[ISBN 9780421878808])
The states of mind relating to torts are malice, intention and negligence. Where a tort
does not require any specific state of mind liability is said to be ‘strict’.
Justice is also an important function of the law of tort; a recognition that a wrong has
taken place, and that this must be acknowledged and righted.
While compensation is the main function of tort law it is not the only one: deterrence
and retribution are also said to be important secondary functions. Glanville Williams’
influential article ‘The aims of the law of tort’ (1951) CLP 137, extracted in Lunney and
Oliphant, Chapter 1 ‘General Introduction’, Section II.1 ‘The aims of the law of tort’,
summarises the main purpose of tort law.
2.6 The defining characteristics of tort law

Tort shares certain characteristics found in criminal law and contract law.
2.6.1 How does tort law compare with contract law?

Tort is a branch of the law of obligations (like contract) but unlike contract which
seeks to enforce a single obligation – a promise – the wrongs of tort are wide-ranging.
Another distinction between contract and tort is that the content of a tortious
obligation is fixed by law. For example, if I knock you down by carelessly driving my
car, I am liable to compensate you because the law imposes a duty to drive carefully
and not because I have promised you that I will do so. In contract, it is the parties who
(through their various negotiations) determine the content of a contract. Therefore,

breach of contract involves the breach of an obligation voluntarily undertaken by
the person in breach. So, if I fail to deliver the car that you have bought from me,
I am liable to compensate you because I have failed to carry out my promise. This
distinction is, however, not watertight. You will discover in Part II of this guide that
in recent decades a whole area of tort law has developed based on a voluntary
assumption of responsibility for negligent misstatements which has blurred the
traditional distinction between tort and contract.
2.6.2 How does tort law compare with criminal law?

A crime is an offence against the state and the purpose of a sanction is to punish the
offender. Tort, by contrast, is not primarily about punishment, and unlike criminal law
it is focused not on the interests of the state but on the individual victim of a tort. Both
tort law and criminal law regulate behaviour by establishing standards of conduct.
Yet, unlike the criminal law, tort law is not concerned to impose abstract standards.
Liability in tort, for the most part, is predicated upon proof of actual damage. A person
is not liable in the tort of negligence because they have driven down a one-way street,
while drunk and without a valid driving licence. They are only potentially liable in
the tort of negligence if this chain of events causes actual damage to a person or
property or sometimes damage to a person’s economic interests. Without damage,
such actions would constitute a crime. Finally, one obvious connection between tort
and criminal law is that the same conduct can be both tortious and criminal – careless
driving being the clearest illustration.
2.7 Damage
In many torts, material damage has to be shown before there can be an action, and
there are rules about which losses are and which are not recoverable. In general, unless
the claimant can prove that the defendant’s tort in fact caused the loss suffered, the
action will fail. You will see in Chapter 13 that even if the claimant can prove a sufficient
causal connection in fact, the claim will still fail if the damage suffered is too remote.
2.7.1 Conduct can be actionable even though no damage is suffered

However, in some instances, intentional or negligent conduct can be actionable
even though no damage has been caused.† Where one of the claimant’s rights has †
The Latin term injuria sine
been infringed there is no need for damage to be shown. For example, subject to damno meaning ‘injury with
many defences, it is an actionable tort deliberately to touch another person (trespass no damage’ is sometimes
to person) even though no damage is caused. In such cases the tort is said to be used in these circumstances.
actionable per se (i.e. in itself). The interest of reputation provided by defamation is
equally strong. Until recently, the tort of defamation (covered in Part II) was actionable
per se, which meant that to defame someone in writing, even though no damage
was caused, was actionable. In aiming to restrict misuse of the law and stop trivial
or non-viable claims from commencing, the Defamation Act 2013 provides that
unless publication of a statement has caused or is likely to cause serious harm to the
reputation of the claimant, it is not defamatory.
2.7.2 Not all damage is compensated by the law of tort

Even if a person suffers harm or loss as the result of another’s tortious conduct, it may
be that the damage they suffer is of a kind that the law of tort will not compensate.
The question of the type of damage that the law will recognise is so fundamental to
most torts that there is really no point in developing any further legal argument until
you are sure that the claimant has suffered actionable damage.
Claimants in tort suffer a variety of ills. However, for a claim to succeed, the
defendant’s intentional or careless conduct must lead to damage (that is loss or injury)
of a kind that is recognisable in tort. People now claim to contract diseases as a result
of exposure to harmful substances, they claim to suffer economic loss as a result of
negligent advice. They claim to suffer psychological or emotional illness as a result

of the malicious transmission of information. Advances in medical science and in
information technology, developments in work technology and the changing nature of
business enterprise have caused a proliferation of the type of losses and injuries that a
person might be exposed to as a result of another’s tortious conduct.
The types of damage that are recognisable in tort include but are not limited to:
uu physical damage to the person or property
uu psychological damage resulting from physical harm or the apprehension of

physical harm
uu interference with land
uu economic loss.
Some forms of damage, like physical injury to the person or property, the law has
little difficulty in acknowledging as a form of damage that gives rise to an action in
tort – subject, of course, to other qualifications on liability. Other forms of damage
are entirely excluded from the ambit of tort law. Between complete inclusion and
complete exclusion lies an intermediate category of damage where claims are allowed
but only after the claimant has overcome a number of hurdles. It is this intermediate
category of damage that most concerns us throughout the module.
2.8 What is actionable damage?

The case law pertaining to actionable damage can be involved and difficult. It will
help your study if you understand that there is a hierarchy of interests protected
within the law of tort, with physical injury being most widely protected; followed by
property damage; psychiatric well-being and economic losses. There are other types Hierarchy of interests:
of injury or loss recognised in tort other than the four categories listed here – these 1. physical injury
forms of damage are regularly litigated by claimants who seek a remedy in the tort of 2. property damage
negligence. Clearly, injury to reputation is a significant form of damage. We discuss this 3. psychiatric wellbeing
when we consider defamation in Part II. 4. economic losses.
Underlying this hierarchy of interests are four general principles that judges often
apply (usually not explicitly) in deciding whether or not to acknowledge a form of
injury or loss as recognisable in tort law. These principles are as follows.
1. Losses or injury arising from natural causes are excluded from the ambit of tort.
This would at first sight appear to be an obvious point, since we are concerned
with tortious damage. Stapleton’s article and her much longer study in a book
called Disease and the compensation debate (1986) demonstrate how non-traumatic
injuries (diseases) are less likely to be compensated in the law of tort. This is
not because of any explicit bar on recovery but because non-traumatic injuries
challenge the conceptual framework of tort law that is based on an increasingly
tenuous distinction between ‘man-made’ and ‘natural causes’. Once an injury is
identified as arising from ‘natural causes’ (i.e. a disease and not an accident) then
the general principle that losses should lie where they fall unless there is a good
reason to shift the loss is used to deny recovery. On the other hand, traumatic
injuries – those that can be precisely pinpointed in time and place – routinely
receive compensation.
Case law example

In Jobling v Associated Dairies Ltd [1981] 2 All ER 752 the defendants were liable in
negligence when the plaintiff sustained a back injury at his place of work. This
injury led to a 50 per cent reduction in his earning capacity. Three years later, and
before trial of his negligence action, the onset of a disease of the spine left him
totally unfit for work. Because the second event was brought about by natural
causes the House of Lords held that the defendants were only liable for the
reduced earning capacity up to the time of the onset of the disease.
2. Injuries or other losses arising from a traumatic event – such as a car crash, or as a
result of the claimant falling through a loose floor board – are forms of injury that
tort law privileges above others. Such injuries, all other things being equal, are
likely to be compensated in tort because the courts see them as forms of injury
that are more deserving of compensation than others.
3. Types of losses that are compensated for within other categories of law are less
likely to be compensated for or are likely to receive limited compensation in tort.
For example, a person who claims to have suffered nothing more than financial loss
as a result of another’s wrongful or negligent act will have difficulty establishing a
claim in tort – in part because the law of contract is seen as the appropriate law for
compensating financial losses.
4. Forms of injury or loss that are likely to impact on a large number of potential
claimants pose greater problems in relation to compensation than injuries or
losses, which, by their nature, affect a smaller class of individuals. Alcock v Chief
Constable of South Yorkshire (1992) discussed below is an example of the potential
number of claimants in a tort claim.
Personal injury
This is by far the largest and most complex of the broad categories of damage.
Personal injury can be further reduced into three subcategories.
uu Traumatic physical injury (accidents, congenital disabilities and pain and suffering
associated with wrongful birth claims, although there is some debate over whether
the painful process of birth can be thought of as an ‘injury’).
uu Non-traumatic physical injuries (disease, wrongful life).
uu Psychological harm or nervous shock.
2.9 Damage excluded or limited from the scope of tort

Although tort provides compensation for many different types of loss or harm, certain
types of injury or loss are excluded or limited from the scope of tort. As we have seen,
personal injury or other losses arising from a traumatic event are seen as deserving of
compensation and damages in tort are likely to be recovered. For example: injuries
arising from car accidents, such as Nettleship v Weston [1971] 2 QB 691, where the injury
suffered was a broken kneecap; or medical mishaps as in Bolitho v City and Hackney
Health Authority [1998] AC 232 where it was claimed that the death of a child was as
the result of a doctor’s failure to respond to calls to attend; or injuries occurring on
premises, such as happened in Wheat v Lacon [1966] AC 552, where it was claimed that
an unsafe staircase caused a fatal accident. In circumstances such as these the losses
or injury suffered are easily recognisable as actionable damage giving rise to an action
in tort.
However, the law justifies differential treatment of tort claims. The courts also take
resource allocation and economic factors into account to protect certain classes of
defendant against claims in damages. Commenting on McFarlane v Tayside Health Board
[1999] 4 All ER 961 (see below), where parents of a healthy baby girl were not allowed
to recover the costs of bringing up the child, Tony Weir (2006, p.25) said:
… making a public body pay damages may reduce its ability to perform its services to the
public. Thus hospital trusts which have to pay damages out of their normal budget have
less money available for the cure of the sick. It was therefore nothing short of outrageous
that for many years, until stopped by the House of Lords, our courts made them pay the
cost of bringing up a perfectly healthy child born as a result of their negligence: it was
robbing sick Paul to pay healthy Peterkin.
Case law example

In McFarlane the claimants, a married couple, had four young children. They
decided not to have any more children and Mr McFarlane agreed to have a
vasectomy. The operation, carried out at a National Health Service hospital, was
not successful. Following the operation the consultant surgeon wrote to Mr
McFarlane and informed him, incorrectly, that his sperm count was negative and
that he could dispense with contraceptive precautions. When Mrs McFarlane
conceived again a healthy, but unplanned, baby girl was born. Although the
parents stated that they loved and cared for the child, they sued the health
authority for the negligent failure of the vasectomy performed on the husband
and for negligent advice concerning his fertility following the operation.
Mrs McFarlane claimed damages of £10,000 for the pain and distress of the
pregnancy and delivery. Mr and Mrs McFarlane jointly claimed £100,000 in
damages for the financial costs of the child’s upbringing until the age of 18.
The House of Lords unanimously rejected the claim for the costs of the child’s
upbringing and refused to accept that the law might regard a normal, healthy
baby as more trouble and expense than it is worth.
According to Lord Slynn, claims in respect of the costs of bringing up a healthy
child born as a consequence of a failed sterilisation fall into the category of pure
economic loss (which, you will see below, is not recoverable in tort). Therefore,
although some costs relating to the mother’s pain and suffering during pregnancy
were allowed, the economic cost of bringing up a healthy child was not. Do you consider that the
Lord Millett did not consider that the question in this case should depend on process of birth can be
whether the economic loss is characterised as pure or consequential. He thought conceived of as an ‘injury’?
that the placing of a monetary value on the birth of a normal and healthy child is
as difficult and unrealistic as it is distasteful. He said:
In my opinion the law must take the birth of a normal, healthy baby to be
a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and
sorrow, blessing and responsibility. The advantages and the disadvantages
are inseparable.
The McFarlane principle cannot be departed from, even where the parent of the child
is seriously disabled. In Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309
the severely visually handicapped claimant did not want children because she felt
that her eyesight would make it difficult for her to look after a baby. She underwent a
sterilisation operation (for which the defendant admitted negligence) and as a result
of the failure of this operation the claimant gave birth to a healthy son.
The issue was whether the decision in McFarlane meant that none of the costs of
bringing up a healthy child could ever be claimed whatever the circumstances. At first
instance the trial judge held that the House of Lords decision in McFarlane precluded
a disabled parent from recovering the economic costs of bringing up a healthy
child born as the result of a negligently performed sterilisation. The Court of Appeal,
however, said there was a crucial difference in the case of a seriously disabled parent
who, unlike an able-bodied one, would be in need of assistance to discharge their
basic parental responsibility of looking after a child properly and safely and held that
it was fair, just and reasonable that the mother should recover the additional costs.
However, when the case reached the House of Lords, the appeal was allowed by a 4:3
majority on the ground that no exception to the principle in McFarlane was justified,
even when the parent of the child was seriously disabled. In stating that the law must
take the birth of a normal healthy baby to be a blessing and not a detriment, the
House reaffirmed its unanimous decision in McFarlane.
It is important at this stage in your studies to note that as you learn about the law
of tort in more detail you will see that, in addition to actionable damage, there are
further requirements which must be met in order to establish a defendant’s liability to
pay compensation.
2.10 Claims for emotional harm and psychiatric injury

We have seen that the law of tort offers protection against personal injury, but the
courts have been reluctant to allow claims for other types of personal harm, such as
emotional harm and psychiatric injury.
As a starting point, it must be made clear that emotional and psychological harm
which is a consequence of actual physical injury is always recoverable. This category
of claimants will normally recover for consequential psychological harm under the
category of pain and suffering or loss of amenity. Loss of amenity essentially means
loss of enjoyment in life. Such a loss of enjoyment may be occasioned by many causes,
such as loss of a limb, but it will also cover emotional and psychological harm that
results from the traumatic physical injury.
However, difficult questions arise where the injury claimed to have been suffered as a
result of negligence or any other tort is purely emotional or psychological. Unless the
psychiatric harm is as a result of the impact of a sudden event, it will not qualify under
this category of legal claim. A key limiting mechanism on claims for psychiatric harm
is that a distinction is drawn between claims for a medically recognised psychiatric
illness which is the result of the impact of a sudden event or its immediate aftermath
(which is why the term ‘nervous shock’ was originally used to describe the condition)
and mere grief, sorrow and distress. Mere grief, sorrow and distress are viewed as
ordinary emotions and not harm for which compensation is possible.
Although it is increasingly recognised that psychiatric injury can be just as debilitating

as physical injuries, because such claims are likely to impact on a large number of
potential claimants the circumstances in which compensation is recoverable are
restricted.
When a claimant has not suffered any physical injury but developed some
psychological condition as a result of fearing that they would suffer harm or
because they witnessed trauma or harm to someone else, compensation becomes
problematic. These claims are dealt with more restrictively than claims for ordinary
physical damage because physical damage caused by negligence will be limited to
those within the range of the harmful event, but psychiatric harm may affect a wide
range of persons beyond the direct victim of negligent conduct. Take, for instance,
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, a case arising from the
Hillsborough stadium disaster in which 95 football supporters were killed and another
400 injured when crowd control broke down and barriers collapsed at the beginning
of a match.
The ensuing crush was horrifying for those involved in the tragedy and also for those
watching. Relatives of those killed in the incident, who had not been in any physical
danger themselves, sought compensation for the post-traumatic stress they suffered
as a result of what they witnessed.
The claims were made by people situated inside the stadium as the event took place;
by people outside the stadium at the time; and by people who were at home when
the accident happened. Some of those claiming had seen live or recorded television
coverage of the disaster and others had identified bodies of their loved ones in
the makeshift mortuary that had been erected to deal with the emergency. This
important case will be considered more closely in Chapter 9 but for now it illustrates
the potential number of claims for psychiatric harm from those who witnessed
traumatic physical injuries that others have either suffered or have been exposed to.
This is the reason why the most restrictive rules on recovering compensation apply to
psychological harm.
Students are expected to know the case of Wilkinson v Downton (1897) 2 QB 57. The rule
in Wilkinson v Downton has arisen through the tort of trespass (not covered in this
module) which requires some contact or physical force. The claimant in Wilkinson v
Downton could not claim in trespass to the person because the specific requirements
for assault and battery – the direct application, or threat, of force – were not present.
Although emotional distress is not enough to establish liability in trespass for

intentionally inflicted bodily harm, if severe emotional distress causes bodily harm and
the defendant either intended this or was reckless as to the consequences, there may
be liability under the rule in Wilkinson v Downton.
2.10.1 Other categories of victim of psychiatric injury

As we have seen, emotional and psychological harm suffered as a consequence of
physical injury is recoverable. However, there are two other categories of victim of
psychiatric injury.
The first category is those who were in the zone of danger during the traumatic event
and managed to avoid physical injury but suffered psychiatric injury. This category of
claimant is known as a ‘primary victim’ and, provided personal injury of some kind is
foreseeable, the defendant is liable for the psychiatric injury, irrespective of whether
psychiatric injury was foreseeable.
For example, in Page v Smith [1996] AC 155, the plaintiff was driving with due care when
a car driven by the defendant turned into his path. This caused a relatively minor
accident and, even though there was some damage to the cars, neither the plaintiff
nor the occupants of the other car were physically harmed in the collision. However,
prior to the accident the plaintiff had suffered from a chronic fatigue syndrome
(known as ME) for 20 years.
At the time of the accident the plaintiff was in remission from this condition and was
planning to return to work as a teacher. Although he suffered no physical injury, he
claimed that the accident triggered a reactivation of his illness which became chronic
and permanent to an extent that he was unlikely to be able to return to work.
The House of Lords held that there is no justification for regarding physical injury and
psychiatric injury as different ‘kinds’ of injury. Once it is established that the defendant
is under a duty of care to avoid causing personal injury to the plaintiff, it matters not
whether the injury in fact sustained is physical, psychiatric or both. Applying this
principle, notwithstanding that he suffered no physical harm, the plaintiff was allowed
to recover damages for the psychiatric injury. Lord Lloyd, speaking for the majority
said:
The test in every case ought to be whether the defendant can reasonably foresee that his
conduct will expose the plaintiff to the risk of personal injury. If so, then he comes under a
duty of care to that plaintiff. If a working definition of ‘personal injury’ is needed, it can be
found in section 38(1) of the Limitation Act 1980: ‘“Personal injuries” includes any disease
and any impairment of a person’s physical or mental condition...’
The second category of victim concerns those who were not themselves at risk
of physical injury during the traumatic event but who suffer psychiatric harm as
the result of what they have seen or heard. This category of claimant is known as a
‘secondary victim’ and the Alcock case above highlights the significant difficulties
claims by secondary victims present for the courts in keeping the number of potential
claims within manageable limits.
2.10.2 No liability for ‘risk of injury’

Grieves v FT Everard & Sons Ltd [2007] 3 WLR 876 involved a claimant who had been
negligently exposed to asbestos in the course of his employment. In very exceptional
cases exposure to asbestos may cause life-threatening or fatal diseases and the
knowledge that he might develop such an illness caused the claimant to suffer from
anxiety and clinical depression. He had suffered no personal injury so the claimant’s
case was based on his fear that he might contract an asbestos-related disease. It was
held that, if that event occurred, it could no doubt cause psychiatric as well as physical
injury which would be recoverable. But the event had not occurred. The psychiatric
illness was caused by the claimant’s fear that he might contract an asbestos-related
disease and this fear was not in itself actionable. In Grieves the claim for psychiatric
harm concerned the fear of an unfavourable event which had not actually happened.
In Page v Smith [1996] AC 155, the claim concerned psychiatric injury which was
triggered by an event which had already happened.
2.11 Defects and damage: ‘imminent risk’

Subject to other rules on recovery, we have seen that physical damage to property is a
form of damage for which the law of tort will provide compensation. It is important to
ensure that the claim in respect of the property is one based on damage to property
and not a defect in property. No claim in tort lies in respect of defective property
unless the defect in a property causes damage to other property or to a person or
persons. This is an important and difficult area of law (which will be studied in Part 2).
For now, let’s begin our approach to this difficult area by first elucidating the
distinction between damage and a defect. In D&F Estates Ltd v Church Commissioners
for England [1989] AC 177 it was said that ‘damage’ is to be given its natural meaning,
which is to ‘make a thing worse’ not to create a bad thing; the latter capturing the
meaning of a defect. So, if as a result of negligent inspection of the foundations on
which a property is built, the property becomes weakened and subject to subsidence,
it cannot be said that the negligent inspection caused damage to the property in
question. Rather, the negligent act resulted in the construction of a defective property.
A defect per se is irrecoverable because, according to Lord Bridge in D&F, to allow

recovery for a defect in property would be to introduce into the law of tort a non-
contractual remedy as to fitness for purpose. Such guarantees are the province of the
law of contract and not the law of tort.
The issue becomes complicated where the defect causes damage to the property
itself. Is it then possible to claim in respect of the now damaged property? The answer
is no – a defect in property that merely causes damage to itself does not provide a
basis for recovery, but if the defect causes damage to other property, then damages
will lie.
Let’s elaborate by way of illustration: the example that Jones gives of a defective
property that causes damage only to itself (Jones, M.A. Textbook on torts. (Oxford:
Oxford University Press, 2002) eighth edition [ISBN 9780199255337]) is of a defective
tyre that explodes – no actionable damage. If, on the other hand, the defective tyre
explodes and damages a bicycle that is resting nearby, then, all other things being
equal, compensation will lie.
Case law example

In Anns v Merton LBC [1978] AC 728, the plaintiffs were lessees of flats which they
claimed suffered structural deterioration through being built on foundations of
insufficient depth. They sued in negligence against the local authority on the basis
that it had negligently failed to inspect the foundations or negligently carried
out an inspection. Lord Wilberforce considered that an imminent risk of injury
constituted material physical damage. In considering when the cause of action
arises he said:
We can leave aside cases of personal injury or damage to other property as
presenting no difficulty. It is only the damage for the house which requires
consideration… It can only arise when the state of the building is such that
there is present or imminent danger to the health or safety of persons
occupying it.
However, in Murphy v Brentwood DC [1991] 1 AC 398, a seven-member House
of Lords found it necessary to overrule their own earlier decision in Anns and
ruled that a defect in property that causes damage merely to the thing itself is
not damage for the purposes of the law, because this would be equivalent to
introducing a non-contractual remedy as to fitness for purpose – damage must be
to ‘other property’.
Finally, on this point and as stated earlier, a defective property that causes actual
damage to other property is recoverable and a defect that causes physical injury
to persons is also recoverable. However, the defective property must cause actual
physical injury to the person. In Murphy (overruling Anns) the House of Lords
made it clear that an ‘imminent risk’ to the health and safety of occupants of a
defective property is not sufficient to found an action in the tort of negligence.
2.12 No recovery in tort for pure economic loss

You will have seen that the law of tort provides damages or compensation for many
different types of loss or harm such as: physical injuries caused by traffic accidents;
workplace accidents; and medical negligence. In these cases the claimant may suffer
financial loss as a result of having to take time off from work to recover from the
injury or where damage to property used for business purposes results in loss of
profits. Financial loss such as this, which results from physical injury to persons or
physical damage to property, is known as consequential economic loss. Consequential
economic loss is recoverable in tort.
However, consequential economic loss must be distinguished from pure economic

loss, because the law has developed very differently in relation to the two areas. There
is no recovery in tort for pure economic loss. A person who has not suffered physical
harm and only suffered financial loss as a result of another’s wrongful or negligent
act will have difficulty establishing a claim in tort. Any loss which is not linked to
physical injury, death or property damage is known as pure economic loss and is not
recoverable in tort.
One of the reasons why recovery for pure economic loss is limited is the threat of a
flood of potential claims for financial loss. The floodgates of litigation is defined as
the undesirability of exposing defendants to potential liability ‘in an indeterminate
amount for an indeterminate time to an indeterminate class’, per Cardozo CJ in
Ultramares Corp v Touche (1931). Also, financial interests are protected outside tort law:
the law of contract is seen as the appropriate place for compensating financial losses.
A good illustration of the distinction between pure economic loss and economic
loss which results from physical damage to person or property can be seen in the
case of Spartan Steel & Alloys Ltd v Martin & Co [1973] QB 27. In this case the defendant
contractor, in the course of digging the road, negligently cut a power cable which
supplied electricity to the plaintiff’s factory. This caused a 14-hour power cut which
meant that the plaintiff’s smelting works had to be shut down. At the time of the
power cut there was a ‘melt’ in progress and to stop the steel solidifying it had to be
drawn out of the furnace.
The plaintiff suffered losses under three headings:
1. the reduced value of metal which had to be removed from a furnace before it
solidified and damaged machinery
2. profit which would have been made from that ‘melt’ had it been completed
3. profit from four other future ‘melts’ which would have been made but for the 14-
hour power cut.
The Court of Appeal, by a majority, held that only the first two heads of damage, the
reduction in the value of the solidified melt and the profits they would have made
from its sale, justified compensation. The plaintiff obtained nothing for the loss
of profits on the four further melts which could have been processed before the
electricity was restored because this constituted pure economic loss: it did not flow
directly from physical damage to the claimant’s property. Lord Denning reviewed the
policy justifications behind the reluctance to impose liability for pure economic loss
and emphasised the fact that negligence law is concerned with physical and property
damage. He said:
... the risk of economic loss should be suffered by the whole community who suffer
the losses, usually many but comparatively small losses, rather than on the one pair of
shoulders...
Activities
Activity 2.1
Core comprehension – functions of tort law

As you continue your studies, you should be able to further reflect on actual
reforms to the law on compensating victims of disease which have taken place
since 1985.
Read Williams, G. ‘The aims of the law of tort’ (1951) CLP 137 extracted in Lunney and
Oliphant, Chapter 1 ‘General Introduction’, Section II.1 ‘The aims of the law of tort’,
and the commentary that follows.
In this article, Williams identifies four possible functions of tort law: appeasement,
justice, deterrence and compensation. Most of the questions focus on the Williams
text and some extension questions are included on the content of the commentary
material, which contextualises Williams’ writings within other contributions to the
debate.
Appeasement
a. What is the underlying primitive emotion which is associated with
appeasement?
b. What was the primary function of primitive law?
c. What does Williams mean by the ‘safety-value’ function of the law of tort?
Justice
d. What is the moral principle which underpins the bases of justice?
e. What is the main difference between the principle of ethical retribution and
the principle of ethical compensation?
f. Describe in your own words what Williams means by the social purpose of
ethical compensation.
g. Within which system of justice can Williams’ idea of ethical compensation be

placed?
h. Describe in your own words the main arguments advanced by Weinrib.
Deterrence
i. How can the law of tort act as a deterrent?
j. According to Bentham what is the main underlying common object between

civil and criminal law?
k. Why would the award of high damages not be in keeping with the aim of
deterrence?
l. According to Williams, which type of tort is most suitable for the deterrent
purpose?
m. Describe in your own words what is meant by the term ‘economy efficiency’.
n. Can you name some of the alternative sources of deterrents identified by

Sugarman?
Compensation
o. What is another word for compensation?
p. What is the main feature which distinguishes strict liability from ethical
compensation?
q. Explain what is meant by the enterprise theory.

Activity 2.2
Core comprehension – compensating victims of diseases

In the previous comprehension activity (the Williams text) you considered the aims
of the law of tort. This comprehension activity contextualises how tort contributes
to delivering justice for the victims of diseases.
Using the Online Library, find and read Stapleton, J. ‘Compensating victims of
diseases’ (1985) 5(2) OJLS 248. Jstor: www.jstor.org/stable/764194
The following questions aim to support your understanding of the difficulties
facing victims of man-made diseases and how the law has evolved. They focus on
pp.248–53 of the Stapleton article. Remember that this article was written in 1985
and the law on man-made diseases has evolved since then.
a. What are the hallmarks of man-made disease?
b. What are the three main types of injury? Can you name a related case for each
type?
c. As identified by Stapleton, list the three main barriers which victims of man-
made disease must overcome for a successful claim in tort.
d. Why was there a need for the overriding discretion to bring claims which had
exceeded the thresholds of the law of limitations?
e. How, specifically, does the passing of time present difficulties for victims of
man-made diseases?
f. Why does Stapleton argue that medical causation is the most important barrier
to a successful claim for injury caused by man-made disease?
g. How does ‘proof of fault’ differ from ‘medical causation’?
h. Identify the three problems associated with ‘manufacturing defect’ cases. Why
are these problematic for the claimant?
i. Summarise in 2–3 sentences the basic argument presented by Stapleton.
Activity 2.3
Applied comprehension – reforming compensation

This comprehension activity focuses on pp.253–68 of the Stapleton article, starting
from ‘Suggested reforms’.
This applied comprehension task links to your previous learning and extends your
knowledge by challenging you to consider overarching concepts which underpin
arguments advanced by academic writers. The skills you acquire through the
completion of applied reading comprehension tasks will further support your
ability to write examination answers which meet the higher conceptual marking
criteria – such as analytical thinking, application of the law and synthesis of
materials.
As you continue your studies, you should be able to further reflect on actual
reforms to the law on compensating victims of disease which have taken place
since 1985.
a. What is the basic argument presented by the author?
b. What does the author mean by ‘socially sanctioned activity’?
c. Give some examples of such activity.
d. What does the term ‘strict liability’ mean? From your reading to date, can you
give some additional examples of strict liability?
e. What argument does Stapleton advance for what she describes as serious
distortion in the system of compensating victims of personal injury?
f. What type of justice reflects the concept of the ‘needs basis’ allocation of
compensation?
g. Why does Stapleton favour the ‘needs basis’ allocation of compensation over
the ‘fault based’ allocation? (p.555)
h. What is the main criticism of the major reform proposals in New Zealand and
Australia?
i. Identify the main arguments advanced in the section on ‘the accident

preference’.
j. Paraphrase the sentence ‘identified ramifications of the accident preference

within the compensation debate’.
k. Write two or three sentences in your own words on the following three points:
i. preclusion of ultimate comprehensive goal (pp.262–64)
ii. trade-off between wealth distribution and deterrence goals (p.264)
iii. the problem of non-economic losses (pp.265–66).
l. Which options does Stapleton favour for a wider range of compensation reform?
(p.266)
Notes
3 Modern influences on tort law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.1 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.2 The notion of fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.3 Why did preoccupation with fault come about? . . . . . . . . . . . . . 30
3.4 Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.5 Concerns about a compensation culture . . . . . . . . . . . . . . . . . 31
3.6 Proposals for reform . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.7 Human rights principles . . . . . . . . . . . . . . . . . . . . . . . . . 33
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Introduction
We have seen that human rights principles are increasingly important in the
development of tort law. Other external factors, such as insurance, have a considerable
influence on tort law. Nevertheless, the main source of compensation for accidents is
state benefit.
Because compensation in tort depends on the claimant proving that someone was
at fault, the system is criticised as being the least effective means of compensating
victims. Despite recommendations for replacing the existing system with a no fault
scheme the fault principle continues to dominate the law of tort.
Learning outcomes
be able to:
uu evaluate the fault principle and the role of insurance
uu understand the concept of a compensation culture
uu identify problems with the current system and proposals for reform
uu explain the relation between the tort of negligence and the system of human
rights norms.
Essential reading
¢¢ Lunney and Oliphant, Chapter 1 ‘General introduction’, Section III ‘Modern
influences on tort law’.
¢¢ Lunney and Oliphant, Chapter 3 ‘Negligence – Introduction’, Section III

‘Negligence in the human rights era’.
¢¢ Lunney and Oliphant, Chapter 16 ‘Damages for personal injury’, Section I

‘Introduction’.
Tort law 3 Modern influences on tort law page 29
3.1 Insurance
The overriding purpose of the modern law of tort is to provide an injured claimant
with monetary compensation. As a means of compensating victims of torts the
system of compulsory insurance is extremely important, with over 90 per cent of tort
compensation being derived from insurance – especially where the injury results from
a road or workplace accident. Insurance significantly supports the tort system and
unless the defendant is insured (or very wealthy) it would not be worth the trouble
and expense of claiming in tort. The prevalence of insurance as a factor in most tort
claims is often cited as significantly undermining any deterrent value which tort law
might have.
3.1.1 Insurance – defendants likely to have ‘deep pockets’

It is possible to insure against liability in tort and it is likely that occupiers of premises,
schools, manufacturers and professionals such as doctors will be insured in respect of
many situations in which tort claims could be made.
Loss insurance
First party insurance allows an individual to buy insurance policies that will
compensate them for personal injury or damage to their property, regardless of the
fault of others.
Liability insurance
Third party insurance provides protection when the insured party is liable for injury
done to the person or property of someone else. Liability insurance is compulsory
for motorists under the Road Traffic Act 1988. The Employers’ Liability (Compulsory
Insurance) Act 1969 imposes similar requirements upon employers regarding work-
related accident and disease.
One of the purposes of tort is said to be to enforce standards of good behaviour: to

deter people from being careless. However, in many situations the deterrent effect
is limited. Car drivers are likely to drive carefully because of a fear of death or injury,
or of prosecution resulting in fine or imprisonment. Fear of a civil action for damages
hardly figures, since the damages will come from an insurance company (although
admittedly the driver may find insurance more expensive or even impossible in
future).
3.2 The notion of fault

Except in the case of instances of so-called no-fault liability torts, intention or
carelessness on the part of a defendant in a tort action must be proved. Carelessness
is the main species of fault in tort – someone must be at fault in order for the claimant
to obtain tort compensation. This is why the modern law of tort is dominated by one
cause of action – negligence – which is the topic of the following five chapters.
Fault, as one of the key elements of tort liability, had little currency before the 19th
century. It is only in relatively recent times that the legal system began to preoccupy
itself with the notion of fault. Before tort law emerged in the 19th century, a direct link
between the defendant’s act and a claimant’s injury or loss was sufficient to found
liability in law.
The general principle underlying tort law is that losses should lie where they fall unless
there is a good reason for moving the loss away from where it falls. Fault of the party
causing the harm is commonly advanced as a justification for moving the loss away
from where it falls.
3.3 Why did preoccupation with fault come about?

The answer to this question cannot be internal to the legal system itself. Conaghan,
J. and W. Mansell, in their specialist book The wrongs of tort (London: Pluto Press,
1998) second edition [ISBN 9780745312934], argued that the element of fault was
imported into the tort not as a result of a shift in judicial thinking but because of a
need – a social need – to deal with more complex relations brought about by the
move from agriculture to industry. The industrial revolution created increased risks of
injury to those working in factories, mines, quarries and other dangerous situations.
The mass production of goods and the development of railways and other forms of
transportation increased the potential for many people to be affected by the faulty
conduct of others with whom there was no ‘direct’ causal link. However, businesses
emerging during the industrial revolution also led to the formation of companies
for their organisation and management. This meant that ascribing responsibility
became easier and those injured in workplace accidents had a company to sue
for compensation. Social attitudes began to change from individualism towards
social and civil responsibility. Legislation to improve citizens’ welfare generally was
introduced, particularly following the Second World War, when the Welfare State and
the National Health Service were created. This meant that tort law was no longer the
primary support for those suffering loss due to accidents.
3.4 Policy questions

As you consider the purposes to be served by the law of tort you should think about
the following questions of policy.
3.4.1 How far should liability be based on fault?

The tort system in Britain is supported by different sources of compensation. The main
source of compensation for accidents is state benefit (also known as social security).
It is relatively quick, cheap and accessible to many accident victims. The tort system,
underpinned by liability insurance, is seen as supplemental to state benefit and it plays
a minor role in compensating victims. The tort system is committed to the principle
of full compensation, as far as is possible, so a victim who can make out a tort claim
stands to recover substantially more than one who cannot.
Compensation in tort depends on proving that someone was at fault; the claimant
must show that the defendant was at fault in causing the injury or harm. Tort
compensation has a significant earnings-related component and takes into account
loss of promotion prospects and matters like pain and suffering. Also, unlike social
security payments, the amount of compensation is not subject to financial limits.
However, if the claimant fails to prove the defendant was at fault they will be reliant on
some alternative form of compensation such as social welfare or a private insurance
policy.
3.4.2 Social security benefits – no need to prove fault

The objectives of compensation provided by social security benefits differ from those
in tort. As we have seen above, the tort system is committed to the principle of full
compensation. The social security system does not aim to provide full compensation;
it is based on objective criteria with almost no earnings-related component in the
amount paid.
However, a distinct advantage in receiving state benefit is the lack of need to prove
any fault and (unlike most tort compensation) social security is paid on a periodic
basis. The aim of minimising the likelihood of double compensation under the social
security system is achieved by requiring successful tort claimants to repay most of the
social security benefits which they received for up to five years after the accident.
3.4.3 Problems with the fault principle as the basis of liability

The tort system based on fault is criticised as being the least effective system of
compensation because litigation costs are extremely high and the system is slow to
administer (which further adds to the costs). One consequence of the emphasis on
fault is uncertainty. It may be difficult to get agreement as to whether the defendant
was careless, and entitlement to substantial compensation may depend on the
strength of the evidence before the court or (since all except a very tiny proportion of
negligence claims for personal injuries are settled by negotiation or agreement) the
strength of the bargaining positions of the parties. The ability to obtain compensation
may also depend on the financial resources available to the defendant. A high
proportion of successful claims are in areas (medical, road and industrial accidents
for example) where defendants are either rich or are insured. For this reason the fault
principle is said to be unfair to claimants.
The adversarial system also makes the outcome of litigation unpredictable and this
can lead claimants to settle actions for considerably less than they could expect if
the case succeeded at trial. Another criticism identified by Lord Pearson, who led a
Royal Commission on Civil Liability and Compensation for Personal Injury in 1978, was
that the system was difficult for the injured person to understand and operate. It was
also found that the adversarial nature of the system had a damaging effect on family
relations, friendships and employment relations.
3.5 Concerns about a compensation culture

We have seen in Tomlinson v Congleton Borough Council [2004] 1 AC 46 (Section 1.3.1)
that courts are increasingly aware of the so-called ‘compensation culture’, the desire
to identify someone who is able to pay for injuries. The fear is that there will be a
defensive reaction that drives out many socially useful activities. Schools may stop
arranging excursions for pupils for fear of claims by injured pupils. Institutions such
as homes for the elderly or nurseries for children may close if the costs of liability
insurance become prohibitive. There may be other defensive consequences. Family
doctors may refer too many healthy patients to specialists to protect themselves
against negligence claims, thereby adding to the costs of the health service and
delaying appointments for patients in need of specialist services. In Majrowski v Guy’s
and St Thomas’ NHS Trust [2006] 4 All ER 395, further concerns about compensation
claims in the modern law were expressed. Here, a former employee claimed that he
had been bullied, intimidated and harassed by his departmental manager, acting
in the course of her employment. He claimed for damages against the NHS Trust for
breach of statutory duty under the Protection from Harassment Act 1997. The question
for the House of Lords was whether an employer could be vicariously liable under the
Protection from Harassment Act 1997 for the departmental manager’s conduct. In
order to succeed under the Protection from Harassment Act 1997 there is no need for
the claimant to prove foreseeability of harm or personal injury.
In confirming that such a claim could be brought the House of Lords dismissed the
NHS Trust’s appeal and held that an employer might be vicariously liable for a breach
of statutory duty imposed on its employee if, in all the circumstances of the case, the
test of fairness and justice was met. Lord Nicholls pointed out that where the quality of
the conduct said to constitute harassment is being examined, courts will have in mind
that irritations, annoyances, even a measure of upset, arise at times in everybody’s
day-to-day dealings with other people. He noted that courts are well able to recognise
the boundary between conduct which is unattractive, even unreasonable, and
conduct which is oppressive and unacceptable. The increased scope for claiming
compensation was expressed in the following way:
BARONESS HALE OF RICHMOND [69]
There is already concern amongst some of our legislators that the scope for claiming
compensation, even for recognised physical injuries, has gone too far. The avowed
purpose of the Compensation Bill currently before Parliament is to reign in the so-called
‘compensation culture’. The fear is that, instead of learning to cope with the inevitable
irritations and misfortunes of life, people will look to others to compensate them for all
their woes, and those others will then become unduly defensive or protective.
Concerns about the supposed ‘compensation culture’ and fears of an insurance

crisis because of the steadily escalating costs of compensation were referred to the
government’s Better Regulation Task Force.
In reporting its findings (Better routes to redress, 2004) the Task Force concluded that
the compensation culture was something of a myth but the public perception of
people trying to claim what appear to be large sums of money for what are portrayed
as dubious reasons results in real and costly burdens. The Report pointed out that
the threat of litigation, or just a complaint or a claim, can have some positive effects,
such as improved risk assessments in the case of schools and maintenance of work by
local authorities. The negative aspects of the ‘have a go’ culture were also recognised
because as well as genuine claims, local authorities spend considerable time and
†
resources dealing with vexatious or frivolous claims.† Is there sufficient factual
evidence for the existence of
Case law example a compensation culture?
In response to the perception that society is becoming risk averse, and the
emergence of a compensation culture, the Compensation Act 2006 referred to
by Lady Hale (above) has been enacted. The Act aims to address concerns that
many worthwhile activities would be curtailed because of the deterrent effect
of potential liability and to serve as a reminder to judges to consider carefully
the impact which decisions about potential negligence liability might have in
deterring the organisation and pursuit of worthwhile activities.
Perry v Harris (2008)
Although the Act was not specifically applied in Perry v Harris [2008] EWCA Civ 907,
the reluctance of courts to perpetuate a culture which is excessively risk-averse
is reflected in the decision of the Court of Appeal. The issue was whether parents
who hired a bouncy castle for a child’s birthday party were required to watch the
children playing in the castle continuously to prevent injury occurring. In allowing
the parents’ appeal against liability the Court of Appeal held that children play
by themselves or with other children in a wide variety of circumstances and
it was impossible to avoid all risk that, when playing together, children might
injure themselves or each other. It was impractical for parents to keep children
under constant surveillance or even supervision and it would not be in the public
interest for the law to impose a duty upon them to do so.
Sutton v Syston Rugby Football Club Ltd (2011)
The Act was applied in Sutton v Syston Rugby Football Club Ltd [2011] EWCA Civ
1182 where the claimant was injured when he fell on a plastic object submerged
in the rugby pitch. The object was not easy to see. The judge had rejected the
suggestion that a quick walk over inspection of the rugby pitch was sufficient to
discharge the club’s duty to take such care as was reasonable. The club’s appeal
against liability was allowed. The Court of Appeal held that a ‘reasonable walk
over of the pitch’ was sufficient and noted that games of rugby are no more than
games and desirable activities within the meaning of s.1 of the Compensation Act
2006.
3.6 Proposals for reform

The Pearson Commission (above) made a number of proposals for reform of the tort
system. One proposal, aimed at addressing the costs of operating the tort system, was
a no-fault liability system which seeks to compensate all accident victims on the basis
of need. Such a scheme was adopted by the government of New Zealand in 1974 when
the tort system was abolished for all personal injuries arising out of accidents. A state
compensation scheme was established, contributed to by employers, car owners,
and the government, which enabled payments to be made on an administrative basis
without proof of fault. Recommendations for reform of the UK tort system by replacing
it with a no-fault system have not been adopted and the fault principle continues to
dominate the law of tort. † †
Identify the drawbacks
which have been discovered
in the New Zealand no-fault
3.7 Human rights principles state compensation scheme.
We have seen in Chapter 1 that s.6 of the HRA 1998 makes it unlawful for a public
authority to act in a way which is incompatible with a Convention right. You will see
below that this section has its greatest impact where the defendant to a negligence
action is a public authority, such as a local council.
3.7.1 Human rights, negligence and public bodies

In this introductory chapter only a brief explanation of the relation between the tort
of negligence and the system of human rights norms is needed. Briefly, then, there has
been growing concern that certain classes of defendant in tort actions routinely avoid
having to face the full consequences of actions/decisions that appear careless and
cause damage to other individuals. By and large these are defendants who exercise
wide discretionary powers, such as the police and local authorities. The difficulties
in bringing actions against these bodies do not arise where the body in question has
made a decision to act in a particular way and then has carried out those actions
carelessly – for example, where a police officer arrests a dangerous criminal (the
decision to act) and then carelessly allows the criminal to escape and the criminal
injures an innocent third party. Subject to certain proofs the public body will almost
certainly be held liable. The problem occurs where the public body refrains from
acting and where it is alleged that the failure to act led to damage. Let us now vary the
above scenario by way of illustration: the police fail to arrest the dangerous criminal
– because they claim that due to other policing priorities they cannot commence an
investigation into that particular crime – and the criminal injures an innocent third
party. In the latter scenario, liability on the part of the police will be hard to establish
because:
uu there is reluctance to impose liability on any defendant who has simply failed to
act. The ‘omissions principle’ (discussed below) has been reaffirmed in Robinson
v Chief Constable of West Yorkshire Police [2018] UKSC 4. (Chapter 5 of this guide
develops this theme)
uu there is reluctance on the part of the courts to fetter the discretion of the public
body. If the courts concluded in the above hypothetical scenario that the police
ought to have investigated the crime, the court would indirectly control how the
police determine priorities. In Robinson the Supreme Court held that the absence
of a duty in these cases does not depend on ‘policy’ considerations but can be
justified on the basis of the general principles of negligence. This theme is explored
further in Chapter 6 of this guide.
Over the years, so many courts have decided cases brought before public authorities
taking these two factors into account that such bodies were said to enjoy a virtual
immunity from tort actions. As a result of this ‘immunity’ many novel claims, such as
the claims against educational authorities alleged to have negligently caused children
in their care to suffer economic and other losses as a result of sub-standard education,
were deemed to fall outside the scope of the law of tort. It can be readily seen that
such ‘immunities’ sit uneasily with a law that aims to remedy those ‘wrongs’ falling
outside extant legal categories. However, previous rulings on the liability of public
authorities will now need to be understood in the context of Robinson where the
Supreme Court reviewed the development of the law in this area (see Section 6.1).
From these examples, you will gather that many of the public defendants called to
account were charged with responsibilities that could affect the health, wellbeing and
lives of individuals, leading to potential breaches of the fundamental right to life or the
right to be protected against inhuman or degrading treatment and punishment. How
these claims have played out in the legal system is one of the most interesting and
controversial aspects of the development of tort law.
As public authorities themselves, the courts have to take account of human rights
principles. In Campbell v MGN Ltd (see Section 1.5), Baroness Hale of Richmond
observed at [132]:
Neither party to this appeal has challenged the basic principles which have emerged
from the Court of Appeal in the wake of the Human Rights Act 1998. The 1998 Act does not
create any new cause of action between private persons. But if there is a relevant cause of
action applicable, the court as a public authority must act compatibly with both parties’
Convention rights… “The court’s approach to the issues which the applications raise has
been modified because, under section 6 of the 1998 Act, the court, as a public authority,
is required not to ‘act in a way which is incompatible with a Convention right’. The court
is able to achieve this by absorbing the rights which articles 8 and 10 protect into the
long-established action for breach of confidence. This involves giving a new strength and
breadth to the action so that it accommodates the requirements of these articles.”
[133]
The action for breach of confidence is not the only relevant cause of action: the inherent
jurisdiction of the High Court to protect the children for whom it is responsible is
another example: see In re S (A Child) (Identification: Restrictions on Publication) [2004]
Fam 43. But the courts will not invent a new cause of action to cover types of activity
which were not previously covered: see Wainwright v Home Office [2004] 2 AC 406. Mrs
Wainwright and her disabled son suffered a gross invasion of their privacy when they were
strip-searched before visiting another son in prison. The common law in this country is
powerless to protect them. As they suffered at the hands of a public authority, the Human
Rights Act 1998 would have given them a remedy if it had been in force at the time, but it
was not. That case indicates that our law cannot, even if it wanted to, develop a general
tort of invasion of privacy. But where existing remedies are available, the court not only
can but must balance the competing Convention rights of the parties.
Activities
activity 3.1
Core comprehension – social value of activities

This comprehension activity focuses on the discussion of the social value of
activities and the Court’s approach to limiting the reach of the compensation
culture. You will return to this case later when you study the topic of occupiers’
liability.
Find and read the case of Tomlinson v Congleton Borough Council [2004] 1 AC 46 and
answer the following questions.
a. Summarise in fewer than 25 words how John Tomlinson (the claimant) sustained
his injury and the severity of his loss.
b. Why is the severity of Mr Tomlinson’s injury not enough in itself to trigger an

award of compensation?
c. Which type of activities with a social value were identified as a major concern
and why?
d. Which factors have to be balanced against each other when deciding liability in
the case of common law negligence?
e. Identify some authorities referred to within the judgment where the lack of
common sense of the claimants in their approach to the obvious dangers of
natural features of landscapes has contributed to their claim for compensation
being dismissed.
f. Why is the issue of free will important when considering compensation claims
for injury sustained during participation in activities with social value?
g. Summarise what Lord Hobhouse of Woodborough identifies as an ‘evil

consequence’ of an ‘unrestrained culture of blame and compensation’.
h. Does Lord Scott of Foscote agree with Lord Hobhouse on this issue?
activity 3.2
Applied comprehension – liability in insurance claims

Look up the judgment in Durham v BAI (Run Off) Ltd [2012] UKSC 14 (the Trigger
litigation). You are not required to read the whole judgment to complete this
applied comprehension activity.
Questions (a)–(f) relate to the Introduction section of Lord Mance’s judgment at
[1]–[6].
Questions (g)–(l) relate to Lord Phillips’ opinion at [91]–[98].
a. Identify the subject area of this case and its relevance to the theme of tort and
insurance.
b. What is the difference between employers’ liability insurance and public

liability insurance?
c. Describe in fewer than 30 words how the Employers’ Liability (Compulsory

Insurance) Act 1969 contributes to enabling employees of businesses other than
local authorities to recover damages for bodily injury or disease related to the
workplace.
d. Identify the two triggers of liability in insurance claims.
e. Which trigger is most favourable to victims of diseases which are related to

harmful exposure to substances before the manifestation of a related disease at
a later date? Why?
f. Which statistic evidences the common use of asbestos materials in the 1960s
and 1970s in the UK?
g. What type of diseases are ‘long tail’ industrial diseases? Give three examples of
‘long tail’ diseases and one of a ‘short tail’ industrial disease.
h. How are employer liability insurance contracts usually constructed with regards
to the period of insurance cover?
i. What was the traditional understanding of duty, breach, causation and liability
in reference to the duration of the cover period?
j. How did the Bolton decision, which related to public liability insurance,
contribute to the approach of insurance companies to employer liability
insurance for long tail diseases?
k. Paraphrase in fewer than 50 words the impact of this approach on the

interpretation of employer liability insurance contracts.
l. What is the correct interpretation as held in the Trigger case?

Notes
4 Vicarious liability
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.1 Vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.2 Establishing vicarious liability . . . . . . . . . . . . . . . . . . . . . . 39
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Introduction
This chapter considers vicarious liability, where an employer – in the usual case – is
held liable for torts committed by an employee.
Vicarious liability means that one person (even though otherwise not a tortfeasor) is
liable for a tort committed by someone else. It is therefore an extreme form of strict
liability. The only clear example in English law is the liability of employers for the torts
committed by their employees in the course of employment.
It is important first to be clear about the distinction between primary liability and
vicarious liability. Alongside vicarious liability for the torts committed by their
employees, an employer owes their employees a non-delegable personal duty
(primary liability) that arises from the employer’s responsibility for the management
of their organisation. The employer’s personal liability normally requires fault on the
part of the employer, whereas vicarious liability will be imposed without the claimant
having to show that the employer is in any way at fault.
Learning outcomes
be able to:
uu suggest reasons why the law should hold employers liable for certain torts
committed by their employees
uu distinguish between an employer and an independent contractor
uu identify relationships ‘akin to employment’
uu identify when an employee is acting in the course of employment.
Essential reading
¢¢ Lunney and Oliphant, Chapter 15 ‘Vicarious liability’.
Tort law 4 Vicarious liability page 39
4.1 Vicarious liability

An employer’s primary liability is concerned with negligence to its employees in
respect of harm suffered at work. An employer’s vicarious liability is concerned with
torts committed by its employees ‘while acting in the course of employment’.
Before going on to consider the conditions necessary for vicarious liability to arise, the
justifications for departing from the usual fault-based liability will be considered.
Many different theories have been advanced to justify the doctrine of vicarious liability
but the most accepted justifications are:
uu the ‘benefit and burden’ principle. The employer has established a business
and derives the economic benefits of commercial success: the employer ought
therefore to be liable for damage caused by the business
uu the employer has created a risk and should be answerable if the risk materialises
uu the employer is in the best position to know, or to find out, the nature and cost of
accidents associated with the business and to take insurance against these risks
uu the employer has responsibility for ensuring that its employees are effectively
trained to carry out their work safely
uu the employer is more likely to take staff training and supervision seriously
uu the principle of vicarious liability means that the employer is more likely to be
careful in selecting employees and to provide incentives to encourage them to
take care
uu the effect of the employer bearing the cost of insurance liability is to spread the
loss, as the extra cost can be passed on to the public in the form of higher prices
uu the ‘deep pocket’ argument, which is based on the fact that the employer is better
able to pay compensation and is also more likely to have liability insurance. See JGE
v Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938.
Vicarious liability does not mean that the employer is liable instead of the employee.
The employee who committed the wrong remains liable. Vicarious liability is a form of
secondary liability. For reasons of policy, the courts have considered it desirable to give
claimants injured as the result of an employee’s tort an action against the employer as
well.
4.2 Establishing vicarious liability

To succeed in a claim based on vicarious liability, the claimant has to establish that:
uu the alleged tortfeasor was an employee
uu the employee committed a tort
uu the employee committed the tort in the course of employment.
4.2.1 Establishing the employee relationship

It has proved difficult to identify a test that will distinguish an employee (for whom
there is vicarious liability) from an independent contractor (for whom generally there is
not). The issues are surprisingly complicated and the answer may depend on the precise
contractual relationship. It is possible here only to identify the broad issues that arise.
A traditional example of the distinction is that a chauffeur is an employee and a taxi

driver is an independent contractor. If your chauffeur carelessly knocks a pedestrian
down, you are vicariously liable. If your taxi driver does it, you are not. This is not simply
because the taxi driver is usually engaged only for a single trip. A contract of employment
may be of short duration. A taxi company may be engaged on a long-term basis to
provide a car and driver to take someone to and from work every day, but this is unlikely
to make the driver an employee of the passenger or of the passenger’s employer.
There are many other contexts in which the same question has to be answered. There
are different tax and national insurance implications for employees, and an employee
has greater employment rights and protection. A number of cases cited in this section
are not about liability in tort at all. It is generally assumed that the same tests are applied
whatever the context in which the question arises, but there are arguments against this
assumption. This is particularly true where the employer and ‘employee’ have entered
into complicated contractual arrangements for tax or national insurance purposes.
Case law example

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance
[1968] 2 QB 497 where a concrete-manufacturing company introduced a scheme
whereby its concrete would be transported by a team of lorry owners described
as ‘owner-drivers’. The agreement between the lorry owners and the company
provided that they would be paid a fixed mileage rate for the service and it also
specified their employment status to be self-employed independent contractors.
Although lorry owners were required to paint the lorries in the company’s colours
and wear the company’s uniform, the drivers owned the lorries and bore the
financial risk of the enterprise. In a dispute about whether the lorry owners were
employees or independent contractors, the economic reality test was applied
and on the facts of the case it was found that the lorry owners were unlikely to be
acting as agents or employees of the company but were, in reality, independent
contractors working under a contract for services. The key factors influencing the
Court in reaching its conclusion were that the drivers (1) owned and maintained
the lorries; (2) were free to hire other drivers in the event of holiday or sickness;
and (3) took the chance of profit and bore the risk of loss.
There is nowadays a great variety of patterns of employment. It is not yet clear
In the 19th century the
what arrangements of primary or vicarious liability can best deal with these. Here
term ‘servant’ was used
are some examples. The provision of agency staff is common in many industries,
to denote an employee
notably in clerical and hospital work. Bodies such as insurance companies or and the employer was
utility companies enter into contracts with customers under which they agree to denoted as ‘master’. One
supply, for example, plumbers to deal with emergencies. of the reasons for the use
of this terminology is that
4.2.2 Independent contractors at that time the work of a
No single test has proved satisfactory as a distinction between employees and servant was mainly manual
independent contractors. Courts have referred to the extent to which the employer and carried out under the
master’s instruction. This
can control how the individual does the job. They have considered how far the
terminology has become
individual can be said to be integrated into the business. They have adopted an
outdated and the terms
impressionistic approach and have added up the features of the relationship,
employer and employee
identifying those features that were more like a contract of service (i.e. of
are now used as they reflect
employment) and those that were more like a contract for services and considered
the modern workforce
where the balance lay. Among many illustrative cases are: Cassidy v Ministry of Health
containing many skilled
[1951] 2 KB 343; Stevenson Jordan & Harrison v Macdonald & Evans [1952] 1 TLR 101, per
workers and professional
Denning LJ. In Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, Cooke
employees.
J warned against the risk of a rigid application of the factors for consideration, saying:
No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of
the considerations which are relevant in determining that question, nor can strict rules
be laid down as to the relative weight which the various considerations should carry in
particular cases.
4.2.3 Relationships ‘akin’ to employment

The question of whether the Catholic Church is the employer of its clergy was
considered in JGE v Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938. The
Church claimed that priests are not employees of the Church; they are merely office
holders and not employees. The priest accused of sexual abuse had no employment
contract with the trustees: there was no wage agreement, no mechanism for the
trustees to dismiss or discipline him and no mechanism by which they could control
him. The Court of Appeal upheld the first instance finding that the relationship
between a parish priest and diocese was akin to an employment relationship, even
though the priest received no wage and was rarely supervised. When considering
vicarious liability in respect of persons not formally employed, the Court held that it
was not appropriate to apply tests of employment laid down in cases dealing with
unfair dismissal, or taxation or discrimination.
In Various Claimants v The Catholic Child Welfare Society [2012] UKSC 56 (hereafter Various
Claimants), the Supreme Court held that the law of vicarious liability has developed
recently to establish a number of important propositions, one of which is that it is
possible for unincorporated associations (such as the Institute) to be vicariously
liable for the wrongful acts of its members. In Various Claimants the Supreme Court
reviewed the law of vicarious liability in cases involving sexual abuse of children where
bodies, in pursuance of their own interests, caused their employees or persons in a
relationship similar to that of employees, to have access to children in circumstances
where abuse has been facilitated. The Court said that the approach to establishing
vicarious liability involved a synthesis of two stages.
uu The stage 1 question asks whether the relationship between the employee and
the employer (or a relationship ‘akin to that of employment’) was one which was
capable of giving rise to vicarious liability.
uu The stage 2 question addresses the ‘course of employment’ test (see Section 4.2.6)
and asks if the connection between the employer and the perpetrator, the acts of
abuse and the extent to which the employment created or significantly enhanced
the risk of that abuse (the necessary close connection was established in Various
Claimants).
In Cox v Ministry of Justice [2016] UKSC 10, the claimant had worked as the catering
manager at a prison. She suffered injury as the result of the negligence of a prisoner,
performing paid work under the claimant’s supervision. In one of the first decisions
applying the Supreme Court ruling in Various Claimants, the Court of Appeal held that
in determining whether an employment relationship for the purposes of vicarious
liability existed, it was necessary to ask whether the relationship between the
claimant and the Ministry was one akin to employment. The Court of Appeal applied
the relevant features identified in Various Claimants and held that it was clear that
those features distinctly applied in this case. The defendant’s argument that, unlike
employees, prisoners have no interest in furthering the objectives of the prison service
was rejected. A prisoner undertaking useful work for nominal wages binds him into
a closer relationship with the prison service than would be the case for an employee
and strengthens, rather than weakens, the case for imposing vicarious liability.
In Cox the Supreme Court considered the sort of relationship which has to exist
between an employer and an employee before the employer can be made vicariously
liable (the companion appeal of Mohamud v WM Morrison Supermarkets [2016] UKSC 11
considered how the conduct of the employee has to be related to that relationship for
vicarious liability to be imposed (see Section 4.2.12)).
In Armes v Nottinghamshire County Council [2017] UKSC 60 the Supreme Court has again
considered relationships ‘akin’ to employment. The question in Armes was whether
a local authority was vicariously liable for the physical and sexual abuse perpetrated
by the foster parents into whose care they placed the claimant when she was seven
years old. The case proceeded on the basis that there was no negligence on the part of
the social workers involved with placing the claimant with the foster parents or in the
supervision and monitoring of the placements. Nevertheless, the claimant argued that
the local authority should be vicariously liable for their wrongful acts of abuse.
At first instance, the trial judge rejected vicarious liability on the ground that the local
authority has no relevant control over the foster parents as to the manner in which, on
a day-to-day basis, the foster parents provided family life to the child.
The Court of Appeal affirmed the judge’s decision and the matter was then referred to
the Supreme Court to consider whether the relationship between a local authority and
foster parents fulfils the criteria for vicarious liability. In ruling that the local authority
was vicariously liable for the abuse committed by the foster parents, Lord Reed (with
whom Lady Hale, Lord Kerr and Lord Clarke agreed) applied the principles set out in
Cox v Ministry of Justice:
The general principles governing the imposition of vicarious liability were recently
reviewed by this court in Cox v Ministry of Justice. As was said there, the scope of vicarious
liability depends upon the answers to two questions. First, what sort of relationship
has to exist between an individual and a defendant before the defendant can be made
vicariously liable in tort for the conduct of that individual? Secondly, in what manner does
the conduct of that individual have to be related to that relationship in order for vicarious
liability to be imposed? The present appeal, like the case of Cox, is concerned only with
the first of those questions.
In her article ‘Vicarious liability in the UK Supreme Court’ (2016) in UK Supreme

Court Yearbook (Vol. 7, pp.152–166) Professor Paula Giliker comments: ‘One is left to
wonder where, after three Supreme Court decisions in four years, this leaves the legal
development of the doctrine of vicarious liability’. In Armes the Supreme Court was
being asked to develop the law beyond the point which it had already reached (and
disagree with the conclusions reached in the courts below).The majority ruling in
favour of vicarious liability (Lord Hughes dissented) endorses Giliker’s prediction that:
‘Cox and Mohamud are far from the end of this story’.
4.2.4 ‘Borrowed employees’

There is a particular problem with borrowed employees, where, for example, one
company supplies a crane and its driver to work for another company. It is plain that
the driver remains an employee, but of which company? The presumption seems to
be that the driver remains the employee of the lending company unless this is clearly
displaced on the facts. In Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool)
Ltd [1947] AC 1, a mobile crane and a driver had been hired out to a firm of stevedores
under a contract which stipulated that the driver was to be the employee of the
stevedores. In spite of this term, the employee’s original employer, the Harbour Board,
paid his wages and retained the right to dismiss him. The hirer, Coggins & Griffith,
directed the tasks which were to be performed by the driver but not how he was to
operate the crane. In the course of his work the driver negligently injured the plaintiff
and the question to be determined was whether the firm of stevedores or the Harbour
Board were vicariously liable. In holding the Harbour Board liable the House of Lords
said the control test was still important. They noted that factors such as the type of
machinery that had been loaned (the more complicated it is, the more likely the main
employer will remain liable) and factors such as who pays the employees’ national
insurance contribution and the duration of the alternative service with the temporary
employer are also relevant.
There can be dual vicarious liability. It had traditionally been assumed that where
an employee was lent by one employer to work for another, vicarious liability for the
employee’s negligence had to rest with one employer or the other, but not both.
However, in Viasystems Ltd v Thermal Transfer Ltd [2006] QB 510, the Court of Appeal
held that it is possible for two separate employers to be vicariously liable for the tort
of a single employee.
4.2.5 The employee must commit a tort

The employer is liable vicariously only if the employee has committed a tort. That
means that the employer can take advantage of any substantive defence available
to the employee (such as contributory negligence or volenti non fit injuria). In ICI Ltd
v Shatwell [1965] AC 656, in defiance of his employer’s orders and statutory safety
regulations, the plaintiff went to test some detonators without taking the required
safety precautions. The employer was not liable for the injuries sustained when an
explosion occurred because the plaintiff was held to have consented to and fully
appreciated the risk of injury. Here, the plaintiff and his brother (who actually caused
the explosion) were quite senior safety officials, and personally responsible for
compliance with the regulations. It is therefore a fairly extreme case and not likely to
be a general precedent.
4.2.6 The tort must have been committed in the course of employment
This proposition is rather obvious, but it has proved difficult to identify a test that
will distinguish between those torts that do occur in the course of employment and
those that do not. The modern tendency of the courts seems to be in borderline cases
to lean in favour of imposing vicarious liability if that is possible. According to Giliker
(2016), the generous approach to the vicarious liability framework established by the
Supreme Court in Various Claimants is justified because it creates ‘a fairer and more
workable test’ that enables innocent victims to obtain compensation, albeit at the
expense of innocent employers.
4.2.7 The ‘Salmond test’

The test set out by Sir John Salmond in his textbook on tort has been commonly used
by the courts:
A master… is liable even for acts which he has not authorised, provided that they are so
connected with acts which he has authorised that they may be rightly regarded as modes
– although improper modes – of doing them.
An act will be in the course of employment under the test if it is (a) a wrongful act
authorised by the [employer], or (b) a wrongful and unauthorised mode of doing some act
authorised by the [employer].
(Heuston, R.F.V and R.A. Buckley Salmond and Heuston on the law of torts. (London: Sweet &
Maxwell, 1996) 21st edition [ISBN 9780421533509], p.443)
The explanation and application of this test can be illustrated by the following cases.
4.2.8 The general approach

In Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509, a
tanker driver who, while delivering petrol, lit a cigarette and carelessly discarded a
match causing a fire, was held to be acting within the course of his employment. It was
said that the act of lighting the cigarette, while not in itself connected with his job,
could not be looked at in isolation from the surrounding circumstances.
In General Engineering Services v Kingston and St Andrew Corporation [1989] 1 WLR 69,
firemen operating a ‘go-slow’ policy who took five times as long as they normally
would have done to drive to the scene of a fire were acting not within the course
of employment. The Privy Council indicated that it was as though they had simply
ignored the call which would not be a mode of performing their duties. This is
however a case which founds itself firmly on the Salmond test and holds that a
wrongful and unauthorised act is outside the course of employment.
In Lister v Hesley Hall Ltd (below) the House of Lords said that the proper approach to
the course of employment is no longer to ask the question whether the acts were
modes of doing authorised acts in the course of employment. In Various Claimants Lord
Phillips noted that although the test of ‘close connection’ is approved by all it tells
nothing about the nature of the connection.
Nevertheless, all pre-2001 decisions (such as this) denying that the employee was in
the course of employment are liable to be reconsidered, and should not be treated as
clear authority.
4.2.9 Frolics and detours

The employer is not liable where the employee’s act is wholly unconnected to the job
for which they are employed. In such circumstances the employee is said to be ‘on a
frolic of his own’. In Beard v London General Omnibus Co [1900] 2 QB 530 the employer
of a bus conductor who, in the absence of the driver, negligently drove the bus himself
was held not liable.
A number of cases have dealt with an employee who has deviated from the course of
employment. Was the deviation sufficient to take the employee out of the course of
employment? In Storey v Ashton (1869) LR 4 QB 476 the defendant’s employees had been
instructed to deliver wine and to bring back some empty bottles to the employer’s
offices. On the return journey one of the employees persuaded the other that, since it
was by then after hours, they should set off in a different direction to visit some relatives.
The employer was not liable for an injury caused by the employee because, at the time
of the accident, the driver was not acting in the course of employment; he was on a new
and independent journey which was entirely for his own business.
4.2.10 Driving to and from the place of work

Generally, an employee is not in the course of employment when driving to and from the
place of work, but there are exceptions depending on the nature of the job and particular
contractual arrangements. In Smith v Stages [1989] 1 All ER 833, a peripatetic lagger was
working at a power station when his employer sent him and another employee to
perform an urgent job in another part of the UK. In addition to their hourly rate they
were paid travelling expenses for the journeys there and back. They were using a private
vehicle and had discretion as to how and when they would travel. They worked without
sleep to get the job finished two days early and decided to drive straight home. As they
were travelling back together in the car they were both injured when the employee
driving the car crashed into a wall. The driver was uninsured and the plaintiff sued the
employer on the basis of vicarious liability. The House of Lords found the employers
liable. Lord Goff said the fact that the men were travelling back early was immaterial
since they were still being paid wages to travel there and back. Lord Lowry thought the
crucial point was that the employees were ‘on duty’ at the time of the accident.
An employee travelling between home and work will not generally be in the course of
employment. However, an employee travelling in the employer’s time from home to a
workplace other than the regular workplace or between workplaces will be within the
course of employment.
4.2.11 Expressly prohibited acts

There is a further complication where the employee is doing something specifically
forbidden by the employer. The outcome is then said to depend on whether the
prohibition limited the sphere of employment (in which case the employee is not in
the course of employment) or limited the manner in which the employee carried out
duties (in which case the employee is still in the course of employment).
An act may be within the course of employment even though it has been expressly
forbidden by the employer. In Limpus v London General Omnibus Co (1862) 1 Hurl & C 526
a bus driver was instructed not to race with or obstruct the buses of rival companies.
He disobeyed this instruction and caused an accident in which the plaintiff’s horses
were injured. Despite the prohibition, the employers were liable since this was simply
an improper method adopted by the employee in performing his duties.
In Rose v Plenty [1976] 1 WLR 141, the employer was liable when, despite his employer’s
express instruction not to do so, a milkman employed a boy aged 13 to help him on
his milk round. Due mainly to the milkman’s negligent driving the boy was injured.
In the Court of Appeal, Lord Denning said the driver was still within the course of
employment despite the express prohibition because he was still acting for the
master’s purposes, business and benefit.
4.2.12 Deliberate or criminal acts

In the cases considered so far the employee had committed the tort of negligence.
It is, however, more difficult to apply vicarious liability where the employee has
deliberately caused the damage to the claimant and/or the employee is guilty of a
crime. How can such activities be in the course of employment? Using the orthodox
test, the courts did impose vicarious liability where the employee was acting for the
benefit of the employer (e.g. by assaulting a suspected thief) or stole property that
he was employed to clean. In Morris v CW Martin & Sons Ltd [1965] 2 All ER 725 a mink
stole which was sent for dry cleaning was stolen by one of the employees in the firm
of cleaners. The employer was vicariously liable for the theft because the employee’s
act constituted an unlawful mode of doing his job. See: Poland v Parr & Sons [1927] 1 KB
236; Lloyd v Grace, Smith & Co [1912] AC 716. In Warren v Henlys Ltd [1948] 2 All ER 935 the
employers were not held liable for a violent assault by a pump attendant because, on
the facts, the attack was found to be a mere act of personal vengeance and outside the
course of employment. However, in Mohamud v WM Morrison Supermarkets [2016] UKSC
11 (discussed in Section 4.2.14) vicarious liability for an employee’s attack on a customer
at a petrol station was considered by the Supreme Court. The Court of Appeal’s
conclusion that the employee’s attack was personally motivated and had nothing to
do with his employment was unanimously rejected by the Supreme Court where Lord
Toulson said that the employee’s motives were ‘neither here nor there’. The employee’s
job was to attend to customers and his conduct in answering the claimant’s request
was inexcusable but fell within the ‘field of activities’ assigned to him.
The limits of the Salmond test were reached in a case where a deputy headmaster
sexually abused a pupil during a school trip to Spain. In Trotman v North Yorkshire CC
[1999] BLGR 584 the test was applied in the case of a teacher who used school trips to
commit sexual assaults on a dependent child. It is difficult to describe such conduct
as an unauthorised mode of carrying out the deputy headmaster’s duty. The Court
of Appeal refused to hold the employer vicariously liable on the ground that the
perpetrator was not acting in the course of employment; his conduct was said to be a
negation of the task of caring for the plaintiff and not an unauthorised mode of carrying
out an authorised task. This case has now been overruled by the House of Lords.
4.2.13 The Lister test

In Lister v Hesley Hall Ltd [2002] 1 AC 215, the House of Lords reviewed the application of
the Salmond test which focused on whether the employee’s wrongful act was either
authorised by the employer or an improper way of doing what was authorised. It was
held that in cases of serious criminal conduct the proper method of determining ‘course
of employment’ is not to ask the simplistic question of whether the acts were modes of
doing authorised acts but to adopt a broad approach to the question of the scope of an
employee’s employment. Here, the warden of a residential school for children, who had
some years after the events been convicted of sexual assaults on pupils in his care, was
acting in the course of employment so as to make his employers vicariously liable.
The House emphasised the close connection between the acts of the warden and the
job he was employed to do. The defendants had entrusted the care of the children
to the warden and the abuse had been inextricably interwoven with the carrying out
of his duties: his torts had been so closely connected with his employment that it
would be fair and just to hold the defendants vicariously liable. A number of judges
noted that the warden was the very person selected to discharge the employers’ own
pastoral responsibilities to the children.
4.2.14 Application of the ‘close connection’ test

Which employees might fall within the Lister test? First, there are some dicta in the
case itself. In particular, it was said that there would be no vicarious liability if the
abuse had been perpetrated by a caretaker or handyman at the school (whose duties
involve looking after the property rather than the pupils). The scope of Lister has been
considered in the following cases.
In Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366, the principle in Lister was extended
to include not just intentional torts, but also breaches of equitable duty which were
closely connected with the acts that the employee was authorised to do in the course
of the firm’s business.
Reflecting the policy factors which influenced the decision in Lister, Lord Nicholls noted:
[21] … Whether an act or omission was done in the ordinary course of a firm’s business
cannot be decided simply by considering whether the partner was authorised by his
co-partners to do the very act he did. The reason for this lies in the legal policy underlying
vicarious liability. The underlying legal policy is based on the recognition that carrying on
a business enterprise necessarily involves risks to others. It involves the risk that others
will be harmed by wrongful acts committed by the agents through whom the business
is carried on. When those risks ripen into loss, it is just that the business should be
responsible for compensating the person who has been wronged.
Lister was applied by the Court of Appeal in Mattis v Pollock [2003] 1 WLR 2158, where
the owner of a nightclub was vicariously liable when Mattis, the claimant, was
rendered paraplegic following a stabbing by Cranston, a bouncer employed by the
club. The evidence showed that Cranston had a history of behaving aggressively and
the act was one of revenge. Judge LJ said at [19]:
The essential principle we derive from the reasoning in the Lister and Dubai Aluminium
cases is that Mr Pollock’s vicarious liability to Mr Mattis for Cranston’s attack requires a
deceptively simple question to be answered. Approaching the matter broadly, was the
assault ‘so closely connected’ with what Mr Pollock authorised or expected of Cranston in
the performance of his employment as doorman at his nightclub, that it would be fair and
just to conclude that Mr Pollock is vicariously liable for the damage Mr Mattis sustained
when Cranston stabbed him.
In Various Claimants the Supreme Court considered the criteria that establish the
necessary ‘close connection’ between relationship and abuse. Lord Phillips [86]
identified a common theme emerging from the authorities in the UK, Canada and
Australia:
Starting with the Canadian authorities a common theme can be traced through most of
the cases to which I have referred. Vicarious liability is imposed where a defendant, whose
relationship with the abuser put it in a position to use the abuser to carry on its business
or to further its own interests, has done so in a manner which has created or significantly
enhanced the risk that the victim or victims would suffer the relevant abuse. The essential
closeness of connection between the relationship between the defendant and the
tortfeasor and the acts of abuse thus involves a strong causative link.
The modern law on vicarious liability, established by the Supreme Court in Various
Claimants and expanded by the decisions in Cox, Mohamud and Armes enable an
increasing range of claimants to benefit from the doctrine’s ability to act as a ‘loss
distribution device’. In Armes the majority of the Supreme Court applied the policy
reasons set out by Lord Phillips in Various Claimants and the ruling is likely to pave the
way for continued extension of vicarious liability.
Giliker (2016) points out:
Lister, JGE and Various Claimants all involved victims of sexual abuse seeking recompense
from the institutions responsible for the abusers in question. What is distinctive about
Cox and Mohamud, however, is that these are not sexual abuse cases, but examples of
traditional vicarious liability scenarios in which the question is whether an employment
relationship exists or whether the misconduct of the employee takes him outside
the scope of his employment. The Supreme Court rulings are therefore significant in
indicating that sexual abuse cases are not a separate category of claims. The extension
of vicarious liability to meet the facts of Lister, JGE and Various Claimants applies generally
to all cases. The societal need to respond to sexual abuse scandals has therefore had a
permanent impact on the shaping of the modern doctrine of vicarious liability.
4.2.15 The employee’s position

We have seen that even though the employer is vicariously liable, the employee also
remains liable. Vicarious liability is not a kind of defence that enables the wrongdoing
employee to transfer liability to the employer. Indeed, the employer is entitled to
recover from the employee the amount of any damages paid to the claimant. In Lister v
Romford Ice and Cold Storage Co Ltd [1957] AC 555, an employee took his employer’s lorry
to collect some waste, and took his father with him to help. The father was injured
as a result of the son’s negligence, for which the employer was vicariously liable. The
House of Lords held that employees are obliged by their contract of employment
to indemnify their employer against any liability which results from the employee’s
responsibility for damage caused. However, in England, in the interests of good labour
relations, no such claim for indemnity would be made against an employee in the
absence of deliberate wrongdoing. There was a ‘gentleman’s agreement’ after the
outcry about the Romford case (in which it was really the employers’ insurers and not
the employers who pursued the employee) under which liability insurers agreed not
to exercise their rights except in certain circumstances.
The employer is, however, insured, and the effect of the rule therefore is that an
insurance company is able to recover the amounts it has paid under the insurance
policy. The insurance companies have entered into an informal agreement not to
exercise the rights recognised in the Romford case.
Activities
Activity 4.1
Core comprehension – vicarious liability

Read Lunney and Oliphant, Chapter 15 ‘Vicarious liability’, Section I ‘Development of
and justification for vicarious liability’ and answer the following questions.
a. Identify the three legal mechanisms which can be used to hold one party liable
for the tort of another.
b. In which type of legal relationship does the law of vicarious liability

predominantly operate?
c. Is the employer liable for every act of the employee?
d. What is the meaning of the Latin maxim: ‘Qui facit per alium facit per se’?
e. In the Reedie judgment what is the reasoning given for holding an employer
responsible for injury which its employees have caused in the exercise of their
employment?
f. Identify the main argument which Williams advances as an explanation for

vicarious liability.
g. What does Atiyah mean when he refers to the principle of loss-distribution?
h. Which role do company shareholders play in the principle of loss-distribution

when companies would be uncompetitive if they charged higher prices?
i. Which argument does Atiyah advance which endorses the principle of vicarious
liability?
Activity 4.2
Applied comprehension – close connection test

Find and read the case of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11,
then answer the following questions.
a. Outline the two requirements of establishing vicarious liability in tort as stated
by Lord Toulson [1].
Origins and development of vicarious liability

b. Identify the four main factors which have driven the development of the
doctrine of vicarious liability [10].
c. Identify the factor which led to the broadening of vicarious liability in the 17th
century and the broad ‘Holt principle’.
The present law

d. With regard to the ‘field of activities’, which question does the court consider
and what is the court’s approach when answering this question?
e. With regard to the ‘sufficient connection’, which principle is applied to

determine liability?
The present case

f. Why did Mr Khan’s foul mouthed response fall within the ‘field of activities’ of
the job he was employed to do?
g. Identify two reasons why the Supreme Court reject the argument that Mr Khan’s
movement from the counter in the retail outlet where he served customers to
the petrol station forecourt in front of the retail outlet where he did not serve
customers broke the ‘sufficient connection’ test.
h. What was Mr Khan’s motivation for his conduct and to what extent was his
motivation relevant to the judgment?
i. Why does Lord Dyson reject the acknowledged imprecision of the close
connection test as a reason to replace it with another test?
j. How does the court address the issue of imprecision in the close connection
test?
k. In fewer than 100 words explain which development in the law was central in
the recent sexual abuse cases such as the Various Claimants case, which is not
present in Mohamud v WM Morrison Supermarkets plc?
5 Liability for omissions
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.1 No liability for an omission to act . . . . . . . . . . . . . . . . . . . . . 51
5.2 When does English law impose liability for an omission to act? . . . . . . . . 52
5.3 Liability for acts of third parties . . . . . . . . . . . . . . . . . . . . . . 53
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Introduction
In his well-known statement of the neighbour principle in Donoghue v Stevenson
Lord Atkin said: ‘… acts or omissions which any moral code would censure cannot in
a practical world be treated so as to give a right to every person injured by them to
demand relief.’ On the other hand, there is often said to be no liability for omissions in
English law.
What do these statements mean? The former statements seem to have in mind
omissions as part of an activity. A driver of a car may be just as careless in omitting to
apply the brake as in pressing the accelerator too hard. A doctor may be careless in
omitting to test for allergies before giving an injection. These situations would not be
treated in law as omissions, but rather just as one aspect of negligent conduct. Cases
involving claims of omission are often looking at a defendant’s failure to protect the
claimant from a risk of harm caused by a third party or by the claimant. English law,
unlike many other systems, does not impose on people a general duty to take positive
action to assist people in difficulties or to avert harm, even if they are physically well
capable of doing so: an able-bodied person may stand by and watch someone drown
in shallow water. Between these two extremes, however, there is a very wide area of
uncertainty which will be considered in this chapter.
Learning outcomes
be able to:
uu distinguish between acts and omissions
uu evaluate the exceptions to the general exclusionary rule on liability for an
omission to act
uu explain the circumstances in which people may be liable for the acts of third
parties
uu describe the content of that duty, should it arise.
Essential reading
¢¢ Lunney and Oliphant, Chapter 9 ‘Negligence: duty of care – omissions and acts of
third parties’.
Tort law 5 Liability for omissions page 51
5.1 No liability for an omission to act

If there is a moral obligation to assist people in difficulty or danger, why is there no
legal obligation? The reluctance of the courts
Stovin v Wise [1996] AC 923 involved an omission to act. A road verge on which a to impose liability for
bank of earth obstructed drivers’ views had been responsible for several accidents. omissions or failures to act
Norfolk County Council, which was aware of the problem, had a power (under the is based on the following
arguments: invasion of
Highways Act 1980) to improve a road junction by removing the bank of earth which
freedom; ‘why pick on me?’
obstructed visibility on the highway. A decision to remove the hazard was taken but
and economic inefficiency.
the authority then failed to exercise its statutory power to require the landowner to
Note Lord Hoffmann’s
remove the obstruction. Wise negligently drove out from a side road and claimed that
comments in Stovin v Wise.
the dangerous junction had significantly contributed to the accident. In applying the
principle that there is no liability where a breach consists of a pure omission and the
defendant has not created the harm suffered the House of Lords (by a bare majority)
held that the local authority owed no duty of care to road users for failure to exercise
its powers to take positive steps to remove the bank. Lord Hoffmann (in the majority)
suggests that there are political, moral and economic reasons for this decision. He
explained it in the following way:
There are sound reasons why omissions require different treatment from positive
conduct. It is one thing for the law to say that a person who undertakes some activity
shall take reasonable care not to cause damage to others. It is another thing for the law
to require that a person who is doing nothing in particular shall take steps to prevent
another from suffering harm from the acts of third parties (like Mrs. Wise) or natural
causes. One can put the matter in political, moral or economic terms. In political terms
it is less of an invasion of an individual’s freedom for the law to require him to consider
the safety of others in his actions than to impose upon him a duty to rescue or protect.
A moral version of this point may be called the ‘why pick on me?’ argument. A duty to
prevent harm to others or to render assistance to a person in danger or distress may apply
to a large and indeterminate class of people who happen to be able to do something. Why
should one be held liable rather than another? In economic terms, the efficient allocation
of resources usually requires an activity should bear its own costs. If it benefits from being
able to impose some of its costs on other people (what economists call ‘externalities,’) the
market is distorted because the activity appears cheaper than it really is. So liability to pay
compensation for loss caused by negligent conduct acts as a deterrent against increasing
the cost of the activity to the community and reduces externalities. But there is no similar
justification for requiring a person who is not doing anything to spend money on behalf
of someone else. Except in special cases (such as marine salvage) English law does not
reward someone who voluntarily confers a benefit on another. So there must be some
special reason why he should have to put his hand in his pocket.
Lord Nicholls (in the minority) gave his views on the correct general approach to
the imposition of liability for omissions. He agreed that although there could often
be uncertainty about categorising omissions, it was correct that there should be a
presumption against duty of care in these cases. He said:
… the recognised legal position is that the bystander does not owe the drowning child or
the heedless pedestrian a duty to take steps to save him. Something more is required than
being a bystander. There must be some additional reason why it is fair and reasonable that
one person should be regarded as his brother’s keeper and have legal obligations in that
regard. When this additional reason exists, there is said to be sufficient proximity. That is
the customary label.
The ‘omissions principle’ was reaffirmed by the Supreme Court in Robinson v Chief
Constable of West Yorkshire Police [2018] UKSC 4 (see Section 6.1).
5.2 When does English law impose liability for an omission to act?
There are a number of exceptions to the general exclusionary rule on liability for
an omission to act. There is a duty to act positively if there is a special relationship
or a relationship of power or control between the parties. In determining the
circumstances in which the general rule should be departed from, the following
questions are considered:
uu Has the defendant entered into a relationship with the claimant in which the law
attaches positive duties to see that harm does not befall the claimant?
Examples of such relationships are duties are owed by a parent to a child, by an

occupier of premises to a visitor, by an employer to employees in the workplace
(liability in these relationships will be considered in Part II). See generally: The
Ogopogo [1971] 2 Lloyd’s Rep 410 (Canadian case) where the defendant had
invited the claimant to be a guest on his yacht. The claimant accidentally fell
overboard. Did the relationship of host and guest carry a legal obligation to assist?
The defendant was not a mere bystander and was held to have a duty to take
reasonable care to save the claimant.
uu Has the defendant assumed responsibility for the welfare of the claimant in some
respect?
In Phelps v Hillingdon LBC [2001] 2 AC 619 the House of Lords held that an
educational psychologist, employed by the local authority, was under a duty of
care to Miss Phelps for failing to diagnose her dyslexia. The decision was based
on the fact that an educational psychologist is specifically called in to advise in
relation to the assessment and future provision for a specific child, and it is clear
that parents and teachers will follow that advice. Educational psychologists assume
a duty of care to pupils but according to Lord Slynn:
That phrase can be misleading in that it can suggest that the professional person
must knowingly and deliberately accept responsibility… The phrase means
simply that the law recognises that there is a duty of care. It is not so much that
responsibility is assumed as that it is recognised or imposed by the law.
A further example of assumption of a duty of care can be seen in Barrett v Ministry

of Defence [1995] 3 All ER 87. A sufficiently close proximity between the defendant’s
conduct and the claimant’s harm created an assumption of responsibility for the
claimant’s wellbeing. Here, there had been a pattern of excessive drinking among
soldiers at a remote Navy base, where drinks were very cheap. One night, after a
bout of heavy drinking, a soldier became unconscious. The duty officer arranged
for him to be taken to his room where he was left unchecked. He later died due to
choking on his own vomit and his widow brought an action in negligence against
the Ministry of Defence. The Navy was not liable for preventing the deceased
from excessive drinking or for anything that happened prior to his collapse.
However, when he collapsed the defendant assumed responsibility for him and the
measures taken fell short of the standard reasonably to be expected. There must
be proximity in the sense of a measure of control over, and responsibility for, the
potentially dangerous situation. We will see in Sutradhar v NERC (Chapter 7) the
House of Lords unanimously held the defendant could not be liable for what they
did not do. There was no relationship of proximity between the claimants and the
defendant that would give rise to a positive duty to test for arsenic in the water.
uu Has the defendant been thrust into a position which requires them to take some
action?
A defendant may be liable to remove a source of danger of which they are aware.
In Goldman v Hargrave [1967] 1 AC 645, the defendant’s redgum tree, 100 feet high,
was struck by lightning and caught fire. The defendant caused the land around the
burning tree to be cleared and the tree was then cut down. He did not extinguish
the fire after doing this in the belief that the fire would eventually burn itself out.
However, it kept smouldering and subsequently the wind increased and the fire
spread to his neighbour’s land. The defendant was negligent for failing to take
adequate precautions to extinguish the fire in the face of foreseeable risk. (Notice
that in such a case the defendant may not have to show the care of a reasonable
person, but only have to do what he is capable of, given his health and resources.)
Likewise, it would seem that a motorist whose car breaks down without any fault
may have to move it or take steps to warn others of the danger.
5.3 Liability for acts of third parties

The general rule is that there is no duty of care to prevent third parties from harming
others or causing damage by their deliberate wrongdoing. However, where there is
an existing relationship with the wrongdoer that involves control, a duty of care may
arise. The question which arises in respect of liability for acts of third parties is closely
related to the questions considered in the context of liability for omissions.
uu Does a relationship of control exist between the defendant and a third party?
In Home Office v Dorset Yacht Co Ltd [1970] AC 1004 some borstal trainees escaped
from custody during the night when, it was alleged, the three officers in charge of
them were asleep. The escapees went aboard a yacht and caused damage to the
plaintiff’s yacht which was moored close by. It was argued by the Home Office that
it would be contrary to public policy to hold it (or its officers) liable to a member
of the public for the acts of a third party (the borstal trainees) by failing to restrain
them. The issue here was also an omission; the failure of the prison authorities to
prevent the boys’ escape. A majority of the House of Lords concluded that a duty
of care was owed on the grounds that the relationship between the Home Office
and the borstal boys and the relationship between the Home Office and the yacht
owners was sufficiently proximate to give rise to a duty of care. The borstal boys
were under the control of the officers and control imports responsibility.
See also Carmarthenshire County Council v Lewis [1955] AC 549 where a young child
ran from his nursery school premises onto a busy road and caused an accident.
The House of Lords confirmed the responsibility of parents and teachers for the
behaviour of children and held that the defendants were under a duty to take
reasonable steps to prevent the child becoming a danger to others.
In Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, the Supreme Court
ruled a positive duty was owed to a patient known to be at risk of suicide. The
hospital trust was liable for allowing the patient to go home (against the wishes of
her parents) when she had previously attempted suicide. This claim was based on a
breach of Article 2 of the European Convention on Human Rights (everyone’s right
to life shall be protected by law).
5.3.1 What is the content of the duty?

Once it is decided that the defendant had a positive duty towards the claimants, you
must then ask what the content of that duty was.
In Smith v Littlewoods Organisation Ltd [1987] AC 241 the defendants purchased a

cinema which remained empty and unattended for over a month while waiting to
be demolished and rebuilt as a supermarket. During this time it was regularly being
broken into, mainly by child vandals. Contractors employed by Littlewoods knew
about the vandals but neither the defendant nor the police were informed about
them. Finally, a fire was deliberately started by the vandals which spread and caused
serious damage to the plaintiff’s property. Since the vandals would not be worth suing
the plaintiffs sought compensation from Littlewoods, claiming that the defendants
should have prevented the vandals gaining access to the cinema. The plaintiff’s claim
failed. Lord Goff dealt with the matter in terms of pure omission and held that there
is no general duty of care to prevent a third party from causing damage. However, he
expressed the view that liability would arise where ‘the defender negligently causes
or permits to be created a source of danger, and it is reasonably foreseeable that third
parties may interfere with it…’
The content of that duty, should it arise, was also considered: the risk has to be
weighed against the measures necessary to eliminate it and short of posting a 24-hour
guard over the property the defendants would not have been in a position to prevent
the vandals getting in. To require such a measure would impose an intolerable burden.
In Mitchell v Glasgow City Council [2009] UKHL 11 the House of Lords held that liability for
the criminal act of a third party would arise only where the person who was said to be
under that duty had by their words or conduct assumed responsibility for the safety
of the person who was at risk. The question here was whether the local authority had
assumed a positive duty to protect one of its social housing tenants who, following
a long campaign of abuse and threats, was murdered by a fellow tenant. Although
the local authority had been aware that the victim’s neighbour might resort to
violence after being informed that he risked being evicted, the required element of a
relationship of responsibility was absent; it would not be ‘fair, just and reasonable’ to
impose this duty on a public authority coping with an onerous burden of anti-social
behaviour among tenants.
See also Banque Financiere de la Cite SA v Westgate Insurance Co [1991] 2 AC 249; Reeves
v Commissioner of Police of the Metropolis [2000] 1 AC 360; Barrett v Ministry of Defence
(above) and Jebson v Ministry of Defence [2000] 1 WLR 2055.
Activities
activity 5.1
Core comprehension – liability for omissions

This core comprehension activity focuses on the duty of care owed to the public by
a variety of rescue services. This comprehension supports your understanding of
the topic of liability for omissions.
You can further extend your knowledge in this area by completing the applied
comprehesion activity (below) on the recent case of Michael v Chief Constable of South
Wales [2015] UKSC 2.
Find and read the case of Capital and Counties Plc v Hampshire County Council [1997]
QB 1004 and Lunney and Oliphant, Chapter 9 ‘Negligence: duty of care – omissions
and acts of third parties’, Section II ‘Liability for omissions’ and answer the following
questions.
a. Identify the three circumstances which may give rise to duties of affirmative
action.
b. The umbrella term ‘rescue services’ includes a variety of services; name a few
examples of the types of rescue services which owe a duty of care to the public.
c. Outline the two approaches to attaching liability to the rescue services as

advanced by the plaintiffs in the Capital and Counties Plc case.
d. Which ‘peculiarity’ is an important distinguishing feature of cases involving the

duty of care of rescue services?
e. Which negligent act of Station Officer Mitchell created ‘the danger which caused
the plaintiff’s injury’?
activity 5.2
Applied comprehension – liability of the police

This comprehension focuses on the liability principles considered in a claim in
negligence against the police. It links to the core comprehension activity in Chapter
7 on the duty of police to protect victims of crime.
Find and read the case of Michael v Chief Constable of South Wales [2015] UKSC 2 and
a. Paraphrase, in no more than 150 words, the main argument against a general
duty of care owed by the police to individual members of the public.
b. Name the three principal reasons for a reluctance to extend the scope of the
duty owed.
c. Identify the three different liability principles the Supreme Court considered
under the claim in negligence against the police.
d. When applying ‘the interveners’ liability principle’ which ‘further ingredient’ is

necessary to impose liability on the police to intervene to protect an individual?
e. Which two main arguments were advanced in support of the interveners’

liability principle?
f. Describe Lord Kerr’s alternative liability test.
g. Identify why arguments of distributive justice may influence the discussion of

proximity of relationship and public policy.
h. Outline the human rights implications of this case.
i. Which positive outcome does Lady Hale envisage from proceeding in such a
claim?
Notes
Part II: Negligence 1: defining the modern duty of care
6 Basic principles
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.1 Elements of negligence . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.2 The modern tort of negligence . . . . . . . . . . . . . . . . . . . . . . 60
6.3 Structure of the tort . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.4 Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Introduction
Negligence is the most important modern tort. It is founded on a principle of wide and
general application.
This chapter outlines some of the social and policy questions that have influenced the
development of negligence. The basic structure of the tort and the organisation of the
material in subsequent chapters is also described.
Negligence is now a tort of great size and complexity. This guide (as in most textbooks)
sets out the questions of duty, breach, causation and remoteness in that order. This
often means that some of the most complex issues are dealt with at great length
under the heading of ‘duty of care’.
Learning outcomes
be able to:
uu discuss the emergence of a unifying principle in the tort of negligence
uu indicate some of the social and policy questions that have influenced the
development of the tort
uu define the principles which led to an expansion of negligence liability and the
extent to which the courts have retreated from this expansion
uu explain how negligence is structured on the concepts of duty of care, breach of
duty and resulting non-remote damage.
Essential reading
¢¢ Lunney and Oliphant, Chapter 3 ‘Negligence – Introduction’, Sections I
‘Formulation of a general duty of care’ and II ‘The duty of care in the modern
law’.
Tort law 6 Basic principles page 59
6.1 Elements of negligence

So, what is negligence? The Oxford dictionary defines negligence as a ‘lack of proper
care and attention’ or ‘carelessness’ and carelessness is indeed the foundation
of the tort of negligence. But, while carelessness is a necessary condition for the
establishment of liability in the tort of negligence, it is not a sufficient condition.
In order to succeed in an action in negligence a claimant must prove all the elements
of the tort outlined below. The defendant will succeed if any one of them is not
proved, so will focus on the areas of weakness in the particular case. The leading
case of Hill v Chief Constable of West Yorkshire [1989] AC 53 will serve to illustrate the
operation of the following four elements of the negligence matrix.
1. That a duty was owed to the claimant by the defendant in respect of the loss or
injury sustained.
2. That the defendant carelessly did something or carelessly omitted to do

something, resulting in a breach of that duty.
3. That there is a causal link between the breach of duty and the damage or other loss
that the claimant sustained.
4. That the damage or other loss sustained was of a type that could reasonably be
expected to result from the breach of duty.
The claim was brought by the estate of Jacqueline Hill, the last victim of the mass
murderer Peter Sutcliffe, known as the ‘Yorkshire Ripper’. The claim for damages was
made on the basis that the police had negligently failed to apprehend the murderer
before the victim was killed. It was at least arguable that the police had failed to
investigate the case effectively. If they had done so, they might well have caught
Sutcliffe before his last offence.
The negligence question would be posed thus.
uu Did the West Yorkshire police owe a duty to Jacqueline Hill to take care in the
investigation of the case and thus avoid her injury? – The duty question.
uu Was the investigation in fact flawed and was the flaw such that a reasonable person
placed in the same circumstances as the defendant would have taken care to avoid
this flaw? – The breach question.
uu Was the flawed investigation the proximate cause of the death of Jacqueline Hill? –
The causation question.
uu Was death a form of injury or loss that could reasonably be foreseen as a result of
the flawed investigation? – The remoteness question.
Notwithstanding that harm was reasonably foreseeable, the House of Lords held
that there was insufficient proximity between the police and the victim. Sutcliffe’s
offences were fairly random. Any woman was at risk. However, public policy (discussed
below) was also a factor in this decision. Their Lordships stated that a general duty of
care to protect all members of the public from the consequences of crime would be
impracticable and, on grounds of public policy, deeply damaging to police operations.
In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 the Supreme Court
dismissed arguments that Hill established a principle that public policy is capable
of constituting a separate and independent ground for holding that liability in
negligence should not be imposed. The absence of a duty of care on the police based
on public policy was said to be a misunderstanding and misinterpretation of the
law. The police, in common with everyone else, owe a duty of care to avoid causing
foreseeable personal harm to another person. The common law does not normally
impose liability for omissions. Under the ‘omissions principle’, liability is not imposed
for omissions to act, or more particularly, for a failure to prevent harm caused by the
conduct of third parties.
The police, when discharging their functions of preventing and investigating crime,
owe a duty of care to avoid causing foreseeable harm under the ordinary principles of
negligence; they do not owe a duty to members of the public to prevent harm caused
by others. Lord Reid, giving the lead judgment in Robinson summarised the position in
the following way [34]:
…public authorities, like private individuals and bodies, are generally under no duty of
care to prevent the occurrence of harm: as Lord Toulson stated in Michael, ‘the common
law does not generally impose liability for pure omissions’ (para 97). This ‘omissions
principle’ has been helpfully summarised by Tofaris and Steel, ‘Negligence Liability for
Omissions and the Police” (2016) 75 CLJ 128:
In the tort of negligence, a person A is not under a duty to take care to prevent harm
occurring to person B through a source of danger not created by A unless (i) A has
assumed a responsibility to protect B from that danger, (ii) A has done something
which prevents another from protecting B from that danger, (iii) A has a special level of
control over that source of danger, or (iv) A’s status creates an obligation to protect B
from that danger.
The Supreme Court ruling in Robinson marks a retreat by the Senior Courts from
a policy-based justification for not imposing liability on public bodies; under the
ordinary principles of negligence a duty to prevent harm by others will not be
imposed (other than in the exceptional circumstances outlined above).
6.2 The modern tort of negligence

In the context of legal history, negligence is a relatively recent tort to emerge in its
own right. The older torts are normally identified by the interests they protect. For
example, trespass protects bodily integrity, defamation protects reputation and
the tort of nuisance protects use and enjoyment of land. The tort of negligence is
not usually concerned with intentionally inflicted harm; it is more concerned with
protecting against accidental harm where the defendant has been at fault. Even
before the emergence of negligence there had already been a large number of
specific actions based on fault but there was no unifying principle of wide and general
application.
Weir (2006, p.29) comments on the dominance of the tort of negligence today and its
pervasiveness in controlling traffic accidents, professional liability and so much else.
He notes that before the tort of negligence became prevalent:
… there had long been certain specific situations not covered by trespass where liability
was imposed if the claimant could prove that the defendant’s misconduct had caused
him harm – for example, if he was the patient of a careless doctor, or the victim of injury
on the defendant’s premises, or the owner of a thing damaged while in the defendant’s
possession – one could not properly speak of a coherent tort of negligence until these
instances were generalized.
In Donoghue v Stevenson [1932] AC 562 (see Chapter 7) the House of Lords sought to
unify these disparate duties of care by setting out the nature of the relationship
between the claimant and the defendant in which a duty is imposed on the defendant
to avoid causing injury to the claimant.
The underlying idea in a negligence action is very simple. If the claimant’s injuries
result from behaviour that falls short of socially acceptable standards, then there
should be compensation. If they do not, then the victim should bear the loss without
compensation. Since carelessness is not generally criminal, the tort of negligence is the
means by which the law attaches consequences to unacceptable behaviour. Lord Diplock
once described negligence as the ‘application of common sense and common morality
to the activities of the common man’ (Doughty v Turner Manufacturing Co [1964] 1 QB 518).
The claimant will in some circumstances be the only person to whom the duty was owed
(a surgeon and patient for example); in others the claimant will be a member of a very
large and possibly ill-defined class of persons to whom the duty was owed (a car driver
and other road users).
Tort law 6 Basic principles page 61
6.3 Structure of the tort

Negligence of course means carelessness, but in 1934 Lord Wright said:
In strict legal analysis, negligence means more than heedless or careless conduct, whether
in omission or commission: it properly connotes the complex concept of duty, breach and
damage thereby suffered by the person to whom the duty was owing.
(Lochgelly Iron & Coal Co v McMullan [1934] AC 1 at 25)
This sentence encapsulates the traditional tripartite structure of negligence as a tort.

It is a reminder that it is not enough to show that a defendant was careless: the tort
involves a breach of duty that causes damage that is not too remote. Each of the
emboldened words will in due course require detailed examination.
However, these propositions are not rigidly separate. They are convenient for
the purpose of explaining the law, but the concepts of duty, breach and damage
sometimes overlap and the separate elements frequently fail to provide a clear answer
as to whether a claim should be allowed. In Lamb v Camden LBC [1981] QB 625 Lord
Denning said: ‘it is not every consequence of a wrongful act which is the subject of
compensation’. Lines have to be drawn somewhere:
Sometimes it is done by limiting the range of the persons to whom a duty is owed.
Sometimes it is done by saying that there is a break in the chain of causation. At other
times it is done by saying that the consequence is too remote to be a head of damage. All
these devices are useful in their way. But ultimately it is a question of policy for the judges
to decide.
Occasionally, a court will indeed explicitly organise its judgment under the headings
of duty, breach and damage. There is an example in Al-Kandari v Brown [1988] QB
665 but you will find other examples where a single set of facts can be analysed in
different ways. In some cases, on the same set of facts, one judge might deny liability
on the grounds that no duty was owed, and another judge might deny liability on the
grounds that, although a duty was owed, it had not been breached.
6.4 Policy
The law of negligence has undergone enormous change and development in the
last 50 years. Mostly, this has involved an expansion of liability, but quite often the
courts have retreated and cut back on the extent of liability. This, in turn, leads to
inconsistency and uncertainty. In Woodland v Swimming Teachers Association [2013] 3
WLR 1227, Baroness Hale of Richmond said at [28]:
The common law is a dynamic instrument. It develops and adapts to meet new situations
as they arise. Therein lies its strength. But therein also lies a danger, the danger of
unbridled and unprincipled growth to match what the court perceives to be the merits
of the particular case. So it must proceed with caution, incrementally by analogy with
existing categories, and consistently with some underlying principle: see Caparo Industries
plc v Dickman [1990] 2 AC 605.
We have seen in Chapter 2 that because of concerns about a floodgate of litigation and We have seen in Chapter 1
indeterminate liability, certain types of injury or loss (e.g. psychiatric injury and pure that judges have recently
economic loss) are excluded or limited from the scope of negligence. You will also expressed concerns about
discover that certain groups of defendants, such as the police, fire services and local the impact of negligence
authorities (education and social services), are protected from negligence liability. liability on socially beneficial
activities such as school trips.
The reasons for this are complex, but they have in part to do with conflicting policy
objectives. Policy considerations are not based on recognised legal principle; they are
based on the wider social and economic implications of finding a defendant liable.
The Hill principle was applied in a series of judgments in the House of Lords and the
Court of Appeal but in Robinson the Supreme Court has now said that public policy for
reasons of not imposing a duty on the police have been superseded by the return to
the omission principle for non-liability.
Nevertheless, it is important to understand these policy objectives and the way they
are contributing to the development of the duty of care in negligence. You will see
that policy is also important in determining breach of duty, causation and remoteness
of damage. We have already come across a number of cases where the House of Lords
has based its conclusions for or against liability by reference to what people generally
would regard as fair (Alcock and Rees in Chapter 2 and Tomlinson in Chapter 1). However,
the public’s view of what is fair may change over time. One question to consider is how
far the law correctly reflects a public sense of fairness.
Activities
activity 6.1
Core comprehension – duty, breach, damages

Find and read the case of Al-Kandari v Brown [1988] EWCA Civ 13, [1988] QB 665, [1988]
1 All ER 833, [1988] 2 WLR 671 and answer the following questions.
The paragraphs of this judgment are not numbered, therefore for ease of reference
the questions follow the sequence of the judgment and are annotated with the
heading of the relevant section. Note the partial dissent by Lord Bingham which
follows the leading judgment.
a. Who did Mrs Al-Kandari sue and why? Summarise in fewer than 70 words the
facts of the case as stated in the introductory paragraphs of the judgment.
b. THE DUTY – Explain why the defendant’s solicitors owed the claimant a duty of
care.
c. THE BREACH – Identify the three reasons given for the finding of a breach of duty
of care.
d. THE DAMAGE SUFFERED – Why did the Court hold that the damage suffered by the
claimant was a natural and probable consequence of the breach?
e. DAMAGES – What type of loss did Mrs Al-Kandari suffer and on what grounds was
the award for damages upheld? How much was she awarded?
f. ADDITIONAL RESEARCH – If you wish to know more about Mrs Al-Kandari’s ordeal
and her recognised loss, you will find this in the judgment of the lower court.
Can you identify the relevant passages which detail the loss?
7 Development of the duty of care concept
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.1 When can a duty of care be assumed to exist? . . . . . . . . . . . . . . 65
7.2 The function of the duty of care . . . . . . . . . . . . . . . . . . . . . 65
7.3 Development of the duty concept . . . . . . . . . . . . . . . . . . . . 66
7.4 Summary of the duty concept . . . . . . . . . . . . . . . . . . . . . . 72
7.5 Novel situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
7.6 Duties of lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.7 Duty of care to unborn children . . . . . . . . . . . . . . . . . . . . . 73
7.8 Duty of care to employees . . . . . . . . . . . . . . . . . . . . . . . . 74
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Introduction
The requirement of a duty of care is always a precondition of liability in negligence.
This chapter introduces this first element in establishing an action in negligence. Did
the defendant owe the claimant a duty to take care?
Focusing on key cases, we will examine the development of the duty concept. Each
element of the current duty of care test, as formulated in the case of Caparo Industries
Plc v Dickman [1990] 2 AC 605, will be explored.
Learning outcomes
be able to:
uu discuss the neighbour test
uu explain the way in which the duty concept was expanded in subsequent cases
uu discuss the current approach to the existence of a duty of care
uu explain how duty acts as a control device.
Essential reading
¢¢ Lunney and Oliphant, Chapter 4 ‘Breach of duty’, Sections I ‘Introduction’, II
‘Reasonable care: relevant considerations’, III ‘Negligence judged from the
defendant’s standpoint’, IV ‘The objective standard of care’ and V ‘Common
practice’.
Tort law 7 Development of the duty of care concept page 65
7.1 When can a duty of care be assumed to exist?

When can you avoid detailed analysis of the duty concept? First there are categories of
relationship where it has long been established that a duty of care is owed. These are
known as fixed duties.
7.1.1 Fixed duties

uu An employer owes a duty of care toward their employees in respect of three distinct
areas: place of work, system of work, plant and machinery. See Section 7.8 below.
uu In a revolutionary move, the UK Supreme Court extended the categories of non-

delegable duties to a local education authority that had outsourced the provision
of swimming lessons to an independent contractor in Woodland v Swimming
Teachers Association [2013] UKSC 66. The Council were in principle liable for harm
suffered by a 10-year-old girl when independent contractors engaged to provide
swimming lessons failed to ensure her safety. The girl had been entrusted into
the school’s care and control and swimming tuition was an integral part of the
educational activities provided.
Lord Sumption set out a five-stage test for determining when a non-delegable duty
applies.
1. The subject of the duty is a child, patient or other vulnerable person,

dependent on the defendant’s protection from harm.
2. There must be a relationship of control between the defendant and the

claimant which exists independently of the acts from which the allegations of
negligence arise.
3. The claimant must have no control over how the defendant performs their
obligations/functions.
4. The defendant must have delegated to a third party the functions which the
defendant has a legal duty to perform.
5. The third party is negligent in the performance of the particular function which
the defendant has a legal duty to perform.
uu An occupier of premises owes a duty of care to ‘lawful visitors’ under the Occupiers’
Liability Act 1957 and, in some circumstances, to trespassers under the Occupiers’
Liability Act 1984. At common law, and by virtue of statute, liability is imposed on a
manufacturer and sometimes on a retailer in respect of injury caused by defective
products. Indeed, the modern law of negligence owes its existence to a decision on
product liability at common law. Other relationships, such as parent/child; doctor/
patient; motorist/other motorist/pedestrians are classes of relationships where a
duty is usually not controversial.
7.1.2 Duties not ‘fixed’

uu In cases where the duty relationship is not ‘fixed’ in the above sense, it may yet be
easily established. Generally, there is little difficulty in fixing a duty where physical
damage to the person or property is caused by the direct act (not omission/not
third party) of the defendant.
7.2 The function of the duty of care

As indicated in Chapter 2, the general philosophy underpinning tort law is that losses
should lie where they fall. Only exceptionally should someone other than the party
injured or suffering the loss in question bear those losses. The duty of care operates
against this philosophical background, determining when it would be justifiable
to depart from the principle and shift the loss from the innocent claimant to the
defendant or spread the losses suffered by the innocent claimant among society at
large. Conaghan and Mansell express the position thus:
The concept of a duty of care in negligence is an essential factor in determining whether

it is proper to redistribute the plaintiff’s loss to the defendant. This is, in turn, informed by
the assumption that individuals should, in general, bear their misfortunes alone unless
there is some good reason for shifting the loss on to someone else...
(1998, p.11)
The duty question arises only after it is established that someone has suffered loss or
injury allegedly at the hands of the defendant. It is not a question that is ever posed in
the abstract. The duty question (is there a duty of care or not?) is one that proceeds
on the basis that one person could cause serious harm to another and yet not be liable
in tort because the person allegedly causing the harm had no duty or obligation to
avoid causing such harm. In short, the function of the duty of care is to limit liability for
careless conduct.
7.3 Development of the duty concept

In order to begin to evaluate how effectively the duty concept performs its principal
function of limiting liability for carelessly inflicted loss, you must first understand
the principles or criteria according to which a duty can be found. In the context of
legal history, negligence is a comparatively recent tort and it is an area of law that
is still developing. Traditionally, most tort claims required the claimant to prove an
intentional and direct interference with their person or property but the courts began
to recognise that, in the majority of cases, the harm suffered by the claimant was
caused by careless conduct and not where the defendant’s conduct was intentional.
Liability for negligent conduct was recognised only in certain carefully defined
circumstances such as the duty of care owed in a doctor and patient relationship or
where fire damage resulted from negligence. Outside these relationships, there was
no test for identifying an underlying principle of liability until Donoghue v Stevenson
(1932) where the House of Lords set out a general rule of liability for harm caused by
negligence.
7.3.1 Foresight, proximity and Donoghue v Stevenson

At this point we need to engage in a brief exposition of the key cases that have
marked the development of the duty concept, identifying their specific contribution
to our understanding of the concept today. We shall start by examining two of these
principles – foresight and proximity – that were present at the earliest formulation of
the duty concept, which was in the 1932 decision in Donoghue v Stevenson.
7.3.2 The neighbour principle

Donoghue v Stevenson concerned a defective product – a bottle of ginger beer – at the
bottom of which was a decomposed snail, invisible to the consumer of the product
because the glass was opaque. The person who consumed the ginger beer was not the
purchaser of the beer, so suffered no financial loss and had no contractual remedy. But
she did suffer damage – physical damage – gastroenteritis, in fact. The question, then,
was whether she had any remedy for her loss. If any remedy was to be found it would
be in the area of law governing liability for careless conduct – a very under-developed
area of law.
The House of Lords, in a landmark decision, concluded that the claimant could recover
damages for her loss. To the question whether the manufacturers owed the particular
claimant a duty to take reasonable care in the manufacture of the product to ensure
that products are safe, the Court replied in the affirmative, stating in summary that a
manufacturer of goods which are intended to reach the ultimate consumer without
opportunity for intermediate inspection owes a duty to ensure that the product does
not cause injury.
But if that were the only contribution to the law from the case – if all we could say is
that manufacturers owe consumers a duty of care in the manufacture of goods – we
would have no general conception of negligence but merely a decision on a particular

incidence of negligent conduct. The ratio of the decision does not alone tell us why
the manufacturer is deemed liable, nor does it help the courts to determine whether
solicitors who are careless and cause loss to their clients – or to beneficiaries – owe
a duty to the client or beneficiary to take care, or whether police or security officers
at large crowded events owe a duty to an individual injured as a result of a failure
of crowd control to take reasonable care in their duties. To answer these extended
questions of liability, principles were needed that could encompass factual scenarios
and create legal relations beyond that of manufacturer and consumer, or as Lord Atkin,
the presiding judge in Donoghue v Stevenson, put it:
… in English Law there must be, and is, some general conception of relations giving rise to
a duty of care, of which the particular cases found in the books are but instances…
Such a general conception must acknowledge that:
acts or omissions which any moral code would censure cannot in a practical world be
treated so as to give a right to every person injured… to demand relief. In this way rules of
law arise which limit the range of complainants and the extent of their remedy.
He then proceeded to set out this general conception of relations that would give rise
to a duty of care in what has become a classic obiter dicta statement. The core of the
duty concept as it is understood today is contained in the following passage:
The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply.
You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The
answer seems to be – 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 in question.
7.3.3 Foresight and proximity

From the above passage we see articulated the first two elements of the duty test that
presently determines liability in negligence. It is only those acts which a defendant can
reasonably foresee would be likely to injure a claimant which give rise to the duty to
take care. But reasonable foresight is not sufficient. A defendant is not required to take
care in relation to acts or omissions that are likely to cause harm to anyone, but only
those acts or omissions likely to cause harm to a legal neighbour (the requirement we
now refer to as proximity). That is, the claimant must be someone who ought to be
in the contemplation of the defendant when the act or omission that causes harm is
being put into motion.
Let’s apply these two principles to Donoghue’s case. The first stage of the inquiry is
to determine what loss or injury has been suffered – which is why we began with
a general consideration of the concept of damage (Section 2.8). The duty question
is used to determine whether damage that has clearly been suffered is damage for
which a duty of care is owed. Donoghue suffered traumatic physical injury – a form of
damage that, as you will recall, usually does not pose problems to the law merely by
reason of the nature of the damage.
The duty question in relation to Donoghue would be posed thus: did the manufacturers
(defendants) owe a duty to take reasonable care in the preparation of their product to
avoid damage of the kind the claimant suffered? On the basis of Atkin’s neighbour test,
the answer to that question requires an affirmative answer to two further questions:
first, was it reasonably foreseeable that the claimant would suffer physical injury if
a noxious substance were introduced into the product? Second, was the claimant
someone that the manufacturer ought to have had in contemplation when preparing
the product?
Both questions were answered in the affirmative: in Donoghue, the fact that the drink
was contained in an opaque bottle meant that there was no possibility of the claimant
being alerted to the defect in the product. This being so, it was reasonably foreseeable
that a failure to take care would bring about injury of a kind that actually occurred. As
to the question of neighbourhood, the court reasoned that since the intention was that
the product would reach the consumer and be consumed by her or someone like her
the manufacturer must have had the consumer in mind when creating the product.
7.3.4 The proximity test

We have seen that closely related to the notion of foresight and reasonable
contemplation of harm, Lord Atkin emphasised the need for a relationship of
proximity between the parties, but this does not necessarily mean that the claimant
must be in a close physical or spatial relationship to the defendant. Proximity is used
as a convenient label to describe the relationship between the parties and the facts
giving rise to a duty of care. The case below illustrates that a duty of care is not owed
in all cases in which it is foreseeable that in the absence of care someone may suffer
physical injury. There must be proximity in the sense of a measure of control over, and
responsibility for, the potentially dangerous situation.
Case law example

In Sutradhar v NERC [2006] UKHL 33 a villager, one of a large number of people
in Bangladesh affected by arsenic contamination of his drinking water, alleged
that the defendant caused or materially contributed to his illness, either by
failing to draw attention to the presence of arsenic in the water or by issuing a
report which represented that his water was safe to drink. The defendants had
been commissioned by the Overseas Development Agency to test local water
for minerals which might be harmful to fish. They had not been required to,
nor did they ever consider, the testing of the water for arsenic. It was claimed
that there was no arguable case that they were in a relationship of proximity
with the population of Bangladesh which could make them liable on either of
these grounds. The House of Lords (upholding the Court of Appeal decision)
unanimously held there to be no relationship of proximity between the claimants
and the defendant that would give rise to a positive duty to test for arsenic in the
water. In the opinion of Lord Hoffmann, the claim was hopeless. He said at [38]:
[The] principle is not that a duty of care is owed in all cases in which it is
foreseeable that in the absence of care someone may suffer physical injury.
There must be proximity in the sense of a measure of control over and
responsibility for the potentially dangerous situation. Such a principle does
not help the Claimant... The [defendant] had no control whatever, whether
in law or in practice, over the supply of drinking water in Bangladesh, nor
was there any statute, contract or other arrangement which imposed upon
it responsibility for ensuring that it was safe to drink.
Establishing the existence of a duty of care is the first hurdle in a negligence
claim. This question is frequently argued as a preliminary issue before evidence is
produced and the facts of the case determined. This is a useful means of filtering
out hopeless claims such as, in this case, where Lord Hoffmann said: ‘[W]hen one
considers the scale and cost of a trial, the case for stopping the proceedings now
appears to me to be overwhelming.’
7.3.5 Proximity and just, fair and reasonable

Having considered the first two elements of the duty test, we now move to consider
the origins of the just, fair and reasonable test (the three-stage test) for duty of care,
which was believed to have been added by the House of Lords in Caparo Industries plc v
Dickman [1990] 2 AC 605. However, in Robinson v Chief Constable of West Yorkshire Police
the Supreme Court rejected the Court of Appeal’s view that the Caparo three-stage
test applies to all cases in the modern law of negligence. In reviewing the role of the
Caparo test the Supreme Court considered the following line of cases.
Until the late 1970s, judges were content to determine the existence of a duty of care
where damage was found to be reasonably foreseeable and where there was found to
be a sufficient relationship of neighbourhood or proximity. Indeed, in 1970, Lord Reid in
the case of Home Office v Dorset Yacht Co Ltd [1970] AC 1004 stated that in all negligence
actions in which duty was in issue there should be a presumption that the Atkin test
would apply and would be sufficient to determine the issue of duty or no duty.
By the late 1970s, however, it began to be felt that the Atkin test was not sufficient. The
reason for growing concerns over the limitations of the Atkin formula was increasing
recognition that claimants were suffering damage of a type that raised more
complicated questions than did traumatic physical injury – the most common form of
injury suffered as a result of careless conduct when the duty test was first formulated.
Economic losses resulting from negligent acts or negligent misstatements were

particularly troubling at that time and it was felt that the twin concepts of foresight and
proximity were insufficient in the face of such losses to enable the duty test to perform
its primary function of limiting liability for negligently occasioned injury or loss. To put
it another way, there was a danger that losses or injury of a kind that the tort system did
not desire to provide compensation for would pass the foresight and proximity test.
Another element needed to be added to the Atkin test to allow the duty concept to
continue to perform well as a limiting mechanism. Lord Wilberforce, presiding in the
case of Anns v Merton LBC [1978] AC 728 (now no longer good law) attempted to add
that missing element.
Lord Wilberforce stated:
[The duty] 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 of 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 negative, 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…
The first stage of the test in Anns incorporates Atkin’s neighbour principle. The second
stage envisages ‘policy’ factors negating, reducing or limiting a duty, which but for
those policy reasons would be found.
7.3.6 Anns: legal principle and policy

There is a clear separation in Wilberforce’s test between legal principle and policy.
According to the test legal principle itself determines whether there is a duty of care
(the first limb) and policy (the second limb) may then operate to limit or exclude the
duty. Wilberforce’s test was widely criticised by academics and judges alike. The test
was finally laid to rest in the case of Murphy v Brentwood DC [1991] 1 AC 398.
The Anns test was criticised precisely because of the purported separation of principle
and policy. This separation was said to result in two adverse circumstances: first, it
created confusion over the question of the function of the duty concept. Reasoned
from the point of view of the function of the duty of care, it would be impossible to say
that policy did not itself inform the duty question. For if we accept that the function
of the duty of care is to limit liability for reasons of policy, then it follows that the duty
concept itself is constructed largely of policy elements. Wilberforce’s test denies this.
uu The first adverse consequence of the separation of principle and policy was not
that policy was explicitly engaged in judicial decision-making, but that the test
separates policy factors from the question of whether a duty is found. Judges both
then and now acknowledge the importance of policy considerations to all elements
of the duty test but contrary to Wilberforce’s formulation it was felt that these
policy factors go to determine whether there is a duty – there can be no question of
a duty arising at all if policy factors strongly suggest that the case before the courts
is not one in which it is justifiable to spread or shift the claimant’s loss.
uu The second adverse consequence perceived to come about as a result of

Wilberforce’s separation of principle and policy was that Wilberforce’s approach to
the duty question was felt to be liability expansive rather than liability restrictive.
In short, it achieved the precise opposite of the intended result. More ‘novel’
negligence cases were successfully litigated. Indeed, during the period that Anns
remained authoritative, liability in tort did expand towards pure economic loss,
negligently inflicted. Since Anns was overruled by Murphy in 1990, liability for
negligently inflicted pure economic loss has been severely curtailed.
It is important to emphasise that the second limb of the Wilberforce test essentially
marks the conceptual origins of the just, fair and reasonable criteria by bringing about
a more explicit engagement with policy factors in decision-making on the duty of care.
7.3.7 Just, fair and reasonable: Caparo

Mainly as a reaction to the liability expansive period following the Anns decision,
judges in the late 1980s and 1990s expressed scepticism over the very question that
Lord Atkin posed in Donoghue v Stevenson. It is to be recalled that Atkin set out to find
a ‘general conception of relations giving rise to a duty of care of which the particular
cases found in the books are but instances…’
According to Lord Bridge and Lord Oliver (in Caparo), judges should not seek ‘a single
general principle’ underlying the duty of care but rather should develop the duty of
care incrementally.
In Robinson the proposition that there is a Caparo test that applies to all claims in the
modern law of negligence was held to be a misunderstanding of the whole point of
Caparo. Lord Bridge adopted an incremental approach (and not a supposed tripartite
test) based on the use of established authorities to provide guidance as to how novel
questions should be decided:
I think the law has now moved in the direction of attaching greater significance to the
more traditional categorisation of distinct and recognisable situations as guides to the
existence, the scope and the limits of the varied duties of care which the law imposes.
7.3.8 What does incrementalism mean?

What does incrementalism (as Lord Bridge’s approach has come to be known) mean
in practice? An incremental approach to the development of the duty of care has been
taken to mean that judges (when faced with a question about whether a duty should
be imposed or not in a given case) will be guided by underlying general principles
– foresight and proximity – but to the existence of these general principles must be
added some relation or analogy between the situation or circumstance giving rise to
harm or other loss that is before the judge and a situation that had in the past been
judged to be one to which a duty of care should attach itself. Lord Bridge in Caparo
quoted an Australian High Court Judge:
It is preferable, in my view, that the law should develop novel categories of negligence
incrementally and by analogy with established categories, rather than by a massive
extension of a prima facie duty of care restrained only by indefinable ‘considerations
which ought to negative, or to reduce or limit the scope of the duty or the class or person
to whom it is owed.’
Why did Lord Bridge consider that principles such as foresight and proximity, although
significant to the development of the law of negligence, could no longer be relied
upon to found new duty situations?
In his view (echoed by other judges in the case) such terms:
are not susceptible of any such precise definition as would be necessary to give them
utility as practical tests, but amount in effect to little more than convenient labels to
attach to the features of different specific situations which, on a detailed examination of
all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a
given scope…
7.3.9 Application of Caparo

On the rare occasions when it is necessary to test for the existence of a duty of care,
their Lordships in Caparo are firmly indicating that there must be a specific enquiry
considering the precise facts and context, with each of the various factors being given
appropriate weight. In Robinson Lord Reed confirmed that these factors should not
be a routine consideration in deciding cases in the law of negligence. This will result
in a specific ruling which can of course subsequently be applied by analogy to similar
situations. The House of Lords has subsequently confirmed this approach in Customs
and Excise Commissioners v Barclays Bank Plc [2006] 3 WLR 1.
In Marc Rich & Co v Bishop Rock Marine Co Ltd [1995] 3 All ER 307, a vessel, ‘The Nicholas
H’, developed a crack while carrying a cargo from South America to Italy. A surveyor
employed by a marine classification society pronounced that, with temporary welding
work, the vessel was fit to complete the voyage. A few days later the ship sank with a
total loss of the cargo. The damage was physical harm (for which a duty is normally
owed upon foresight of harm) rather than pure economic loss resulting from the
surveyor’s negligent statement that the vessel was seaworthy. However, the House
of Lords held that this was insufficient to give rise to a duty of care and no duty was
owed by the classification society to the cargo owners. A number of policy factors
pointed against a decision in favour of the cargo owners: classification societies were
independent non-profit making entities, operating for the sole purpose of promoting
the collective welfare, namely, the safety of ships and lives at sea; a finding of liability
might lead to classification societies adopting a more ‘defensive position’; if a duty
of care were to be recognised it would enable cargo owners, or their insurers, to
upset the balance of the international conventions (the ‘Hague Rules’) governing
shipowners’ liability to cargo owners. In addition, another layer of insurance cover
would be wastefully introduced into the structure.
However, in Watson v British Boxing Board of Control [2001] QB 1134 the fact that the
British Boxing Board, the governing body of the sport in the UK, was a non-profit-
making organisation (like the defendant in the Marc Rich case) was not enough to
deny the justice of finding liability. Here, a boxer who had suffered brain damage
following a boxing match alleged that the Board had been negligent in not providing a
better level of ringside medical care. Lord Phillips in the Court of Appeal described the
case as unique because here, rather than preventing it, the causing of physical harm
was the object of the activity. Taking account of the boxer’s reliance on the Board to
reduce the effects of injuries once they occurred the court concluded that in all the
circumstances of the case it was fair, just and reasonable to impose a duty of care.
The Caparo test was applied in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ
151, where the Court of Appeal confirmed the view of the trial judge that it was not fair,
just and reasonable to impose a duty of care on Accident and Emergency (A&E) reception
staff to inform patients accurately of waiting times (an appeal to the Supreme Court has
been allowed). Here the claimant attended the hospital A&E department and was told
that the expected waiting time was 4–5 hours. The receptionist failed to add that he
would be seen by a triage nurse within 30 minutes but the claimant left after 19 minutes.
Later that evening, his condition deteriorated and he suffered permanent disabilities,
which could have been avoided with prompt treatment. The question was whether
the scope of the duty of care owed to patients by reception staff included accurate
notification of waiting times. The claimant sought to rely on Kent v Griffiths (2001) which
also concerned a ‘delay’ (discussed at Section 11.10). The duty on the ambulance service
was distinguished from a general duty on civilian receptionists: the ambulance service is
under a duty to take reasonable care to pass on correct information but to impose such a
duty on civilian staff in respect of information about hospital waiting times would add to
staff responsibilities and increase potential claims in negligence against the NHS.
7.3.10 An alternative test: assumption of responsibility

For some purposes, an alternative test has been developed, namely whether there
had been a voluntary assumption of responsibility by the defendant for the claimant.
This test is particularly used in cases of liability for omissions (it is also used for Four tests for the existence of
misstatements and for economic loss, as discussed in Part II). a duty:
• the neighbour principle
• a revised test (Lord
7.3.11 The current position
Wilberforce)
The existence of a duty of care does not depend on the application of a ‘Caparo test’ to • the current test: foresight,
the facts of the particular case; it depends on the application of established principles proximity and fairness
of the law of negligence. According to Lord Reed in Robinson [29]: • an alternative test:
assumption of
Properly understood, Caparo thus achieves a balance between legal certainty and justice. responsibility.
In the ordinary run of cases, courts consider what has been decided previously and
follow the precedents (unless it is necessary to consider whether the precedents should
be departed from). In cases where the question whether a duty of care arises has not
previously been decided, the courts will consider the closest analogies in the existing law,
with a view to maintaining the coherence of the law and the avoidance of inappropriate
distinctions. They will also weigh up the reasons for and against imposing liability, in
order to decide whether the existence of a duty of care would be just and reasonable.
In the present case, however, the court is not required to consider an extension of the
law of negligence. All that is required is the application to particular circumstances of
established principles governing liability for personal injuries.
7.4 Summary of the duty concept

Traditionally the duty concept has been seen as serving two separate functions:
uu Is there a duty at the abstract level (the notional duty or duty in law): for example,
does a motorist owe a duty of care to other road users? Do barristers owe a duty of
care to their clients?
uu Is the particular claimant within the scope of the duty of care (duty in fact or the
problem of the unforeseeable claimant): for example, was this particular road
user owed a duty by this particular motorist? In Bourhill v Young [1943] AC 92, the
claimant heard, but did not see, a crash caused by the defendant motorcyclist’s
negligence. The claimant later saw part of the aftermath of the accident and
suffered nervous shock. She failed to establish the existence of a duty of care to
prevent nervous shock – she was an ‘unforeseeable victim’ claimant and too far
removed from the scene of the accident to be a reasonably foreseeable victim.
These tests are of most use when the law is uncertain. These are concepts that judges
use when deciding whether or not a duty of care ought to be recognised in new
situations. More complex and developing examples of the duty concept arise in the
context of special duty problems in negligence, as discussed in Chapters 11–15.
7.5 Novel situations

Examples of cases where the courts have had to decide in novel situations whether
they should hold that there was a duty of care are: Mulcahy v Ministry of Defence [1996]
QB 732 (liability of injuries to soldiers on active service); Smith v Ministry of Defence
[2014] AC 52 (scope of combat immunity); Vowles v Evans [2003] EWCA Civ 318, [2003] 1
WLR 1607 (liability of rugby referee to injured player).
Once a duty situation is recognised, the test, in a sense, is irrelevant. So, in an

examination context, there is no need to go through the Caparo test unless either the
situation is a novel one, where there are no clear precedents, or you are trying to argue
that the law ought to be changed (as was done by the House of Lords in respect to the
liability of lawyers; see Section 7.6 below). If the question you are answering is about a
motorist knocking down a pedestrian, the duty of care is established by many previous
cases and there is no need to go through the tests for establishing a duty afresh.
7.6 Duties of lawyers

Lawyers of course owe a duty of care to their clients, but until recently it was thought
that no duty was owed by barristers (and later solicitors also) in respect of work
closely connected with the presentation of their case in court. Putting it in terms of
the Caparo test, it would be said that, while there was foresight and proximity, it was
not fair, just and reasonable to impose liability. However, in Arthur JS Hall v Simons
[2002] 1 AC 615, the House of Lords decided that in contemporary conditions there are
no policy reasons sufficient to justify this immunity and it should be abolished. Here,
in three separate cases, clients brought proceedings against their solicitors in which
they alleged that the solicitors had been negligent. The judge, at first instance, struck
out claims in negligence on the grounds that the defendants were entitled to rely on
the advocates’ immunity recognised by the House of Lords in Rondel v Worsley [1969] 1
AC 191 (which set out the public policy reasons for advocates’ immunity from liability
for the negligent conduct of a case in court). The Court of Appeal held that the claims
should not have been struck out and the solicitors appealed against this decision.
A seven-member House of Lords dismissed their appeals and held that because of
the changes in society and in the law which have taken place since the decision
in Rondel v Worsley, the propriety of maintaining such immunity could no longer
be justified. The advantages which accrued to the public interest from advocates’
immunity in negligence must be balanced with the normal right of an individual to
be compensated for a legal wrong and there is no longer sufficient public interest to
justify the maintenance of this immunity. Their Lordships were unanimous in their
decision to abolish the immunity in civil proceedings and (by a majority) to abolish it
in criminal proceedings.
7.6.1 Duties of lawyers: scope of the duty

The circumstances in which a duty is owed and the scope of the duty are considered
by the House of Lords in Moy v Pettman Smith (A Firm) [2005] UKHL 7. The claimant
in this case underwent an operation which went wrong owing to the admitted
negligence of the health authority concerned. A firm of solicitors and a barrister
acted for him in his claim in negligence against the health authority. The health
authority offered £150,000 in settlement and a waiver of the costs orders against the
claimant but, on the barrister’s advice, he rejected the offer. As the case subsequently
progressed, the health authority’s offer fell to £120,000 on the normal terms as to
costs and, at this stage, the claimant was advised by the barrister to accept the offer
as the best the health authority was willing to make. In an action in negligence against
the barrister, the trial judge held that she had not been negligent in advising the
claimant.
However, the Court of Appeal held that although her assessment of the prospects of
success in the case was not negligent, the barrister had been negligent in failing to
give the claimant sufficiently detailed advice in order that he might make an informed
decision as to whether to accept the offer in settlement. The barrister’s appeal to the
House of Lords was allowed. Taking account of all the circumstances, the advice given
by the barrister was held to fall within the range of that to be expected of reasonably
competent counsel of her seniority and experience. Given the need for urgent advice
under a situation of some pressure, it could not be said that her advice to the claimant
had fallen below that to be expected of a reasonable practitioner. The Court of Appeal
was said to have judged her actions too harshly.
7.7 Duty of care to unborn children

A doubt as to whether the common law recognised a duty of care to unborn children
in respect of damage done before birth was resolved by statute: the Congenital
Disabilities (Civil Liability) Act 1976. The Act originally envisaged a child being born with
disabilities as the result of damage to the mother (or sometimes the father) occurring
during pregnancy or sometimes before conception. Typical examples were physical
injuries to a pregnant woman in, say, a car crash, or the side effects of drugs. It had
to be amended in the light of advancing medical technology to deal with damage to

stored sperm or eggs: Human Fertilisation and Embryology Act 1990.
These Acts impose liability only where the damage caused the disability from which
the baby suffers when it is born. They do not allow an action where the negligence
caused the baby to be born, but did not cause the disabilities. A doctor may, for
example, negligently carry out a sterilisation procedure on either a man or a woman,
or may fail to recommend an abortion: any child born as the result of this negligence
has no claim. The ethical issues (together with a wide-ranging review of how these
issues are decided round the world) are discussed in the following cases which were
considered in Chapter 2:
uu where the child is healthy and is being raised in a loving family (McFarlane)
uu where the child is disabled
uu where the child is healthy but the mother did not want children because of her
own disability (Rees).
7.8 Duty of care to employees

Employers’ liability will not be examined as a distinct topic. However, students are
expected to understand the responsibilities of employers insofar as they relate to the
duty of care concept – specifically the notion of a non-delegable duty of care.
The work environment is a significant locus for accidental injuries and deaths. It is not
surprising, then, to find that there is an extensive framework of laws governing an
employer’s liability for injury to an employee. Many of these laws are now contained
within various statutory provisions but this section is confined to a brief summary
of common law rules. An employer’s liability toward his employee is said to be non-
delegable – meaning that an employer cannot escape liability for his employee’s injury
even where the employee has contracted another person or organisation in respect
of the activity or general context which results in injury to the employee. The case of
Wilsons & Clyde Coal Ltd v English [1938] AC 57 established that an employer has a duty
to take reasonable care to ensure that their employee is not made unsafe by reason of
unsafe premises, unsafe equipment or incompetent co-workers.
This is not an area of law that develops rapidly – hence the limited attention given to
it in this chapter. However, a noteworthy development concerns recognition that the
non-delegable duty extends to an employee’s mental wellbeing as well as physical
wellbeing. In Walker v Northumberland County Council [1995] 1 All ER 737 a social worker
was owed a duty of care in respect of a nervous breakdown occasioned by over-work.
Activities
Activity 7.1
Core comprehension – protection of the public against crime

Find and read the case of Michael v Chief Constable of South Wales [2015] UKSC 2 and
This comprehension focuses on the claim in negligence.
a. Which type of victim sought protection from the police against crime?
b. What is the general duty of care which the police owes to the public?
c. Explain why it was argued that Ms Michael had been identified to the police as
an individual, rather than a member of the general public, to whom the police
owed a particular duty of care.
d. What is the general rule in English law as regards the liability of defendants
caused by the conduct of a third party?
e. Can you identify the two types of situation in which the common law may
impose liability for a careless omission?
8 Setting the boundaries: problem areas in negligence
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
8.1 Duty concept: revisited . . . . . . . . . . . . . . . . . . . . . . . . . 77
8.2 Duty concept: a control device . . . . . . . . . . . . . . . . . . . . . . 77
8.3 Public bodies as defendants . . . . . . . . . . . . . . . . . . . . . . . 78
8.4 Psychiatric injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.5 Pure economic loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Introduction
The focus of this chapter is on setting the boundaries of negligence liability. It
reiterates the way in which the duty concept is used as a device to control liability.
The reasons why liability for pure economic loss and claims for psychiatric injury
have been denied or restricted are examined. The problem of imposing negligence
liability on public authorities and the far-reaching implications of such liability are also
discussed.
Learning outcomes
be able to:
uu analyse the use of the duty concept as a control mechanism to filter out certain
claims before issues of fault, causation and damage are considered
uu evaluate the way in which the concept of the duty, breach and damage
components in negligence frequently conceal policy judgments
uu evaluate the reasons why liability for pure economic loss and pure psychiatric
harm pose particular problems in negligence
uu explain how the consequences of creating a precedent which establishes a duty
of care on public authorities influence the courts.
Essential reading
¢¢ Lunney and Oliphant, Chapter 3 ‘Negligence – introduction’, Section II ‘The duty
of care in the modern law’.
¢¢ Lunney and Oliphant, Chapter 16 ‘Damages for personal injury’, Sections II

‘Different types of damages’ and IV ‘Damages for personal injury’.
Tort law 8 Setting the boundaries: problem areas in negligence page 77
8.1 Duty concept: revisited
a. Certain types of defendant

A general exclusionary rule exists which exempts public authorities from liability in
negligence. In such claims the courts take account of the consequences of creating
a precedent which establishes a duty of care. This approach is justified on the basis
of far-reaching implications about the allocation of resources and the risk of public
authorities taking a defensive approach to carrying out their functions (discussed
below). For now it should be noted that public policy is capable of constituting a
separate and independent ground for holding that liability in negligence should not
be imposed. For example, imposing a general duty of care to protect all members of
the public from the consequences of crime would be impracticable and, on grounds of
public policy, deeply damaging to police operations.
b. Particular types of loss or harm

Certain categories of damage such as pure economic loss and pure psychiatric harm
are not treated on the same basis as physical injury. Liability in these areas poses
particular problems concerning, for example, floodgates of liability: claims for physical
damage caused by negligent conduct will be limited to those within the range of
impact. However, psychiatric illness is capable of affecting a large number of potential
claimants beyond the direct victim of negligent conduct, so the law seeks to protect
defendants from crushing liability.
Where negligent words cause pure economic loss the courts take a restrictive
approach, justified by Lord Pearce in Hedley Byrne on the basis that: ‘… words are
more volatile than deeds, they travel fast and far afield, they are used without being
expended.’ We shall see below that claimants seeking compensation for either of
these categories of harm will have particular hurdles to overcome to establish that the
defendant was under a duty of care.
8.2 Duty concept: a control device

The duty of care concept is the most significant of the control devices. As indicated
in Chapter 2, the general philosophy underpinning tort law is that losses should lie
where they fall. Only exceptionally should someone other than the party injured or
suffering the loss in question bear those losses. The duty of care operates against this
philosophical background, determining when it would be justifiable to depart from
the principle and shift the loss from the innocent claimant to the defendant or spread
the losses suffered by the innocent claimant among society at large.
Conaghan and Mansell (1998) express the position thus:
The concept of a duty of care in negligence is an essential factor in determining whether

it is proper to redistribute the plaintiff’s loss to the defendant. This is, in turn, informed by
the assumption that individuals should, in general, bear their misfortunes alone unless
there is some good reason for shifting the loss on to someone else...
Deakin, Johnson and Markesinis (2012) state: ‘duty’ determines ‘whether the law
recognises in principle the possibility of liability in a given situation’. We can see
from these statements that the duty question arises only after it is established that
someone has suffered loss or injury allegedly at the hands of the defendant. It is not a
question that is ever posed in the abstract.
The duty question (the question is there a duty of care or not) is one that proceeds on
the basis that one person could cause serious harm to another and yet not be liable in
tort because the person allegedly causing the harm had no duty or obligation to avoid
causing such harm.
8.3 Public bodies as defendants

See Chapter 3, Section 3.7.1 for a brief explanation.
8.4 Psychiatric injury

From Chapter 2 we know that psychological injury is a form of personal injury that
poses particular problems to the law of tort, merely by nature of this particular form of
injury, largely because of the privileging of traumatic physical injury in the law of tort
and especially in the tort of negligence. Page v Smith tells us that psychological harm
that is consequential on traumatic physical injury is recoverable, even if psychological
harm is not itself foreseeable. We know that an individual who suffers nervous shock
through witnessing traumatic physical injury to a stranger in circumstances where
the witness is not in fear of traumatic physical injury cannot recover damages because
they will be deemed to be an unforeseeable claimant (Bourhill v Young).
What does all of this tell us about proximity in the duty of care? You will see in Chapter
9 that the proximity element is enormously important in denying or restricting a duty
of care to claimants who suffer nervous shock. What writers have termed relational
and geographical/temporal proximity have served to limit or exclude liability to
claimants who witnesses traumatic injury to a person with whom they have a ‘close
relationship of love and affection’ in circumstances where the person witnessing
the injury is not themselves injured or placed in fear of injury. The insistence on
geographical and temporal closeness ensures that the many hundreds or thousands
of close family members who may potentially suffer such loss are transformed into a
small and ascertainable class of victims able to recover.
Understanding the proximity requirements applicable to claims of psychological

injury of so-called secondary victims of nervous shock (in contrast to the Page v
Smith primary victim) is not only important in being able to advise in relation to this
particular form of injury but is indispensable to an understanding of how important
the concept of proximity is in enabling the duty concept to operate according to its
primary function of limiting liability for carelessly inflicted injury or loss.
8.5 Pure economic loss

We have also seen in Chapter 2 that another form of tortious injury that does not
occupy a privileged position within the conceptual framework of tort law is pure
economic loss. Let us remind ourselves of what pure economic loss is: financial
(monetary) losses that are not consequential upon traumatic physical injury to the
person or physical damage to property. Damages are recoverable where the economic
loss results from a negligent misstatement. Cases usually concern false and inaccurate
advice – often financial or legal advice or a false and misleading reference. In such
cases, because we are still dealing with damage that is not traumatic physical injury,
the duty issue becomes relevant and again we see the proximity element of the
duty test being used to curtail and delineate liability. Pure economic loss that results
from a negligent act as opposed to a negligent misstatement cannot be recovered.
There is a complete bar under English law, although the position is different in other
jurisdictions.
There is a vital difference in the way that the concept of proximity operates in cases
of nervous shock (Chapter 9) when compared to cases of pure economic loss. In the
former, proximity is conceived of in broad metaphysical terms: proximity is relational,
spatial and temporal; in cases of pure economic loss that raise difficult policy
questions proximity is almost always conceived of through the model or metaphor of
the contract. The application of the proximity element in cases of pure economic loss
achieves the same end as does the application of the concept in cases of psychological
injury – it works to narrow to a small and ascertainable class a potentially wide pool of
claimants.
Tort law 8 Setting the boundaries: problem areas in negligence page 79
In this sense, proximity is relational but it is not evidence of close familial ties that
judges look for but evidence of quasi-contractual ties. It is through the metaphor
of the contract that judges construct the necessary relationship of proximity in
such cases. It must be emphasised that proximity in these cases is not conditional
on finding an actual contractual relationship – indeed where there is an actual
contractual relationship this might satisfy the proximity test, but will cause problems
in relation to the last element of the duty test for it would often be deemed not
just, fair and reasonable to impose a duty of care where, on the same set of facts, a
contractual remedy would lie.
There are no activities for this chapter.

Notes
9 Psychiatric harm
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
9.1 Liability for psychiatric injury . . . . . . . . . . . . . . . . . . . . . . . 83
9.2 Policy considerations . . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.3 Control devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.4 Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.5 Proposals for reform . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Introduction
This chapter explores the difficult questions which arise where the injury suffered
as a result of negligence or any other tort is purely emotional or psychological. The
limiting devices developed by the courts to restrict claims for psychiatric injury will be
considered and the exceptional circumstances in which damages are recoverable will
be explained.
Learning outcomes
be able to:
uu explain why there are problems with allowing recovery for psychiatric damage
uu distinguish between primary and secondary victims
uu identify circumstances in which damages for psychiatric injury may be
recoverable
uu explain uncertainties in this area of law and consider possible reforms.
Essential reading
¢¢ Lunney and Oliphant, Chapter 7 ‘Negligence: duty of care – psychiatric illness’.
Tort law 9 Psychiatric harm page 83
9.1 Liability for psychiatric injury

As a starting point, it must be made clear that emotional and psychological harm that
is a consequence of actual traumatic physical injury is always recoverable. Claimants
will normally recover for consequential psychological harm under the category of pain
and suffering or loss of amenity. Loss of amenity essentially means loss of enjoyment in
life. Such a loss of enjoyment may be occasioned by many causes, such as loss of a limb
– but it will also cover emotional and psychological harm that results from a traumatic
physical injury. Students are expected to know the case of Wilkinson v Downton (1897) 2
QB 57, which rests on its own facts but remains good law.
Difficult questions arise where the injury claimed to have been suffered as a result
of negligence or any other tort is purely emotional or psychological. Those who are
involved in traumatic situations may suffer psychiatric illness in one of three distinct
categories.
1. They suffer physical injury and this leads to psychiatric harm.
2. Primary victims – they are in an area where they are at risk of physical injury,
manage to avoid this but suffer psychiatric injury.
3. Secondary victims – they are not themselves at risk, but suffer psychiatric harm as a
result of what they have seen and heard. It is in relation to this group that significant
difficulties have arisen. A potentially enormous number of potential claimants
means that the extent of liability needs to be managed as a matter of policy.
Where the claimant’s injuries are psychiatric, and not physical, damages are
recoverable only exceptionally (see also Section 2.10). It is not enough to show that
psychiatric injury was reasonably foreseeable. In Victorian Railway Commissioners v
Coultas (1888) 13 App Cas 222 it was held that harm through nervous shock was not
compensatable at all.
The first successful claim in England for damages for negligently inflicted psychiatric
injury was in Dulieu v White [1901] 2 KB 669 which concerned a pregnant woman who
was working behind the bar of a public house when the defendant ran his van and
horses through the window. Although not physically injured, she was badly frightened
and this resulted in the premature birth of her child. She experienced a real and
immediate fear for her own safety and she was entitled to recover damages without
the need for physical impact.
9.2 Policy considerations

Although knowledge of, and attitudes to, psychiatric illness have changed in the 20th
and 21st centuries, the courts are reluctant to award damages on the same basis as for
physical injuries.
Case law example

In White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Lord Steyn set out
the policy reasons why such different rules have been created for the recovery of
the two kinds of damage:
Tony Weir (2004) gives the following account, at p.88:
there is equally no doubt that the public… draws a distinction
between the neurotic and the cripple, between the man who loses
his concentration and the man who loses his leg. It is widely felt that
being frightened is less than being struck, that trauma to the mind
is less than lesion to the body. Many people would consequently say
that the duty to avoid injuring strangers is greater than the duty not
to upset them. The law has reflected this distinction as one would
expect, not only by refusing damages for grief altogether, but by
granting recovery for other psychical harm only late and grudgingly,
and then only in very clear cases. In tort, clear means close – close to
the victim, close to the accident, close to the defendant.
… Firstly, there is the complexity of drawing the line between acute grief
and psychiatric harm… The symptoms may be the same. But there is
greater diagnostic uncertainty in psychiatric injury cases than in physical
injury cases. The classification of emotional injury is often controversial.
In order to establish psychiatric harm expert evidence is required. That
involves the calling of consultant psychiatrists on both sides. It is a
costly and time consuming exercise. If claims for psychiatric harm were
to be treated as generally on a par with physical injury it would have
implications for the administration of justice.
Secondly, there is the effect of the expansion of the availability of
compensation on potential claimants who have witnessed gruesome
events. I do not have in mind fraudulent or bogus claims. In general it
ought to be possible for the administration of justice to expose such
claims. But I do have in mind the unconscious effect of the prospect
of compensation on potential claimants. Where there is generally no
prospect of recovery, such as in the case of injuries sustained in sport,
psychiatric harm appears not to obtrude often. On the other hand, in the
case of industrial accidents, where there is often a prospect of recovery
of compensation, psychiatric harm is repeatedly encountered and often
endures until the process of claiming compensation comes to an end…
The third factor is important. The abolition or a relaxation of the special
rules governing the recovery of damages for psychiatric harm would
greatly increase the class of persons who can recover damages in tort. It is
true that compensation is routinely awarded for psychiatric harm where
the plaintiff has suffered some physical harm. It is also well established
that psychiatric harm resulting from the apprehension of physical harm
is enough… In built in such situations are restrictions on the classes of
plaintiff who can sue: the requirement of the infliction of some physical
injury or apprehension of it introduces an element of immediacy which
restricts the category of potential plaintiffs. But in cases of pure psychiatric
harm there is potentially a wide class of plaintiffs involved.
Fourthly, the imposition of liability for pure psychiatric harm in a wide
range of situations may result in a burden of liability on defendants
which may be disproportionate to tortious conduct involving perhaps
momentary lapses of concentration, e.g. in a motor car accident.
9.3 Control devices

Proximity is the modern term that has gradually begun to be substituted for Lord
Atkin’s use of the concept of ‘neighbour’ as descriptive of a relationship between
a defendant and a claimant that shows the requisite degree of closeness such that
it could be said the defendant ought to have had the claimant in focus when (to
quote from Donoghue) ‘directing his mind to the acts of omissions which are called in
question’. Other roughly generic labels used to describe this element of the duty of
care include ‘special relationship’ or ‘voluntary assumption of responsibility.’
What is common to all the cases is that application of the proximity concept works
to make of a potentially wide and indeterminate number of putative claimants a very
narrow and ascertainable class. In this and the next chapter we examine the proximity
element of the duty test, drawing on the case law relating to claims in respect of
nervous shock (this chapter) and pure economic loss (Chapter 10) as a means to
provide practical illustration of the application of the element.
We shall now consider the limiting devices to restrict claims for psychiatric injury
developed by the courts. There has been no intervention by Parliament: the Law
Commission recommended some legislative changes in 1998 (see below), but these
have not been implemented.
9.3.1 Recognisable psychiatric illness resulting from shock

Emotional or psychological harm that is medically recognised, such as conditions like
post-traumatic stress disorder, organic depression and pathological grief disorder, can
be compensated for, provided that they arise as a result of a traumatic or shocking
event – hence the legal term nervous shock. According to Lord Ackner in Alcock v Chief
Constable of South Yorkshire [1992] 1 AC 310, shock ‘involves the sudden appreciation by
sight or sound of a horrifying event, which violently agitates the mind’. It must then
manifest itself in some recognisable psychiatric or physical illness. Lord Ackner also
made it clear that, as the law presently stands, there can be no recovery for psychiatric
illness ‘caused by the accumulation over a period of time of more gradual assaults
on the nervous system’. However, we shall see below that later cases appear to have
relaxed this requirement to some extent.
Case law example

In Butchart v Home Office [2006] EWCA Civ 239 the claimant was a prisoner, known
to be at risk of suicide. He occupied a cell with another known suicide risk. The
cellmate hung himself and this was seen by the claimant, who suffered shock as a
result and was allowed to recover damages.
9.3.2 Circumstances in which the psychiatric injury is caused

The other restrictions relate to the circumstances in which the psychiatric injury
is caused. For this purpose a distinction is drawn between primary and secondary
victims but there is an increasing number of claims (some successful) that do not fit
within these two categories as traditionally defined.
9.3.3 Primary victims

A primary victim is directly involved in the accident and is favourably treated. It is
sufficient for a primary victim to show that they were physically injured or that they
were in danger or reasonably believed themselves to be in danger of physical injury,
and it is not necessary to show that psychiatric injury as such was foreseeable: Page v
Smith.
However, more restrictively, physical injury (or the fear of it) is a necessary as well as a
sufficient condition of liability: White v Chief Constable of South Yorkshire Police.
9.3.4 Secondary victims: the Alcock criteria

A secondary victim suffers psychiatric injury not through any physical impact but
through witnessing an event that causes or threatens death or serious injury to
someone else. The principles are derived from two decisions of the House of Lords:
McLoughlin v O’Brian [1983] 1 AC 410 and Alcock which was discussed in the context of
damage in Chapter 2. Further details about the background to Alcock can be found in
the conclusion of the inquest into the Hillsborough disaster: www.bbc.co.uk/news/
uk-england-36138337 Alcock is the leading case which set out a series of criteria which
secondary victims must satisfy in order to be regarded as foreseeable victims to whom
a duty of care is owed.
1. A close tie of love and affection
The claimant must be in a close and loving relationship with the primary victim.
In the case of parents and children and spouses (and engaged couples) this is
presumed, in other cases it must be established. It is not necessarily easy to
establish liability outside the categories where love is presumed. Brothers were
unable to establish the relationship in Alcock.
2. Proximity in time and space
The claimant must have perceived the events or their aftermath (how soon is
an aftermath?) with their own unaided senses: it is not enough to be told about
it later. The notion of the aftermath derives from McLoughlin where Mrs M saw
her relatives in the same state as they had been in after the accident. The legal
constraints do not relate to current medical opinion. For example, psychiatrists
acknowledge that pathological reactions to the death of a loved one may as
easily occur when the death occurs on the other side of the world as when it is
witnessed.
3. The means by which the shock is caused
The claimant must have suffered through an immediate sudden impact on their
senses. The sudden shock requirement was not satisfied in Sion v Hampstead Health
Authority [1994] 5 Med LR 170 where a father suffered psychiatric harm having
stayed beside his son’s bedside for 14 days watching him deteriorate and die as
the result of the defendant’s negligence. However, in North Glamorgan NHS Trust v
Walters [2002] EWCA Civ 1792 a mother who suffered psychiatric harm as the result
of the events she witnessed over the 48 hours during which her child deteriorated
and died was allowed to recover. The period leading to her child’s death was
treated as a single prolonged shocking event.
What constitutes relevant aftermath depends on all the circumstances of the case. In
Galli-Atkinson v Seghal [2003] EWCA Civ 697, the Court of Appeal allowed a claim by a
mother who went to the scene of what proved to be her daughter’s fatal accident, but
after the body had been removed, and then went to the mortuary. It was held that the
aftermath could be made up of different component parts. In Crystal Taylor v A Novo
(UK) Ltd [2013] EWCA Civ 194 the question of proximity or, alternatively, the timing of
the ‘immediate aftermath’ were considered by the Court of Appeal. A daughter who
was not present at the scene of a workplace accident in which her mother was injured
was not allowed to recover for the psychiatric injury she suffered when her mother
suddenly died of complications at home, three weeks later.
The claimant must not have a special sensitivity to shock: the shock must be
foreseeable in a person of reasonable fortitude (but, so long as some psychiatric injury
is foreseeable, its precise form or severity does not have to be foreseen).
Attia v British Gas [1988] QB 304 is authority for the proposition that a person can
claim in respect of a medically recognised psychiatric injury as a result of witnessing a
traumatic event that involved not personal injury but damage to property – here the
claimant witnessed her house being burnt down as a result of the alleged negligence
of British Gas.
Where the defendant caused himself serious injuries by negligent driving (i.e. the
defendant and the primary victim were in a sense the same person), he was not liable
to his father who went to the scene as a member of the rescue services. For the policy
reasons behind the decision, see Greatorex v Greatorex [2000] 1 WLR 1970.
Note the different approach to foreseeability of psychiatric harm for primary and
secondary victims. A ‘primary victim’ is a person directly involved as a participant
in the traumatic event and, if personal injury of some kind is foreseeable, it is not
necessary to show that injury by shock was foreseeable.
However, a ‘secondary victim’ (such as a witness to the accident) needs to show that
psychiatric injury is foreseeable in a person of reasonable fortitude.
Is it fair or rational that foreseeability of psychiatric harm differs depending on the

above classification?
9.4 Other cases

Although it was perhaps the intention of the courts that claimants could succeed only
if they met the criteria either of primary victim or of secondary victim, there are many
ways in which psychiatric injury can be caused. Some of these have come before the
courts, and some have succeeded.
9.4.1 Rescue cases

At one time it was thought that a rescuer who suffered psychiatric injury as the result
of participating in distressing scenes could recover damages. In White (above) the
House of Lords held, however, that rescuers can succeed only if they are themselves at
risk of physical injury. The claimants were various members of the rescue services who
suffered as the result of assisting victims at the same football match as affected the
victims in the Alcock case. They could not succeed as secondary victims (because they
had no ties of affection to any of the primary victims) and did not succeed as primary
victims because they were not themselves in danger. It had previously been
thought that rescuers
9.4.2 Employees were a special class
of primary victim
In the White case the claimants argued that they could claim as employees, since the
(Chadwick). Has White
negligence involved was that of the police. The House of Lords held that there were therefore narrowed
no special principles attaching to the employment relationship, and the claimants the law? Is this fair
(despite that relationship) had to show that they were primary or secondary victims. or arbitrary? Would
The fact that the claims of the families in Alcock had been dismissed was influential in society not be best
White as it was considered unfair in these circumstances to allow the police officers to served by rewarding
altruism?
recover. Their Lordships acknowledged that the police officers were more than mere
bystanders.
They were all on duty at the stadium. They were all involved in assisting in the course of
their duties in the aftermath of the terrible events. And they have suffered debilitating
psychiatric harm. The police officers therefore argue, and are entitled to argue, that
the law ought to provide compensation for the wrong which caused them harm. This
argument cannot be lightly dismissed. But I am persuaded that a recognition of their
claims would substantially expand the existing categories in which compensation can be
recovered for pure psychiatric harm. Moreover, as the majority in the Court of Appeal was
uncomfortably aware, the awarding of damages to these police officers sits uneasily with
the denial of the claims of bereaved relatives by the decision of the House of Lords in the
Alcock case…
There is, however, now authority that employees may have claims against their
employers in certain circumstances where they have been exposed to work-related
stress. The relationship between such claims and psychiatric injury claims is unclear.
In Walker v Northumberland County Council [1995] 1 All ER 737 and Hatton v Sutherland
[2002] EWCA Civ 76 it was held that the special control mechanisms for psychiatric
harm claims arising from accidents (as laid down in Alcock) do not apply to claims for
psychiatric injury arising from occupational stress. According to Hale LJ in Hatton, an
employer’s duty:
Is it appropriate that
… is to take reasonable care. What is reasonable depends, as we all know, upon the the law should have
foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity developed different
of the harm which may take place, the cost and practicability of preventing it, and the rules for psychiatric
justifications for running the risk… harm in employment
cases?
9.4.3 Assumption of responsibility: close relationship
There remain a number of isolated cases with (as yet) no clear principles. Should
a defendant be liable for causing psychiatric injury by carelessly passing on wrong
information, or by passing on correct information in a carelessly insensitive way?
There may emerge a principle that a defendant should be liable if there is an
assumption of responsibility to protect the claimant against psychiatric injury or if
there is an ongoing relationship between the parties that entails such a responsibility.
See W v Essex County Council [2001] 2 AC 592; A v Essex County Council [2003] EWCA Civ
1848, [2004] 1 WLR 1881; AB v Tameside and Glossop Health Authority [1997] 8 Med LR 91.
In the W case Lord Slynn suggested that the primary and secondary victim categories
could not accommodate all cases. The House of Lords refused to strike out a claim (in
other words, the claim was held to be arguable) by parents to whom a local council,
in breach of an undertaking, sent as a foster child a known sexual abuser. The child
then abused the other children in the family, causing psychiatric injury to the parents.
They had some of the characteristics of secondary victims, except that they did not see
the abuse taking place. On the other hand, unlike most secondary victim cases, there
had been an ongoing relationship between the council and the parents as to their
suitability as foster parents.
9.5 Proposals for reform

The Law Commission report Liability for psychiatric illness (1998) recommended that for
primary victims the development of the law could be left to the courts. However, as
regards some secondary victims (other than rescuers or ‘involuntary participants’) the
Commission recommended legislation to remove what it regarded as unwarranted
restrictions on liability for negligently inflicted psychiatric illness.
The main recommendations were that restrictions based on the physical and temporal
proximity of the claimant to the event be removed; the requirement for sudden shock
be removed; and the requirement for close ties of love and affection with the direct
victim be maintained, but the category of those relationships in which these ties
would be presumed be expanded.
In White it was also acknowledged that nowadays courts accepted that there was no
rigid distinction between body and mind and in that sense there was no qualitative
difference between physical and psychiatric harm. However, it would be an altogether
different proposition to say that no distinction was made or ought to be made
between principles governing the recovery of damages in tort for physical injury and
psychiatric harm. Policy considerations had undoubtedly played a part in shaping the
law in this area. To allow the claims of the police officers would substantially expand
the existing categories in which compensation could be recovered for pure psychiatric
harm. Moreover, the awarding of damages to them sat uneasily with the denial of
the claims to bereaved relatives by the decision in Alcock. Lord Steyn observed: ‘the
law on the recovery of compensation for pure psychiatric harm is a patchwork quilt
of distinctions which are difficult to justify’, but the opportunity was not taken to
reconsider the Alcock restrictions on liability.
Activities
activity 9.1
Core comprehension – psychiatric injury

Read the Law Commission report 249 Liability for psychiatric illness (1998), Section C:
Reform, available at www.lawcom.gov.uk/document/liability-for-psychiatric-illness/
and answer the following questions.
Pay particular attention to Part V: reform II: five general issues, Subsections 1 ‘A
recognisable psychiatric illness’ and 2 ‘Reasonable foreseeability of psychiatric
illness and the test of reasonable fortitude’.
a. What was the main consideration for reform and why was it rejected?
b. List the five issues which apply generally to liability for negligently inflicted
psychiatric illness.
c. In the absence of a definition, what is the current understanding of what

constitutes a ‘recognisable psychiatric illness’?
d. How did the Law Commission’s recommendation on the test of reasonable

foreseeability differ from the approaches of three Australian jurisdictions?
e. What was the approach of the House of Lords in Page v Smith to the question
whether foreseeability of psychiatric illness should be required where physical
injury to the plaintiff was reasonably foreseeable?
f. Why is it argued that the Page v Smith judgment made the law simpler and more
certain?
g. Outline the three main criticisms of the Page v Smith judgment.
h. Outline the fundamental distinction between primary and secondary victims.
i. What is meant by the ‘reasonable fortitude test’ and why is it relevant?
j. Does the normal ‘egg-shell skull’ rule of remoteness apply in cases of psychiatric
illness?
activity 9.2
Core comprehension – secondary victims

This activity examines the use of the control mechanism of proximity and the
determination of ‘the relevant event’ in claims for damages for psychiatric injury as
secondary victims.
Find and read the case of Crystal Taylor v A Novo (UK Limited) [2013] EWCA Civ 194 and
a. Which issue was central to this case?
b. On the basis of the facts of the case, who was the primary victim in the
workplace accident and how did the primary victim die?
c. Which recognised psychiatric injury did the daughter, Crystal Taylor, suffer, due
to witnessing her mother’s death on 19 March 2008?
d. What are the seven requirements which have to be satisfied for a secondary
victim to succeed in a claim in negligence?
e. Explain in your own words why the issue of ‘the relevant event’ was crucial to
this case.
f. Identify reasons which explain why a restrictive approach is applied to claims by

secondary victims.
g. Why did the lower court judge, HHJ Halbert, favour the mother’s death as the
relevant event and not the earlier accident?
h. Describe the test of proximity as established in McLoughlin v O’Brian.
i. Explain the flaw identified in the lower court’s designation of the relevant event.
j. What is the meaning of the word ‘proximity’ in the context of secondary victim
law?
activity 9.3
Core comprehension – the traditional rule

Go to the Online Library and find and read Mulheron, R. ‘Rewriting the
requirement for a “recognized psychiatric injury” in negligence claims’
(2012) 32(1) OJLS 77. LexisLibrary: www.lexisnexis.com/uk/legal/docview/
getDocForCuiReq?lni=558N-SM81-F078-726Y&csi=302218&oc=00240&perma=true&
elb=t
The focus of this activity is on ‘the traditional rule’ and you can complete it by
reading pp.77–84 of the article.
a. List examples of human emotion which are associated with claims for
psychiatric injury.
b. Explain what is meant by ‘the traditional rule’.
c. Which sources of scientific evidence are used internationally to assist in the

definition of a ‘recognised psychiatric illness’?
d. Why does Mulheron submit that continued adherence to the traditional rule is
‘a matter of legitimate debate’?
e. How does Mulheron propose to address the acknowledged ‘floodgates’ problem

inherent in compensating ‘pure mental injury’ which is not accompanied by
physical injury?
f. Identify the test of pure psychiatric illness as established in McLoughlin v O’Brian.
g. Identify the three reasons which underpin the existence of the ‘traditional rule’.
h. Give two reasons which justify ring-fencing the potential number of claimants.
i. Explain in your own words why ‘permitting claimants to sue for mental injury is
“likely to operate as an unconscious disincentive to rehabilitation”’.
j. Why does the traditional rule prevent abusive or vexatious claims?
activity 9.4
Applied comprehension – developing the law

Look again at Law Commission report 249 Liability for psychiatric illness.
Pay particular attention to Section C ‘Reform’, Part IV ‘Reform I: introduction’.
Then read [9]–[31] of Taylor v A Novo (UK) Limited [2013] EWCA Civ 194.
Before attempting this extended study, you should complete the related core
comprehension activity, above.
Law Commission report
a. Outline the reasons for the Law Commission’s reluctance to recommend the
codification of the law on negligently inflicted psychiatric illness.
b. Which two factors that inform our understanding of the topic of liability for
psychiatric illness make the common law approach more favourable than
codification?
c. If the common law ‘has taken a wrong turn’, what remedies can the codification
of the law offer which common law cannot?
The Taylor case

d. How did Stapleton formulate the criticism of judicial incrementalism, as cited
from ‘The frontiers of liability’?
e. Draw on the discussion of case authorities discussed at [9]–[18] to infer what is

meant by this term.
f. Do you agree that the definition of the necessary ‘event’ in the North Glamorgan
NHS Trust case evidences the incrementalist approach?
g. Summarise the argument advanced which cautions courts from making ‘any
substantial development’ of the established principles on liability for primary
and secondary victims.
10 Pure economic loss and negligent statements
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
10.1 Economic loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
10.2 Recovery of pure economic loss: Hedley Byrne . . . . . . . . . . . . . . . 94
10.3 Economic loss cases (i): negligent statements . . . . . . . . . . . . . . 95
10.4 Economic loss cases (ii): performance of a service . . . . . . . . . . . . 97
10.5 Slogans or practical guides? . . . . . . . . . . . . . . . . . . . . . . . 99
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Introduction
Until the middle of the 20th century, the tort of negligence was very largely concerned
with careless conduct resulting in personal injuries or damage to property. Most of
the illustrative cases in Part I were of that kind. The law has developed differently in
relation to ‘consequential’ economic loss. Any loss which is not linked to physical
injury, death or property damage is ‘pure’ economic loss and not recoverable in tort.
In this chapter you will study losses which are only economic in nature and learn how
the duty of care is used as a device to control liability.
Learning outcomes
be able to:
uu explain the reasons why the courts have been hesitant about allowing recovery
of compensation for pure economic loss
uu evaluate the circumstances in which a duty may arise in respect of negligent
statements – drawing a distinction between cases in which the recipient of
the statement suffers economic loss and those where the person who suffers
economic loss is not the recipient of the statement
uu identify the circumstances in which claims for economic loss may or may not
succeed
uu explain and discuss the uncertainties that exist in this area of law and the scope
for reform.
Essential reading
¢¢ Lunney and Oliphant, Chapter 8 ‘Negligence: duty of care – economic loss’,
Sections I ‘The basic exclusionary rule’, III ‘The Hedley Byrne exception’ and IV
‘The development of Hedley Byrne liability’.
Tort law 10 Pure economic loss and negligent statements page 93
10.1 Economic loss

We begin our examination of this category of damage with the same injunction
that began our exploration of emotional or psychological injury. With one possible
exception, economic loss (financial loss) that is consequential on physical injury
to persons or physical damage to property is recoverable. So a person injured in a
car accident is likely also to suffer financial loss as a result, for example, of having
to take time off from work to recover from the injury. There is no doubt that such
losses are recoverable. We have seen in Chapter 2 that damage to property results in
financial loss: the case of Spartan Steel & Alloys v Martin [1973] QB 27 provides a simple
illustration of the recovery rule. The one possible exception concerns claims for the
cost of bringing up children in wrongful birth cases. MacFarlane v Tayside Health Board
decided that such a claim would not be held in respect of a ‘healthy’ child, mainly
on the basis that, ‘the birth of a healthy child is a joy and a blessing’. Subsequent
cases (Rees) established that where the child is born disabled or where the mother
of a wrongful birth child is disabled then damages could be recovered to reflect only
the additional costs attendant on bringing up a child with disabilities. This is only a
possible exception to the general rule that consequential economic loss is recoverable
because the whole question of wrongful birth is complicated by the question of
whether the physical process associated with giving birth can be thought of in terms
of an injury. If birth cannot be thought of in terms of injury, then the financial cost of
bringing up a child amounts to pure economic loss and is thus subject to the more
restrictive rules that are explained in the section below. If birth pain is a form of injury,
then the McFarlane rule does constitute an exception to the general principle.
10.1.1 Pure economic loss

So, as you will have realised, difficult questions surround pure economic loss – financial
loss that is not a consequence of physical damage to person or property. It is here
that we see an immediate connection with the analysis in Chapter 2 of the distinction
between a defect and damage. A defective property per se will almost certainly result
in financial loss but this would not be recoverable financial loss because, since a defect
is not damage, it does not arise as a consequence of damage to property. We shall see
(in Chapter 15) that Murphy v Brentwood [1991] 1 AC 398 stands as authority that such
losses are not recoverable in the English law of torts – the position is very different in
other common law jurisdictions, such as Australia and New Zealand. More generally,
pure economic loss is not recoverable if it is a result of a negligent act as opposed to a
negligent misstatement. Much time has been dedicated by tort scholars to attempting
to understand why such a seemingly arbitrary distinction between acts and statements
has been allowed to solidify, and to negotiate the almost impossible task of deciding
whether specific causes of pure financial loss are act-causes or statement-causes.
10.1.2 What forms of pure economic loss are recoverable?

Financial loss that results from a negligent statement is recoverable but, as we shall
see, only according to strict criteria. This principle was established in the cases of
Hedley Byrne v Heller and Caparo Industries plc v Dickman, the details of which are
discussed below.
The general common law rule was that a defendant was not liable for purely economic
loss. Since 1964, the rules concerning recovery of economic loss have been somewhat
relaxed. This does not, however, mean that all foreseeable economic loss is recoverable.
The law still takes a restrictive view, as is explained in the following sections. It is helpful
first to consider the policy reasons that restrict the right of recovery for economic loss.
Many of these are developed and applied in the cases that follow.
10.1.3 Recovery of pure economic loss: policy considerations

Among the many policy arguments are these.
uu Economic interests are intrinsically less worthy of protection than physical

interests.
uu If economic loss generally is recoverable, the burden on particular defendants

will be unbearably high. (Imagine that the defendant carelessly pollutes a holiday
beach. Holidaymakers stay away. All the business interests in the town suffer losses.
Is the defendant to have to compensate them all?)
uu A general rule against recovery of economic loss is clear and easy to apply.
uu Claimants can often make good their economic loss in other ways than by claiming
compensation: for example, if a factory has to shut down because of loss of power,
it may be possible to make up for lost production by having extra shifts later.
uu It may make more economic sense for potential claimants to insure against
possible economic losses that they may suffer rather than for potential defendants
to insure against economic losses that they may cause.
uu Allowing economic loss to be recovered in tort muddles the boundary between

contract and tort. The nature of this argument has changed because of the
enactment of the Contracts (Rights of Third Parties) Act 1999. Before then,
claimants sometimes tried to frame a claim in tort because the strict rules of privity
of contract prevented them from suing for breach of contract. There is an example
of this discussion in the case of White v Jones (below) where Lord Goff points
out that some legal systems would allow the claimants in that case an action to
enforce the contract, but English law does not, even (probably) after the Act.
For a time after the decision in Hedley Byrne it was thought that damages for economic
loss might be recoverable as readily as for physical damage, but this did not happen.
The pattern of cases is described below.
10.2 Recovery of pure economic loss: Hedley Byrne

The starting point for the discussion of forms of pure economic loss which are
recoverable is Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465. The claimants,
through their bankers, asked the defendants for advice about the creditworthiness of
one of the latter’s customers. The defendants gave a reasonably favourable reply, and
the claimants extended credit to the customers and suffered losses in consequence.
The House of Lords held that in principle the defendants owed a duty of care to the
claimants and would have been liable to them for the resulting losses if they had
not given the advice ‘without responsibility on our part’. (The defendants excluded
liability because of the ‘without responsibility’ clause but such a clause would now be
subject to s.11 of the Unfair Contract Terms Act 1977 and would need to satisfy the test
of reasonableness.)
The case profoundly changed the law in two respects:
1. the defendants were held to owe a duty to take care in the advice or information
that they gave
2. that duty extended to purely economic losses.
A claimant who suffers loss by relying on inaccurate statements could and can bring
a claim in the tort of deceit, but in Derry v Peek (1889) 14 App Cas 337 the House of
Lords held that to establish liability in that tort the claimant had to prove that the
defendants either knew that what they were saying was false or were reckless as to
whether what they were saying was true or false. It was assumed until 1964 that the
result of Derry v Peek was that there could be no liability where the defendant had not
lied or been reckless, but had merely spoken carelessly. The Hedley Byrne case put an
end to that view.
10.3 Economic loss cases (i): negligent statements

The first group of cases concern liability for economic loss flowing from careless advice
or information.
10.3.1 When does the duty arise?

The House of Lords did not decide in Hedley Byrne that a person had a duty to take care
in making statements whenever damage or loss was foreseeable. Once a statement
is put into circulation it may be broadcast and relied on in different ways by many
different people; therefore the criterion of reasonable foreseeability of the loss was
rejected as giving rise to potentially too wide a liability. In order to establish a duty
of care, proximity must exist in the context of a ‘special relationship’ between the
parties. It is, however, not easy to explain in a few words what relationship (sometimes
called a special relationship) there has to be between the speaker and hearer
before a duty of care arises. This can only be understood by reading the case and the
commentaries on it in the textbooks. The following passage from Lord Morris of Borth-
y-Gest (at 503) gives a flavour of it:
If, in a sphere in which a person is so placed that others could reasonably rely on his
judgment or his skill or on his ability to make careful enquiry… a person takes it on himself
to give information or advice to or allows his information or advice to be passed on to
another person who, as he knows or should know, will place reliance on it, then a duty of
care will arise.
So the requirements for the existence of a ‘special relationship’ appeared to be:
uu the existence of a relationship based on professional or other skill or expertise
uu a reliance by the claimant on the defendant’s special skill and judgement
uu knowledge, or reasonable expectation of knowledge on the part of the defendant,

that the claimant was relying on the statement
uu that it was reasonable in the circumstances for the claimant to rely on the
defendant
uu in some cases that the relationship was close to being contractual (since liability in
contract for negligent advice is well-established).
The speaker is, therefore, usually giving advice in a serious, business or professional
context. They may be in the business of giving advice or they may be especially
knowledgeable (and therefore specially to be trusted) about the subject on which
they speak. It is unusual, although not impossible, for the duty to arise between
friends in a relatively social context.
Case law example

In Chaudhry v Prabhakar [1988] 3 All ER 718 it was clear that considered advice was
being sought when the plaintiff asked a friend who had some knowledge of cars
to find a suitable car that had not been involved in an accident. The defendant
found her a car which he recommended but which was subsequently discovered
to have been involved in a serious accident, and poorly repaired. Although the
Court of Appeal imposed liability on the defendant, Stocker LJ stated that:
… in the absence of other factors giving rise to such a duty, the giving of
advice sought in the context of family, domestic or social relationships will
not in itself give rise to any duty in respect of such advice.
In such situations there would not be reasonable reliance.
10.3.2 ‘A voluntary assumption of responsibility’

The concept of ‘a voluntary assumption of responsibility’ has subsequently been used
to establish proximity in determining the existence of a duty of care. This arises from
an undertaking either expressed or implied that the defendant will exercise care
in giving information or advice. However, doubt has been expressed as to whether
this criterion was necessary or useful. In Smith v Bush [1990] 1 AC 831 Lord Griffiths
suggested that it is not a helpful or realistic test for liability, but in Henderson v Merrett
Syndicates Ltd [1995] 2 AC 145 Lord Goff said that the criticism of the concept of a
voluntary assumption of responsibility in Smith v Bush is misplaced. The expression
‘assumption of responsibility’ is considered in the textbooks and you should note the
discussion.
10.3.3 When is there liability?

The discussion of negligent statements tends to focus on the existence of the duty,
but you must not forget that the defendant is liable only if there is a lack of care.
Much advice on economic matters turns out to be wrong without being careless.
The defendant has the opportunity to explain the limits of their knowledge and the
amount of research they have undertaken and is to be judged according to what they
promised to do.
It also has to be shown that the negligent advice or information was a cause of the
claimant’s loss.
10.3.4 To whom is there liability?

The loss may be suffered by someone other than those to whom the advice or
information was addressed. Two decisions of the House of Lords can be contrasted:
Smith v Bush and Caparo Industries v Dickman [1990] 2 AC 605.
These deal with important social situations. In Smith a house purchaser, who wished to
obtain mortgage finance from a bank, sued a surveyor who had been commissioned
by the lending institution to provide a report (paid for by the purchaser) to the bank
about the state of the property. The surveyor was held to owe a duty to the purchaser
and not just to the bank, even though the purchaser had been advised about the
desirability of obtaining her own survey but had not done so. In Caparo a firm of
accountants who had carried out a statutory audit of a company were held to owe
a duty to the shareholders as owners of the company but not to the claimants who
launched a take-over bid for the company on the strength of the accounts.
Lord Bridge said that an essential ingredient of the required proximity in situations
where a statement is put into more or less general circulation is to prove that:
the defendant knew that his statement would be communicated to the claimant, either
as an individual or as a member of an identifiable class, specifically in connection with a
particular transaction or transactions of a particular kind… and that the claimant would be
very likely to rely on it…
You must ask yourself why different approaches were adopted in these cases. Consider
especially (i) the number of potential claimants in the two situations and (ii) the social
significance of each of the two situations.
10.3.5 The Caparo test

A duty may arise in a Caparo-type situation if the relationship between the claim and
the purpose for which the auditors’ report was prepared is close enough. The decision
has been interpreted as identifying a set of criteria which can be articulated into a
three stage checklist, known as the Caparo test. Under this test, for a duty of care to
arise:
1. the loss must be reasonably foreseeable

2. there must be a relationship of proximity between the parties, and
3. it must be fair, just and reasonable that the law should impose a duty – this enables
the court to take account of any underlying policy concerns.
In Caparo the report was intended to enable the shareholders, as owners of the
company, to decide whether they were satisfied with the management of the
company by the board of directors on the basis of the company’s past performance.
It was not intended as a basis for a decision to invest in the shares of the company.
Advice on this would be based on different criteria. There was no voluntary
assumption of responsibility towards potential investors, nor would it be reasonable
for such an investor to rely on this report for that purpose.
See: James McNaughton Paper Group Ltd v Hicks Anderson & Co [1991] 2 QB 113, Morgan
Crucible Co plc v Hill Samuel Bank & Co Ltd [1991] Ch 295, Law Society v KPMG Peat Marwick
[2000] 1 WLR 1921.
10.3.6 Reliance by a third party

The advice may be relied on by one person but the loss suffered by someone else:
Ministry of Housing v Sharp [1970] 2 QB 223, Spring v Guardian Assurance Ltd [1995] 2 AC 296.
In Spring the writer of a reference about a former employee seeking a job was held to
owe a duty of care to the employee and not merely to the prospective employer who
relied on it. Notice that the defendant was obliged (through the rules of the regulatory
system for financial institutions) to provide a reference. The reference supplied by the
defendant was damning and mistakenly alleged that the plaintiff was dishonest. He
suffered financial loss through not being able to find gainful employment. Even though
the reference was defamatory the plaintiff would not have succeeded in an action for
defamation since, in the absence of malice, the defendant would have been able to
establish a defence of qualified privilege (see Section 20.5.2). The plaintiff instead sued
in negligence. The defendant argued:
1. to give a cause of action in negligence would distort and subvert the tort of
defamation, and
2. if the plaintiff won, employers fearful of liability would be reluctant to write

references or supply only bland references that conveyed no relevant information.
The House of Lords agreed that the preservation of the law of defamation would not
be sufficient to deny the plaintiff a remedy and the defendant was liable. The majority
(Lord Keith dissenting) decided that the two torts were different. Defamation exists to
protect reputation but a negligent reference can do harm without affecting a person’s
reputation.
In McKie v Swindon College [2011] EWHC 469 (QB) an unsolicited email (not a reference)
containing largely erroneous and untrue statements sent by the former employer of
a lecturer led to his dismissal from a new job. Although the email was not a reference,
applying the Caparo test, the defendant was nevertheless liable for the negligent
statement.
10.4 Economic loss cases (ii): performance of a service

The Hedley Byrne case was long thought of as being concerned with advice or
information on which the claimant relied. Later it was interpreted more widely and an
‘extended Hedley Byrne principle’ was recognised: the defendant can be liable where
there has been a voluntary assumption of responsibility by the defendant towards the
claimant either generally or for the purposes of a specific transaction. On this view,
liability for negligent misstatements is merely an example of a wider principle and
reliance is not a necessary ingredient of liability.
In Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, a number of claims arising out
of the near-collapse of the Lloyd’s of London insurance market were taken by Lloyd’s
syndicates (known as ‘Names’) alleging negligence on the part of the agents who
organised the syndicates. The agents argued that the position with the Names should
be governed by the terms of the contracts between the parties and not by the law
of tort (which favoured some of the Names because of the more advantageous
limitation period in tort). The House of Lords held that the agents had assumed a
direct responsibility to the Names and a prima facie duty of care arose. Accordingly,
sub-agents acting on behalf of indirect Lloyd’s Names owed a duty of care to the
Names because they had assumed such responsibility. The existence of a contractual
relationship does not preclude liability in tort: their Lordships held that assumption
of responsibility can be the basis of recovery in tort where the defendant undertakes
a professional task. In Customs and Excise Commissioners v Barclays Bank (below) Lord
Hoffmann said the use of the concept of assumption of responsibility in this case,
while perfectly legitimate, was less illuminating.
The question was not whether the defendant had assumed responsibility for the accuracy
of a particular statement but a much more general responsibility for the consequences
of their conduct of the underwriting. To say that the managing agents assumed a
responsibility to the Names to take care not to accept unreasonable risks is little different
from saying that a manufacturer of ginger beer assumes a responsibility to consumers to
take care to keep snails out of his bottles.
The scope of the extended principle was explained by Lord Steyn in Williams v Natural
Life Health Foods [1998] 1 WLR 830, where the plaintiffs entered a contract with a
company to franchise a health food store. The plaintiff’s business was not a success
and they sought to prove that the defendant had personally assumed responsibility
for the negligent advice provided by the company (which had subsequently been
wound up). Although it was held in this case that the defendants had not personally
assumed responsibility to the plaintiff, Lord Steyn said that the extended Hedley Byrne
principle established in Henderson does not merely apply to negligent statements,
but also covers the negligent performance of services and can even found a tort duty
concurrently with contract.
Henderson was applied in West Bromwich Albion Football Club v El-Safty [2006] EWCA
Civ 1299 where a duty of care to the patient was not accompanied by an assumption
of a duty to a third party not to cause financial loss. In this case the football club
brought an action against a consultant surgeon for the financial losses suffered by
the club when one of its valuable players was negligently prescribed treatment by
the defendant. Although a degree of foreseeability and proximity was found to exist
between the consultant and club (which had paid for the treatment) the Caparo test
was applied. The Court of Appeal said that it would not be fair, just and reasonable
to impose a duty to the club on the ground that such a duty could conflict with the
doctor’s primary duty to care for his patient.
The ratio in Henderson was applied in Burgess v Lejonvarn [2017] EWCA Civ 254 in a
dispute over the alleged provision of gratuitous professional services. For about 10
years prior to the events giving rise to this dispute the claimants (the Burgesses) and
the defendant (Mrs Lejonvarn) were good friends. The claimants believed the quote
in excess of £150,000 plus VAT from a well-known landscape gardener to carry out the
work to be too expensive and they sought professional assistance from their friend
and former neighbour, the defendant. The defendant secured the contractor to carry
out the earthworks and hard landscaping with the intention that she would provide
subsequent design input for which she would charge a fee. However, the project
went badly wrong and the Burgesses sued Mrs Lejonvarn both in contract and in tort.
The court found it quite impossible to find any clear form of offer or acceptance and
concluded that there was no contract between the parties. However, the claim in
tort was successful: the defendant possessed a special skill and she had assumed a
responsibility in respect of both the advice and service on which her friends relied.
There is an important example of the extended Hedley Byrne principle in White v Jones
[1995] 2 AC 207 where the assumption of responsibility by a solicitor towards his clients
was extended to the intended beneficiary of the client’s will who, as the result of the
failure by the solicitor to execute the will before the client’s death, was deprived of
the intended legacy. The case is striking because the claimant did not suffer a loss,
but merely failed to get a financial benefit that the deceased testator had intended
her to have. The main reason for extending the responsibility of the solicitor was that
otherwise there would be no sanction against a failure by the solicitor: the deceased’s
client estate would have a contract action against the solicitor, but the estate had
suffered no loss. Reliance on the statement by the claimant is not essential to establish
a duty of care. Their Lordships held that by accepting instructions to draw up a will, a
solicitor came into a ‘special relationship with those intended to benefit under it’ and
this, in consequence, imposed a duty on the solicitor to act with due expedition and
care on behalf of the beneficiaries.
Another example of the scope of an extended assumption of responsibility can be found

in Gorham v British Telecommunications plc [2000] 4 All ER 867 where the Court of Appeal
confirmed that White v Jones is not confined to claims relating to wills. In this case, Mr
Gorham was sold a personal pension without being advised that BT’s occupational
pension might be better for him. Although, even if he had joined the BT scheme when
he was informed that it might be better, his family would not have been entitled to a
pension because he would not have been a member of the scheme for two years before
his death. They would, however, have been entitled to a lump sum and it was clear that
Mr Gorham had intended to create a benefit for his dependent wife and family and
therefore a duty of care was owed to them by the insurance company.
10.5 Slogans or practical guides?

Are ‘proximate’, ‘fair, just and reasonable’ and ‘assumption of responsibility’ used as
slogans rather than practical guides to whether a duty should exist?
In Customs and Excise Commissioners v Barclays Bank Plc [2006] UKHL 28, the claimants
had obtained a ‘freezing order’ against the assets of two companies in order to
protect VAT payments which were owed to the claimants. The orders should
have alerted the bank not to allow the companies to withdraw money from their
accounts. Nevertheless, the companies managed to withdraw large sums and the
Commissioners were then unable to recover the money they were owed. The judge
at first instance held that the defendant bank had not owed a duty of care to the
Commissioners but the Court of Appeal held that they were owed a duty of care on
the basis of an assumption of responsibility by the bank as soon as the freezing order
was served and by the application of the Caparo ‘fair, just and reasonable’ test. When
considering whether there is sufficient proximity the courts look for a much closer
relationship in the shape of the ‘special relationship’ but how that is characterised
depends on the particular context and, as pointed out by Lord Bingham, the same
result seemed to be reached whatever formulation was adopted.
The House of Lords reversed the Court of Appeal finding of liability and restored the
trial judge’s original decision; no common law duty of care could be said to arise
out of the freezing order itself. The Hedley Byrne special relationship was not easily
established on the basis of reliance because the Commissioners did not rely on
the defendants to comply with the order. The Commissioners relied on the courts
to enforce the order. A degree of voluntariness is essential to an ‘assumption’ of
responsibility but in this case the defendants had the freezing order ‘thrust upon
them’ by the court. If the ‘voluntary assumption of responsibility’ is present then it
may suffice to impose a duty, but this is not a necessary condition of liability. Where
the voluntary assumption of responsibility test does not provide a clear statement of
duty then the Caparo three-stage test may be applied and policy issues considered.
Lord Bingham said:
I think it is correct to regard an assumption of responsibility as a sufficient but not a
necessary condition of liability, a first test which, if answered positively, may obviate the
need for further enquiry. If answered negatively, further consideration is called for.
According to Lord Hoffmann ([35], [36]):
There is a tendency, which has been remarked upon by many judges, for phrases like
‘proximate’, ‘fair, just and reasonable’ and ‘assumption of responsibility’ to be used as
slogans rather than practical guides to whether a duty should exist or not. These phrases
are often illuminating but discrimination is needed to identify the factual situations
in which they provide useful guidance… The answer does not depend upon what
the defendant intended but, as in the case of contractual liability, upon what would
reasonably be inferred from his conduct against the background of all the circumstances
of the case. The purpose of the inquiry is to establish whether there was, in relation to
the loss in question, the necessary relationship (or ‘proximity’) between the parties
and… the existence of that relationship and the foreseeability of economic loss will
make it unnecessary to undertake any further inquiry into whether it would be fair, just
and reasonable to impose liability. In truth, the case is one in which, but for the alleged
absence of the necessary relationship, there would be no dispute that a duty to take care
existed and the relationship is what makes it fair, just and reasonable to impose the duty.
T|hen, as was done in the West Bromwich Albion case (above), the Caparo three-part test
was applied. Foreseeability of possible loss by the claimants was present, but proximity
between the parties was doubtful. Most importantly, it would not be fair, just and
reasonable to impose a duty of care. Such a duty would make banks liable for potentially
huge sums in response to minor mistakes on their part; additionally there are better
means than the law of tort for maintaining strict standards of propriety in banking.
Activities
activity 10.1
Core comprehension – economic torts

This core comprehension activity aims to consolidate your basic knowledge of the
economic torts and the concept of economic loss.
Read the extract from Carty, H. An analysis of the economic torts. (Oxford:
Oxford University Press, 2010) second edition [ISBN 9780199546749], Chapter 1
‘Introduction’ provided in your study pack.
It is necessary to read your Essential reading from Lunney and Oliphant and pp.1–5
of the Carty text before commencing this activity.
An applied comprehension activity is available, below, on the latter section of the
Carty text.
a. What is the primary function of economic torts?
b. List the six types of torts of intention within the economic torts.
c. In which exceptional circumstance may the tort of negligence perform the

function of an economic tort?
d. Briefly summarise the issue in Hedley Byrne.
e. Identify the two policy reasons which underpin the traditional resistance to
recovery of pure economic loss.
f. What is the rationale of liability applied to the tort of negligence?
activity 10.2
Applied comprehension – abstentionist and interventionist policy

Please ensure that you have completed the Essential reading from Lunney and
Oliphant and the Carty reading in your study pack before answering the following
questions. This activity focuses on pp.5–15 of the Carty text.
a. Give reasons for the common law’s deprioritisation of the protection of
economic interests in favour of the protection of physical integrity, property
rights/enjoyment and reputation.
b. Explain why motive of itself was not a permissible mechanism for imposing
economic tort liability.
c. Explain why the absentionist approach was continued in the torts of deceit and
malicious falsehood.
d. Identify the main justification for the absentionist policy followed by the courts.
e. What is the main gist of the tort of passing off?
f. To what extent is the absentionist policy applied to the tort of passing off?
g. According to O’Sullivan, which boundaries were being addressed by

interventionist policy?
h. What reason was given for the lesser importance of developing the economic
torts towards the end of the 20th century?
i. Summarise the main difference between absentionist policy and interventionist

policy.
Notes
11 Liability of public bodies
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.1 Liability of public bodies . . . . . . . . . . . . . . . . . . . . . . . . 105
11.2 What policy issues are relevant? . . . . . . . . . . . . . . . . . . . . 105
11.3 Relevance of statutes . . . . . . . . . . . . . . . . . . . . . . . . . . 105
11.4 General illustrations of the question . . . . . . . . . . . . . . . . . . 106
11.5 The impact of the Human Rights Act 1998 . . . . . . . . . . . . . . . . 106
11.6 Specific scenarios . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
11.7 Other public policy considerations . . . . . . . . . . . . . . . . . . . 110
11.8 Education and social work . . . . . . . . . . . . . . . . . . . . . . . 110
11.9 Failure to exercise a power . . . . . . . . . . . . . . . . . . . . . . . 111
11.10 Liability in certain circumstances . . . . . . . . . . . . . . . . . . . . 111
11.11 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Introduction
Controversially, public bodies, such as police and local authorities and rescue
services, are unlikely to be held responsible in tort for a mere failure to act (save in
circumstances where they may be liable under the tort of breach of statutory duty
which we do not cover in this module). In this chapter we examine the underlying
policy considerations and the principles that govern liability in negligence for public
bodies.
Learning outcomes
be able to:
uu evaluate the scope of liability in negligence on public bodies, such as police and
local authorities and rescue services
uu describe the public policy considerations underlying the decisions in claims
against public bodies
uu explain the impact of the European Convention on Human Rights (ECHR) on the
liability of such bodies
uu explain the circumstances when a public body may create an assumption of
responsibility to a specific individual.
Essential reading
¢¢ Lunney and Oliphant, Chapter 10 ‘Negligence: duty of care – public bodies’.
Tort law 11 Liability of public bodies page 105
11.1 Liability of public bodies

To a large extent, the law of negligence applies to public officials and public bodies
in the same way as it does to private individuals and commercial bodies. In the
context of public bodies, such as police and local authorities and rescue services, the
question that has concerned the courts is whether the just, fair and reasonable test
(Caparo-style or assumption of responsibility) could be utilised so that the functions
of the state are to be regarded as carried out not just for the public as a whole, but as
entailing a duty of care to individual citizens. In Robinson the Supreme Court held the
question of liability to private individuals in these circumstances does not depend
on ‘policy’ considerations because liability can be justified on the basis of the general
principles of negligence. Could victims of crime sue the police for failing to protect
them, or could an abused child sue the local council whose social services department
failed to provide appropriate care? Other than in the exceptional circumstances
outlined below, under the ordinary principles of negligence, a duty to prevent harm by
others will not be imposed.
11.2 What policy issues are relevant?

The approach set down in Robinson is that courts must consider what has been
decided previously and follow the precedents (unless it is necessary to consider
whether the precedents should be departed from). In cases where the question of
whether a duty of care arises has not previously been decided, the courts will consider
the closest analogies in the existing law and weigh up the reasons for and against
imposing liability. Among the policy arguments that have been considered are:
uu Will any damages payable come out of public funds? Is this the best use of public
funds?
uu Many cases raise issues that are problematic even when only private parties are
involved: omissions, liability for acts of third parties, economic loss.
uu The public authority often has a difficult job in balancing conflicting interests.
For example, a body has the job of licensing drugs. It has some indication that a
drug may have harmful side effects. If it acts too slowly in banning it, new patients
may have it prescribed and suffer ill effects. If it acts too quickly on what turn
out to be inaccurate indications, it will harm the profits of the drug company
and disadvantage patients who would benefit from receiving the drug. Similar
arguments apply to social workers who have to decide whether a child is suffering
abuse and should be taken into care: the interests of the child and those of the
parents have to be reconciled.
uu Imposing a duty of care may lead to an over-defensive attitude on the part of the
public body.
uu There may be other remedies available – an action for judicial review, a claim under
the Human Rights Act, a complaint to an ombudsman – and these may provide
justice without recourse to a tort claim.
11.3 Relevance of statutes

Many of the cases concern functions conferred by statute. A statute may impose a
duty (a council shall do something) or confer a power (a council may do something).
However, most of the duties are expressed in very general terms (a duty to provide
suitable education) and so, in respect of duties and powers, the public authority
has a very wide discretion as to how to act. There is a separate tort (i.e. distinct from
negligence) called breach of statutory duty but this is of virtually no relevance to the
liability of public authorities.
The basic question is this: how far can a common law tort of negligence arise from or
run alongside the statutory functions (powers or duties)? The general answer is that
such a duty may (but does not necessarily) arise so long as it is not inconsistent with,
and does not cut across, the statutory regime. The detailed answer is more complex
but is becoming simpler.
11.4 General illustrations of the question

The list below is a tentative set of illustrations of the main issues indicating where
matters are reasonably clear. There is recent authority that a statutory function will
seldom, if ever, bring about the sort of proximity between citizen and public authority
that would satisfy the second limb of the Caparo test. See the views of Sedley LJ in
Home Office v Mohammed [2011] EWCA Civ 351, striking out a negligence claim by Iraqi
Kurds whose applications for indefinite leave to remain in the UK had been successful
only after very long delays because of administrative failures identified in judicial
review proceedings.
Nevertheless, there are situations where a duty of care can exist so that there is
liability for damage caused by the way a duty or power was carried out:
uu There may be, between the public authority and the claimant, a pre-existing duty
of care so that either the improper exercise of a power or a failure to properly
exercise a power may be a breach of that duty (e.g. the duty of an employer to
protect an employee from stress; in Connor v Surrey County Council [2010] EWCA
Civ 286, [2010] 3 WLR 1302 the common law duty and the statutory power were
consistent with each other).
uu The public authority may carry out its duty or exercise its powers to set up some
permanent organisation which then owes a duty of care to those who use it. See
the examples of the ambulance service and the educational psychologists below.
uu The public authority may be treated as having assumed responsibility to a

particular individual: Barrett v Enfield London Borough Council [2001] 2 AC 550;
Swinney v Chief Constable of Northumbria Police [1997] QB 464.
uu Where the statutory function is intended to benefit one group of people, there is
great reluctance to accept a duty of care to other groups who may be affected by
an erroneous decision. For example, the parents wrongly suspected of abuse (JD v
East Berkshire Community NHS Trust [2005] UKHL 23, [2005] 2 AC 373) or the owners of
a residential home wrongly suspected of mistreating residents (Jain v Trent Strategic
Health Authority [2009] UKHL 4, [2009] 1 AC 853).
uu There are particular problems in imposing liability where the authority is alleged
to have caused damage by failing to use its powers (as opposed to misusing them).
See below.
11.5 The impact of the Human Rights Act 1998

The most relevant articles of the European Convention on Human Rights (ECHR)
are Articles 2 (right to life), 3 (protection from torture and inhuman and degrading
treatment) and 8 (respect for private and family life). These impose obligations on
public authorities, including at least some positive obligations. Article 2, for example,
does not merely prevent public authorities from killing people but also requires the
state to provide at least some protection against being killed by others.
Many violations of Convention rights are of course clearly also torts. But where they
are not, the domestic courts can respond in two different ways.
1. They can develop or expand the common law of tort to provide a remedy for the
violation of the Convention right.
2. They can leave the common law unchanged and let the victim seek a direct action
for breach of the Convention right under ss.7 and 8 of the Human Rights Act 1998.
Such an action differs from the common law action in three ways: (a) they must be
brought within one year (although this may be extended (s.7(5)); (b) damages are
discretionary (s.8(3)); (c) the measure of damages is likely to be lower than under
the common law rules.
At first the court was willing to create a duty of care to avoid a conflict with the
requirements of the ECHR (see the early social work cases below). More recently, they
have refused to do so and left the claimant to pursue a remedy under the 1998 Act. For
instance, see Jain v Trent Strategic Health Authority (above) where the House of Lords
declined to recognise a common law duty on the part of the health authority because
it might have a distorting effect on the nature of the duty of care even where public
authorities were not involved.
Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11 concerned an
alleged violation of the respondents’ rights under Article 3 of the European Convention
on Human Rights. This case concerned two victims of Worboys, a serial sex offender in
London known as the Black Cab Rapist who committed sexual offences against many
women. DSD, one of his first victims, attacked in 2003, claimed that failure to carry
out effective investigations into her complaints amounted to inhuman or degrading
treatment contrary to Article 3. Following a police review of sexual assault cases in
February 2008, which resulted in a media appeal, Worboys was convicted of 19 counts
of sexual assault, including the assault on NBV. Both women brought proceedings
against the police, alleging failure to conduct effective investigations into Worboys’
crimes constituted a violation of their rights under Article 3.
The Supreme Court ruled that Article 3 imposed a positive duty on police forces to
investigate allegations of inhuman or degrading treatment by private individuals in a
timely and efficient manner. The Court emphasised that errors must be serious to give
rise to a breach of this duty and the circumstances in which the police may be held
liable for failing to investigate crime are stringent, the outcome of this decision will
nevertheless create an additional burden on police forces when resources are already
extremely stretched.
Smith v Ministry of Defence [2013] UKSC 41 provides an example of the impact of the
ECHR on ‘combat immunity’ in negligence of the Ministry of Defence to members of
the armed forces. Here, the Supreme Court narrowed the scope of ‘combat immunity’
in a claim brought by the families of servicemen killed from a ‘friendly fire’ incident in
Iraq (not on the field of battle). The claimants alleged that the Ministry of Defence had
breached its duty of care in failing to provide available equipment and technology to
protect against the risk of friendly fire and to provide adequate vehicle recognition
training pre-deployment and in theatre.
The Supreme Court held that although decisions about training, procurement or the
conduct of operations at a high level of command are closely linked to the exercise of
political judgement and policy issues, positive obligations under Article 2 of the ECHR
should be given effect.
The doctrine of combat immunity was therefore given a narrow definition, restricting
it to acts of war applying only to actual or imminent armed conflict and not to failures
at the earlier stage of planning and preparation for active operations against the
enemy.
11.6 Specific scenarios

These principles of liability have been worked out in the following situations.
11.6.1 Protection of the public against crime

We have seen in Section 6.1 the retreat by the Senior Courts from a policy-based
justification against a general duty of care on the police to protect all members the
public from consequences of crime. The public policy reasons against negligence
liability originated in Hill v Chief Constable of West Yorkshire [1989] AC 53 where the
House of Lords held that, in general, the police owed no duty of care to individual
members of the public to identify and arrest a serial killer before he struck again.
Their Lordships further stated that a general duty of care to protect all members of
the public from the consequences of crime would be impracticable and, on grounds
of public policy, deeply damaging to police operations. This principle was restated
by the House of Lords in Brooks v Commissioner of Police of the Metropolis [2005] UKHL
24, where the claimant who witnessed the racist murder of his friend suffered post-
traumatic stress as the result of the way he was treated by the police. Following the
murder he was first treated as a suspect and later as a witness, but not as the victim
of crime. In rejecting a claim in negligence against the police the approach in Hill was
applied. According to Lord Steyn:
[T]he core principle of Hill has remained unchallenged in our domestic jurisprudence
and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case,
which was before the House in Hill, arose for decision today I have no doubt that it would
be decided in the same way. It is, of course, desirable that police officers should treat
victims and witnesses properly and with respect… But to convert that ethical value into
general legal duties of care on the police towards victims and witnesses would be going
too far.
Some years after Hill, the principle was applied in Osman v Ferguson [1993] 4 All ER 344,
where the identity of the suspect was known and the identity of the likely targets was
also known. Here, there were fatal consequences when police failed to act on warnings
that a teacher, who developed a disturbing infatuation with one of his students, was
likely to commit serious offences. The teacher conducted a campaign of harassment
against the Osman family, which culminated in his killing the student’s father and
injuring the student. Although the Court of Appeal was prepared to accept that this
case was different from Hill in that there was a sufficient relationship of proximity
between the plaintiff’s family and the police, the Hill immunity was applied and the
case failed on grounds of public policy. The Court of Appeal held that the claim should
be struck out as disclosing no cause of action, that is, even if all the facts alleged by
the claimant could be proved to be true, the claim was bound to fail in law. The police
were said rather inaccurately to have an ‘immunity’.
Following the rejection of their claim an action was then brought before the European
Court of Human Rights: Osman v UK [1999] 1 FLR 193. That Court held that there was no
breach of Article 2 (right to life) and laid down a rather narrow rule as to the
circumstances in which a state might violate the right to life by failing to protect the
public (this has been relied on in subsequent domestic cases):
It must be established… that the authorities knew or ought to have known at the time
of a real and immediate risk to the life of an identified individual or individuals from the
criminal acts of a third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to avoid that risk.
The court also held, relying on the reference to ‘police immunity’, that there was
a violation of Article 6 (right to a fair trial). This had for a time some influence on
subsequent domestic cases, but it is now accepted that this was a misunderstanding
and need not be further considered.
However, all these cases will need to be considered in the context of the Supreme
Court decision Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, which
held that the rules of tort apply similarly to public bodies and private persons alike. In
Robinson an elderly woman sustained injuries when she was knocked to the ground
during a police attempt to arrest a suspected drug dealer. The decision to arrest the
suspect at the time and place in question involved a foreseeable risk that the claimant
would be injured. Nevertheless, although the police were found to be negligent, the
trial judge held that under the Hill principle they were protected against claims in
negligence. In this landmark decision, the Supreme Court considered the line of cases
that had applied the Hill principle and upon which the Court of Appeal had relied to
find that a duty of care did not exist in this case.
The Court unanimously found the police liable for the injuries caused to the claimant.
In attempting to the arrest the suspect, the conduct of the police was a positive act
and, in these circumstances, they were subject to liability in accordance with the
general principles of negligence. The reasonable foreseeability of risk of harm to

the claimant was sufficient to impose a duty of care on the police. Where the police
attempt an arrest that is negligently performed (as in this case), they are liable for the
foreseeable consequences of their negligent actions.
This duty of care in respect of positive actions must be distinguished from the
imposition of liability for omissions to act. The common law does not normally impose
liability for an omission to act or failure to prevent harm caused by the conduct of
third parties (other than in exceptional circumstances).
11.6.2 Hill policy justifications superseded

These principles have been considered in the important cases noted below involving
alleged failures to protect victims or witnesses by the police or other public
authorities. These cases involved a claim in negligence or under the ECHR or both and
need to be read in full. All the claims failed: they contain important accounts of the
policy justifications that need to be carefully considered.
uu Brooks v Commissioner of Police of the Metropolis (above).
uu Michael v Chief Constable of South Wales Police [2015] UKSC 2.
uu Van Colle v Chief Constable of Hertfordshire and Smith v Chief Constable of the Sussex
Police [2008] UKHL 50, [2009] AC 225.
In Van Colle the chief constable appealed against the finding that the police had
been under a duty to take preventive measures to protect a witness who was being
threatened and was subsequently shot dead days before he was to give evidence. This
claim relied on Article 2 of the ECHR. The claimant in Smith brought an action under
the common law. He had repeatedly informed the police that his former partner had
threatened to kill him, and that the police had ample evidence of these threats. He
claimed that the police had no excuse for not preventing his partner from carrying
out the threatened hammer attack which caused him serious injuries. The issue
was whether the Court of Appeal had been correct to find that the police were not
immune from negligence liability in these two cases.
In both cases appeals against liability were allowed. In Van Colle the Osman test, that
the police knew or ought to have known ‘at the time’ of the shooting of ‘a real and
immediate risk to the life’ of an identified individual from the criminal acts of a third
party was not met. In respect of Smith’s claim, the balance of advantage in this difficult
area lay in preserving the principle set out in Hill whereby, in the absence of special
circumstances, the police owed no common law duty of care to protect individuals
against harm caused by criminals. In Smith, the Court of Appeal remarked that in cases
involving the police the very proximity of the parties can not only create a duty of care,
but can overcome the public policy considerations which would otherwise bar the
claim (as in Swinney, below) and said that whether under Article 2 or at common law, it
cannot be a valid ground of distinction that an informer is entitled to protection while
a witness is not. Does this indicate that the justification for the Hill immunity against
police liability in negligence is becoming more tenuous?
uu Mitchell v Glasgow City Council [2009] 1 AC 874.
In Mitchell, the question for the House of Lords was whether the local authority had
assumed a responsibility to protect one of its social housing tenants who, following
a long campaign of abuse and threats, was murdered by a fellow tenant. Although
the local authority had been aware that the victim’s neighbour might resort to
violence after being informed that he risked being evicted, the required element of a
relationship of responsibility was absent, as it would not be ‘fair, just and reasonable’
to impose this duty on a public authority coping with an onerous burden of anti social
behaviour among tenants. In Robinson the Supreme Court cited Mitchell to illustrate
that public authorities, like private individuals and bodies, generally owe no duty of
care towards individuals to prevent them from being harmed by the conduct of a third
party.
Following Mitchell, the question of local authority liability for omissions and the
criminal acts of third parties who carried out serious physical and sexual abuse on a
vulnerable family was considered.
uu X v London Borough of Hounslow [2009] EWCA Civ 286.
In X, the claim against the local authority for failing to take emergency action to
stop the escalating acts of abuse against a married couple with learning difficulties
succeeded at first instance. However, the restrictive approach to liability in Mitchell was
followed by the Court of Appeal, which held that a specific assumption of responsibility
by words or deeds on the part of the local authority had not been shown.
11.7 Other public policy considerations

The immunity in negligence in respect of police activities in the investigation and
suppression of crime may be displaced by other considerations of public policy. In
Swinney v Chief Constable of Northumbria, the plaintiff supplied information to the
police relating to serious crime and had been subjected to threats of violence and
arson when the defendant negligently allowed her name as a police informant to fall
into the wrong hands. She sued the police in negligence on the basis that they had
been under a duty of care to keep her details confidential. The defence sought to
have the case ‘struck out’ arguing that, based on Hill, it disclosed no cause of action.
However, the Court of Appeal found the required foreseeability and proximity.
When it came to the policy stage of the test the plaintiff was found to have at least
an arguable case on grounds of public policy because the fight against crime is daily
dependent upon information fed to the police by members of the public. Therefore, in
spite of Hill, the plaintiff had an arguable case in negligence: there was a sufficient degree
of proximity as she was not merely a member of the public, but had a special relationship
with the police which rendered her distinguishable from the general public.
When the case proceeded to trial it was held that the police, in leaving the information
in a locked briefcase in a locked car, had not been negligent. So, even though a duty
of care was established there had been no breach of duty. Swinney v Chief Constable of
Northumbria (No 2) (1999) 11 Admin LR 811.
11.8 Education and social work

The House of Lords decided a large number of cases involving social workers and the
education services. They are all reported together as X v Bedfordshire County Council
[1995] 2 AC 633.
Some of the cases involved failures by educational psychologists employed by the

council to correctly diagnose learning difficulties such as dyslexia. The House held that
these claims should not be struck out.
Two of the cases involved social services. In one (the Bedfordshire case) social workers
failed to take children into care although they had many reports from teachers,
neighbours and so forth that they were being abused. In the other (the Newham
case) social workers took a child away from her mother into care because, through
confusion about two men with the same name, they thought she was being abused by
her mother’s boyfriend. The House held that there could be no duty of care in either
case. Both cases were then taken to the European Court of Human Rights.
In addition to their claim in common law negligence, the children brought an action
for breach of statutory duty, claiming that their injury resulted from breaches of the
Children Act 1989 by their local authority. Their Lordships held that in the light of
the other range of remedies under the Act (e.g. the statutory appeals procedure in
the education cases) it was inconceivable that Parliament intended an additional
right of action for breach of statutory duty. A tortious duty of care was incompatible
with these remedies and would also cut across a complex statutory framework (e.g.
educational bodies, doctors, police, etc.) established by Parliament for the protection
of children at risk.
In the Bedfordshire case that court ruled that there was a breach by the UK of Article 3
ECHR in that the authorities had failed to save the children from inhuman treatment: Z
v UK [2001] 2 FLR 612.
In the Newham case the European Court held that there was a breach of Article 8 in
that the mother had not had access to documents which would have revealed the
confusion: TP and KM v UK [2001] 2 FLR 549.
Subsequently, the House of Lords has held that a council was vicariously liable for the
failure of its employed educational psychologist: Phelps v Hillingdon London Borough
Council [2001] 2 AC 619. The employee, though exercising a statutory function, was
providing a service like any other salaried professional. The decision was based on the
fact that an educational psychologist is specifically called in to advise in relation to
the assessment and future provision for a specific child, and it is clear that parents and
teachers will follow that advice. Educational psychologists assume a duty of care to
pupils but, according to Lord Slynn,
That phrase can be misleading in that it can suggest that the professional person must
knowingly and deliberately accept responsibility… The phrase means simply that the law
recognises that there is a duty of care. It is not so much that responsibility is assumed as
that it is recognised or imposed by the law.
There have been a number of other social work cases. In one case the Court of Appeal
held that, in order to comply with the rulings of the European Court of Human Rights,
it was necessary to follow Z v UK rather than X v Bedfordshire and to hold that a duty
was owed to the child but was not owed to the parents suspected of abuse whose
interests might conflict with those of their children. There was an appeal to the
House of Lords only by the parents: the House agreed that there was no duty (JD v East
Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373).
11.9 Failure to exercise a power

The general principle is that a mere failure to exercise a power at all is a simple
omission and does not give rise to liability. The problem was fully considered in Stovin
v Wise [1996] AC 923 where a majority held that a council’s failure to exercise its powers
to remove an obstruction from private land which interfered with a motorist’s view at
a dangerous junction could not give rise to liability. This was further considered and
qualified in Gorringe v Calderdale MBC [2004] UKHL 15, [2004] 2 All ER 326.
There are, however, some qualifications to this.
A council may bring itself under an obligation to use its powers to deal with a danger
on the highway where its own actions have brought about the danger: Kane v New
Forest District Council [2001] 3 All ER 914; Yetkin v Mahmood [2010] EWCA Civ 776, [2011] 2
WLR 1073.
11.10 Liability in certain circumstances

There are situations where the duty has been held only not to make matters worse
than they would have been if the local authority had done nothing. Contrast Capital
and Counties plc v Hampshire County Council [1997] QB 1004 (fire service) and Kent v
Griffiths [2000] 2 All ER 474 (ambulance service) outlined below.
In Capital and Counties a number of consolidated appeals were heard in respect of

claims in negligence against the fire brigade. In one case, the fire officer at the scene
had ordered the sprinkler system in a burning building to be switched off. If the
sprinkler had not been switched off the damage caused by the fire would have been
far less extensive. In the second case, the fire brigade attended the fire and then left
the scene believing that the fire was out. It failed, however, to notice smouldering
debris which reignited and caused further damage. The third case involved the failure
of the fire service to inspect and maintain hydrants and ensure that an adequate
supply of water was available at the scene of the fire. The Court of Appeal held that
there is no proximity of relationship between the fire brigade and a building owner
in respect of negligence in the tackling of a fire: policy considerations including
the possibility of defensive fire-fighting were relevant. Liability in negligence in the
tackling of a fire would not arise unless the fire service negligently increased the
damage or caused additional damage.
In Kent v Griffiths an emergency situation arose. The doctor called the ambulance
service and requested that an ambulance be sent to the pregnant patient’s home as
a matter of urgency. Despite a number of further calls, the ambulance did not finally
arrive until 38 minutes after the original call. Although the claimant was given oxygen
on the way to the hospital, she suffered respiratory arrest which resulted in brain
damage and a miscarriage. The Court of Appeal held that in certain circumstances
an ambulance service could be liable in negligence: although no duty is owed to the
public at large to respond to a call for help, once a 999 call in a serious emergency had
been accepted, the ambulance service did have an obligation to provide the service
for a named individual at a specified address. The duty on the ambulance service was
distinguished from a general duty on civilian receptionists in Darnley v Croydon Health
Services NHS Trust (see Section 7.3.9).
11.11 Reform
The Law Commission Consultation Paper No 187 Administrative redress: public bodies
and the citizen (2008) sought views on a proposal for a comprehensive review of the
liability of public authorities including a new tort imposing liability where there was
really serious fault. The Law Commission abandoned its views after Law Com 322 (May
2010). Sedley LJ had some harsh things to say about this in Home Office v Mohammed
[2011] EWCA Civ 351.
Activities
activity 11.1
Core comprehension – obligations, omissions and the ECHR

As a student of tort you will be required to command a working knowledge of the
rights and obligations enshrined in the European Convention on Human Rights and
how they impact on our understanding of the law of tort.
Read Wright, J. ‘Positive obligations, omissions and the Convention: should English
law recognise a duty to rescue/warn?’ in Wright J. Tort law and human rights: impact
of the ECHR on English law. (Oxford: Hart Publishing, 2001) second edition [ISBN
9781841130354] (in your study pack) and answer the following questions.
a. Identify the first generation of Convention rights.
b. Identify the second generation of Convention rights. What do these rights

guarantee?
c. Give two reasons to substantiate the assertion that second generation rights
‘occupy a weaker normative area than their civil and political cousins’.
d. Identify the two main ideas which the notion of positive obligations
encompasses, and give an example of each main idea.
e. Which general rule of English tort law may be impacted in particular by the
positive obligations on states as recognised by Strasbourg? Give an example of a
context for this rule.
f. Which omissions were central to the following cases: (i) Marckx v Belgium (ii)
Airey v Ireland (iii) Passante v Italy?
g. Explain what is meant by the ‘margin of appreciation’.
h. How are the boundaries between the state’s positive and negative obligations
determined?
i. Identify two types of positive steps which states are required to take and an
example of a related Article 8 case.
j. With regards to Article 2, the right to life, (i) identify the positive obligation
inherent in this right; and (ii) identify which principle is applied to determine
the extent to which a state should ensure its obligation.
activity 11.2
Core comprehension – wrongly suspected parents

This core comprehension activity considers the issue of ‘wrongly suspected parents’
in child abuse cases and the approach of the court to the question whether affected
parents should be entitled to claim for damages in negligence. The questions focus
on Lord Nicholls’ judgment ([52]–[88]).
Find and read the case of JD v East Berkshire Community Health NHS Trust [2005]
UKHL 23.
A shorter extract of Lord Nicholls’ judgment can be found in Lunney and Oliphant,
Chapter 10 ‘Negligence: duty of care – public bodies’, Section III ‘The private law
dimension (i): policy reasons for limiting the liability of public bodies’.
a. Identify the primary question and the parallel question which the House of
Lords considered.
b. Three cases against public authorities were conjoined in the JD case, namely (1)
the East Berkshire case; (2) the Dewsbury case and (3) the Oldham case. For each
of these cases identify (i) the suspicion of child abuse which had been alleged
against family members; and (ii) the correct diagnosis.
c. What was the main reason given for dismissing the claims of psychiatric damage
caused to the parents in the lower courts?
d. Identify the principle which governs the actions of doctors and social workers
when they suspect that a child is being wilfully harmed by its parents.
e. Which two countervailing interests have to be weighed up when parental child

abuse issues are raised?
activity 11.3
Applied comprehension – public authority liability in child abuse cases

This applied comprehension activity continues the consideration of the issue of
‘wrongly suspected parents’ in child abuse cases and examines the public policy
reasons which restrict public authority liability in such cases. The questions focus
on Lord Nicholls’ judgment ([72]–[88]) and then on Lord Bingham’s dissenting
opinion ([31]–[44]) in JD v East Berkshire.
Lord Nicholls
a. Paraphrase in fewer than 30 words why children as victims of crime deserve
special protection.
b. How does Article 8 of the Human Rights Act protect families from interference in
their family life by public authorities?
c. Identify a crucial element which is necessary in the law of negligence to

successfully argue misfeasance in public office.
d. Why does the distress suffered by ‘wrongly accused parents’ not support the
argument that damages should be awarded for their distress?
e. Explain, in fewer than 50 words, why Lord Nicholls rejects the argument that the
duty to exercise due skill and care in investigating the possibility of abuse has
the same content in terms of the duty to parents and the duty to the child.
Lord Bingham – dissenting opinion

f. Identify the main argument of Lord Bingham’s dissent with regard to the first
two policy reasons relied on to deny a duty of care as outlined in [31]–[33].
g. Why does Lord Bingham reject the established policy ground of the ‘defensive
approach’ to protect healthcare professionals from claims made by parents in
this context?
h. Explain how children and their parents are affected by the consequences
stemming from misdiagnosis of child abuse in terms of a breach of duty of care.
i. Outline (i) the steps which professional healthcare workers should take when
suspicions of child abuse are raised, and (ii) explain a potential weakness in the
system if no duty is owed to the parents.
j. Why does Lord Bingham opine that the defensive approach justification is less
applicable to the actions of healthcare professionals in cases of wrongfully
suspected parents?
Sample examination question

Because of complaints about difficulty in finding competent builders, electricians
and other tradesmen in the area, Gammashire County Council started a register
of approved tradesmen accessible through the council’s web site. In the council
newsletter circulated free of charge in the county, there is a section entitled,
‘What your council does for you.’ In this section the following item has appeared
regularly: ‘No more hassle or worry about shoddy builders or dodgy electricians. For
a decent service, just go to our website, and click on “Tradewatch”. You’ll find all the
information you need.’
In February 2015 Stella, needing an electrician, found Trevor’s name through the
council website. Trevor carried out electrical work in her house. When she next
switched on an electrical appliance, there was an explosion and fire broke out. A
neighbour phoned for a fire engine, but the driver misunderstood his instructions
and went to the wrong address. The house was gutted.
Three people had complained to the council about Trevor’s workmanship
between November 2014 and February 2015, but, because of staff shortages, these
complaints had not been investigated and the website had not been updated since
the beginning of 2015.
Advise Stella.
Advice on answering the question

An obvious claim is against Trevor on an ordinary negligence basis for carrying out
his work carelessly. The more interesting claims are against the public authorities.
There are policy issues about the liability of the public authority. It has tried to help
people who live in the area by providing a list of tradesmen who can carry out work.
Should they be deterred from this useful service by the possibility of liability? (NB:
There is no suggestion that Trevor is or is held out as an employee of the council
and so no question of vicarious liability, as in Chapter 4, can arise.) It appears
to be voluntary, but there would be difficulties with liability even if they were
exercising statutory powers. The strongest argument against the council is that
by expressing themselves so strongly in the newsletter they will be held to have
assumed responsibility to visitors to the site. However, most cases of assumption of
responsibility envisage liability to a single person
Part III: Negligence 2: breach of duty, causation and
remoteness, defences in negligence
12 Breach of duty
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
12.1 Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
12.2 Falling below the standard of care . . . . . . . . . . . . . . . . . . . 119
12.3 Are decisions on breach questions of fact or law? . . . . . . . . . . . . 123
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Introduction
We have seen that the first step in establishing a claim in negligence is to show that
the defendant owed a duty of care to the claimant. The next question is whether there
has been a breach of that duty. Has the defendant actually been negligent?
As a practical matter, this is very important. It will often be a major issue between the
claimant’s advisers and the defendant’s advisers or insurers in attempting to reach a
settlement.
Learning outcomes
be able to:
uu explain the standard of care in negligence
uu analyse the balancing factors which judges use to determine the standard of care
required in the circumstances
uu evaluate how the reasonable man test is modified in the case of professionals
uu outline the attempts to address the deterrent effect of potential liability in
setting the standard of care too high.
Essential reading
¢¢ Lunney and Oliphant, Chapter 4 ‘Breach of duty’, Section IV ‘The objective
standard of care’, Subsections 1 ‘Lack of skill and experience’, 2 ‘Physical and
mental disability’ and 3 ‘Age’.
Tort law 12 Breach of duty page 117
12.1 Breach of duty

The definition of what constitutes a breach of duty has not changed since the
decision in Blyth v Birmingham Waterworks (1856) 11 Exch 781. Here it was said that to
avoid breach (or ‘negligence’) the defendant must conform to the standard of care
expected of a reasonable person.
Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.
From this it can be seen that there are two stages to the breach of duty enquiry.
1. We must determine the standard against which the defendant’s conduct in an

action for negligence is judged – this is a question of law.
2. We must weigh the factors that go to determine whether the defendant has
fallen below the standard of care – this is largely a question of fact, although case
law provides us with some guidance over the factors that courts are especially
persuaded by when addressing the second stage of the breach of duty enquiry.
12.1.1 The reasonable man and the objective man

Whether the defendant in question is judged as a reasonable average man or a
reasonable skilled man, the law applies an objective test of reasonableness. This
means that any characteristics of the defendant or any characteristics shared among
a particular class of defendants (for example, inexperience among trainees), which
might affect their capacity to carry out a task to a reasonable standard, are not taken
into account when determining whether the defendant has fallen below the standard
of care.
In an oft-cited passage, Lord Macmillan in Glasgow Corporation v Muir [1943] AC 448

said:
the standard of foresight of the reasonable man is, in one sense, an impersonal test.
It eliminates the personal equation and is independent of the idiosyncrasies of the
particular person whose conduct is in question.
It is an objective test. The abstract reasonable person is put into the shoes of the
defendant, who is expected to have the same general knowledge and understanding
of risks (say, that icy roads are slippery or that children may get up to mischief) as the
reasonable person. The actual defendant may be more stupid or more ignorant, or
may be cleverer or more knowledgeable, but is still judged by this abstract impersonal
standard. Whether the reasonable man test is truly objective and, if so, whether an
objective test is justifiable within a fault-based system of liability, is one of the most
enduringly controversial questions that surround the tort of negligence.
12.1.2 The standard of care

It is important to remember that the defendant is to be judged by how a reasonable
person would have behaved at the same time and in the same circumstances. The
defendant must not be judged with the benefit of hindsight (making use of knowledge
not available at the time of the alleged tort) and allowance must be made for any
special circumstances affecting the defendant (e.g. having to act under pressure or
with limited time for full consideration). Many cases involve car drivers. The only
standard of care is that of a reasonable driver, whether the actual driver is highly
experienced, newly qualified or even just a learner. It is irrelevant that the learner
driver defendant was doing as well as they could, given their lack of experience, if a
reasonable driver would have done better.
Case law example

In Nettleship v Weston [1971] 2 QB 691 the plaintiff was teaching the defendant to
drive. During the course of the defendant’s third lesson, she panicked and steered
the car into a lamp-post and the plaintiff suffered a broken knee cap. At first
instance the trial judge decided that the plaintiff had not been at fault because
she had been doing her best to control the car. However, the Court of Appeal
disagreed with the trial judge and held that the standard of care required of a
learner driver is the same as that of the ordinary qualified driver. The defendant’s
driving had fallen below this standard and it was irrelevant that this was because
of her inexperience. According to Lord Denning: ‘A learner driver may be doing his
best but his incompetent best is not good enough’.
12.1.3 Defendants with special skills or qualifications

Most of the difficult reported cases, however, involve defendants with special skills
or qualifications. It would be silly to ask whether a reasonable ‘person’ would have
removed the appendix or designed the building in the same way as the actual surgeon
or architect who is being sued. In such cases the defendant is to be compared to a
reasonable person with the relevant skill or qualification. This is not always easy.
1. There is sometimes doubt as to exactly what skill or qualifications the defendant

professes to have.
2. There may be doubt as to whether a large group (say car drivers or doctors)
should be sub-divided into smaller categories for the purpose of comparison with
reasonable members of the group.
The case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 is the
leading authority on the standard of care applicable to defendants who possess (or
claim to possess) a special skill.
12.1.4 The ‘Bolam test’

The plaintiff in Bolam agreed to undergo electro-convulsive therapy (ECT) during which
he suffered a fracture to the pelvis. The issue was whether the doctor was negligent in
failing to give a relaxant drug before the treatment, or in failing to provide means of
restraint during the procedure. Evidence was given of the practices of various doctors
in the use of relaxant drugs before ECT treatment. One body of medical opinion
favoured the use of relaxant drugs, but another body of opinion took the view that
they should not be used because of the risk of fractures. According to McNair J at 586:
In an ordinary case it is generally said you judge it by the action of the man in the street.
He is the ordinary man. In one case it has been said you judge it by the conduct of the man
on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation
which involves the use of some special skill or competence, then the test as to whether
there has been negligence or not is not the test of the man on the top of a Clapham
omnibus, because he has not got this special skill. The test is the standard of the ordinary
skilled man exercising and professing to have that special skill. A man need not possess
the highest expert skill; it is well established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that particular art.
12.1.5 The Bolam test applied

The Bolam test has been applied in a number of contexts. For examples, see: Roe v
Ministry of Health [1954] 2 QB 66; Luxmoore-May v Messenger, May Baverstock [1990] 1 All
ER 1067; and Moy v Pettman Smith [2005] UKHL 7, [2005] 1 WLR 581.
Often, the problem is one of defining the group to which the defendant belongs:
Phillips v Whiteley [1938] 1 All ER 566. Did the defendant, who had pierced the claimant’s
ears, have to show the care of a reasonable surgeon or of a reasonable jeweller?
In Shakoor v Situ [2000] 4 All ER 181 there is an interesting analysis of how to treat
a practitioner of traditional Chinese medicine working in England. Was he to be
compared to a reasonable orthodox doctor, a reasonable traditional doctor practising
in China or a reasonable traditional doctor practising in England?
In Wilsher v Essex Area Health Authority [1988] 1 All ER 871, the Court of Appeal rejected
the argument that an inexperienced junior doctor owed a lower duty of care.
Glidewell LJ commented:
the law requires the trainee or learner to be judged by the same standard as his more
experienced colleagues. If it did not, inexperience would frequently be urged as a defence
to an action for professional negligence.
In FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334 the approach to the
medical standard of care in Wilsher was endorsed and applied where the delay in
proper diagnosis and treatment of a child’s condition resulted in brain damage.
According to Lord Justice Jackson [59]:
Whether doctors are performing their normal role or ‘acting up’, they are judged by
reference to the post which they are fulfilling at the material time. The health authority or
health trust is liable if the doctor whom it puts into a particular position does not possess
(and therefore does not exercise) the requisite degree of skill for the task in hand.
12.1.6 Children
Children may be liable in negligence and are judged by what might be expected of
a reasonable child of the defendant’s age, and the courts appear to be indulgent
towards high spirits and horseplay. In Mullin v Richards [1998] 1 All ER 920 two 15-year-
old schoolgirls were ‘fencing’ with plastic rulers when one of the rulers snapped
and caused a serious eye injury in one of the girls. The girls were judged against the
standard of the ordinary 15-year-old and in the circumstances (such games were
common at the school and were not prohibited) the Court of Appeal found the risk of
injury was not reasonably foreseeable.
12.2 Falling below the standard of care

Lord Macmillan in Glasgow Corporation v Muir [1943] AC 448:
It is still left to the judge to decide what, in the circumstances of the particular case, the
reasonable man would have had in contemplation… Here there is room for diversity of
view… What to one judge may seem far-fetched may seem to another both natural and
probable.
The outcome is therefore to that extent unpredictable even in the tiny minority of
cases that are resolved in court.
12.2.1 Eliminating harm must be proportional to the danger

A defendant is not required to eliminate all risk of harm even when it is foreseeable: to
do so might be out of all proportion to the danger. The defendant must do something
only if a reasonable person would have thought it right to do so. In deciding what
precautions have to be taken to minimise a perceived risk, the following guidelines
may be taken into account:
uu How likely was it that injury would occur?
In Bolton v Stone [1951] AC 850 the plaintiff was standing in a quiet road when she
was struck by a cricket ball which had been driven from the defendants’ cricket
ground. It was rare for balls to be hit out of the ground; only on about six occasions
in 28 years had balls been hit out and no injury had resulted on these occasions.
Even though the risk of such an accident was foreseeable the chance that it would
actually occur was very small. The House of Lords held the defendants were not
liable because in the circumstances it was reasonable to ignore such a small risk.
However, in Miller v Jackson [1977] QB 966 where cricket balls were hit out of their
ground eight or nine times a season and, on numerous occasions, had damaged
the plaintiff’s property, a majority in the Court of Appeal held that the risk of harm
was so great that the defendants were liable.
uu How serious was the injury likely to be if it did occur?
Paris v Stepney BC [1951] AC 367 illustrates that the obligations of a potential

defendant may increase where the risk to a claimant is of greater damage than
normal. Here, the defendants knew that the plaintiff was blind in one eye. He was
working in conditions which involved some risk of eye injury but the likelihood of
this injury was not sufficient to call upon the defendants to provide goggles to a
normal two-eyed workman. The plaintiff was rendered totally blind when a chip of
metal entered his good eye. The House of Lords ruled that the duty of employers
was owed to each particular employee and they were negligent in failing to
provide goggles to the plaintiff. The risk to a two-eyed workman was the loss of one
eye but in this case the plaintiff risked the much greater injury of total blindness.
uu How difficult and/or expensive would it be to eliminate the risk?
Where a risk is slight, failure to take a precaution which is prohibitively expensive

may not be negligent. In Latimer v AEC [1953] 2 All ER 499, after a heavy rainfall the
defendants’ factory was flooded and the water mixed with an oily liquid which
usually collected in channels in the floor. When the mixture drained away it left
the floor very slippery. Sawdust was spread over most, but not all, of the surface.
A workman was injured when he slipped on the untreated part of the floor. The
trial judge had found the defendants liable on the ground that they had not closed
down the factory. The House of Lords held that the defendants were not liable; they
had acted as a reasonable employer would have acted. The danger was not such as
to impose on the employer an obligation to close down the factory.
12.2.2 Emergencies
The focus of the question here is on how important or urgent the action of the
defendant was. The risk has to be balanced against the end to be achieved and, if
sufficiently important, justifies the assumption of abnormal risk.
In Watt v Hertfordshire CC [1954] 2 All ER 368, a fireman was called out to an emergency
where a woman was trapped under a lorry. A heavy lifting jack was urgently required
but, since a vehicle designed to carry this was not available, it was loaded onto a lorry
which was not equipped to secure it. On the way to the scene of the accident the
lorry had to brake suddenly and the fireman was injured when the jack slipped. In
these circumstances the Court of Appeal found that the fire authorities had not been
negligent. The risk had to be balanced against the end to be achieved and the saving
of life or limb justifies taking considerable risk. Lord Denning took the view that if the
accident had happened in a commercial venture without any emergency the plaintiff
would have succeeded, but ‘the commercial end to make profit is very different from
the human end to save life or limb.’
12.2.3 Statutory provisions

We have seen in Chapter 3 that concerns about the emergence of a compensation
culture led to enactment of the Compensation Act 2006. Section 1 of the Act deals with
the deterrent effect of potential liability and provides:
A court considering a claim in negligence or breach of statutory duty may, in determining

whether the defendant should have taken particular steps to meet a standard of care
(whether by taking precautions against a risk or otherwise), have regard to whether a
requirement to take those steps might—
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a
particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.
The Act was introduced to address a perception of a compensation culture but since
the senior courts were already addressing the deterrent effect of liability, it is unclear
what s.1 adds to the existing approach.
In determining negligence claims, the Social Action, Responsibility and Heroism Act
2015 also requires judges to take into account factors such as whether the alleged tort
took place when the defendant was acting ‘for the benefit of society’ and when the
defendant was acting ‘heroically by intervening in an emergency’.
12.2.4 Professional defendants and standard practices

The most significant and controversial of factors that the courts take account of in
deciding whether or not the defendant has reached the standard of the reasonable
man is the question as to whether the defendant has acted in accordance with a
standard practice. There is often no single ‘right’ way of proceeding. Faced with
a particular patient, one doctor might recommend surgery, but another might
recommend treatment with drugs. The courts do not insist that one of these
approaches must be right and the other wrong: they require that the defendant has
acted in a way that would be supported by ‘a body of respectable medical opinion’.
What is often dubbed the standard practice defence emerges from the second limb of
the Bolam test where it was said:
A doctor is not guilty of negligence if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that particular art… a doctor is
not negligent… merely because there is a body of opinion which takes the contrary view.
12.2.5 The standard practice defence applied

This test allows the medical profession to some extent to determine for itself the
circumstances in which it can be said one of its members has fallen below the
appropriate standard of care, but the courts reserve the right to strike down a medical
practice as unreasonable. In Bolitho v City and Hackney Health Authority [1998] AC 232 the
Bolam test was applied to determine what a doctor should have done had she attended
a two-year-old boy. The medical experts had disagreed as to whether she ought to have
intubated the child. The House of Lords emphasised that ultimately it was for the court,
and not for medical opinion, to decide the standard of care required in each case: the
court had to be satisfied that the opinion had a logical basis, which would involve the
weighing of risks against benefits, in order to reach a defensible conclusion.
A further application of the Bolam test can be seen in Whitehouse v Jordan [1981] 1
WLR 246 where it was alleged that the defendant had pulled too long and too hard
in attempting a forceps delivery before eventually performing a Caesarean section.
The trial judge held the doctor liable for the severe brain damage which the plaintiff
suffered but, on appeal, it was found that the evidence did not establish that the
doctor had departed from accepted practice and he was therefore not negligent. The
House of Lords emphatically restated the Bolam test and rejected the argument that
there was a difference between an error of judgment and negligence. In the Court
of Appeal Lord Denning had argued: ‘When I give a judgment and it is afterwards
reversed by the House of Lords, is it to be said that I was negligent?’
12.2.6 Bolam test: diagnosis

The Bolam test applies to making a diagnosis and where there is conflicting medical
opinion a doctor is not negligent merely because there is a body of opinion that takes
a contrary view. In Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 a
consultant physician and a surgeon were uncertain whether the plaintiff was suffering
from tuberculosis or from Hodgkin’s disease. Hodgkin’s disease can be fatal unless
treated early so they carried out an operation before obtaining test results which
would have determined her illness. The operation carries an inherent risk of damage
to the vocal cords and this risk materialised in the plaintiff. She claimed that the
consultants were negligent in carrying out the operation before the test results were
available. The House of Lords held the defendants had not been negligent. Although
there was a body of competent opinion which said that the consultants’ decision was
wrong there was an equally competent body which supported their approach. Lord
Scarman stated the justification for the Bolam test in the following terms:
… a judge’s ‘preference’ for one body of distinguished professional opinion to another also
professionally distinguished is not sufficient to establish negligence.
12.2.7 Bolam test: warning of risks

The most controversial application of the Bolam test occurs where it is alleged that
the doctor failed to give the patient sufficient warning of the risks of the proposed
treatment (or possibly of the risks of not having the treatment). The Supreme Court
has departed from Sidaway v Bethlem Royal Hospital Governors [1985] AC 871, where
the House of Lords found that a surgeon who had followed the approved practice
of neurosurgeons in not disclosing the risk of damage to the spinal cord was not
negligent. The position in English law now is that the test in Bolam does not apply.
In Montgomery v Lanarkshire Health Board [2015] UKSC 11 the Supreme Court held that
the doctrine of ‘informed consent’ which operates in other jurisdictions and allows
the patient access to full and frank information about treatment is firmly part of
English law. Here, the claimant’s pregnancy required intensive monitoring and she was
at an increased risk of experiencing problems with delivery of her baby. As a result of
complications during the birth her son was born with severe disabilities. The claimant
argued that she ought to have been given advice about the risks involved in vaginal
birth, and of the alternative possibility of delivery by elective caesarean section.
According to Lady Hale, pregnancy is a particularly powerful illustration of patient
autonomy [109]:
… it is not possible to consider a particular medical procedure in isolation from its

alternatives. Most decisions about medical care are not simple yes/no answers. There are
choices to be made, arguments for and against each of the options to be considered, and
sufficient information must be given so that this can be done.
A further example of this approach can be found in Chester v Afshar [2004] UKHL 41.
Although principally concerned with causation of damage (see Chapter 13) the House
of Lords held that a doctor who fails to give proper warning to his patient about a risk
inherent in surgery may be found to have caused the injury if the risk materialises,
even where the surgery is performed without negligence.
In Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62 the claimant
argued that his mother should have been given the choice of continuing her
pregnancy and with reasonable medical advice she would have opted for an induced
birth. It was uncontested that the harm from which the child suffered was caused by a
delayed delivery at birth. The trial judge had denied liability, having applied the Bolam
standard of ‘a responsible body of expert (consultant obstetrician) opinion’ and based
his judgment on whether the doctor acted in accordance with a responsible body of
expert medical opinion.
The ruling of the Supreme Court in Montgomery v Lanarkshire Health Board (2015),
which was decided after the Webster trial, brought about a change to what had
previously been understood to be the nature of a doctor’s duty to advise in respect
of treatment (the Bolam approach). The Court of Appeal reversed the first instance
decision. It is now clear from Montgomery that the approach taken by the trial judge is
no longer correct. According to Lord Justice Simon [35]:
The doctor’s obligation (apart from in cases where this would damage the patient’s
welfare) is to present the material risks and uncertainties of different treatments, and to
allow patients to make decisions that will affect their health and well-being on proper
information. The significance of the risks and uncertainties, including the possibility of
alternative treatment, being sensitive to the characteristics of the patient.
12.3 Are decisions on breach questions of fact or law?

Everything in the last few paragraphs involves propositions of law which are binding
on the courts. Once these principles have been applied, however, the decision on the
particular facts of a case does not constitute a binding precedent. The fact, say, that it
was held in a particular case that an employer was negligent in failing to ensure that
an employee wore a particular kind of safety equipment does not mean that all other
employers will also be held negligent if they behave in the same way. The issue will
have to be decided in the light of the particular facts each time it occurs. See Qualcast
v Haynes [1959] AC 743.
This approach is not very helpful to potential defendants such as building contractors,
who do not want to know that they have to take reasonable care, but do want to
know exactly what instructions, equipment and so on they have to supply. So it is very
common for regulations under the authority of various Acts of Parliament to set out
detailed rules on such matters.
Summary
The actual defendant is to be compared with how a reasonable person would have
acted in the same circumstances. Where a particular skill (driving for example) or
professional expertise (medical for example) is involved, the appropriate comparison
is with a person with the same skill or expertise.
Activities
activity 12.1
Core comprehension – breach of duty

Find and read the case of Mullin v Richards [1997] EWCA Civ 2662, [1988] 1 WLR 1304,
[1998] 1 All ER 920, then answer the following questions.
An extract of this judgment and commentary can be found in Lunney and Oliphant,
Chapter 4 ‘Breach of duty’, Section IV ‘The objective standard of care’, Subsection 3
‘Age’.
a. How old were both the claimant and the defendant? Describe the injury Teresa
Mullin suffered.
b. How did the judge in the lower court apportion blame between the two
schoolgirls?
c. In the Appeal Court the judge identified foreseeability as the central argument.
Which question did the Court have to answer?
d. Is the standard of care an objective or subjective standard?
e. Which subjective elements may children rely upon in their defence?
f. Against which standard is the conduct of a child to be measured?
g. Why did the Appeal Court reverse the decision of the lower court?
h. Identify a social utility argument as related to the risks of children playing.
activity 12.2
Applied comprehension – the Bolitho gloss

Using the Online Library, find and read Mulheron, R. ‘Trumping Bolam: a critical
legal analysis of Bolitho’s “gloss”’ (2010) 69(3) CLJ 609, then answer the following
questions.
HeinOnline: http://heinonline.org/HOL/Page?handle=hein.journals/
camblj69&id=615 or
LexisLibrary: www.lexisnexis.com/uk/legal/docview/getDocForCuiReq?lni=556T-
TCP1-DY08-C1XF&csi=374818&oc=00240&perma=true&elb=t
I. Introduction
a. Paraphrase the impact of the Bolitho decision on the Bolam test of breach as
stated in the first two paragraphs of the Introduction section in fewer than
50 words.
II. The emergence of Bolitho
b. Summarise the arguments advanced in section ‘A. The perceived

“deficiencies” of Bolam’ into two succinct headings and explain briefly (fewer
than 40 words) the main thrust of each argument.
c. Describe the two-step procedure in English law which is used to determine

the question of alleged medical breach.
d. Mulheron identifies three scenarios which may restrict the reach of the
Bolam test; what are they?
e. On what basis does Mulheron assert that the Bolitho test has produced an
imbalance between the parties in medical negligence litigation?
III. The post-Bolitho analytical review
f. Identify the seven Bolitho factors.
g. In the case of Nationwide Organ Retention Group Litigation, which common

practice was held to be ‘unreasonable’ despite being ‘a blanket practice
carried out by virtually all clinicians’? (Judgment at [237])
Conclusion
h. Reflect on the author’s conclusion. Do you agree that clarification of the

Bolitho gloss is of great significance for professional negligence law?
Activity 12.3
Core comprehension – common practice

Read Lunney and Oliphant, Chapter 4 ‘Breach of duty’, Section V ‘Common practice’,
and answer the following questions.
a. Explain in your own words the ordinary meaning of the term ‘common practice’
with regards to people who profess a special skill, such as doctors, architects,
lawyers, etc.
Section 1 ‘Common industrial practice’

b. Identify the two kinds of proof of the fault of omission as expressed in Morton v
William Dixon.
c. Why were Lord Dunedin’s propositions in Morton v William Dixon viewed merely
as rules of thumb?
Section 2 ‘Professional standards’

d. Why does the test of ‘the man on the Clapham omnibus’ not apply in medical
negligence cases?
e. In the Bolam judgment which test was used to decide whether there had been
negligence?
f. Which central issue makes the concept of ‘common practice’ problematic?
g. In the Bolitho judgment identify why defendants may still be held liable in
negligence, even if they have followed ‘a standard practice recognised as proper
by a competent body of opinion’.
Notes
13 Causation and remoteness of damage
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
13.1 Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
13.2 The basic rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
13.3 Causation: situations to consider . . . . . . . . . . . . . . . . . . . . 130
13.4 Deficiencies in the ‘but for’ test . . . . . . . . . . . . . . . . . . . . . 131
13.5 Material contribution to the harm . . . . . . . . . . . . . . . . . . . 131
13.6 Material increase in risk . . . . . . . . . . . . . . . . . . . . . . . . . 132
13.7 Consecutive causes of the same damage . . . . . . . . . . . . . . . . 134
13.8 Damages for loss of a chance . . . . . . . . . . . . . . . . . . . . . . 134
13.9 New and intervening cause . . . . . . . . . . . . . . . . . . . . . . . 135
13.10 Remoteness of damage: the basic rule . . . . . . . . . . . . . . . . . 137
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Introduction
Negligence is one of those torts in which damage must be proved (see Chapter 2).
Once a breach of duty has been established, the claimant must then also show that the
breach has resulted in injury or damage (the causation issue) and that the injury or
damage is sufficiently closely connected to the breach (the remoteness issue).
Causation and remoteness are the essential links between the breach of the obligation
imposed by law and the damage. It is commonly said that causation is essentially
a factual and logical question, but that remoteness is a legal question, based on
policy considerations about the appropriate extent of a defendant’s liability. In broad
terms this is true, but Lord Hoffmann has stated that ‘the rules laying down causal
requirements are… creatures of the law’ and that ‘it is possible to explain their content
on the grounds of fairness and justice in exactly the same way as the other conditions
of liability’ (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 at [54]).
You must therefore consider the policy reasons behind most of the decisions in this
chapter.
Learning outcomes
be able to:
uu discuss the ‘but for’ test of causation
uu evaluate the approach of the courts when the ‘but for’ test is insufficient
uu explain the circumstances when chain of causation may be broken by
unreasonable or unforeseeable acts or events (novus actus interveniens)
uu explain the distinction between causation in fact and causation in law.
Essential reading
¢¢ Lunney and Oliphant, Chapter 5 ‘Causation and scope of liability’.
Tort law 13 Causation and remoteness of damage page 129
13.1 Causation
Causation is relevant to all torts in which proof of damage is essential. The problem is
usually discussed in detail in the context of negligence, but the principles apply more
broadly, and some of the cases referred to in this section involve claims in other torts
as well as in negligence. You must always remember to link the tort (i.e. the breach
of duty in the case of negligence), and not merely the defendant, to the damage. An
example will illustrate the importance of this.
A baby has brain damage: it has recently been vaccinated. If there is a claim for
compensation, it will always be necessary to establish (on scientific evidence) that the
vaccine caused the damage. If the claim can be brought within a tort of strict liability
(which means there is no need to establish fault on the part of the defendant), nothing
more need be proved in terms of causation. This is not so if the claim is in negligence
(e.g. alleging that a doctor in breach of the duty of care failed to carry out proper tests
to discover whether the baby had an allergy to the vaccine). It will then be necessary,
in addition to showing that the vaccine caused the damage, to show that the breach
of duty caused the damage. If the proper tests carefully administered would not have
revealed the allergy, then the baby would still have been damaged and the breach of
duty would not be a cause of the brain damage.
You will find that the causation issue sometimes (though exceptionally) gives rise
to difficult questions, but the underlying idea is very simple. We use the language of
causation every day without much difficulty, and we understand that the language
of causation is used in different ways in different contexts. We may for instance say,
‘I was late for work today because the 7.30 train was cancelled’. Here we know that
the cancellation made lateness inevitable. But we do not know for certain that we
would have been on time if the train had been running. Something else might have
happened to delay us. On the other hand we often hear about research into the causes
of disease. Advertisements for cigarettes may carry a warning that ‘smoking causes
lung cancer’, but we know that here there is no inevitability: many non-smokers
develop cancer and many smokers do not. We need more information before we can
talk of the cause of the disease in any particular sufferer. You should make use of your
knowledge of the ordinary usage of the language of causation in analysing problems.
13.2 The basic rule

The basic rule may be stated positively or negatively. If the damage would still have
occurred, even if the defendant had not broken the duty of care, then the breach did
not cause the damage. If the damage would not have occurred but for the defendant’s
breach of duty, then the breach of duty is a cause of the damage.
13.2.1 The ‘but for’ test

In Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428,
the plaintiff’s husband was one of three night watchmen who went to the defendant’s
hospital complaining of vomiting after drinking some tea. The nurse on duty consulted
the casualty doctor by telephone and was instructed by him to tell the three men to
go home to bed and to call their own doctors. Soon afterwards the plaintiff’s husband
died of arsenical poisoning. It was discovered that arsenic had been put into the tea of
the workmen by persons unknown. There was no dispute that in failing to examine the
plaintiff the doctor was negligent. The issue to be decided was whether the doctor’s
breach of duty had caused the man’s death. The claim failed because the hospital
was able to produce evidence to show that even if the deceased had been examined
and treated with proper care he would still have died. Since the death would have
occurred in any event the defendant’s breach of duty was not a factual cause. For this
reason, the basic rule is often referred to as the ‘but for’ test. Its main purpose is to
exclude things that have no bearing on the damage. It is for the claimant to show that
the breach of duty was the cause of the damage, and not for the defendant to show
that the breach of duty was not the cause of the damage.
We know in a common sense way that it is rarely possible to be absolutely certain

about such matters, and the law does not demand such certainty. It is sufficient to
show that on a balance of probabilities the breach was the cause of the damage, or
that it is more likely than not that the breach was a cause of the damage. In principle
it is an ‘all or nothing’ question. If it is more probable than not that negligently
administered drugs caused the claimant’s deafness, then the claimant recovers in full
for the deafness. If it is not more probable than not, even if it is a possibility, then the
claimant recovers nothing.
13.3 Causation: situations to consider

There may be doubt about what the natural course of events would have been if the
defendant had behaved properly. For example:
uu The defendant doctor failed to diagnose the claimant as having an illness in need of
treatment. Was it so serious that the defendant would have died even if the proper
diagnosis or treatment had been given? See Barnett v Chelsea and Kensington
Hospital (above).
uu The claimant fell overboard into icy water. The defendant’s rescue effort was
inadequate. Would the claimant have perished in the cold water before even a
competent rescuer could have saved her? See The Ogopogo [1971] 2 Lloyd’s Rep 410.
uu There may be doubt about how the defendant would subsequently have behaved
if he had done what he should have done in performance of the duty.
Case law example

In Bolitho v City and Hackney HA [1998] AC 232 (see Chapters 2 and 12) the doctor,
in breach of her duty, failed to attend a two-year-old patient who suffered
respiratory failure and cardiac arrest from which he subsequently died. It was
accepted that, having been called on more than one occasion by a nursing
sister, the doctor was in breach of her duty to attend the child. The issue before
the Court was causation; did this breach of duty cause the plaintiff’s injuries?
Whether the doctor’s failure to attend caused the plaintiff’s damage depended on
what she would have done had she turned up. If the plaintiff had been intubated
(to provide an airway) the respiratory difficulties would not have resulted in
cardiac arrest. The doctor successfully argued that if she had attended she would
not have intubated. This action would not have been negligent (because it was in
accordance with a respectable body of professional opinion) and would not have
saved the patient. The child would still have been dead even if she had performed
her duty by attending. Therefore her culpable failure to attend was not a cause of
the death.
uu There may be doubt about how the claimant would subsequently have behaved if
the defendant had done what should have been done.
Case law example

In McWilliams v Sir William Arrol [1962] 1 All ER 623 the focus of the question was
on how the deceased steelworker would have behaved. His employer had
been negligent in failing to provide a safety harness and he fell to his death.
It was clearly established that, had the defendant provided a safety harness,
the steelworker would not have worn it. But for the defendant’s breach, the
damage would still have occurred and so there was no liability on the part of the
employer.
uu The defendant doctor may have failed to warn the patient about the risks of
treatment: would the patient have decided to have the treatment anyway? If so,
the failure to warn cannot be a cause of the damage if one of the risks occurs.
Case law example

This issue has been considered by the House of Lords in Chester v Afshar [2004]
UKHL 41, [2005] 1 AC 134 where a majority of the House of Lords took a view very
favourable to the claimant. The surgeon had advised the claimant to undergo
surgery but in breach of duty had failed to advise her of the risk. The claimant
did not show that she would probably never have had the operation, but she did
show that she would have taken her time and consulted friends and therefore
would not have had the actual operation on the particular day that she did have
it. The House of Lords accepted that she had therefore established that the breach
of duty was a cause of her injury. This case illustrates the role of tort in vindicating
rights. Lord Steyn thought the claimant’s right of autonomy and dignity ought
to be vindicated by a narrow and modest departure from traditional causation
principles. The majority decision in favour of the claimant could not be based on
conventional causation principles because the risk of which she should have been
warned was not created or increased by the failure to warn.
The clinical negligence claim in Correia v University Hospital of North Staffordshire NHS
Trust [2017] EWCA Civ 356 was based on the advice given at the claimant’s consultation
with the doctor and the performance of the operation. A further claim in respect of
the nature of the claimant’s consent to the operation was made. She had consented
to a three-stage surgical procedure but, in her case, the third stage was negligently
omitted by the surgeon. The trial judge found that, although the operation had
been performed negligently, that negligence had not caused the claimant’s pain or
suffering. However, she argued that if she had known of the risks associated with the
third-stage omission, she would not have gone ahead with the operation. In rejecting
her claim, the Court of Appeal reviewed the decision in Chester v Afshar and endorsed
its ratio: the judge was entitled to find that the claimant had failed to prove that the
surgeon’s negligence caused or ‘materially contributed’ to her pain and suffering.
13.4 Deficiencies in the ‘but for’ test

The ‘but for’ test is generally a good test as to whether the breach of duty was the
cause of the harm, but it has limitations. Problems in the application of the ‘but for’
test arise when the answer to the question leads to an unjust or contradictory result,
such as, for example, where the damage could have been caused by the fault of more
than one defendant. This situation arose in the Canadian case of Cook v Lewis [1951] SCR
830, when two hunters negligently fired their guns in the direction of the claimant.
One bullet hit him, but it was not established which gun had fired that bullet. In the
absence of the required proof, it was held that both defendants should be liable (Lord
Nicholls makes reference to this case in the extract below).
Further problems with the ‘but for’ test will be seen in the cases below, where there
are multiple potential causes of the harm and where the claimant has contracted a
disease and the medical evidence as to the cause is inconclusive.
13.5 Material contribution to the harm

In Bonnington Castings Ltd v Wardlaw [1956] AC 613 a steel worker who was exposed
to noxious dust over a period of years, as the result of his employer’s negligence,
contracted a progressive disease. However, some of the dust to which he was exposed
was from a ‘non-negligent’ source and there was no evidence of the proportions of
negligent and non-negligent exposure to the dust, so the ‘but for’ test could not be
satisfied. The House of Lords held that in these circumstances causation could be
established because the employer’s act or omission made a ‘material contribution’ to
the harm which constituted an application of, or an exception to, the ‘but for’ test.
13.6 Material increase in risk

If the claimant cannot positively prove that the defendant’s breach of duty caused the
damage, the court may ask if the defendant’s negligence has materially increased the
risk of damage occurring. In such cases it is sufficient for the claimant to show that the
defendant’s negligent conduct made the injury more probable.
In McGhee v National Coal Board [1973] 1 WLR 1, the plaintiff worked at the defendant’s
brick kilns where the conditions were hot and dusty. The brick dust adhered to his
sweaty skin and, because his employer failed to provide washing facilities, the plaintiff
had to cycle home with his body still caked in brick dust. He contracted dermatitis
and alleged that if washing facilities had been provided he would not have developed
the disease. The medical evidence was unable to show that had washing facilities
been provided the plaintiff would have escaped the disease. However, the evidence
did show that the provision of showers would have materially reduced the risk of
dermatitis. The House of Lords held the defendants liable on the ground that it was
sufficient for a plaintiff to show that their breach of duty made the risk of injury more
probable even though it was uncertain whether it was the actual cause.
McGhee was distinguished in Wilsher v Essex Area Health Authority [1988] 1 All ER 871,
where a premature baby was negligently given excessive oxygen. It is known that
excessive oxygen given to premature babies can lead to blindness and the plaintiff
alleged that this was the cause of his blindness. But there were up to five possible
causes of the plaintiff’s injury, any one of which might have caused his blindness. The
House of Lords held that the burden of proof remained with the plaintiff, who must
establish that the defendant’s breach of duty was at least a material contributory
cause of the harm. Showing the defendant’s negligence to be one out of five possible
causes of the plaintiff’s blindness was not evidence that it was the cause. In McGhee the
plaintiff had established his disease was caused by the brick dust; the only question
was whether the additional period of exposure to the brick dust had contributed to
his dermatitis.
13.6.1 Material increase in risk: the Fairchild principle

In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, the approach in McGhee was
followed. The claimants had all worked for more than one employer over many years.
The employers, in breach of their duty, exposed the claimants to asbestos fibres which
caused asbestos-induced mesothelioma (a form of cancer). It was impossible to form
any view about whose fibres had triggered the cancer. Some of the employers had
gone out of business and could not now be sued. The Court of Appeal held that none of
the employers were liable because the claimants could not prove against any of them
that their fibres had caused the cancer; the House of Lords held that they were all
liable, so long as the evidence remained inconclusive. On the balance of probabilities
each defendant’s wrong-doing had materially increased the risk of the claimants
contracting the disease and this was to be treated as proof that each defendant had
materially contributed to it. The decision in McGhee was applied; the ordinary ‘but for’
approach to causation was varied.
These appeals raised conflicting policy considerations but their Lordships found the
injustice of denying a remedy to employees who had suffered grave harm to outweigh
the potential unfairness in imposing liability on successive employers who could not
be proved to have caused the harm. According to Lord Nicholls at [40] and [41]:
This balancing exercise involves a value judgment. This is not at variance with basic
principles in this area of the law. The extent to which the law requires a defendant to
assume responsibility for loss following upon his wrongful conduct always involves a value
judgment. The law habitually limits the extent of the damage for which a defendant is
held responsible, even when the damage passes the threshold ‘but for’ test. The converse
is also true. On occasions the threshold ‘but for’ test of causal connection may be over-
exclusionary. Where justice so requires, the threshold itself may be lowered. In this way
the scope of a defendant’s liability may be extended. The circumstances where this is
appropriate will be exceptional, because of the adverse consequences which the

lowering of the threshold will have for a defendant. He will be held responsible for a loss
the plaintiff might have suffered even if the defendant had not been involved at all. To
impose liability on a defendant in such circumstances normally runs counter to ordinary
perceptions of responsibility. Normally this is unacceptable. But there are circumstances,
of which the two hunters’ case is an example, where this unattractiveness is outweighed
by leaving the plaintiff without a remedy.
The present appeals are another example of such circumstances, where good policy
reasons exist for departing from the usual threshold ‘but for’ test of causal connection.
Inhalation of asbestos dust carries a risk of mesothelioma. That is one of the very risks
from which an employer’s duty of care is intended to protect employees. Tragically, each
claimant acquired this fatal disease from wrongful exposure to asbestos dust in the course
of his employment. A former employee’s inability to identify which particular period of
wrongful exposure brought about the onset of his disease ought not, in all justice, to
preclude recovery of compensation.
You must study this case carefully and identify the facts. There are five speeches all
reaching the same result. Lord Hutton’s reasoning was, however, rather different from
that of the other judges. The other speeches, though differing in detail, are very similar
in approach.
13.6.2 Material increase in risk: Compensation Act 2006 (s.3)

Barker v Corus UK Ltd [2006] UKHL 20 concerned exposure to asbestos on three
separate occasions. One of these exposures was for six weeks with an employer
who was insolvent and uninsured and the second exposure was for six months
with a different employer. The negligence for the third exposure was that of the
claimant himself during short periods when he worked as a self-employed plasterer.
The facts here differed from those in Fairchild in that one of the periods of the
claimant’s exposure to asbestos was when he was self-employed. The question
arose as to whether the Fairchild approach to proof of causation could apply in these
circumstances and whether the defendants were liable for all the damage suffered or
only for its contribution to the risk that materialised.
The House of Lords partially reversed the ruling in Fairchild to the extent that it held
that liability was several rather than joint. As a consequence, although a defendant
could still be liable without proof of causation, his liability could only extend to the
relative proportion to which he could have contributed to the chance of the outcome.
The defendant’s liability was therefore limited to the extent that its negligence
exposed the claimant to the risk of contracting the disease. There was a 20 per cent
discount on the overall amount of damages to reflect the claimant’s contributory
negligence. This decision was seen as a victory for insurers but it met with strong
resistance from trade unions and victim support groups.
The adverse publicity surrounding claimants who were sick and dying being required
to spend much of their remaining time trying to establish the relative extent of
liability of former employers led to the introduction of emergency legislation to
restore the Fairchild position of joint and several liability in cases of mesothelioma.
The Compensation Act 2006 (s.3) provides that where the employee has contracted
mesothelioma as a result of exposure to asbestos causation can be established by
showing that the exposure made ‘a material contribution to the risk’.
13.6.3 Material increase in risk: tortious and environmental exposure to

asbestos
In cases where there was a tortious as well as an environmental exposure to
asbestos, it is not necessary for a claimant to show that the risk arising from the
tortious exposure was more than twice the risk arising from the non-tortious causes.
It is sufficient to show that the tortious exposure materially increased the risk of
contracting mesothelioma.
In Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159 there was only one employer, but
the deceased had also been exposed to asbestos dust in the environment of the town
where she lived. Her estate could not, therefore, prove that the disease had probably
been caused by the workplace exposure, because there was another potential cause
which did not arise from the tort of the employer. The trial judge said that since there
was only one employer the claimant should have to prove causation on the normal
balance of probabilities test and he found that she failed to discharge this test.
However, the Court of Appeal allowed the claimant’s appeal and said that in
mesothelioma cases a claimant could establish causation by showing that the
workplace exposure to asbestos had materially increased the risk of the employee
developing the disease. Interpreting s.3(1) of the Compensation Act 2006, the Court
said the intention of Parliament was to reflect the common law requirements of
causation in mesothelioma cases, which required proof of causation by reference to a
material increase in risk.
13.7 Consecutive causes of the same damage

Where two independent events cause the damage and the second defendant’s breach
produces the same damage as that caused by the first defendant, should the first
event be treated as the cause?
The House of Lords has considered this problem in Baker v Willoughby [1970] AC 467
Damages are assessed
and Jobling v Associated Dairies [1982] AC 794.
once and for all,
Jobling had been injured in an industrial accident and permanently disabled. This led so that if they are
to a 50 per cent reduction in his earning capacity. Some years later, before damages calculated and the
had been assessed, he was found to be suffering from a disabling disease that case disposed of by
rendered him unfit for work. The House decided that the defendant was not required settlement or by
to compensate for the losses after the onset of this disease. The House was critical of litigation before the
(but did not overrule) the earlier decision in Baker. second event occurs,
the assessment will
Baker’s leg had been permanently damaged in a road accident. He had to change his not be reopened.
job and was shot by robbers (who were of course tortfeasors but were never found)
and as a result his leg was amputated. The defendant admitted negligence but argued
that his responsibility ended when the plaintiff was shot and therefore all losses
from the date of the shooting flowed from the robbery. The House had held that the
damage was not subsumed in the new tort, but the negligent motorist continued
to be answerable for the damage to the leg (and its continuing economic and other
consequences). There would be an obvious harshness if Baker were to lose his damages
because he was the victim of two torts and not just one, but it is not easy to formulate a
principle explaining why Baker’s claim was not extinguished, but Jobling’s was.
It is necessary to stress again that both cases were concerned with continuing liability
for the consequences of the original injury and not with liability for the additional
consequences of the second injury. It was not, for instance, argued that the defendant
in Baker was liable for the amputation. We will consider that kind of situation later.
13.8 Damages for loss of a chance

So far it has been assumed that we know what is meant by ‘the damage’. There
is sometimes room for argument on this point. This is illustrated by Hotson v East
Berkshire Health Authority [1987] AC 750.
Hotson injured his hip in a fall (no tort was involved). The hospital failed correctly
to diagnose and treat his injury for some days. In due course he suffered a wasting
(necrosis) of the hip leading to permanent disability. This was caused by the original
injury, but was it caused by the negligent failure to treat him immediately? The judge
(unusually) assessed the chances. There was a 25 per cent chance that he would have
recovered if treated properly, but a 75 per cent chance that he would not. The Court
of Appeal awarded him 25 per cent of the damages that would have been payable if
the hospital had caused the necrosis. The House of Lords disagreed and awarded him
nothing (apart from a small sum for the pain suffered during the days of delay).
A majority of the House of Lords in Gregg v Scott [2005] 2 WLR 268 reaffirmed the
general approach in Hotson’s case that liability for loss of chance of a more favourable
outcome should not be introduced into personal injury claims. Here, the misdiagnosis
of the appellant’s condition by a medical practitioner had reduced his chances of
surviving for more than 10 years from 42 per cent to 25 per cent. The judge dismissed
his claim because the delay had not deprived him of the prospect of a cure; at the time
of his misdiagnosis, the appellant had less than a 50 per cent chance of surviving more
than 10 years anyway. These cases illustrate the reluctance of the courts to allow ‘loss
of a chance’ to substitute for the all-or-nothing requirement that causation be proved
on a balance of probabilities.
13.8.1 When are damages for loss of a chance recoverable?

Causation in fact:
Sometimes this is allowed in breach of contract actions (Chaplin v Hicks [1911] 2 KB
if ‘but for’ the
786). It is also clear that, when the courts have identified an item of damage as being
defendant’s negligent
caused by a tort, then the measure of damages (the amount of money awarded in conduct the damage
compensation) reflects the loss of future chances. For instance, if the claimant has would not have
proved that the tort caused physical injuries leading to permanent unemployment, happened then that
then the amount of money paid in compensation will be based on the chances of negligence is the
future employment, and not on proof that on a balance of probabilities he would have cause of the damage.
had a particular career. See Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR Causation in law:
1602 where the loss was economic rather than physical damage. liability may still
be avoided if the
defendant can
13.9 New and intervening cause show that the
damage suffered
In certain circumstances, where one act follows another the defendant is released was too remote a
from liability to the extent that the damage is held to flow from the second act consequence of the
(the ‘new intervening act’). The law will say that the second act is to be regarded as breach of duty.
the true cause of the damage because it has broken the chain of causation and has
extinguished the effect of the first act. The rationale of the rule is fairness, and whether
the ‘new intervening act’ has broken the chain of causation is a question for the courts
to decide in all the circumstances of the case.
13.9.1 Intervening criminal conduct

The following cases are relevant: Lamb v Camden LBC [1981] QB 625; Perl v Camden LBC
[1984] QB 342; Smith v Littlewoods [1987] AC 241. In all these cases the claim failed. The
Littlewoods case is particularly instructive as a striking example of a case in which
the Court of Appeal went through each of the elements of the negligence action (i.e.
duty, breach and remoteness) one after the other. Note that there were two leading
speeches, those of Lord Mackay of Clashfern and Lord Goff of Chieveley, but they follow
different lines of reasoning. Lord Goff’s was considered under the heading of liability
for omissions. Lord Mackay’s reasoning relates more closely to the issues discussed in
this chapter.
Sometimes intervening criminal conduct, even though surprising, is not too remote
if it is closely related to the risk posed by the defendant’s conduct: Al-Kandari v Brown
[1988] QB 665.
13.9.2 Intervening negligent conduct

There could be many situations in which the subsequent carelessness of some third
party has caused new injuries. One example is Knightley v Johns [1982] 1 WLR 349 where
the defendant’s negligent driving caused the blocking of a busy road tunnel. A police
inspector sent the plaintiff police constable to drive back against the traffic flow to
close the tunnel entrance. As he was driving back into the tunnel the plaintiff was
injured by a car being driven in the opposite direction. The defendant was not liable.
The Court of Appeal held that while it might be natural, probable and foreseeable
that police would come to deal with the accident and that there might be risk-taking,
there were so many errors before the plaintiff was sent back into the tunnel that the
police inspector’s negligent behaviour was the cause of the plaintiff’s injuries. Where
the subsequent event is the intervening act of a third party, negligent conduct is more
likely to break the chain of causation than non-negligent conduct.
13.9.3 Intervening conduct by the claimant

So far it has been assumed that the new and intervening acts were perpetrated by
a third party: sometimes, however, subsequent conduct by the claimant is in issue.
Where the defendant is being asked to take responsibility for the claimant’s own
failures, there are several conceptual mechanisms to be considered.
uu Did the defendant owe a duty to protect the claimant against the claimant’s own
unreasonable conduct?
uu Did the claimant’s own conduct break the chain of causation? It is certainly likely
that, where the defendant had a duty to protect the claimant against an identified
risk (e.g. that the claimant would commit suicide), then the risk, if it materialises,
cannot be a new and intervening cause (see the Reeves and Corr cases below).
uu Are any of the defences of voluntary assumption of risk, contributory negligence or

illegality available so as to defeat the claim or reduce the damages available?
Examples of where the claimant’s subsequent actions are careless are McKew v Holland
& Hannen & Cubitts [1969] 3 All ER 1621; Wieland v Cyril Lord Carpets [1969] 3 All ER 1006.
In McKew the defendants’ negligence caused the plaintiff to suffer an injury and for a
short time afterwards he occasionally lost control of his leg. He went to inspect a flat
and, without asking for assistance, he attempted to descend a steep flight of stairs
with no handrail. When his leg gave way without warning he fell and sustained further
injuries. The defendants were not liable for his additional injury. The House of Lords
held that the plaintiff’s own act broke the chain of causation: by placing himself in a
position which might involve such a risk his own conduct had been unreasonable.
Similar facts arose in Wieland v Cyril Lord Carpets where the plaintiff had been
negligently injured and forced to wear a surgical collar. This restricted her ability to
focus her bifocal glasses and as a result she sustained further injuries when she fell
down some steps. But here the defendants were found liable because the plaintiff had
not acted unreasonably in attempting to descend the steps.
In Spencer v Wincanton Holdings Ltd [2010] PIQR P8, the employer admitted liability for
the first accident but sought to rely on McKew, arguing that there was no liability to
pay damages for the second accident because it had been caused by the employee’s
unreasonable conduct in attempting to fill his car with petrol without wearing his
prosthesis or using his sticks. In dismissing the employer’s appeal against liability,
the Court of Appeal held there was no novus actus interveniens that broke the chain
of causation. The employee’s contributory conduct towards the second accident
had been below the standard of unreasonableness required to break the chain
of causation: contributory negligence was available to deal with the sharing of
responsibility.
13.9.4 Claimant’s subsequent deliberate conduct

An example of where the claimant’s subsequent actions are deliberate is provided by
Corr v IBC Vehicles [2008] 2 WLR 499, where the House of Lords held that depression
as a result of the accident was within the compensable damage flowing from the
injury. The deceased’s act was not entirely unreasonable in the circumstances. The
chain of causation had not been broken by the intentional act of suicide: it was not
unreasonable to hold the defendant responsible for the consequences of its breach
of duty.
In Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 it was held that a
deliberate and informed act of suicide while of sound mind can amount to a novus
actus interveniens, but where the defendant is under a specific legal duty to guard
against the commission of that very act, suicide does not break the chain of causation.
See also: Kirkham v Chief Constable of Greater Manchester [1990] 2 QB 283.
13.10 Remoteness of damage: the basic rule

Even if the tort caused the damage, that is not the end of the story. A breach of duty
may considerably change the course of subsequent events, but the defendant will
not be liable for everything that can be traced back to the original wrongdoing.
The remoteness issue limits the extent of the defendant’s liability. This too can be
illustrated by our ordinary use of language.
Claudia travels to work in London: the only convenient way is by train from her local
station. One day she finds that her train has been derailed outside the station and
blocked the line. She therefore has to return home. During the morning an intruder
breaks in and shoots her in the leg. It would be natural for her to say, ‘I was absent
from work yesterday because my train was derailed’. But it would not be natural for
her to say, ‘I was shot in the leg yesterday because my train was derailed’. Yet it is true
that, if there had been no derailment, she would not have been at home and would
not have been shot. There is, however, a feeling that the link between the shooting
and the derailment is not close enough. In legal language, the shooting is too remote
a consequence of the derailment.
The main purpose of the rules of causation is to exclude those things that are not the
cause of the damage. If the same damage would have been suffered even if there had
been no breach of a duty of care, then the claimant loses. But the opposite is not true.
Even if the damage would not have been suffered without the breach of duty (i.e. the
breach of duty is a cause of the damage), it does not follow that the defendant is liable.
The breach of duty may initiate a whole chain of further events – but some of these will
be treated as too ‘remote’ from the original negligence for it to be appropriate to hold
the defendant answerable for those distant outcomes.
Like causation, the remoteness issue is relevant to all torts in which proof of damage is
essential, or in which the claimant is seeking compensation for specific losses.
At one time, the test of remoteness of damage in the tort of negligence was said
to be whether the damage was the direct consequence of the breach of duty. If it
was merely indirect, particularly if there was something which ‘broke the chain of
causation’, then the defendant was not liable. This test was particularly associated
with the decision of the Court of Appeal in Re Polemis [1921] 3 KB 560.
13.10.1 The acceptable test: foreseeable consequences

Since 1964, the accepted test has been that the defendant is liable for damage only if it
was the foreseeable consequence of the breach of duty. The Privy Council so decided
in The Wagon Mound (No 1) [1961] AC 388.
Furnace oil had been negligently spilled from a ship in Sydney Harbour. The oil had
been carried to nearby docks where welding operations were in progress. A piece of
cotton waste caught fire, the temperature was raised sufficiently to ignite the oil and
the resulting fire destroyed the docks and ships moored there. The New South Wales
courts, applying the English rule of the time, held that (on the evidence presented) the
great fire was not foreseeable, but that it was the direct consequence of the spillage
and therefore the defendants were liable. The Privy Council disagreed. The defendants
should be liable only for what could reasonably have been foreseen. The Privy Council
gave two reasons. A test of foreseeability was (1) simpler and (2) more just, because it
was unfair to hold a careless defendant liable for more than could have been foreseen
when and if he thought about the consequences before committing the act of
negligence. ‘It is hoped that the law will thereby be simplified and that, in some cases
at least, palpable injustice will be avoided’ (per Viscount Simonds).
13.10.2 Qualifications of the basic test

Viscount Simonds certainly thought that the substitution of the new test would
not affect the outcome of many cases. Foresight is not a term that can be applied
mechanically. The way it is used can be understood only by examining a selection
of cases in which it has been considered. A very narrow test would mean that the
defendant would be liable only if the very thing which happened was what would be
expected and therefore foreseen: a very wide interpretation would suggest that the
defendant would be liable for everything that you could imagine happening unless
it was utterly far-fetched. The approach in the cases decided since 1961 falls between
these two extremes, but is probably closer to the latter. The following are reasons why
the effect has not been great.
a. How much is foreseeable?

The significance of the new test was considered by the House of Lords in Hughes v Lord
Advocate [1963] AC 837 where employees of the Post Office negligently left an open
manhole unattended in the street. It was covered by a canvas tent and surrounded
by paraffin warning lamps. Out of curiosity two young boys entered the tent and the
plaintiff, a boy aged eight, took one of the lamps in with him. The lamp was knocked
into the hole and caused a violent explosion in which the plaintiff suffered severe
burns. The defendants were liable. Even though in the circumstances the explosion
was unforeseeable the kind of damage which occurred, burns, was of a type which was
foreseeable.
Doughty v Turner Manufacturing Co [1964] 1 QB 518 illustrates the difficulty in drawing

the line. Here, an asbestos cover was knocked into a cauldron of molten liquid. A
minute or two later, due to a chemical reaction which was unforeseeable at the time,
the liquid erupted and the plaintiff suffered burns. Hughes was distinguished by the
Court of Appeal on the ground that a splash causing burns was foreseeable but the
damage which occurred was of an entirely different kind.
More recently the House has again considered the problem and analysed both the
Wagon Mound (No 1) and Hughes cases in Jolley v Sutton London Borough Council [2000]
1 WLR 1082. This is in fact a case based on the Occupiers’ Liability Acts (studied in
Chapter 16), but the common law principles were discussed and applied.
These cases show that it is not necessary to foresee precisely what happened. In
particular, it is not necessary to foresee either (1) the severity of the damage or (2) the
precise manner in which it occurred. It is sufficient if the injury is of the type that could
be foreseen, even it came about in an unexpected way or was much more severe than
expected.
This can be illustrated by the facts of Jolley. The defendant council had, in breach of
duty, failed after several months to remove a derelict cabin cruiser that had been
abandoned on its land. The issue was whether the council could foresee only that
small children would be injured by clambering over it, or whether (as actually
happened) teenaged children would be injured by jacking it up and working
underneath it in order to make it seaworthy. This is in the end a matter of judgment
– the Court of Appeal unanimously held that the accident was not foreseeable, the
House of Lords unanimously held that it was.
b. The egg-shell skull cases

Before 1961 the courts had recognised what was called the ‘egg-shell skull’ cases, and,
after some hesitation, it has been held that the principle of these cases survived the
introduction of the new rule for remoteness.
It is important to note that the egg-shell skull rule principle relates to the level of
damages recoverable once liability has been established (the existence of a duty of
care and breach of that duty). Our present rule may be expressed this way:
uu where (1) the defendant is in breach of duty to the claimant
uu and (2) it was foreseeable that the claimant would suffer some physical injury
uu and (3) the particular claimant has a particular susceptibility or abnormality and as
a result suffers more serious injury or injury of a different type from that which was
foreseen, then the defendant is liable for that further injury.
The obvious situation is this: the defendant has carelessly struck the claimant on the
head. It is foreseeable that the claimant will suffer cuts and/or bruises. The particular
claimant however has an exceptionally thin skull (an ‘egg-shell’ skull) and sustains a
fractured skill and serious brain damage. That was not foreseeable, but the defendant
is still liable for it.
Case law example

There is a good example in Robinson v Post Office [1974] 2 All ER 737. Notice that
this case involves both a true causation point and an egg-shell skull point. The
defendant was liable for the negligent grazing of the claimant’s shin. The claimant
had an unforeseeable allergy. The hospital administered an anti-tetanus injection
without carrying out the appropriate tests. Robinson had an allergy to the
injection and the reaction caused brain damage. There were two elements to the
decision.
1. The evidence was that, even if the proper tests had been carried out,
the allergy would not have been detected. Therefore the hospital’s
negligence was not a cause of the brain damage (i.e. the ‘but for’ test
was not satisfied).
2. Once the hospital’s negligence was out of the way, the allergy was
the equivalent of an egg-shell skull and, though it was unforeseeable,
the defendant was nevertheless liable for it.
c. Financial weaknesses
What happens if the claimant has a financial rather than a physical weakness?
If the defendant injures a claimant who happens, however unforeseeably, to be a

leading soccer star whose career is ruined, then the defendant has, as with the egg-
shell skull cases, ‘to take the victim as he finds him’ (i.e. to compensate the claimant
for his actual loss). What has to be foreseen is physical injuries that were to result in
loss of employment. Once that has happened, the defendant has to compensate for
the actual loss suffered.
The position used to be less clear where the claimant suffers additional damage
because of poverty. The leading case was Liesbosch Dredger v SS Edison [1933] AC 449
where the defendant’s negligence led to the sinking of the plaintiff’s dredger. The
plaintiff could not afford to buy a new dredger and a replacement dredger was hired
at an inflated price to fulfil a contractual obligation. The additional costs of hiring the
dredger were held to result from the plaintiff’s financial circumstances and therefore
were too remote. Many attempts have been made to explain and distinguish this case
but the House of Lords has now decided that dicta in the Liesbosch case should not
be followed. See also Lagden v O’Connor [2003] UKHL 64, [2004] 1 All ER 277 (see from
[45]–[62]).
Activities
activity 13.1
Core comprehension – causation and remoteness

Find and read the case of Corr v IBC Vehicles [2008] UKHL 13 and answer the following
questions.
This core comprehension activity supports your understanding of causation and
remoteness and focuses on the concept of novus actus interveniens. This issue is
directly referred to by Lord Bingham at [14]–[18], by Lord Scott of Foscote at [17], and
Lord Walker of Gestingthorpe at [43].
a. What is the definition of the break in causation attributable to a novus actus
interveniens according to Clerk & Lindsell on torts?
b. Which rationale is applied to decide whether a novus actus interveniens breaks

the chain of causation?
c. Which question did the court consider in relation to causation and remoteness?
d. Why would it be unfair to exclude suicide from a foreseeable consequence of an

employer’s tort?
e. Does the fact that suicide is viewed differently today by the courts than it was in
the past have any sway on the rationale of fairness?
activity 13.2
Applied comprehension – mesothelioma claims

This applied comprehension activity focuses on the difficulties of issues of
causation and remoteness in claims related to mesothelioma, with particular
consideration of the role of insurance to compensate victims.
Find the case of Zurich Insurance Plc UK v International Energy Group Ltd [2015] UKSC
33, read [1]–[7] and answer the following questions.
a. What are the key aspects of mesothelioma which make an analysis of causation
and remoteness difficult?
b. What is meant by the ‘Fairchild enclave’?
c. Describe how the special rule applies to victims of mesothelioma.
d. To what extent is the ambient environmental exposure considered in the special

rule?
e. Why is the shift away from probability of exposure to significant exposure

important to victims of mesothelioma?
f. How did the proportionate approach to recovery of damages operate as held in

the Barker case?
g. How was the Barker approach reversed in the Compensation Act 2006 s.3(2)?
h. How did the Mesothelioma Act 2014 make it easier for a mesothelioma victim to
recover damages?
i. Why has legislative reform led to a shift in types of litigant parties disputing
mesothelioma claims in court?

In 2004 Theo was aged 19, an apprentice plumber and a talented rugby player. He
hoped to sign a contract as a professional player and eventually to play for England.
However he had back problems and so was referred to Ursula, a neurosurgeon.
She told him that it would be impossible for him to take part in professional
rugby without soon sustaining serious injury and no club would sign him on as a
professional. If he were to give up rugby she advised him that he would be able
to lead a normal life without back trouble for many years. There was, however,
a new surgical procedure that offered a very good prospect of strengthening his
back sufficiently to enable him to play rugby. Ursula knew that recent research
had suggested that the new procedure carried a small risk of damaging the spine.
Ursula was critical of this research and did not tell Theo about it. Theo decided to
have the surgery. Although the operation was carefully performed, he suffered
serious damage to his spine. He was then unable to work as a plumber and suffered
considerable pain.
In January 2015 Theo’s mother collapsed just outside her front door on a very cold
night. As there was no help available, Theo lifted his mother inside. He experienced
terrible back pains and is now permanently disabled.
Advise Theo as to any tort claim against Ursula on each of the following alternative
assumptions:
a. he would probably have suffered no injury as the result of lifting his mother but
for the earlier operation
b. he would probably have suffered the same injury as the result of lifting his
mother even if he had not had the earlier operation.

This question raises issues considered in Chapters 12 and 13. There is also a minor
point that the hospital or health authority will be vicariously liable – see Chapter 4 –
but no problem arises on that and it can be stated in a sentence.
a. Ursula owes a duty to Theo. This is a classic duty situation and no extended
discussion is required.
b. Is Ursula in breach? More discussion is required, especially on Chester v Afshar.

You must carefully explain what Ursula has done and why. She didn’t withhold
the information from Theo because there was only a small risk, but because she
thought the research suggesting that there was a small risk was flawed. Is that a
breach of duty?
c. The main issues are causation:
i. both scenarios: was Ursula’s negligence the cause of the original injuries?
(Chester v Afshar again).
ii. On the first scenario, was Ursula also liable for the additional consequences
of lifting mother (McKew, etc.)?
iii. On the second scenario, did Ursula continue to be liable for the original
consequences (loss of job as plumber) even after lifting mother (Baker v
Willoughby and Jobling)?
Notes
14 Defences to negligence
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
14.1 Contributory negligence . . . . . . . . . . . . . . . . . . . . . . . . 145
14.2 Volenti non fit injuria (consent) . . . . . . . . . . . . . . . . . . . . . 147
14.3 Ex turpi causa non oritur actio (illegality) . . . . . . . . . . . . . . . . . 149
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Introduction
We have seen that the burden of establishing liability for the tort is on the claimant
whereas the burden of establishing the defence is on the defendant.
If a claimant establishes a successful cause of action in tort it is open to the defendant

to plead one (or more) of the defences available. Where, on balance of probability,
a successful defence is established the defendant’s liability for the damage may be
reduced or the defendant may be totally absolved from liability.
Not all possible defences to an action in tort will be discussed in this chapter because
some defences are specific to particular torts. For example, the specialist defences in a
nuisance action, and the defence of truth/justification in the tort of defamation, will be
considered in Chapters 17 and 20 respectively.
General defences applicable to all torts, but which have particular relevance to claims
in negligence, are the topic of this chapter.
The defences we will look at are:
Contributory negligence
This defence operates where the claimant’s own fault has contributed to the damage
suffered and the damages payable are reduced in proportion to the claimant’s degree
of fault.
Volenti non fit injuria (consent)

This means that no wrong is done to one who consents. A claimant who voluntarily
agrees to undertake a risk of incurring harm is not permitted to sue for the consequent
damage of taking that risk. It is important to note that volenti is a complete defence
and if it suceeds the claimant gets nothing.
Ex turpi causa non oritur actio (illegality)

No right of action arises from a disgraceful cause (perhaps criminal activity) during
which the injuries are sustained. The effect of this defence is to completely absolve the
defendant of liability for damage.
Learning outcomes
be able to:
uu describe what is meant by contributory negligence
uu explain the basis on which the courts reduce damages as the result of
contributory negligence
uu explain the role of consent as a defence to an action in negligence
uu explain in what circumstances a defendant may escape liability by showing that
the claimant had been acting illegally or morally reprehensibly at the time of the
injury.
Essential reading
¢¢ Lunney and Oliphant, Chapter 6 ‘Defences to negligence’.
Tort law 14 Defences to negligence page 145
14.1 Contributory negligence

The defendant may plead that the claimant’s own negligence contributed to
the injury. This is referred to as contributory negligence. Before the Law Reform
(Contributory Negligence) Act 1945, contributory negligence was a complete defence
to an action in tort and no damages were recoverable for injuries or damage caused
partly by the claimant’s own fault. The effect of this rule was that if a claimant could
be shown to have been even slightly negligent about taking care of their own safety
the defendant’s fault became irrelevant and the defendant was totally absolved of
liability. The harshness of the ‘all or nothing’ rule led to a gradual modification of the
defence and the enactment of the 1945 Act, which gave the courts power to apportion
responsibility for damage between the claimant and the defendant, and provides that
where damage is the result of the claimant’s own fault then the amount awarded will
be adjusted to reflect this.
The courts have power under the Act to apportion the damage where a claimant’s own
conduct has contributed to the accident or harm but it cannot be used to effectively
defeat a claim. For the Act to come into operation there must be fault on the part of
both parties and this means that a finding of 100 per cent contributory negligence is
not permitted as the effect of this would be to defeat a claim against the defendant by
holding the claimant entirely responsible.
Fault is not confined to negligent conduct but it can include a deliberate act on the
part of the claimant. Section 4 of the Act provides:
…‘fault’ means negligence, breach of statutory duty or other act or omission which
gives rise to a liability in tort or would, apart from this Act, give rise to the defence of
contributory negligence.
Application of this provision can be seen in Reeves v Commissioner of Police of the

Metropolis [2000] 1 AC 360, where the harm in question was inflicted by Reeves himself
who committed suicide while in police custody. In Reeves the police were liable
because they breached their duty to prevent the very act which had occurred. They
raised the defences of volenti, novus actus interveniens and contributory negligence.
Neither the defence of volenti nor the novus actus claim was accepted but the House
of Lords found that the negligence of the police and the deceased’s act of intentional
self-harm contributed equally to the damage. Since the purpose of the Act is to
apportion the damages to reflect the claimant’s own responsibility for the harm
suffered, the award of damages in this case was reduced by 50 per cent. The question
being asked in contributory negligence is not: what was the cause of the accident? The
emphasis is on what was the cause of the damage.
Where a defendant’s negligence creates an emergency, the courts are reluctant to

find contributory negligence on the part of a claimant who makes a wrong decision
in a stressful moment. The conduct of a claimant in these situations is judged with
the emergency in mind. This happened in Jones v Boyce (1816) 1 Stark 493, where the
plaintiff was a passenger on the defendant’s coach and, fearing that it was about to
overturn, he jumped off and suffered injury. The coach did not overturn and had he
stayed where he was the plaintiff would have been safe. However, confronted with
two alternatives in an emergency situation the plaintiff was not guilty of contributory
negligence because he had acted reasonably in the circumstances.
The important issues that arise in relation to contributory negligence are:
uu The claimant must have failed to take reasonable care for their own safety, but no
question of a pre-existing duty of care arises.
uu The contributory negligence must be a cause of the damage and the damage
must be a reasonably foreseeable consequence of the contributory negligence.
The claimant’s negligence may have contributed to the accident itself (e.g. a
motorcyclist failing to keep a proper look-out for other vehicles) or may have
contributed only to the injury (e.g. a motorcyclist failing to wear a crash helmet).
uu Apportionment. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945
provides that damages shall be reduced to such extent as the court thinks just and
equitable having regard to the claimant’s share in the responsibility for the
damage. The judge must first determine the amount of damages payable if the
claimant had not been negligent and then deduct a certain percentage to reflect
the claimant’s contribution. It seems that the percentage may reflect both the
relative potency of the claimant’s and defendant’s actions in causing the damage
and the relative blameworthiness of the parties (see Reeves above).
Case law example

In Froom v Butcher [1975] 3 All ER 520, the plaintiff was driving his car when he
collided with a car driven by the defendant and as a result he suffered head and
chest injuries. The defendant admitted liability for the accident but claimed that
the plaintiff’s injuries were largely the result of his own failure to take care of his
safety by not wearing a seatbelt. The defendant argued that the damages awarded
to the plaintiff ought to be reduced accordingly. At first instance the judge held
that the plaintiff was not negligent and full damages were awarded for the injuries.
However, the defendant appealed on the ground that the judge had erred in not
holding that the plaintiff’s failure to wear a seatbelt amounted to contributory
negligence. Although the negligence of the plaintiff did not contribute to the
accident happening, his failure to take precautions increased the risk of harm. The
Court of Appeal held that the standard of care is objective and said that in failing to
wear a seatbelt the plaintiff failed to take reasonable precautions for his own safety
and the award of damages was reduced by 20 per cent.
Contributory negligence was rejected in Smith v Finch [2009] EWHC 53 (QB)
where a cyclist sustained serious head injuries in a road accident caused by the
defendant. Although there is no legal requirement to wear a cycling helmet, the
Court made an analysis of Froom and came to the conclusion that the judgment
and observations of Lord Denning MR should apply to the wearing of helmets by
cyclists. However, in this case the defendant was unable to show that an approved
safety helmet would have prevented the claimant’s serious head injuries or made
them less severe.
In Jones v Livox Quarries [1952] 2 QB 608, the plaintiff was going from his workplace
to the canteen for lunch and, disregarding his employer’s safety instructions and
unknown to the driver, he was riding on the towbar of one of the defendants’
traxcavators. A dumper travelling close behind ran into the traxcavator and caused
the plaintiff injuries. Although the driver of the dumper was found to be negligent
in failing to keep an adequate lookout, the judge found contributory negligence on
the part of the plaintiff because he had placed himself in a position of danger on the
traxcavator. He was therefore found to be one-fifth responsible for the damage he
suffered. On appeal against the reduction of damages the plaintiff argued that his
contributory negligence should not count against him because the obvious danger
arising from riding on the towbar was being thrown off, not being run into from
behind and crushed by another vehicle. His appeal was dismissed on the ground that
he had unreasonably exposed himself to the danger. He could not then say that that
particular risk to which he had exposed himself was not the cause of his damage.
14.1.1 Contributory negligence involving children

Conduct that would be regarded as contributory negligence in the case of an
adult would not necessarily be regarded as such in the case of children. Age is a
circumstance which must be considered in deciding if there has been contributory
negligence. In Yachuk v Oliver Blais Co Ltd [1949] AC 386 the defendants had sold a
pint of petrol to a nine-year-old boy. The child had falsely told the defendants that
his mother wanted the petrol for her car. When he used the fuel to make a burning
torch for the purposes of a game he suffered severe injury for which the defendants
were held liable in negligence. In supplying petrol to such a young boy, who neither
knew nor could be expected to know of the dangers associated with handling it, the
defendant was negligent. There was no contributory negligence on the boy’s part. In
Gough v Thorne [1966] 1 WLR 1387, the plaintiff, a 13-year-old girl, was waiting to cross
a busy road. A lorry driver stopped and beckoned her to proceed across the road
and as she did so she was struck by the defendant who was driving too fast. The trial
judge found that the driver was negligent but he also held that the girl had been
contributorily negligent in failing to check if there was any traffic before she crossed
the road. On appeal against the finding of contributory negligence the Court of Appeal
held that the fact that she had relied entirely on the driver’s signal to cross the road
did not constitute contributory negligence. Lord Denning said that a very young child
cannot be guilty of contributory negligence but, depending on the circumstances, an
older child may be.
In Jackson v Murray [2015] UKSC, the Supreme Court reviewed the approach to
contributory negligence in the case of a 13-year-old girl who suffered serious injuries
when she stepped out from behind her school minibus into the path of an oncoming
car. In the context of apportionment of damages in contributory negligence Lord Reed
[26] said:
It follows that the apportionment of responsibility is inevitably a somewhat rough and

ready exercise (a feature reflected in the judicial preference for round figures), and
that a variety of possible answers can legitimately be given. That is consistent with the
requirement under section 1 (1) to arrive at a result which the court considers ‘just and
equitable’. Since different judges may legitimately take different views of what would be
just and equitable in particular circumstances, it follows that those differing views should
be respected, within the limits of reasonable disagreement.
14.2 Volenti non fit injuria (consent)

At first sight it seems obvious that someone who consents to the tort should not then
turn round and sue. In practice however, it is complex and controversial. The effect
of the defence of volenti non fit injuria (voluntary assumption of risk) is to absolve the
defendant from the legal consequences of any harm or damage on the ground that
the claimant voluntarily assumed to take the risk involved. An assumption of risk may
be either express or implied but in either case the defendant must show that the
claimant had full knowledge of both the nature and the extent of the risk.
Case law example

The defence succeeded in Morris v Murray [1991] 2 QB 6. After a bout of heavy
drinking, Murray suggested to Morris that they go for a spin in his light aircraft.
Soon after take-off, the aircraft crashed, killing Murray and severely injuring Morris
who brought an action against the deceased’s estate. The Court of Appeal found
that the pilot’s drunkenness was so extreme and obvious that the plaintiff was
volens to the risk.
Where the claimant accepts a lift from an obviously inebriated driver the plea of
volenti depends on the degree of intoxication. In Dann v Hamilton [1939] 1 KB 509, the
defendant had driven the plaintiff and her mother to see the Coronation decorations.
They visited several public houses and it became obvious that the defendant’s ability
to drive was impaired. However, the plea of volenti was rejected and the plaintiff
was found not to have consented to or absolved the defendant from subsequent
negligence on his part. Asquith J held that volenti did not apply to this situation, unless
the drunkenness was so extreme and so glaring that accepting a lift was equivalent to
‘walking on the edge of an unfenced cliff’.
The defence of volenti is impossible in any action brought by a passenger against the
driver of a vehicle on a public road. The Road Traffic Act 1988, s.149 renders void any
‘antecedent agreement or understanding’ that a passenger is volens to the risk of
negligent driving in any vehicle for which third party insurance cover is compulsory.
14.2.1 Knowledge of the risk does not necessarily imply consent

In Smith v Charles Baker & Sons [1891] AC 325 the House of Lords ruled that knowledge of
the danger does not necessarily signify consent. In this case the plaintiff was employed
drilling holes in a rock cutting and while he was working a crane often swung heavy
stones overhead. The employee was aware that there was a risk of the stones falling
and he had complained to his employer about the dangerous practice. When he was
injured by a falling stone he brought an action against his employers, who pleaded
volenti non fit injuria. Even though the plaintiff had knowledge of the danger and he
continued to work, volenti was rejected because the court refused to accept that by
continuing to work the plaintiff had voluntarily undertaken the risk of the stones
falling.
14.2.2 Volenti in the context of employees

Smith v Baker illustrates that where employees are alleged to have consented in
advance to accepting the risk of an employer’s negligence, the courts take a cautious
approach in applying the defence of volenti. The reality of the employer/employee
relationship is that it is one of power, where the employee is not usually free to
refuse to do certain things without fearing the employer’s disfavour or some other
disadvantage. Nevertheless, although the defence will rarely be successful in an action
by an employee against an employer, we have seen (in Chapter 4) that volenti was
accepted by the House of Lords in ICI Ltd v Shatwell where, according to Lord Reid: ‘If
the claimant invited or freely aided and abetted his fellow servant’s disobedience,
then he was volens in the fullest sense’.
14.2.3 Volenti in sporting activity

In the case of sporting activities, there is implied consent to contact which occurs
within the rules of the game. However, the claimant might not be agreeing to accept
all risks associated with the sport but will only impliedly consent to accept a lower
standard of care for injuries sustained in a sport played within the ordinary rules
of the game. In Condon v Basi [1985] 2 All ER 453, the defence of volenti failed where
the plaintiff suffered a broken leg as the result of a foul tackle in the course of a
game of football. It was held that consent to reasonable contact is consent only to
non-negligent behaviour. In Watson v British Boxing Board of Control [2001] QB 1134 (a
case we also looked at in the context of a duty of care in Chapter 7), it was also held
that although a boxer consents to injury caused by his opponent in the boxing ring,
he does not consent to injury resulting from inadequate safety arrangements by the
sport’s governing body after being hit.
14.2.4 Volenti in the case of rescuers

The approach taken by the courts can be illustrated in Baker v Hopkins [1959] 3 All ER
225, where the defendant employer had adopted a dangerous system of working
by lowering a petrol engine down into the inside of a well. The engine discharged
poisonous emissions and two of the workmen were overcome by the fumes. The
plaintiff, a doctor, had volunteered to go down the well to rescue the workmen but
he too was overcome by the fumes and died as a result. The Court of Appeal held that
volenti was inapplicable because the plaintiff’s actions as a rescuer were not truly
voluntary: if the defendant puts either the property or the person of a third party in
a situation of danger so that the claimant is under legal or moral pressure to attempt
a rescue then, if the claimant suffers harm in the process, he is not to be barred from
a remedy by the defence of volenti. This decision can also be explained on policy
grounds as it is against the public interest to deter rescue.
14.3 Ex turpi causa non oritur actio (illegality)

What should happen if the claimant is engaged in some illegal (perhaps criminal)
activity, and this illegality is a cause of the injuries sustained? An instinctive answer
might be that no compensation should be available, but in fact illegality seldom
operates as a complete bar to liability. Patel v Mirza [2016] UKSC 42 was not a tort
case but a claim in contract where the parties agreed to place bets on share prices
using insider information (an illegal activity). The intended betting did not take place
so the claimant sued for breach of contract and unjust enrichment to recover the
£620,000 he had paid the defendant. The Supreme Court unanimously dismissed
the defendant’s appeal and ruled that a claimant who satisfies the requirements for
a claim in unjust enrichment is not prevented from recovering simply because the
agreement was based on an unlawful purpose.
Nevertheless, the courts will not assist a claimant who has been guilty of illegal
conduct because it would be ‘an affront to the public conscience’ to do so, and might
encourage others in illegal activities.
The ex turpi causa maxim applied in Clunis v Camden and Islington Health Authority
[1998] 3 All ER 180, where the plaintiff, who had a history of mental illness, killed
a stranger in a violent attack. Before he killed the victim the plaintiff had been
discharged into the care of the defendant health authority. He pleaded guilty to
manslaughter on the grounds of diminished responsibility for the killing but claimed
that the health authority was negligent in failing to treat him with reasonable care and
skill. It was held that a plaintiff who had been convicted of a serious offence could not,
on the ground of public policy, sue a health authority in negligence in failing to treat
him properly, thereby preventing him from committing the offence.
Case law example

In Gray v Thames Trains Ltd [2009] UKHL 33, as the result of a serious rail crash
caused by the defendant’s negligence, the claimant suffered severe psychological
depression which led him to kill a man. At the criminal trial for this offence
his plea of guilty to manslaughter on the ground of diminished responsibility
was accepted and he was ordered to be detained in a mental hospital under
the Mental Health Act 1983. His claim in damages for loss of earnings after he
committed the manslaughter was allowed by the Court of Appeal which held it
was not defeated by ex turpi causa because the damages were not inextricably
bound up with or linked to his criminal conduct. Thames Trains Ltd appealed
against this decision arguing that a claimant cannot recover compensation for
loss which has been suffered in consequence of his own criminal act. In allowing
the appeal, the House of Lords ruled that Gray’s conviction for manslaughter
precluded a claim for loss of earnings during his detention by reason of the public
policy expressed in the doctrine of ex turpi causa. Lord Hoffmann said the maxim
ex turpi causa expresses not so much a principle as a policy; that policy is not
based upon a single justification but on a group of reasons, which vary in different
situations.
• The wider and simpler version was that you could not recover for
damage which was the consequence of your own criminal act.
• In its narrower form, it was that you could not recover for damage
which was the consequence of a sentence imposed upon you for a
criminal act.
In Pitts v Hunt [1991] 1 QB 24, the defendant’s own criminal and disgraceful conduct
gave rise to a successful defence of ex turpi causa. Here, having both consumed large
amounts of alcohol, the plaintiff encouraged the defendant to drive his motorbike in a
reckless and dangerous fashion.
Joyce v O’Brien [2013] EWCA Civ 546 involved a joint criminal enterprise in which the
claimant suffered serious head injuries as he and his uncle were making a getaway
following the theft of two ladders. The Court of Appeal held that it was foreseeable
that parties engaged in criminal activities might be subject to increased risks of harm.
Where such harm materialised the principle of ex turpi causa would provide a defence.
Elias LJ observed that given that the doctrine is one of public policy, there should be
some flexibility in its operation. It will not apply to minor traffic offences but in most
joint criminal liability cases the nature of the principal offence will determine which
acts of a co-conspirator will attract the application of the doctrine.
In Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218, when the police
arrived to enforce an arrest warrant on the claimant, he attempted to escape from
their custody by jumping from a window of his second floor flat. He suffered brain
damage and tetraplegia in the fall and claimed negligence on the part of the arresting
officers, alleging that they had stood idly by and let him jump. The Court of Appeal
held that the maxim ex turpi causa non oritur actio made the claim untenable because
the claimant had to rely on his own criminal conduct in escaping lawful custody to
found his claim.
14.3.1 Illegality defence: recent developments

There can be strongly held differing views across a spectrum of opinion concerning
this defence and a series of cases in the Supreme Court identified the need for
guidance on the proper approach as soon as possible. In Patel v Mirza (2016) a Supreme
Court panel of nine justices attempted to rationalise the approach to the illegality
defence.
The majority held that the public interest is best served by a discretionary approach,
which allows the court to consider a range of factors. This ‘structured discretion’
approach was favoured by the Law Commission (2009 Consultative Report). The
minority favoured a rule-based analysis because a discretionary approach required the
courts to make value judgments about the respective claims of the public interest and
this would lead to complexity, uncertainty and a lack of transparency.
Activities
activity 14.1
Core comprehension – contributory negligence

The focus of this core comprehension activity is to understand the basis on which
the courts reduce damages as the result of contributory negligence.
Find and read the case of Jackson v Murray [2015] UKSC 5 and answer the following
questions.
You will note that this case is from Scotland and therefore terms such as the pursuer
(the claimant) and the defender (the defendant) are used.
a. Which statute governs the apportionment of responsibility in claims of
contributory negligence and which equitable principle governs the award?
b. Outline the apportionment of contributory negligence attributed to the 13-year-

old schoolgirl who was hit by a car when carelessly crossing the road.
c. Which standard of care was applied to the actions of the 13-year-old?
d. Why in the first instance did the trial judge apportion ‘a very large proportion of
the overall responsibility’ (90 per cent) to the claimant?
e. Which reasons were given by the appeal court to reduce the 90 per cent share of
blame to 70 per cent?
f. Identify the two factors relevant to the consideration of causative potency.
g. Why was more blame attributed to the 13-year-old schoolgirl than the driver?
h. According to Lord Reid in the Stapley case, what must a court assess in order to
apportion blame?
i. Why, according to Hale LJ in the case of Eagle v Chambers [2003] EWCA Civ 1107,
is blameworthiness more easily linked to drivers of cars than, for example,
pedestrians?
j. Is the apportionment of responsibility an exact science?
k. When can an Appeal Court interfere with an apportionment determined by a

judge in a lower court?
l. Which conclusion did the Supreme Court reach on the apportionment of blame?
m. On which grounds did Lord Hodge in his dissenting opinion favour the
apportionment of two thirds (claimant) to one third (defendant)?
activity 14.2
Applied comprehension – defence of illegality

This comprehension supports your understanding of the key issues surrounding the
defence of illegality. Read Lunney and Oliphant, Chapter 6 ‘Defences to negligence’,
Section V ‘Illegality (ex turpi causa non oritur actio)’, in particular the case extract
of Lord Hoffmann’s judgment in Gray v Thames Trains, and answer the following
questions.
a. Identify the Latin phrase associated with the defence of illegality. What does it
mean?
b. Using the example of the Joyce case, explain (i) who committed the ‘wicked’
act, (ii) what action was taken which was founded on that act, and (iii) why the
action failed.
c. Does the defence of illegality always bar claimants from recovering in

negligence?
d. Summarise in fewer than 100 words the relevant facts of the Gray case,
identifying the illegal act committed and the link between Mr Gray and the
defendant, Thames Trains Ltd.
e. Express the causal connection between the tort and the killing in terms of ‘but
for’ causation.
f. Why does the fact that the immediate cause of the damage was the deliberate
act of the claimant not suffice to exclude liability?
g. How does Lord Hoffmann describe the maxim of ex turpi causa?
h. Outline possible reasons why in the narrow form of this policy defendants
should not be able to recover damages which result from sentencing resulting
from a criminal act.
i. Outline possible reasons why in the wider form of this policy defendants should
not recover for damage which was the consequence of their own criminal act.
j. Identify two justifications for the application of the wider rule.

Part IV: Property and reputation
15 Defective premises: pure economic loss
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
15.1 Economic loss: acquiring defective property . . . . . . . . . . . . . . 155
15.2 Defects and damage . . . . . . . . . . . . . . . . . . . . . . . . . . 155
15.3 Reassertion of contract law . . . . . . . . . . . . . . . . . . . . . . . 156
15.4 The ‘complex structure’ . . . . . . . . . . . . . . . . . . . . . . . . . 156
15.5 The current position . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Introduction
Physical damage to property is a form of damage for which the law of tort will provide
compensation. Many cases concerning physical damage arise when the claimant
either fails to realise a profit or incurs expenditure arising out of a defect in either a
product, land or a building which the claimant has acquired. This chapter examines
claims in respect of damage to property to illustrate the importance of distinguishing
claims based on damage to property from claims based on a defect in property (which
is the concern of contract law).
Learning outcomes
be able to:
uu explain the legal significance of distinguishing between claims based on damage
to property and claims arising from a defect in property
uu evaluate the ‘complex structure’ approach
uu analyse the leading authorities: D&F Estates v Church Commissioners (1989), Anns v
Merton (1978) and Murphy v Brentwood (1990)
uu explain the position concerning preventative expenditure for a defective
structure to avoid damage to persons or property.
Essential reading
¢¢ Lunney and Oliphant, Chapter 8 ‘Negligence: duty of care – economic loss’,
Section II ‘Defective product economic loss’.
Tort law 15 Defective premises: pure economic loss page 155
15.1 Economic loss: acquiring defective property

Subject to other rules on recovery, physical damage to property is a form of damage
for which the law of tort will provide compensation. As you will see in the topic of
nuisance (Chapter 17), the law will also compensate for so-called amenity damage as
a result of interferences in property, such as, for example, diminished enjoyment of
a property as a result of unpleasant smells emanating from a neighbouring factory.
Where the claim is based on physical damage to property, the proper place to pursue
the claim is under the tort of negligence.
It is therefore important in these circumstances to ensure that the claim in respect of

the property is one based on damage to property and not a defect in property. Defective
property is the concern of contract law. No claim in tort lies in respect of defective
property unless the defect causes damage to other property or to a person or persons.
Case law example

Junior Books v Veitchi Co Ltd [1983] 1 AC 520 justified overturning the normal rule
that claims arising under a construction contract should be pursued in contract.
Here, the main contractors employed to construct a factory nominated the
defendants, as specialist sub-contractors, to lay the floor. The plaintiff alleged
that the floor was defective (though not dangerous) and claimed the cost of
replacing the floor plus consequential financial loss. The House of Lords allowed
recovery on the ground that the proximity of the relationship between the
parties was so close as to be as good as a contract and the plaintiff had, to the
sub-contractor’s knowledge, relied on his skill and experience. There was no
question of indeterminate liability in this situation because the plaintiff was
plainly foreseeable as an identified individual. However, the decision has not
subsequently been followed and has been distinguished to the extent that it can
be said to be unique to its own facts.
A line of cases emerged in which claimants had acquired a house or a flat that had
begun to show signs (or would show signs) of physical deterioration, so that the
claimants had to spend money putting it right or had to sell it for less than it should
have been worth. These cases constitute an important and difficult area of law in
respect of which the leading authorities are D&F Estates v Church Commissioners [1989]
AC 177 and Murphy v Brentwood DC [1991] 1 AC 398.
15.2 Defects and damage

As we have seen, defective product economic loss is recoverable in contract but such
loss is not normally recognised in tort. However, in Anns v Merton LBC [1978] AC 728 the
House of Lords allowed the claim for the recovery of repair costs arising from the
defective construction of a building. Here, some years after completion, a block of flats
began to develop cracks in the walls. Despite prior approval of the building
foundations by the local council, the cracks were caused because the foundations
upon which the flats were built were too shallow. In considering the nature of the
damages recoverable, Lord Wilberforce said (759) (see Section 2.11):
In my opinion they may also include damage to the dwelling house itself; for the whole
purpose of the byelaws in requiring foundations to be of a certain standard is to prevent
damage arising from weakness of the foundations which is certain to endanger the health
or safety of occupants… the relevant damage is in my opinion material, physical damage,
and what is recoverable is the amount of expenditure necessary to restore the dwelling to a
condition in which it is no longer a danger to the health or safety of persons occupying and
possibly (depending on the circumstances) expenses arising from necessary displacement.
In finding that the plaintiffs had suffered ‘material physical damage’ the defendant
council were required to compensate for repair costs needed to avoid a danger to
the health and safety of occupants of the building. You will see below in Murphy that a
seven-member House of Lords found it necessary to overrule its own decision in Anns
(marking a contraction in the scope of a duty of care in economic loss cases).
In D&F Estates v Church Commissioners, the defective product consisted of negligently

applied plaster. This was laid by specialist subcontractors during the building of
a block of flats and, some years later, it became loose and began to flake off. The
plaintiffs brought a tort action against the builder, with whom they had no contractual
relationship, for the cost of renewing the plaster and the loss of rent while the work
took place. The House of Lords regarded this as a case of the construction of an
inherently defective building and, until such time as falling plaster caused personal
injury or damage to ‘other property’, like carpets or furniture, there could be no
liability in negligence. The mere discovery of a defect in a ‘product’ (pure economic
loss) cannot justify using tort to circumvent the law of contract.
In D&F Estates v Church Commissioners the House of Lords cast doubt on the decision in
Anns where Lord Bridge said:
If the defect is discovered before any damage is done, the loss sustained by the owner of
the structure, who has to repair or demolish it to avoid a potential source of danger to
third parties, would seem to be purely economic.
Their Lordships clarified the distinction between situations where:
1. an undiscovered defect materialised and caused personal injury or damage to

other property – this loss is recoverable in tort.
2. a defect is discovered before damage has occurred and the building owner needs
to incur the cost of remedying the defect to avoid the threat of harm – this loss is
pure economic loss and not recoverable in tort.
15.3 Reassertion of contract law

The approach in D&F Estates was subsequently applied in Murphy, where the House of
Lords ruled that a local authority was not liable in negligence to a building owner or
occupier for losses arising from its failure to ensure that the building was designed
or erected in accordance with building regulations. In this case the plaintiff had
purchased a house which was constructed on a concrete raft foundation over an in-
filled site. In 1981 the foundations of the house were found to have subsided causing
cracks in the walls which threatened the whole fabric of the property. The concrete
raft foundation had subsided and the plaintiff sued the Council who had approved the
original construction plans for the house.
The House of Lords made it clear that the cracks in the walls constituted damage to
the very property in question; it was not a case of the defective foundations causing
damage to ‘other property’. The Council was not liable. According to Lord Bridge, to
allow recovery for a defect in property would be to introduce into the law of tort a
non-contractual remedy as to fitness for purpose. Such guarantees are the province
of the law of contract and not tort law. In this case the house had only damaged itself
and was therefore merely a defective house which was a bad bargain; unless and
until actual physical damage had occurred the cost of making the house safe or any
diminution in its value was purely economic loss.
15.4 The ‘complex structure’

Judicial speeches in both D&F Estates and Murphy considered what has been called
the ‘complex structure theory’. According to this, a building, instead of being seen
as a unified structure, might instead be thought of as composed of many smaller
components. If one of these malfunctioned and impacted on other parts of the
building, this could be regarded as damage to ‘other property’ and thus potentially
recoverable. An example given by Lord Bridge in Murphy was that of a faulty central
heating boiler exploding and causing damage to the rest of the house. He went on to
doubt, however, whether such a boiler could accurately be thought of as part of the
structure of the building in the same sense as walls or foundations and concluded that
the ‘complex structure’ approach offered ‘no escape’ from the Murphy principle.
Tort law 15 Defective premises: pure economic loss page 157
15.5 The current position

As the law now stands, preventative expenditure to avoid damage to persons or
property is not recoverable in tort.
uu The loss in these cases is to be classified as economic loss, even though there has
been a physical effect on the building.
uu There is a clear distinction between property which is defective and thereby causes
damage to people or other property (damages recoverable) and property which
merely is itself defective and is therefore worth less than it should be (damages not
recoverable).
uu The existence of the Defective Premises Act 1972 was cited in Murphy to support
the denial of common law negligence liability for defects in buildings. The Act
(s.1) imposes a duty on builders, subcontractors, architects, surveyors and other
professionals to ensure that the work taken on is ‘done in a workmanlike, or, as the
case may be, professional manner, with proper materials and so that as regards
that work the dwelling will be fit for habitation when completed’.
Activities
activity 15.1
Core comprehension – defective premises

This core comprehension activity is situated within your study of the topic of
economic loss and defective premises. It should not be attempted before you have
completed your Essential reading.
Use the Online Library to find and read the journal article: Markesinis, B.S. and S.
Deakin ‘The random element of their Lordships’ infallible judgment: an economic
and comparative analysis of the tort of negligence from Anns to Murphy’ (1992)
55(5) MLR 619. HeinOnline: http://heinonline.org/HOL/Page?handle=hein.journals/
modlr55&id=637 The questions can be answered by reading the ‘Introduction’
section of the article.
a. What was the issue addressed in the judgment of Anns v Merton LBC in 1977?
b. Which two aspects of tort law are particularly relevant to the Anns judgment?
c. Why was the description of loss in Anns considered to be a misdescription?
d. What is the criticism of the definition of ‘complex structures’? State the

definition and the criticism.
e. Why does the survival of Hedley Byrne produce different liability outcomes?
f. Why do internal inconsistencies of the common law result in the different

liability approaches to builders and surveyors?
g. How is the builders’ potential liability for the anticipated costs of repairs
defined?
h. Why is it argued that that the wrong defendant is being targeted?
activity 15.2
Applied comprehension – damage to buildings

Find and read the case of Bellefield Computer Services Ltd v E Turner & Sons Ltd (2000)
2 TCLR 759.
This applied comprehension activity draws on your earlier understanding of
concepts of damages as applied to the special liability regime of defective premises.
It concentrates in particular on the section entitled: ‘The appeal by the dairy
owners: damage to the building itself’.
a. Why did the subsequent owners of the dairy, Bellefield, sue the builders, the
Turner company?
b. Consider the six heads of damage claimed by the subsequent owners. Can you
identify which heads of damage constitute pure economic loss?
c. How did the judge in the lower court formulate for which of the damages a duty
of care was owed by the builders to the subsequent owners of the dairy, and for
which of the damages a duty of care was not owed by the builders?
d. Why were damages such as ‘loss of profit’ and ‘increased costs of working’ a lost
cause?
e. In ‘The appeal by the dairy owners’ section, (i) which crucial fact in this case
prevented the duty of care of the builders being extended to include the
damage to the building and (ii) why was this important?
f. Why did the appellate court reject the argument of an incremental

development of the law as held in Murphy, and thus that the ‘the dairy should
not be regarded as an indivisible building for the purposes of this branch of the
law of tort’?
g. Why does the law of tort limit liability for infliction of financial harm?
h. According to Lord Brandon’s dissenting speech in the Junior Brooks case, which
difficulties underpin the policy which prevents recovery in tort against the
builder in the case for defects in the building which have caused damage to it?
i. Why did the appellate court hold that the decision of Murphy does not leave
room for manoeuvre on the facts of this case?
16 Defective premises: occupiers’ liability
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
16.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
16.2 Occupiers’ Liability Act 1957: scope of Act . . . . . . . . . . . . . . . . 161
16.3 The nature of the duty . . . . . . . . . . . . . . . . . . . . . . . . . 163
16.4 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
16.5 Occupiers’ Liability Act 1984 . . . . . . . . . . . . . . . . . . . . . . 167
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Introduction
This chapter deals with the duty owed by occupiers of premises to persons in or on the
premises. This is a relationship in which the common law has long recognised a duty of
care but the common law duty has now been replaced by negligence-type statutory
duties in the Occupiers’ Liability Acts 1957 and 1984.
Students should note the following recent decisions:
uu Edwards v London Borough of Sutton [2016] EWCA Civ 1005;
uu G4S Care and Justice Services (UK) Ltd v Manley [2016] EWCH 2355 (QB).
Learning outcomes
be able to:
uu explain which entrants into private premises are lawful visitors and which are
not
uu define who is to be treated as an occupier of premises
uu demonstrate a detailed knowledge of the duty of care owed by occupiers to
lawful visitors under the Occupiers’ Liability Act 1957
uu describe and explain the nature and extent of the occupiers’ duty to trespassers
under the Occupiers’ Liability Act 1984.
Essential reading
¢¢ Lunney and Oliphant, Chapter 11 ‘Special liability regimes’, Section II ‘Occupiers’
liability’.
Tort law 16 Defective premises: occupiers’ liability page 161
16.1 Background
By 1957 the common law regarding occupiers’ liability was thought to be
unsatisfactory. Some of the rules appeared rigid and complex (different duties
were owed to different classes of entrants on the land) and others were considered
inappropriate. Parliament enacted the Occupiers’ Liability Act 1957, which prescribed
the occupiers’ duty to their lawful visitors. At that time occupiers owed only a very
limited duty to people who were not lawful visitors (usually but slightly inaccurately
called trespassers). A common law duty did develop in the years following 1957, but it
was in turn replaced by a statutory duty in the Occupiers’ Liability Act 1984.
The following introductory points should be noted.
uu Lawful visitors are owed the duty set out in the 1957 Act; unlawful visitors are owed
the duty set out in the 1984 Act. It is for the claimant to prove that they are a lawful
visitor and therefore entitled to the more favourable duties in the earlier Act.
uu Both Acts are expressed in very broad and non-technical language, which has given
rise to few problems of interpretation. There have been very few cases arising out
of the provisions of the Acts.
uu Section 1(1) of both Acts provides that the rules in the Act have effect ‘in place of
the rules of the common law’. In other words, if the facts fall within the scope of
the Act there is no room for an alternative common law action in negligence.
The Acts are concerned only with liability to people physically in the premises.
However, although a person who suffers harm outside the premises which was caused
by something on the defendant’s premises will not be able to claim in occupiers’
liability, a person outside the premises (such as on the street or in neighbouring
property) may have an action in negligence or in the tort of nuisance (Chapter 17) or
under the rule in Rylands v Fletcher (Chapter 18).
16.2 Occupiers’ Liability Act 1957: scope of Act

Does the Act apply only to injuries resulting from the state of the premises or does it
also apply to injuries resulting from activities on the premises? Injury suffered on the
premises which is not caused by the condition of the premises, but, for instance, by a
negligently driven car, is said to result from the ‘activity’ duty. An illustration of how
the general law of negligence applies to an activity on the premises is provided in
Slater v Clay Cross Co [1956] 2 QB 264 by Lord Denning:
If a landowner is driving his car down his private drive and meets someone lawfully
walking upon it, then he is under a duty to take reasonable care so as not to injure the
walker; and his duty is the same no matter whether it is his gardener coming up with
plants, a tradesman delivering goods, a friend coming to tea, or a flag seller seeking a
charitable gift.
The modern tendency seems to be to apply the Act only to injuries resulting from
the state of the premises. However, the usual view is that the Act applies only to the
‘occupancy’ duty and the ‘activity’ duty is covered by common law negligence. In
Ogwo v Taylor [1988] AC 431, a fireman claimed for steam injuries he suffered as he was
fighting a fire in a confined space at the defendant’s premises. The occupier had put
the fireman at risk by carelessly creating a danger on his premises and on this basis the
fireman succeeded in common law negligence, rather than occupiers’ liability.
16.2.1 What can be occupied? (s.1(3)(a))

Most cases involve the occupation of premises, such as houses, offices, factories,
schools and so forth, but the Act also applies to any fixed or movable structure. In
Wheeler v Copas [1981] 3 All ER 405, a ladder was held to come within the definition.
16.2.2 Who is an occupier? (s.1(2))

At common law (and under the statute) occupation is based on control and not
necessarily on any title to or property interest in the land: the question is whether the
defendant had sufficient control of the premises to be the person responsible for the
safety of visitors. The 1957 Act does not define ‘occupier’ but provides that the rules of
the common law shall apply.
In Wheat v E Lacon & Co Ltd [1966] AC 552 the defendant brewing company were owners
of a pub which was run by a manager. The company granted him a licence to use the
top floor of the premises for his private accommodation. His wife took in paying guests
and one evening as it was getting dark a guest fell down the back staircase in the
private portion of the premises and was killed. The handrail on the stairs was too short
and did not stretch to the bottom of the staircase and someone had removed the light
bulb from the top of the stairs. The House of Lords held that there can be two or more
occupiers at any one time if they share control of the premises. Although the grant of a
licence to occupy the top floor had been made to the manager the defendants still had
sufficient control over the premises to remain occupiers and therefore under a duty
of care. On the facts of the case the duty to the deceased had not been broken and the
defendants were not liable.
16.2.3 Who is a lawful visitor? (s.1(2))

This is a slightly trickier question. The Act has abolished the distinction between
different categories of lawful visitors (see s.2(1)). The distinction between lawful
visitors and unlawful visitors remains and can be problematic. We can distinguish a
number of different situations.
The common law distinguished between different types of visitor to the premises. The
level of occupiers’ liability was set in a descending scale depending on the different
duty owed to four different categories of entrant. The highest standard of care was
owed to those, such as hotel guests, who were on the land by virtue of a contract. A
less onerous duty was owed to invitees: those who had a mutual business with the
occupier, such as a customer in a shop; a still lower duty was owed to mere licensees,
a category of entrant permitted to enter premises for some purpose of their own
but not requested to be on the land by the occupier. As far as ‘uninvited’ persons
not covered by the above categories were concerned, no duty in negligence was
owed. In respect of trespassers, the occupiers’ obligation was merely to refrain from
deliberately or recklessly causing them harm.
Note that before 1984 the courts were very willing to use fictional devices in order to
treat claimants (especially children) as lawful visitors so that they would have some
statutory protection. Thus, if there were alluring things on the land for children to
play on, the courts might treat these as in a sense inviting the children on to the land.
Again, if an occupier knew that people were in the habit of walking across his land,
perhaps as a short cut, and did nothing effective to deter them, he might be treated †
In The Calgarth [1927]
as having given them a licence to use the land. We shall see below that since 1984 Scrutton LJ said:
trespassers have had enhanced rights under the Occupiers’ Liability Act 1984, and the When you invite a
courts may now be much less willing to use such fictions. person into your
house to use the
A person who has a common law or statutory right of entry is a lawful visitor (e.g.
staircase, you do not
the police executing warrants of arrest or search) a person who is exercising a public
invite him to slide
or private right of way is not a visitor to the occupier. A visitor may have permission down the banisters,
to enter only until a certain time or only to enter certain parts of the premises†, but you invite him to
the occupier must make clear the limits of the permission. Permission may normally use the staircase in
be revoked (except in the third situation above), but the visitor must be given a the ordinary way in
reasonable time to leave. which it is used.
16.3 The nature of the duty

The duty owed by the occupier to a lawful visitor is the ‘common duty of care’ defined
in s.2(2). You should study this duty carefully and notice how closely it corresponds
to the common law duty of care. It is a flexible duty depending on the circumstances
including the purposes for which the visitor is on the premises. The Act requires that
it is the visitor who must be safe in using the premises but this does not necessarily
mean that the premises themselves must be reasonably safe.
Case law example

The test as to whether the duty has been fulfilled is a question of fact, and the
same factors as those in an ordinary negligence action (the size of the risk and
the cost and practicability of taking precautions) are taken into account. The
duty of care owed by an occupier to a visitor on his premises under s.2(2) of the
Occupiers’ Liability Act 1957 was considered in Cole v Davis-Gilbert [2007] EWCA
Civ 396. The claimant suffered a leg injury when she stepped into a hole on a
village green which had been inserted during the village fete to accommodate
a maypole. The Court of Appeal said that there was a danger in setting too
high a standard of care as it could lead to inhibiting consequences, namely the
reduction in or prohibition of traditional activities on village greens. Scott Baker
LJ pointed out: ‘Accidents happen, and sometimes they are what can be described
as pure accidents in the sense that the victim cannot recover damages for the
resulting injury because fault cannot be established.’
Section 2(2) was also considered in Sutton v Syston Rugby Football Club Ltd [2011] EWCA
Civ 1182 where a player gashed his knee on a plastic object submerged in the rugby
pitch. The trial judge rejected the suggestion that a quick walk-over inspection of
the rugby pitch was sufficient to discharge a club’s duty to take such care as was
reasonable. The club’s appeal against a finding of liability was allowed. The Court
of Appeal held that a ‘reasonable walk over of the pitch’ was sufficient and further
noted that games of rugby are no more than games and desirable activities within the
meaning of s.1 of the Compensation Act 2006.
Examples of relevant circumstances are given in subss.2(3) and (4), discussed below,
but these are indeed only examples. Thus, although the Act mentions the special
position of children, other visitors such as the elderly or disabled (not specially
mentioned in the Act) might also raise similar problems for the occupier.
16.3.1 Children (s.2(3)(a))

An occupier should be prepared for children to be less careful than adults. They
may be more adventurous and may not understand the nature of certain risks. The
occupier does not, however, have to guarantee that the premises will be safe, but only
has to take reasonable care. If the child’s parents are present, they must share some
responsibility, and, even if they are not present, it may be relevant to the occupier’s
duty that they thought it prudent to allow their child to be where he was.
Case law example

In Glasgow Corporation v Taylor [1922] 1 AC 44 the defendants were liable when
a seven-year-old child died from eating poisonous berries which he had
picked from a shrub in a public park. The berries looked like cherries or large
blackcurrants and were found to act as an ‘allurement’ to children. It was alleged
that the local authority knew of the poisonous nature of the berries but the shrub
was not fenced nor was any warning of the danger given.
In Phipps v Rochester Corporation [1955] 1 QB 450 (a pre-Act case), a boy aged five and
his sister aged seven walked across a large open space which was being developed by
the defendants. It was known to the defendants that people crossed their land but
they apparently took no action. The child fell into a trench that had been dug in the
middle of the open space and broke his leg. Although the trench would not have been
obvious to a child the defendants were not liable. Devlin J placed the responsibility
for small children primarily on their parents and concluded that both the parents and
the occupier must act reasonably. This reasoning was followed in Simkiss v Rhondda
Borough Council (1983) 81 LGR 460 where a seven-year-old girl fell off a steep slope
which was situated opposite the block of flats where she lived. Her father stated in
evidence that he had not considered the slope to be dangerous and the Court of
Appeal concluded that if the child’s father did not consider the area dangerous, the
defendants could not be asked to achieve a higher standard of care. In Bourne Leisure
Ltd v Marsden [2009] EWCA Civ 671 the question was whether a holiday site owner
was liable for the drowning of a child in a pond, by failing to highlight the dangers
and bring the pond’s location or the existence of an access pathway to the parent’s
attention. The trial judge found that by failing to give warnings of that nature to
the parents the site owner was in breach of their common duty of care. However, in
allowing Bourne Leisure’s appeal, the Court of Appeal held that although an occupier
ought reasonably to anticipate that small children might escape the attention of
parents and wander into places of danger, it does not follow that the occupier is under
a duty to make the premises completely safe for children. In this case the problem
with attaching blame in cases involving young children was noted by Lord Justice
Moses who said that accidents may and do happen to young children without anyone
being at fault.
Case law example

In Jolley v Sutton London Borough Council [2000] 1 WLR 1082 (see also Chapter 13)
a derelict boat, which was left abandoned for at least two years beside a block
of flats on the council’s land, was found to have constituted an allurement and
a trap, but these were not the causes of the accident. The immediate cause was
that the plaintiff, a 14-year-old boy, and a friend decided to repair the boat, using
a car jack and some wood to prop it up. While the boys were working on the
boat it fell off the prop, crushing the plaintiff, who suffered serious spinal injuries
resulting in paraplegia with major complications. The Court of Appeal allowed
the council’s appeal against the trial judge’s finding of liability on the ground
that although it was reasonably foreseeable that children would play on the boat
and be injured, it was not foreseeable that they would prop up the boat and be
injured by its falling off the prop, and therefore the plaintiff’s accident was of a
different kind from anything the council could reasonably have foreseen.
However, the House of Lords approached the question of what risk was
foreseeable in the case of children in much more generous terms. In finding that
the trial judge had been correct to consider the reasonable forseeability of the
wider risk that children would meddle with a dilapidated boat and be at risk of
physical injury, Lord Hoffmann noted (1093):
it has been repeatedly said in cases about children that their ingenuity
in finding unexpected ways of doing mischief to themselves and others
should never be underestimated. For these reasons, I think that the judge’s
broad description of the risk as being that children would ‘meddle with
the boat at the risk of some physical injury’ was the correct one to adopt
on the facts of this case. The actual injury fell within that description and I
would therefore allow the appeal.
Notice that the rule that an occupier should be prepared for children to be less careful
than adults is not a mechanical rule to be applied every time the claimant happens to
be a child. It is helpful in situations where the fact that the claimant was a child made it
more likely that there would be an injury (because the child was of small stature or did
not appreciate the risk) and the occupier should have guarded against this in some way.
16.3.2 Trade visitors (s.2(3)(b))

A visitor in the exercise of his calling will appreciate and guard against any special risks
ordinarily incident to it. The situation that this subsection envisages is that an occupier
who calls in, for example, a representative of the gas supply company to investigate
a smell of gas can assume that the representative will know how to protect himself
against the danger. See the discussion in Roles v Nathan [1963] 1 WLR 1117 where two
chimney sweeps were called to clean an old coke-burning boiler. They were warned
by an expert that the sweep-hole and inspection chamber should be sealed before
the boiler was lit. They disregarded the warning and died when they were overcome
with the fumes. The occupier was not liable because: (1) his duty had been discharged
by warning the sweeps of the particular risks, and (2) he could reasonably expect a
specialist to appreciate and guard against the dangers arising from the very defect
that he had been called to deal with. Lord Denning said:
If it had been a different danger, as for instance if the stairs leading to the cellar gave way,
the occupier might no doubt be responsible.
This does not mean that the occupier is immune from liability: presumably the
occupier must accurately explain the nature of the problem.
16.3.3 Warnings (s.2(4)(a))

This subsection has to be considered carefully. It deals with the situation where the
occupier has given the visitor a warning of some danger on the premises (e.g. ‘Loose
carpet’; ‘Slippery floor’) (see again Roles v Nathan above). The important thing is
to understand that the occupier who gives a warning is attempting to perform or
to discharge their duty of care: they are not attempting to exclude their liability. If
something slippery has been spilt on the floor of a shop, the occupier can (1) close the
shop, (2) clean up the spillage or (3) give a warning so that the visitor can avoid the
spot or step carefully. The question is whether the warning is enough to enable the
visitor to be reasonably safe. Warnings may seek to disclaim responsibility – ‘Persons
enter at their own risk. The occupier accepts no liability for injury to persons using
these premises.’
An important distinction between a warning notice and an exclusion of liability notice

is that an exclusion notice is subject to the Unfair Contract Terms Act 1977 or, where the
visitor is a ‘consumer’ (someone who is acting for purposes that are wholly or mainly
outside that person’s trade, business, craft or profession) the Consumer Rights Act
2015. In addition to the restriction excluding liability for death or personal injury, the
Consumer Rights Act 2015 (s.62) provides that the test for exclusion of liability loss or
other damage to property is one of ‘fairness’ (not one of ‘reasonableness’ as under UCTA).
The claim in Edwards v London Borough of Sutton [2016] EWCA Civ 1005 concerned a duty
to warn of obvious dangers. The claimant’s bicycle pulled him off balance and caused
him to fall over the side of a small ornamental footbridge bordered by low parapets.
He sustained severe injuries in the fall and claimed that the defendant should have:
installed side protection barriers to the bridge; warned of the dangers posed by the low
sides of the bridge; and carried out a sufficient risk assessment of risk presented by the
bridge to pedestrians. The trial judge found that in these circumstances the Borough was
liable to the claimant (subject to a finding of 40 per cent contributory negligence). The
Borough appealed, arguing that there was no inherent danger pertaining to the bridge
that could give rise to a duty of care under the 1957 Act and there was no duty to warn of
the obvious danger. The bridge had been there for many years (perhaps since the 1860s)
and there was no record of any accident occurring from its use. In a unanimous decision,
the Court of Appeal allowed the Borough’s appeal on the ground that it had reached
the requisite standard of care even though it did nothing in respect of the objectively
dangerous state of the footbridge.
Although adult visitors do not require warnings of obvious risk, where a risk is not
obvious, a defendant will be in breach of the duty under s.2 for failure to provide a
warning. In English Heritage v Taylor [2016] EWCA Civ 448 the claimant was walking around
an English Heritage historic site when he fell down an unmarked sheer drop into a moat.
He sustained serious head injuries. In dismissing the defendant’s appeal against liability,
the Court of Appeal held that in this case the danger was not obvious and there had been
no warning sign. A sign warning of the sheer drop would have been likely to influence the
behaviour of most sensible individuals.
16.3.4 Independent contractors (s.2(4)(b))

This needs careful consideration as well. It deals with the situation where the occupier
has called in independent contractors, such as electricians to rewire a house or
builders to erect an extension, and the injury is due to the faulty execution of ‘any
work of construction, maintenance or repair’ (words that have been given a flexible
interpretation – see AMF International v Magnet Bowling [1968] 1 WLR 1028). This too is a
flexible provision. A substantial occupier, such as a university, would normally have a
maintenance department that would be able to supervise outside contractors, but a
domestic householder would have to trust a competent electrician to do a good job.
An occupier might discharge the duty in such a situation by selecting the contractor
carefully (e.g. checking that they belong to a professional organisation and not just giving
the job to someone who called at the door or placed a small ad in the local newspaper).
In Haseldine v CA Daw & Son Ltd [1941] 2 KB 343, the defendant was not liable for the
plaintiff’s injuries when the lift in a block of flats fell to the bottom of its shaft. The
accident happened as a result of the negligence of a firm of independent contractors
who the defendant had employed to repair the lift. The defendant had discharged
his duty by employing a competent firm of engineers to make periodical inspections
of the lift. Having no technical skills meant that he could not be expected to check
that the work had been satisfactorily done. This case was distinguished in Woodward
v Mayor of Hastings [1945] KB 174, where a child slipped on an icy step at school and
was injured. The step had been left in a dangerous condition by a cleaner, and even
assuming that the cleaner was an independent contractor, the defendants were liable
since there was no technical knowledge required to check the cleaning of a step.
Case law example

The Court of Appeal has ruled that it is just, fair and reasonable to impose liability
on an occupier who allows an extra-hazardous activity to take place on their land
without taking ordinary precautions to ensure that the independent contractor
has public liability insurance and a proper safety plan. In Bottomley v Todmorden
Cricket Club [2003] EWCA Civ 1575, the defendant club had allowed an independent
contractor to carry out a pyrotechnic display on its land. The club was liable for
the personal injuries of the claimant (a voluntary and unpaid assistant of the
independent contractor) who suffered severe burns and other injuries during
the display. The Court of Appeal held that although the case was not about a risk
caused by the state of the premises under the Occupiers’ Liability Act 1957, the
club was liable, along with the contractors (who had no public liability insurance),
in common law negligence because of its failure to engage a competent
contractor.
However, the extent to which an occupier is under a duty to check if the independent
contractor is adequately insured was considered in Gwilliam v West Hertfordshire
Hospitals NHS Trust [2002] EWCA Civ 1041, [2003] QB 443. As part of a fundraising event,
the defendant hospital engaged an independent contractor to supply and operate a
‘splat wall’ for visitors bouncing from a trampoline. When the claimant was injured
it was discovered that the contractor’s public liability insurance had expired a few
days before the event. The Court of Appeal held that the occupier owed a duty to take
reasonable care to ensure that the claimant was reasonably safe and to take steps
to ensure that an independent contractor, who was to supply potentially hazardous
equipment, was adequately insured (on the facts of the case the defendant hospital
had not breached its duty under s.2(4)(b)). Compare the reasoning of the different
judges in that case.
See also Ferguson v Welsh [1987] 3 All ER 777 for a discussion of this subsection. This
case concerned a tender awarded by a district council for the demolition of a building
which stipulated that the work must not be subcontracted without the council’s
consent. The plaintiff was the employee of a subcontractor who had been carrying
out the work without the council’s consent who suffered serious injury as a result of
the subcontractor’s unsafe system of work. When it was discovered that neither the
main contractor nor the subcontractor were covered by insurance, the employee
sued the local authority as occupiers of the premises. The House of Lords found that
the district council was not liable. It would not ordinarily be reasonable to expect an
occupier, having engaged a contractor whom he has reasonable grounds for regarding
as competent, to supervise the contractor’s activities in order to ensure that he was
discharging his duties to his employees to observe a safe system of work.
16.4 Defences
uu Contributory negligence on the part of the visitor.
uu Volenti non fit injuria. This is expressly referred to in s.2(5).
uu Exclusion of liability. At common law (Ashdown v Samuel Williams [1957] 1 QB 409)

and by s.2(1) of the 1957 Act the occupier was allowed to exclude his liability by
contract or by notice ‘in so far as he is free to do so’. The occupier may therefore
display a notice, saying ‘Enter at your own risk’. It is very important to distinguish
the intention of such a notice from a notice warning of a danger (s.2(4)(a)),
discussed above, and it is a very common error to confuse the two. A warning
notice is an attempt to perform the duty: an exclusion clause is designed to protect
the occupier against claims for breach of the duty.
The occupier is, however, restricted in his ability to exclude his liability in a number of
ways.
uu On ordinary principles the notice must be clear (both in the sense of legibility
and in the sense of its intended scope) and reasonably drawn to the visitor’s
attention before entry. See also White v Blackmore [1972] 2 QB 561.
uu The notice cannot exclude liability to those required and permitted by law to
enter and who are therefore not free to stay off the occupier’s land; they would
be obliged to run the risk of injury for which there will be no compensation.
uu It has been suggested, though never decided, that the occupier’s duty cannot
be reduced below the level of the duty owed to a trespasser. It would be
surprising if the occupier could owe a higher duty to a person who had been
forbidden to enter the property than to a person who had permission subject
to an exclusion of liability clause.
uu The main limitation on the right to exclude liability is now the Unfair Contract
Terms Act 1977. This Act expressly applies to liability under the 1957 Act, but
only applies to business premises. (Notice that this means that the premises
are occupied for the purposes of a business rather than that a particular visitor
is there for business purposes.)
16.5 Occupiers’ Liability Act 1984

The common law originally took a harsh view of the rights of those who were not lawfully
on the land. (These persons are usually referred to as trespassers, but the category is
wider than those who commit the tort of trespass to land: it includes those involuntarily
on the land.) For an example of the old rule, see Addie v Dumbreck [1929] AC 358.
Various attempts were made to reform the law by judicial decisions. The most
important was the decision of the House of Lords in British Railways Board v Herrington
[1972] AC 877, which imposed on occupiers a ‘duty to act with common humanity’
towards trespassers. In this case the six-year-old plaintiff was badly burned when he
was trespassing on the defendants’ land. The child had obtained access to the land
through a gap in a chain link fence which had been trodden down. The defendants
knew that in the past children had been seen on the line, but they took no action.
Although the plaintiff was a trespasser he was allowed to recover in negligence: a
trespasser is owed a lower duty of care, but nevertheless an occupier does owe a duty
to act humanely.
This case has now been replaced by the Occupiers’ Liability Act 1984, but may still
be relevant in cases that fall outside the scope of the Act (e.g. where the visitor has
suffered property damage (see s.1(8) of the 1984 Act)).
The 1984 Act in many ways follows the pattern of the 1957 Act (e.g. as to who is an
occupier and the kind of premises covered by the Act: s.1(2)). The nature of the duty
is, however, rather different. It is not the case that the occupier owes a duty to ensure
that trespassers are reasonably safe when trespassing on the premises. Instead, the
structure of the duty is as follows:
uu there has to be a danger on the premises (s.1(1))
uu a duty arises if three separate conditions are satisfied (s.1(3))
uu the content of the duty is set out at s.1(4)).
Read the statute and make a note of the conditions in s.1(3) and the content of the
duty in s.1(4).
It should also be noted that, like the 1957 Act, the occupier’s duty may be discharged
by a suitable warning (s.1(5)) and that it is a defence that the visitor willingly accepted
the risk (s.1(6)).
The most important cases on the effect of the 1984 Act are:
uu Ratcliffe v McConnell [1999] 1 WLR 670 where volenti non fit injuria was considered
in determining if a duty of care existed in the case of a 19-year-old student who,
having drunk about four pints of alcoholic drink, climbed over the gate of a college
open-air swimming pool at about 02.30. Although conscious of the word ‘Warning’,
the plaintiff did not read the notice by the gate. He got undressed and took a
running dive into the pool either at the point where the shallow end started or
at the slope from the deep to the shallow end. He hit the top of his head on the
bottom, suffering tetraplegic injuries. The Court of Appeal held that the occupiers
owed no duty under s.1 of the Occupiers’ Liability Act 1984. Knowing that the pool
was closed for the winter, that it was dangerous to dive into water of unknown
depth and that the water level of the pool was low, the plaintiff had willingly
accepted the risk as his within the meaning of s.1(6).
uu Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231, [2003] 2 WLR 1138.
uu Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004] 1 AC 46.
The general principles are best examined through Tomlinson, which also makes
reference to its predecessors. Among the issues that should be considered in studying
that case are these:
uu Tomlinson had originally entered the premises (a park) lawfully, but had then
thrown himself forward into a pool where swimming was forbidden. He was
treated as a trespasser, but some of the judges were uneasy about this. Why?
uu There is an extensive analysis of the requirements in s.1(1), (3) and (4) of the 1984
Act.
uu There was an extensive discussion of the policy arguments that led the House
of Lords to reject Tomlinson’s claim, including the likely social consequences of
imposing a duty on a local council (considered in Chapter 1). You should compare
this case with others that have also raised the question of how far the law should
impose on others (particularly public bodies) an obligation to protect people
against their own folly.
In summary, those in control of premises (occupiers) owe a common duty of care

under the Occupiers’ Liability Act 1957 to lawful visitors. This is a flexible duty varying
according to the circumstances, some of which are given in the statute as examples.
Occupiers owe a different and less stringent duty to unlawful visitors under the
Occupiers’ Liability Act 1984.
Activities
activity 16.1
Core comprehension – visitor and trespasser

Find and read the case of Tomlinson v Congleton Borough Council [2003] UKHL 47.
This activity requires you to read [1]–[16] of the Tomlinson judgment. It consolidates
your understanding of the Occupiers’ Liability Act 1957 and the Occupiers’ Liability
Act 1984 and improves your ability to understand the implications on the duty of
care owed by occupiers of land to visitors and trespassers.
The accident
a. What do the facts of the case tell us about the age of Mr Tomlinson, the place
where the accident occurred and who owned the land, how he injured himself
and the extent of his injuries?
Occupiers’ liability and visitor or trespasser

b. At common law to whom did the occupiers owe a duty of care?
c. What change did the 1957 Occupiers’ Liability Act bring to the common law
approach in this respect?
d. How is the duty of care of the occupier to visitors defined by statute?
e. Under which circumstances may the degree of care expected from the occupier
vary?
f. Name three factors which will warrant closer scrutiny by the court to determine
whether the occupier has discharged its duty according to the circumstances of
the individual case.
g. Why did the 1957 Act not apply to Mr Tomlinson’s situation? Which Act did apply?
h. Under which circumstances may the occupier owe a trespasser a duty of care?
i. Outline the scope of duty owed by occupiers to trespassers.
j. What were the policy reasons behind making the duty owed to trespassers
under the 1984 Act a lesser duty, as to both incident and scope, than the duty to
a lawful visitor under the 1957 Act?
k. Which duty arises more frequently – the duty to visitors under the 1957 Act or
the duty to trespassers under the 1984 Act? Why?
Sample examination questions

Question 1
Luke is the owner of the Methuselah Arms Hotel. The hotel is very popular with
elderly holidaymakers and is advertised as especially suitable for them. Mr and
Mrs Jackson booked in for a holiday. The receptionist told them that there was a
programme of redecoration under way in the hotel. The Jacksons are both in their
late eighties. Mr Jackson is in good health, but Mrs Jackson suffers from the early
stages of Alzheimer’s disease. After lunch one day Mrs Jackson decided that she
would stay in her room for a rest. Mr Jackson left her and went to the residents’
lounge. Mrs Jackson woke up and could not remember where she was. She left her
room, walked along a corridor and through a door marked: ‘Private. Staff Only.
Residents not admitted.’ She opened a door to a room that was being redecorated.
She fell over the rolled-up carpet, broke her leg and smashed her valuable watch.
Two maids found her, and one of them, Nina, ran down to the lounge. Mr Jackson
was asleep in a chair. Nina shook his shoulder and told him that his wife appeared
to be unconscious after a bad fall. Mr Jackson jumped up suddenly out of his chair.
As a result he turned dizzy and fell down, cutting his face very badly.
Advise the Jacksons.
Question 2
Penny is a student at the Gradgrind University College. The College holds a dance
and party. All the publicity for the party states that it is open only to staff and
students and that they should have their College identity cards with them. Penny
goes to the party and takes her 12-year-old brother, Frank, with her. Frank is very
tall for his age and is not challenged by the College porters when he arrives. Mark’s
joinery firm has been carrying out minor repair work at the College, and there are
several prominent notices displayed, stating: ‘Caution. Repair work in progress.’
During the evening Frank goes to the lavatory. The bulb has been missing from the
light outside the lavatory for several days. Frank runs out of the lavatory and along
the corridor. He trips in the semi-darkness and lands on a chisel that has been left
leaning against a wall by one of Mark’s employees. Frank’s hand is severely injured
and his mobile phone is smashed.
Advise Frank.
Advice on answering the questions

Question 1
Consider the two claimants separately. Mrs J was injured by state of premises and
so the Occupiers’ Liability Acts should be considered, but her case can be argued in
different ways (compare the problem of analysis in Tomlinson). She was originally a
lawful visitor. Can you argue breach of common duty of care to her, since the hotel
knew she was elderly and frail and encouraged such visitors? Was there a breach
of duty to her that enabled her to wander into danger? Could the hotel argue
that Mr J should not have left her on her own (cf. Phipps in relation to children)?
Alternatively Mrs J is a trespasser when she goes through the door: apply the 1984
Act. Either way can the hotel excuse themselves by saying it was the fault of the
contractors (if not hotel employees)? Separate claim against the decorators (if
they are not hotel employees) either under Acts if they have sufficient control of
the premises to be ‘occupiers’ or at common law. Claim for broken watch possible
under 1957 Act, but problems with property damage if she is trespasser. Mr J’s
claim is unlikely to be under Acts as it is not concerned with state of premises. Was
the maid negligent in passing on the bad news about his wife in the way she did –
foreseeable that he would try to jump up suddenly? This is NOT however a question
of psychiatric injury. Is there a possible battery claim against the maid, but implied
consent or some other defence?
Question 2
Frank’s status is first problem. Lawful visitor or trespasser? Publicity had made it
clear that only students were allowed, but door staff let him in. However, even
if trespasser, the occupiers through their staff clearly knew that he was in the
building and exactly the same could have happened if he had been a student, so
there might be a breach of the 1984 Act as they knew (?) about the light bulb. Can
the college escape liability by pointing to Mark as contractor? Could there be a
separate claim against Mark? Was there possible contributory negligence by Frank
running in darkness? Note the problem of property damage.
17 The law of nuisance
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
17.1 The different forms of nuisance . . . . . . . . . . . . . . . . . . . . . 173
17.2 Private nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
17.3 Public nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
17.4 The relevance of the Human Rights Act 1998 . . . . . . . . . . . . . . 182
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Introduction
There are two common law torts with the word nuisance in their name. The first
is private nuisance, which deals with indirect interferences affecting the use and
enjoyment of land, such as excessive noise and the emission of smells or noxious
fumes. It is essentially a remedy for landowners in respect of indirect harm affecting
their property. The second is public nuisance.
The two forms of nuisance are quite distinct torts and must be considered separately.
Public nuisance has a wider application. It is essentially a form of criminal liability
arising from a wide range of antisocial activities but it is limited to claimants who have
experienced special damage above and beyond that suffered by the rest of the public.
Learning outcomes
be able to:
uu explain the difference between various forms of nuisance and when each form is
applicable
uu apply the rule relating to the tort of private nuisance and, in particular, be able to
identify:
uu who can sue
uu when a court is likely to find liability
uu what defences exist
uu what remedies exist
uu outline the basic rules of the tort of public nuisance

uu identify the potential for change in this area of tort following the implementation
of the Human Rights Act 1998.
Essential reading
¢¢ Lunney and Oliphant, Chapter 12 ‘Nuisance and the rule in Rylands v Fletcher’,
Sections I ‘Public and private nuisance’ and II ‘Private nuisance’.
Tort law 17 The law of nuisance page 173
17.1 The different forms of nuisance

As a student, it is important to ascertain exactly when the torts of nuisance will arise
and how a court might be expected to deal with them. This will involve considerations
of liability (should the court intervene?) and remedies (if so, how?). In particular, torts
protecting rights to land, private nuisance and public nuisance raise fundamental
questions concerning how we, as a society, live together. So to what extent should
householders have the freedom to do what they want in their own property? How
far should their liberty be restrained by their neighbours? In seeking to balance the
interests of all parties, the courts must make difficult decisions which directly affect
the quality of people’s lives.
There are three main types of nuisance which should be distinguished:
uu private nuisance
uu public nuisance
uu statutory nuisances.
Statutory nuisances are beyond the scope of this course. They are simply nuisances
which operate by virtue of particular statutes. The best example perhaps is that of
Part III of the Environmental Protection Act 1990, which is primarily concerned with
matters of public health. You should note that public enforcement, whether civil or
criminal, is much more common than a civil action.
It is important that you obtain a clear understanding of private nuisance, and, to a

lesser extent, the basic principles of public nuisance.
17.1.1 Basic definitions

Winfield and Jolowicz define private nuisance as an ‘unlawful interference with a
person’s use or enjoyment of land, or some right over, or in connection with it’ (Peel, E.
and J. Goudcamp Winfield and Jolowicz on tort. (London: Sweet & Maxwell, 2014) [ISBN
9780414025653]).
Public nuisance, in contrast, is both a crime and a tort. It is defined by Romer LJ in

Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at p.184:
any nuisance is ‘public’ which materially affects the reasonable comfort and convenience
of life of a class of Her Majesty’s subjects. The sphere of the nuisance may be described
generally as ‘the neighbourhood’; but the question whether the local community within
that sphere comprises a sufficient number of persons to constitute a class of the public is
a question of fact in every case.
Although the courts frequently draw comparisons between private and public
nuisance, they are in reality very different torts, which seek to protect different
interests and have little in common apart from their name. Private nuisance will be
relevant where the claimant suffers interference with the use of their land. Public
nuisance has a different concern. This is usually a disturbance which affects the public
in general and the claimant in particular. It is important to ascertain (1) what kind of
nuisance is applicable; (2) whether liability arises; and (3) if not, whether there are any
other relevant torts, for example negligence.
17.2 Private nuisance

Three types of private nuisance can arise in practice:
1. physical injury to land (for example, by flooding or noxious fumes)
2. substantial interference with the enjoyment of the land (for example smells, dust
and noise)
3. encroachment on a neighbour’s land, for example, by spreading roots or

overhanging branches, which is of minor significance.
All three forms seek to protect the claimant’s use and enjoyment of land from an
activity or state of affairs for which the defendant is responsible.
Case law example

In Davey v Harrow Corporation [1958] 1 QB 60, roots of trees which were growing
on the defendant corporation’s property had penetrated the land of the plaintiff’s
adjoining property. This encroachment caused damage to the plaintiff’s house. In
the Court of Appeal Lord Goddard said: ‘… if trees encroach, whether by branches
or roots, and cause damage, an action for nuisance will lie…’ No distinction is to
be drawn between trees which may have been self-sown and trees which were
deliberately planted on land.
17.2.1 Who can sue?

This is fundamental both in understanding the operation of the tort of private
nuisance and in ascertaining who has a cause of action in any given case. As we know
already, the tort of private nuisance protects claimants against interference with the
use or enjoyment of their land. In other words, it protects their rights in their land. It is
hardly surprising, therefore, that only those with rights in the land, namely an interest
in land or exclusive possession, will be able to sue: see Malone v Laskey [1907] 2 KB 141
and the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655.
In Khorasandjian v Bush [1993] 3 All ER 669 the Court of Appeal held that the plaintiff,
who lived with her mother and had no proprietary interest in the property, was
entitled to an injunction to restrain a private nuisance in the form of telephone
harassment. Dillon LJ said:
To my mind, it is ridiculous if in this present age the law is that the making of deliberately
harassing and pestering telephone calls to a person is only actionable in the civil courts if
the recipient of the calls happens to have the freehold or a leasehold proprietary interest
in the premises in which he or she has received the calls.
However, in Hunter the majority in the House of Lords overruled this decision and put
beyond doubt the principle that a propriety interest in land is required to found an
action in private nuisance.
Nevertheless, as you will see below, it has been questioned whether the exclusion
of family members living in the home is consistent with Article 8 of the European
Convention on Human Rights (see Section 17.4).
17.2.2 What amounts to a private nuisance?

There is no better definition that that of Lord Wright in Sedleigh-Denfield v O’Callaghan
[1940] AC 880 at p.903:
A balance has to be maintained between the right of the occupier to do what he likes with
his own, and the right of his neighbour not to be interfered with. It is impossible to give
any precise or universal formula, but it may broadly be said that a useful test is perhaps
what is reasonable according to the ordinary usages of mankind living in society, or more
correctly in a particular society. The forms which nuisance may take are protean†. Certain †
Protean = varied.
classifications are possible, but many reported cases are no more than illustrations of
particular matters of fact which have been held to be nuisances.
The test is one of ‘reasonable user’, balancing the interest of defendants to use their
land as is legally permitted against the conflicting interest of claimants to have quiet
enjoyment of their land. Such a balancing exercise places a considerable amount
of discretion on the judge. It is impossible to establish a legal rule as to what is a
reasonable use of one’s land. As Lord Wright suggests, the most that can be done is to
use common sense and obtain guidance from the many reported cases in this field.
It should be noted, however, that the ordinary use of your home will not amount
to a nuisance, even if it discomforts your neighbour due to poor soundproofing or
insulation. In Baxter v Camden LBC (No 2) [2001] QB 1, a tenant of a flat complained of
the noise created by her immediate neighbours, also tenants of the defendant. The
day-to-day noise of the tenants was made worse because the property had been
converted into flats without proper sound insulation. The Court of Appeal dismissed
the claim in nuisance on the ground that occupants of low-cost, high-density housing
must be expected to tolerate higher levels of noise from their neighbours than others
in more substantial and spacious premises.
The test is not of reasonable care. It is no defence to prove that the defendant had
taken all reasonable care to prevent the nuisance occurring. The court will look at the
result of the defendant’s conduct.
17.2.3 Factors determining reasonable use

Damage to property or personal discomfort
The courts are more willing to find a nuisance where physical damage to property has
been caused, and tend to ignore factors such as the nature of the locality (discussed
below). Personal discomfort will normally have to be substantial to merit a response:
see Walter v Selfe (1851) and St Helen’s Smelting Co v Tipping (1865) below.
The nature of the locality
Thesiger LJ stated classically in Sturges v Bridgman (1879): ‘What would be a nuisance

†
in Belgrave Square† would not necessarily be so in Bermondsey’. This means that the Belgrave Square is an
nuisance will be judged according to the area in which it occurs. For example, emission upper class residential
of smoke from a factory will not be considered a nuisance in an industrial estate, but area in Central London.
would be likely to be found to be a nuisance in a largely residential area. Planning
permission is not enough by itself to change the nature of the locality, although this
may occur as a matter of fact due to investment in the area. In Gillingham Borough
Council v Medway (Chatham Docks) Co Ltd [1993] QB 343 planning permission to develop
a commercial dock was held to have changed the character of the neighbourhood and
the local residents were therefore unable to claim in nuisance for the disturbance it
created. However, in Wheeler v JJ Saunders Ltd [1996] Ch 19 it was held that the granting
of planning permission to facilitate an activity on a site already used for that purpose
does not carry with it an immunity in nuisance in respect of implementation of that
planning permission.
The defendants in Wheeler had obtained planning permission for two pig-weaning
houses on a site already used for that purpose. In response to the plaintiff’s claim
in nuisance the defendants contended that, since they had obtained planning
permission, any smell emanating from the pigs kept in the weaning houses could
not amount to a nuisance. Here, the Court of Appeal found the defendants liable.
Staughton LJ said:
It would in my opinion be a misuse of language to describe what has happened in the

present case as a change in the character of the neighbourhood. It is a change of use of a
very small piece of land, a little over 350 square metres according to the dimensions on
the plan, for the benefit of the applicant and to the detriment of the objectors in the quiet
enjoyment of their house. It is not a strategic planning decision affected by considerations
of public interest. Unless one is prepared to accept that any planning decision authorises
any nuisance which must inevitably come from it, the argument that the nuisance was
authorised by planning permission in this case must fail.
Coventry v Lawrence [2014] UKSC 13 concerned an alleged noise nuisance arising from
a motor sports stadium for which planning permission had been granted. In this case
the Supreme Court reviewed the law of nuisance and considered:
uu the relationship between planning control and the tort of nuisance
uu the right by prescription to commit a nuisance and the argument that the
claimant ‘came to the nuisance’ (both considered below).
The Supreme Court reviewed the extent to which a grant of planning permission
might change the character of a neighbourhood and considered the approach to
be adopted by a court when deciding whether to grant an injunction to restrain a
nuisance or whether to award damages instead.
The Court held that the mere fact that the activity which is said to give rise to the
nuisance has the benefit of a planning permission is normally of no assistance to the
defendant. Lord Neuberger said at [95]:
A planning authority has to consider the effect of a proposed development on occupiers

of neighbouring land, but that is merely one of the factors which has to be taken into
account. The planning authority can be expected to balance various competing interests,
which will often be multifarious in nature, as best it can in the overall public interest,
bearing in mind relevant planning guidelines. Some of those factors, such as many
political and economic considerations which properly may play a part in the thinking of
the members of a planning authority, would play no part in the assessment of whether
a particular activity constitutes a nuisance—unless the law of nuisance is to be changed
fairly radically.
Duration and frequency
This is a matter of common sense. The longer and more frequent the interference,
the more likely it will be found to be a nuisance: see De Keyser’s Royal Hotel Ltd v Spicer
Bros Ltd (1914) and Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep
533. This does not necessarily exclude an isolated escape of sufficient gravity – see
SCM (United Kingdom) Ltd v WJ Whittal & Son Ltd [1971] 1 QB 337 – but in such cases the
claimant is more likely to sue under the rule in Rylands v Fletcher (see Chapter 18).
Utility of the defendant’s conduct
This is not an important consideration. Private nuisance is concerned with the results
of the defendant’s conduct on the claimant and not on the community as a whole. It
may, however, influence the court in exercising its equitable jurisdiction whether to
grant an injunction.
Case law example

In Miller v Jackson [1977] QB 966 the plaintiffs bought a house in 1972 in such a
location that it was inevitable that cricket balls from a cricket ground nearby
would be hit into the garden. Cricket had been played on the ground since 1905
but the plaintiff contended that since the houses were built it had become a
substantial interference and claimed in negligence and in nuisance. The Court of
Appeal found that the playing of cricket constituted an unreasonable interference
with the plaintiff’s enjoyment of land and was therefore a nuisance. The majority
considered that the social utility of cricket could not justify a substantial
interference in the plaintiff’s enjoyment of their land but no injunction was
granted to restrain the cricket. The court took the view that the utility of the club
outweighed the plaintiff’s interest.
Abnormal sensitivity
If the complaint is based on the abnormal sensitivity of the claimant, the court will not
interfere. This would offer the claimant far too much protection at the defendant’s
expense. For example, the claimant may not be able to withstand any noise while
working. It would clearly be unjust for the law to allow the claimant to stop the
defendant making any noise during this period.
The leading case is Robinson v Kilvert (1889) 41 Ch D 88. Here, the complaint related
to hot air which affected brown paper stored in the plaintiff’s part of the building
and which had come from the lower part of the building in which the defendant
operated a business. The court refused the claim. The heat was not so high that it
would affect ordinary paper or even the plaintiff’s workforce. The damage was due
to the exceptionally delicate nature of the plaintiff’s trade. This would not amount
to a nuisance. If, however, the interference would have affected ordinary paper, the
plaintiff would have been able to claim the full extent of his losses: see Mackinnon
Industries v Walker [1951] WN 401 (recovery for harm to orchids when fumes would
have damaged any flowers grown).
Malice
The state of mind of the defendant would also seem to be relevant in assessing
whether the defendant’s use of their land is reasonable. For example, in Christie v
Davey [1893] 1 Ch 316 the plaintiff succeeded in obtaining an injunction when her
neighbour, frustrated by the noise of music lessons in her home, expressed his
annoyance by knocking on the party wall, beating trays, whistling and shrieking.
In the words of North J at 327: ‘what was done by the defendant was done only for
the purpose of annoyance and in my opinion, it was not a legitimate use of the
defendant’s house’. See also Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.
Here, the defendant’s premises adjoined the plaintiff’s silver fox farm. In attempting
to prevent the foxes from breeding the defendant discharged guns on his own land as
near as possible to the boundary of the plaintiff’s land to scare the foxes. Macnaghten J
considered the intention of the defendant to be relevant in nuisance and an injunction
and damages were awarded.
17.2.4 Who can be sued?

In any action in nuisance, it is important to identify potential defendants. The most
obvious is the person creating the nuisance (‘the creator’). However, part of the skill
of a lawyer is in identifying other potential defendants: for example, the creator’s
landlord or employer. Equally, should you be unable to identify the creator – for
example if the nuisance was caused by a trespasser who has since disappeared – it is
important to be able to bring actions against other parties, such as the local council,
who may be able to intervene to assist you.
17.2.5 Employers
Where the occupier of the land exercises control over employees who cause a
nuisance in the course of employment, the occupier will be liable. This will extend to
liability for independent contractors where the employer owes a non-delegable duty
to the claimant: see Matania v National Provincial Bank (1936) and Bower v Peate (1876).
17.2.6 An occupier who has adopted or continued a nuisance

This is established in the leading case of Sedleigh-Denfield, which consolidated pre-
existing law and applies to both private and public nuisances. Here, a local authority,
without the defendant’s permission (and therefore as a trespasser), had placed a
drainage pipe in a ditch on the defendant’s land with a grating designed to keep out
leaves. The grating had not been fixed in the correct position, with the result that,
during a heavy rainstorm, the pipe became choked with leaves and water overflowed
onto the plaintiff’s land. The House of Lords held the defendant liable. He had adopted
the nuisance by using the drain for his own purposes to drain water from his land. He
had also continued the nuisance because his manager should have realised the risk of
flooding created by the obstruction and taken reasonable steps to abate it.
Liability thus arises in two ways, which are both fault-based:
1. adopting a nuisance, that is, using the state of affairs for your own purposes, or
2. continuing a nuisance, that is, with actual or presumed knowledge of the state of
affairs, failing to take reasonably prompt and efficient steps to abate it.
It is essentially a rule of good sense and convenience. Where, as in Sedleigh-Denfield,

the occupier of the land is best placed to deal with the nuisance, they will be liable
if they are found to be at fault. It has been applied to the activities of trespassers on
the occupier’s land (Page Motors Ltd v Epsom and Ewell BC [1982] 80 LGR 337) and acts
of nature (Goldman v Hargrave [1967] 1 AC 645 – failure to extinguish with adequate
care a tree which had been struck by lightning and had caught fire – and Leakey v
National Trust [1980] QB 485 – failure to protect neighbouring villagers from the effect
of subsidence to the defendants’ land). Leakey extended the principle in Goldman to
include nuisances caused by the natural condition of the land itself. The defendants
were liable for failing to take appropriate action when they knew of the risk.
Being fault-based, unlike the usual test for private nuisance, the courts apply a very
distinctive test for liability. In finding liability in Goldman, Lord Wilberforce added that
the defendant’s conduct should be judged in the light of their resources and ability
to act in the circumstances. In his Lordship’s view, it would be unjust to demand
a standard of conduct of which the defendant was not capable, or to require an
excessive expenditure of money. If, therefore, the defendant is poor, and abatement
will require vast expense, the defendant will not be considered negligent. Equally, less
will be expected of the infirm than of the able-bodied. See also Holbeck Hall Hotel Ltd v
Scarborough BC [2000] QB 836.
Most controversy relates to the first category of claims, which raises difficult questions
in practice. The basic rule is that the court will examine the purpose for which the
premises are let and consider whether the nuisance was a necessary consequence of
the letting. If so, the landlord will be liable for authorising the nuisance: Tetley v Chitty
[1986] 1 All ER 663. In practice, complications arise. For example, in Smith v Scott [1973]
Ch 314, a local authority was not found to have authorised the nuisance caused by a
family they housed even when they were known to be a ‘problem family’. It could not
be said that the council had authorised the Scotts to commit a nuisance when it had
inserted in their tenancy agreement a clause expressly prohibiting the commission of
such acts. This would seem unduly favourable to the landlord.
Case law example

Such potential difficulties are manifest in two Court of Appeal decisions of 2000
which are difficult to reconcile: Hussain v Lancaster CC [2000] QB 1 and Lippiatt v
South Gloucestershire CC [2000] QB 51. They appear to reach different conclusions,
and you should take particular note of the way in which the Court of Appeal in
Lippiatt seeks to circumvent the earlier decision in Hussain. The question in both
cases was whether the local authority would be liable for the actions of their
tenants (in Hussain) or their licensees (in Lippiatt).
Hussain concerned a campaign of racial harassment against a shopkeeper on the
defendant’s housing estate. It was alleged that the council, as landlords, should
have intervened to prevent their tenants from harassing the Hussains. The Court
of Appeal rejected this claim. The council’s standard form tenancy agreement had
included a clause instructing the tenant ‘not to discriminate against or harass any
residents or visitors’. In the circumstances, the council could not be said to have
authorised these acts. Secondly, the tenants’ actions did not involve a use of their
land, which would be required to render the nuisance actionable.
The Court of Appeal in Lippiatt took a different view. Here, travellers had been
allowed to stay on council land and had caused havoc by trespassing, dumping
rubbish and other acts of vandalism on neighbouring land. In finding the council
liable, Hussain was distinguished on two grounds.
1. The travellers had used the land to commit the nuisance by using it as a
‘launching pad’ to commit acts of nuisance on neighbouring properties.
2. The council was more likely to be liable for the acts of trespassers and
licensees than tenants (as in Hussain). While tenants have statutory
protection, it is easier to evict trespassers and licensees from land. By
failing to do so within a reasonable period of time, the council found
itself liable.
It must be questioned whether this distinction is a convincing one. It is far from
established that a private nuisance must emanate from use of land. It will in most
cases, but is this the same as a rule? See Thompson-Schwab v Costaki [1956] 1 WLR 335.
17.2.7 Defences
In advising a potential claimant, it is important to identify potential defences. Only
when these are assessed can you advise whether a claimant is likely to succeed. There
are a number of defences specific to nuisance in addition to the ordinary defences of
voluntary assumption of risk and contributory negligence. These are:
1. statutory authority
2. 20 years prescription
3. the act of a stranger.
Statutory authority
If the nuisance is caused by the activities of a local authority (or any other body acting
under statutory powers), it may be a defence that it is acting within the scope of its
authority and therefore authorised by Parliament to act in this way. It is a question of
interpretation of the relevant Act. In the absence of an express provision, the courts
will interpret the Act to ascertain whether authorisation is implied: see Allen v Gulf
Oil Refining Ltd [1981] AC 1001. Where the nuisance is the inevitable consequence of
the performance of the authorised operations, a defence will lie. It is not inevitable,
however, if caused by the negligence of the defendant. Equally, the statute may
contain a ‘nuisance clause’ providing that nothing in the Act shall exonerate the
undertaker from liability for the nuisance: Department of Transport v North West Water
Authority [1984] AC 336.
20 years prescription
This provides a defence where the nuisance has interfered with the claimant’s interest
in land for more than 20 years. Two points should be noted: it does not apply to public
nuisance, and time will only start from the moment the claimant is aware of the nuisance.
In Sturges v Bridgman (1879) 11 Ch D 852 the defendant’s premises adjoined those of
the plaintiff, a medical practitioner. For over 20 years the noise and vibrations from the
defendant’s business as a confectioner had not interfered with the plaintiff’s use of the
land. The plaintiff then built a consulting room in the garden and complained of the noise.
Prescription was pleaded but the defence failed because time ran from when the new
building was erected and the nuisance had only commenced from that date.
The act of a stranger

See Sedleigh-Denfield.
17.2.8 Ineffective defences

It is as important to recognise defences which do not work as to identify those
which will oppose the claimant’s action. The following are defences which have been
rejected by the courts:
1. coming to a nuisance
2. social utility
3. nuisance due to many.
Coming to the nuisance

It is a well-established rule that the claimant may sue even though the nuisance was,
to the claimant’s knowledge, in existence before they arrived at the premises. In Bliss
v Hall (1838) 4 Bing NC 183 the plaintiff occupied a property adjoining the premises of
the defendant candle-maker. The plaintiff alleged nuisance in the emission of smells
and noxious vapours which resulted from the candle-making process. The fact that the
business had been carried on in the same premises for three years before the plaintiff
came to the adjoining property did not defeat the plaintiff’s claim. The justification
for the rule is that it would be unreasonable to expect someone not to purchase land
because a neighbour was abusing their rights. This rule was confirmed by the Court of
Appeal in Miller v Jackson (1977) where Lane LJ stated:
It is no answer to a claim in nuisance for the defendant to show that the plaintiff brought
the trouble on his own head by building or coming to live in a house so close to the
defendant’s premises that he would inevitably be affected by the defendant’s activities
where no one had been affected previously.
However, note Lord Denning’s dissenting view on this point.
The principle that it is no defence to argue that the claimant came to the nuisance was
reaffirmed by the Supreme Court in Coventry v Lawrence. Lord Neuberger said this is
consistent with the notion that nuisance claims should be considered by reference to
the ‘give and take as between neighbouring occupiers of land’.
Utility
This is not a defence, although it may encourage the court to be more flexible in
deciding a remedy. In Adams v Ursell [1913] 1 Ch 269 the utility of a fish-and-chip shop
to local poor inhabitants could not justify its presence in a fashionable street. See also
Miller v Jackson (1977).
Due to many
It is no excuse that the defendant was simply one of many causing the nuisance in
question: see Lambton v Mellish [1894] 3 Ch 163 where Chitty J held that if the acts of
two persons, each being aware of what the other is doing, amount in the aggregate to
what is an actionable wrong, each is amenable to the remedy against the aggregate
cause of complaint.
17.2.9 Remedies
There are three main remedies to consider: an injunction, abatement and damages. It
is important to consider which remedy would best suit the claimant’s needs. Does the
claimant want to stop the nuisance? If so, they should seek an injunction. Where the
nuisance is no longer continuing, the claimant would no doubt be seeking damages. In
most cases, the claimant is likely to be seeking an injunction.
Injunctions
The main thing to note here is that it is a discretionary remedy and the claimant has no
right to an injunction. The court may decide to give damages ‘in lieu’ of an injunction:
s.50, Supreme Court Act 1981 and Shelfer v City of London Electric Lighting Co [1895] 2 Ch
388. The Shelfer rules (commonly seen as a starting point in considering an award of
damages instead of an injunction) provide that whether for a mandatory injunction or
to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of
an injunction if:
uu the injury to the plaintiff’s legal rights is small
uu it is one which is capable of being estimated in money
uu it is one which can be adequately compensated by a small money payment
uu it would be oppressive to the defendant to grant an injunction.
The Supreme Court in Coventry v Lawrence took the opportunity to review the court’s
power to award damages in lieu of an injunction and to remind judges of their broad
discretion beyond the boundaries of the Shelfer rules. Lord Neuberger identified
‘public interest’ as a relevant consideration in reaching this decision and Lord
Sumption said:
In my view, the decision in Shelfer… is out of date, and it is unfortunate that it has been
followed so recently and so slavishly. It was devised for a time in which England was much
less crowded, when comparatively few people owned property, when conservation was
only beginning to be a public issue, and when there was no general system of statutory
development control.
Abatement
This is a self-help remedy and thus to be exercised with caution. An example is where
your neighbour’s branches grow over your fence and you cut them back. The House of
Lords examined this remedy in Delaware Mansions Ltd v Westminster City Council [2002]
UKHL 55, but it is a remedy of limited utility and realistically only worth considering in
relation to minor problems such as encroaching roots and branches.
Damages
The most important question in relation to damages is the extent to which the
claimant may obtain compensation for their losses. Private nuisance, as a tort to land,
is considered to protect proprietary interests. The rule therefore, as suggested by the
leading case of Hunter v Canary Wharf, would seem to be that the householder may
obtain damages for interference with their interest in land, be it physical or non-
physical, but not for personal injury. Damages will be awarded for the diminution in
the value of the land or lesser enjoyment of the use of land or its fixtures: see Hunter v
Canary Wharf, notably Lord Hoffmann’s judgment. This contrasts with public nuisance
where it has long been accepted that the claimant can obtain damages for personal
injury in addition to damage to property, loss of custom and perhaps even particular
inconvenience caused to the individual. Consequential economic loss is recoverable:
Andreae v Selfridge & Company Ltd [1938] Ch 1. Equally, damage to personal property
would appear to be recoverable: see Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 –
damage to laundry hanging in the garden. It should of course always be considered
whether the claim satisfies the rules of remoteness, which is the same test as used in
negligence: are damages of a type which can be reasonably foreseen?
17.2.10 Private nuisance: summary

Private nuisance is a tort to land and protects the claimant’s use and enjoyment
of land. This involves a balancing exercise between the rights of the claimant and
other householders. The defendant will only be liable if their conduct amounts to an
unreasonable use of their land. The balancing exercise will be undertaken by the judge
who will take note of a number of factors. The leading case of Hunter v Canary Wharf
has determined that only those with a right to land can sue. Potential defendants
include the creator of the nuisance and, to a lesser extent, their employer, landlord or
simply the occupier of the land who has adopted or continued the nuisance. There are
a number of defences which must be considered (and those which must be rejected).
It is important to consider carefully what remedies are available (and the Supreme
Court decision in Coventry v Lawrence concerning an award of damages in lieu of an
injunction). Will the court grant an injunction? To what extent will a court award
compensation for the claimant’s losses?
17.3 Public nuisance

Public nuisance arises when:
uu the interference does not affect the claimant’s land
uu but the public as a whole and the claimant have suffered ‘special damage’.
Reference should be made to the classic definition per Romer LJ in Attorney-General v

PYA Quarries Ltd, see Section 17.1.1 above.
For the claimant, there are two main concerns: Has the nuisance affected a class? Can I
show special damage? Special damage consists of damage in excess of that suffered by
the public at large. It must be direct and substantial and covers personal injury, property
damage, loss of custom or business and, it is claimed, delay and inconvenience.
Case law example

In Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 ferry terminals
constructed by the defendants in the River Thames caused excessive silting. This
disrupted the plaintiff’s business by obstructing access to their jetty and they had
to spend large sums on dredging operations. Their claim in private nuisance was
dismissed because: (1) the jetty itself was unaffected and (2) they had no private
rights of property in the river bed. However, it was their public right to use the
river which had been damaged and the House of Lords held that their claim lay
in public nuisance alone. The expenditure incurred by the plaintiffs on dredging
constituted particular damage over and above the ordinary inconvenience
suffered by the public at large, and was therefore recoverable.
If the individual cannot prove special damage, the only other basis on which an action
may be brought in tort is in the name of the Attorney-General by means of a relator
action (for example, see PYA Quarries above) or by a local authority under s.222 of the
Local Government Act 1972: see, for example, Stoke-on-Trent City Council v B&Q (Retail)
Ltd [1984] AC 754.
Public nuisance is a crime in respect of which the Attorney-General may, if a criminal

prosecution is felt to be inadequate, bring a ‘relator’ action for an injunction to
restrain the offending activity.
17.3.1 Public nuisance: summary

Claims relating to public nuisance are usually straightforward. Provided you recognise
the possibility of a claim distinct to private nuisance and the two criteria mentioned
above are satisfied, few difficulties arise.
17.4 The relevance of the Human Rights Act 1998

This is a fairly new area of law but there are two main areas where the Act may
have some impact on the tort of private nuisance and the rule in Rylands v Fletcher
(discussed in Chapter 18).
1. Who can sue?
2. Increasing the landlord’s liability for the actions of tenants.
The question here is of compatibility with Article 8 (right to a private and family life)
and Article 1 of Protocol 1 (right to peaceful enjoyment of one’s possessions).
The decision of the European Court of Human Rights in Hatton v United Kingdom [2002]
1 FCR 732 which favoured intervention under Article 8 has since been overturned:
(2003) 37 EHRR 28.
17.4.1 Limiting those who can sue and Article 8

It has been suggested that limiting who can sue to those with rights to land is contrary
to Article 8 of the European Convention on Human Rights: see McKenna v British
Aluminium Ltd [2002] Env LR 30. Here, Neuberger J refused to strike out a claim for
private nuisance and under the rule in Rylands v Fletcher which was brought by over
30 children from various households. They did not have rights to land. Nevertheless,
Neuberger J found that
there is obviously a powerful case for saying that effect has not been properly given to
Article 8.1 if a person with no interest in the home, but who has lived in the house for some
time and had his enjoyment of the home interfered with, is at the mercy of the person
who owns the home, as the only person who can bring proceedings.
It is, however, weak authority – a striking-out decision from Birmingham District

Registry – and it remains to be seen whether the courts will follow it. Note also the
restrictive approach taken by the House of Lords in Marcic v Thames Water Utilities Ltd
[2003] UKHL 66.
17.4.2 Landlords’ liability for their tenants

The question arises as to whether claimants in cases such as Hussain and Mowan
should be able to invoke Article 8 of the European Convention on Human Rights
against local authorities to force them to stop their tenants creating a nuisance.
However, provided the local authority adopts a decision-making process which
satisfies proportionality and does not impose a disproportionate burden on the
persons concerned, it may escape liability.
Activities
activity 17.1
Core comprehension – nuisance

Read Buckley, R.A. The law of negligence (LexisNexis Butterworths, 2005) [ISBN
9780406959416], Chapter 12: ‘Interference with comfort and enjoyment’ (in your
study pack), and answer the following questions.
This core comprehension activity consolidates your understanding of the following
issues relating to the law of nuisance: the establishing of liability, proof of nuisance,
extent to which ‘locality’ is important, noise and vibration, plaintiffs who are
peculiarly susceptible to noise, measurement.
a. How do courts gauge whether the subject of a plaintiff’s complaint is a
nuisance?
b. In the case of A-G v Gastonia Coaches how did the defendant company’s parking
arrangements for its fleet of coaches interfere with the comfort and enjoyment
of local residents?
c. Why was the complaint about the noise of repair and cleaning work dismissed?
d. Why is the issue of the locality important in determining whether material

interference has occurred?
e. In the Rushmer decision in 1906 why was the operation of the presses at night in
a Fleet Street address considered to be a nuisance?
f. In the Gillingham Borough Council decision why did economic activity in the area
defeat the plaintiff’s right to complain?
g. Using the example of the Dunton case, address the following questions:
i. How was the locality of the plaintiff’s property changed?
ii. What type of value did the court perceive in the playground activity?
iii. How did the injunction bring relief to the complainants?
h. Why are courts less willing to impose restraints upon defendants if the
complaint of nuisance is made by plaintiffs who are unduly sensitive to the
nuisance? Give an example from a judgment concerning noise.
i. Identify the limitations of the usefulness of scientific measurements of sound

(i.e. decibel levels).
activity 17.2
Applied comprehension – planning permission and nuisance

This applied comprehension activity considers the interrelationship between
planning permission and nuisance.
Find the case of Coventry v Lawrence [2014] UKSC 13 and read at least [77]–[99] and
[180]–[186].
This case concerns the law of private nuisance, in particular nuisance by noise in the
sense of personal discomfort.
Questions (a)–(f) relate to Lord Neuberger’s judgment at [77]–[99] on the topic ‘The
effect of planning permission on an allegation of nuisance’.
Questions (g)–(j) relate to Lord Carnwath’s opinion at [180]–[186] on the topic ‘The
character of the locality’.
a. What are the two reasons given for the potential relevance of the grant of
planning permission for a particular use to a claim in nuisance?
b. Which question faced the Court in its consideration of the effect of the planning
permission on claims of noise nuisance?
c. Why did Jackson LJ reaffirm Buckley J’s decision in the Gillingham case, in which
the residents’ claim of public nuisance for noise, vibration, dust and fumes was
dismissed?
d. Paraphrase in fewer than 45 words how the extent of the land development
became a factor in the ability of the defendants to raise the defence of planning
permission.
e. Outline the role which compensation may play in correcting the grant of a
planning permission which causes nuisance to a property owner and give two
examples of statutory provisions which provide such compensation.
f. Describe the difficulty which is highlighted in respect of this approach.
g. Name at least four aspects of the modern world which courts have taken
into account in judging the acceptability of the defendant’s activity and ‘the
character of the locality’.
h. What role does the common law of nuisance play in relation to modern planning
and environmental controls?
i. In the example given of a professional football stadium within an urban area,

explain:
i. why it would be difficult for a resident to sue for noise nuisance
ii. under which circumstances the resident would be able to sue.
j. Does Lord Carnwath advocate a differentiated approach depending on whether

the locality is urban or rural in character?
18 The rule in Rylands v Fletcher
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
18.1 Rylands v Fletcher . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
18.2 Who can sue? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
18.3 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
18.4 Damages for personal injury? . . . . . . . . . . . . . . . . . . . . . . 189
18.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Introduction
The rule in Rylands v Fletcher (1865) LR 1 Ex 265 protects against isolated escapes.
Although Rylands v Fletcher is closely related to nuisance, it differs from nuisance, in
that it does not depend on the defendant being involved in a continuous activity or an
ongoing state of affairs. Unlike the tort of trespass to land, Rylands v Fletcher does not
require a direct and intentional interference. The rule in Rylands v Fletcher differs from
the tort of negligence because there is no need for the claimant to show the existence
of a duty of care or a breach of that duty.
Many commentators believe that Rylands v Fletcher is of relatively little practical

significance today. This is because of the expansion of the torts of nuisance and
negligence – as well as developments in statutory liability for conduct which is
damaging to the environment. Enforcement of these provisions is in the hands of
public bodies, which means that claimants may save a good deal of time and expense
by directing their complaints to the relevant body.
Learning outcomes
be able to:
uu explain the nature of the rule in Rylands v Fletcher and where it fits in the context
of other torts
uu analyse the circumstances in which a claim under Rylands v Fletcher is likely to
arise
uu identify who can sue whom under the rule
uu explain the defences which exist and the remedies available.
Essential reading
¢¢ Lunney and Oliphant, Chapter 12 ‘Nuisance and the rule in Rylands v Fletcher’,
Section III ‘The rule in Rylands v Fletcher’.
Tort law 18 The rule in Rylands v Fletcher page 187
18.1 Rylands v Fletcher

The rule deals with damage caused by isolated escapes from a neighbour’s land. The
best example is that of the case itself. Here a mill owner had employed independent
contractors to build a reservoir on his land to provide water for his mill. During the
course of building, the independent contractors discovered some old shafts and
passages of an abandoned coal mine on the defendant’s land, which appeared to be
blocked. When the reservoir was filled, the water burst through the old shafts, which
were subsequently found to connect with the plaintiff’s mine. As a result, the plaintiff’s
mine was flooded and he sought compensation.
The case was finally resolved at the House of Lords level, but the classic statement of
principle was given by Blackburn J in the Court of Exchequer Chamber:
We think that the true rule of law is, that the person who for his own purposes brings on
his lands and collects and keeps there anything likely to do mischief if it escapes, must
keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape.
This formula has inevitably been refined by time and now can be reduced to four
points. All four must be proved to establish liability.
1. the defendant brings on his lands for his own purposes something likely to do
mischief
2. which escapes (see Read v J Lyons & Co Ltd (1947). In this case the plaintiff was
employed as an inspector in the defendant’s munitions factory. In the course
of her employment she was injured by the explosion of a shell that was being
manufactured on the premises. There was no allegation of negligence on the part
of the employers.
The House of Lords ruled that since there had been no ‘escape’ of the thing that
inflicted the injury Rylands v Fletcher was inapplicable. In the absence of negligence
the plaintiff’s claim failed.)
3. due to a non-natural use
4. which causes foreseeable harm.
In practice, it has been the last two criteria which have caused difficulties.
The House of Lords in Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264
and Transco plc v Stockport MBC [2003] UKHL 61 determined that the rule will only apply
where the loss suffered is reasonably foreseeable and that it is, in reality, an extension
of the tort of private nuisance to isolated escapes from land. Although the rule in
Rylands v Fletcher has its origins in nuisance it had, until Cambridge Water, come to be
regarded as having evolved into a distinct principle governing liability for the escape
of dangerous things.
18.1.1 Cambridge Water

In Cambridge Water, the defendants, an old established leather manufacturer, used a
chemical solvent, PCE, in their tanning process. PCE evaporates quickly in the air but is
not readily soluble in water. In the course of the process, before a change of method
in 1976, continual small spillages had gradually built up a pool of PCE under the
defendants’ premises. The solvent seeped into the soil below and contaminated the
aquifer from which the plaintiffs drew their water. At first instance the claim in Rylands
v Fletcher was dismissed because it was held that there was no non-natural user of the †
In the House of Lords,
land†. The nuisance action failed because at the time the contamination was taking
Lord Goff said that the
place it was not foreseen that the quantities of the chemical would accumulate or
storage of substantial
that, if they did, there would be any significant damage. The House of Lords held that
quantities of chemicals
the claims in negligence and nuisance failed for lack of foreseeability. The action in should be an almost
Rylands v Fletcher also failed because the defendants had not known, and could not classic case of non-
reasonably have foreseen, that the seepage would cause the pollution. natural use.
Lord Goff also questioned whether the rule should continue to be seen as analytically
distinct from nuisance: ‘it would… lead to a more coherent body of common law
principles if the rule were to be regarded as essentially an extension of the law of
nuisance to isolated escapes from land’.
18.1.2 Transco
In Transco the House of Lords confirmed that the rule was in fact a subset of private
nuisance. Here, the council was the owner of a tower block of flats and an adjacent
embankment. A large water pipe serving the flats leaked and water escaped into the
embankment and caused it to collapse. As a result, a high pressure gas main was left
exposed and the claimants sought recovery of the substantial costs spent in taking action
to prevent the pipe fracturing. The trial judge held the council liable, finding that its use
was not an ordinary use of land. However, the Court of Appeal overturned this ruling
and held that the provision of a water supply through a service pipe carrying water from
the mains to a block of flats on the council’s land is an ordinary use of land under the
principles in Rylands v Fletcher. The House of Lords agreed with the Court of Appeal and
held that the piping of a water supply, a routine function which could not be seen as
creating any special hazard, was an ordinary use of the council’s land. The conditions to
be met before strict liability is imposed for ‘non-natural’ use will not be easily satisfied
unless the defendant’s use of land is shown to have been extraordinary and unusual and
creating a special hazard.
This case is particularly important because the House of Lords took the opportunity to
review the modern scope and application of the rule in Rylands v Fletcher. In favouring
a restrictive approach, the rule will in future be confined to exceptional circumstances
where the occupier has brought some dangerous thing onto his land which poses an
exceptionally high risk to neighbouring property should it escape, and which amounts
to an extraordinary and unusual use of land. Note that although the law of negligence
has been greatly expanded since Rylands v Fletcher was decided and a claimant entitled
to succeed under the rule would now have a claim in negligence, their Lordships
rejected the abolition of the strict liability rule. The rule, stated as being an aspect of
private nuisance which had stood for nearly 150 years, should not be discarded.
18.2 Who can sue?

Before Transco, it was unclear whether the claimant would need a right in land to sue.
Although there were decisions permitting non-occupiers of land to sue for damages
(see Shiffman v Order of the Hospital of St John of Jerusalem (1936) and Perry v Kendricks
Transport [1956] 1 WLR 85) they were inconsistent with the position in private nuisance,
set out in Hunter v Canary Wharf Ltd [1997] AC 655. In Transco, the House of Lords
reaffirmed the approach taken in Cambridge Water that only those with rights over
land may sue under Rylands v Fletcher.
In Read v Lyons it was said obiter that the plaintiff must be an occupier in order to
maintain an action under the rule in Rylands v Fletcher and in Weller & Co v Foot & Mouth
Disease Research Institute [1966] 1 QB 569 it was held that the plaintiffs could not succeed
under the rule because they did not have an interest in land affected by the escape.
18.3 Defences
Liability will be reduced or eliminated if the escape is due partly or wholly to the
claimant’s fault: see Ponting v Noakes [1894] 2 QB 281 and the Law Reform (Contributory
Negligence) Act 1945, s.1.
18.3.1 Unforeseeable act of stranger

This is a well-established defence. The act must be due to the actions of a third party
over whom the defendant has no control: see Box v Jubb (1879) 4 Ex D 76. In Rickards
v Lothian [1913] AC 263 a malicious act by an unknown third party blocked a domestic
water system. The water overflowed and caused damage to the plaintiff’s premises on
the floor below. We have seen above that Lord Cairns’ requirement in Rylands v Fletcher
of ‘non-natural use’ has been established as part of the rule. Here Lord Moulton
defined non-natural use as ‘some special use bringing with it increased danger to
others.’ The defendants were not liable because the overflow of water was caused by
the act of a stranger over whom they had no control. The third party’s actions must be
unforeseeable: Northwestern Utilities Ltd v London Guarantee Co [1936] AC 108.
18.3.2 Act of God

Due to the advances in modern technology and science, this defence is largely defunct.
The defendant will not be liable where the escape is due solely to natural causes in
circumstances where no human foresight or prudence could reasonably recognise the
possibility of such an occurrence and provide against it. In Nichols v Marsland (1876) 2
Ex D 1 the defendant had formed artificial ornamental lakes on his land by damming
up a natural stream. Following a thunderstorm there was an unprecedented rainfall
which caused the banks of the ornamental lake to burst and destroy bridges on the
plaintiff’s land. The defendant was not liable because the escape was caused by natural
forces in circumstances ‘which no human foresight can provide against, and of which
human prudence is not bound to recognise the possibility.’
However, on very similar facts, in Greenock Corp v Caledonian Railway [1917] AC 556 the
application of this defence was criticised by the House of Lords. The rainfall was found
not to be an act of God and the Corporation was held to be under a duty to make sure
that owners or occupiers on a lower ground level are as secure against injury as they
would have been had nature not been interfered with.
18.3.3 Statutory authority

This operates in a similar manner to that of private nuisance. See, generally, Green v
Chelsea Waterworks Co (1894); Charing Cross Electricity Supply Co v Hydraulic Power Co
[1914] 3 KB 772; and Dunne v North Western Gas Board [1964] 2 QB 806.
18.3.4 Consent
This may be express or implied and arises generally in the context of escapes from
something maintained for the common benefit, for example, the water tank for a
block of flats. In such circumstances, the tenant is assumed to forgo any rights against
the landlord due to the benefit he or she gains, provided the escape occurs without
negligence: Kiddle v City Business Properties Ltd (1942).
18.4 Damages for personal injury?

Damages have been awarded for personal injury in the past. In Hale v Jennings (1938)
a chair became detached from a ‘chair-o-plane’ in a fairground and a stallholder
who suffered personal injuries as a result of the ‘escape’ was allowed to recover for
personal injury. in Read v Lyons doubts were raised about whether the rule in Rylands
could be used in a claim for personal injury and in Hunter v Canary Wharf it was held
that personal injuries are not, per se, recoverable.
Lord Bingham in Transco affirmed that ‘the claim cannot include a claim for death or
personal injury, since such a claim does not relate to any right in or enjoyment of land’.
The same rule therefore applies for all forms of private nuisance.
18.5 Summary
The rule in Rylands v Fletcher consists of four requirements:
1. the defendant brings on his lands for his own purposes something likely to do
mischief
2. which escapes
3. due to a non-natural use
4. which causes foreseeable harm.
Guidance should be sought from the leading cases of Cambridge Water and Transco.
Only those with a right to land may sue and there are a number of defences which are
similar to those seen in private nuisance. The remedy will usually be that of damages,
but it will be confined to proprietary losses and exclude claims for personal injury.
Activities
activity 18.1
Core comprehension – Rylands v Fletcher basics

Find and read the case of Transco plc v Stockport MBC [2003] UKHL 61.
This core comprehension exercise focuses on Lord Bingham’s opinion in [1]–[14] of
the judgment and underpins your understanding of the basic operation of the rule
in Rylands v Fletcher.
a. Outline the rule in Rylands v Fletcher.
b. Why must there be an escape from one tenement to another?
c. Why do claims under the rule exclude claims for death and personal injury?
d. Give four examples of types of escape which may satisfy the ‘mischief or danger’
test.
e. Why does Lord Bingham opine that the mischief or danger test should be
difficult to satisfy?
f. Identify the test of the ordinary use of the land.
g. Identify the defences available in actions brought in Rylands v Fletcher nuisance.
h. Why did the appeal fail?
activity 18.2
Core comprehension – subsuming Rylands within nuisance

Using the Online Library, find and read:
Murphy, J. ‘The merits of Rylands v Fletcher’ (2004) 24(4) OJLS 643. LexisLibrary: www.
lexisnexis.com/uk/legal/docview/getDocForCuiReq?lni=4M0H-YXF0-TXJJ-T0YC&csi=3
02218&oc=00240&perma=true&elb=t
This core comprehension activity focuses on Section 3 of Murphy’s article, ‘Can
we do without Rylands v Fletcher?’, in particular, Subsection A ‘Subsuming Rylands
within nuisance’.
a. Murphy suggests two ways of absorbing the rule in Rylands v Fletcher into
alternative branches of the common law. Identify the two alternative branches.
b. Why does Murphy argue that there is a considerable overlap between nuisance
and the rule in Rylands v Fletcher?
c. Paraphrase in fewer than 100 words the evidence provided which suggests that
the rule in Rylands v Fletcher could be merged into nuisance.
d. Explain the ‘appointed sphere of operation’ argument.
e. Why do the ‘boundaries of nuisance’ result in different remedies in respect of

personal injury and damage to chattels, depending on whether the action is
taken in the rule in Rylands v Fletcher or in nuisance law?
f. Outline the justifications (as stated by Oliphant) for award of damages in respect
of (i) profits lost as a result of nuisance; and (ii) damages for consequential injury
to the plaintiff’s chattels (or person).
activity 18.3
Applied comprehension – more Rylands v Fletcher

This applied comprehension activity focuses on Section 3, Subsection A of Murphy’s
article, as above.
a. Describe what is meant by the strict liability argument.
b. Identify the limitations of the strict liability argument.
c. In fewer than 50 words summarise why the ordinary claimants involved in

litigation in relation to the activities of a specialist industrial enterprise may be
disadvantaged if Rylands was subsumed within negligence.
d. Paraphrase in fewer than 50 words the main thrust of the first seven criticisms
of the rule in Rylands v Fletcher as articulated in the Australian case of Burnie Port
Authority.
e. Explain why it is argued that the possible defences as articulated in the rule in
Rylands v Fletcher assimilate negligence liability. Do you agree?
f. Summarise in fewer than 50 words the social changes highlighted by Murphy

which may suggest that strict liability is perhaps the more appropriate approach
in the 21st century than the 19th century approach of fault-based tortious
liability.
g. From your prior understanding of forms of justice, which forms of justice are
reflected in the fault-based liability and strict liability torts?

Arabella owns a large house in its own grounds at the edge of a village. Next to her
house is a farm owned by Ben. All of Ben’s animals had to be slaughtered during an
outbreak of foot and mouth disease, and, in order to earn some income, Ben leased
part of his land, including the field next to Arabella’s house, to Charles to organise
car boot sales at the weekend. These become very popular and large numbers of
cars arrive, frequently causing traffic jams in the village. The village church had
been damaged by fire earlier in the year and Sunday morning services are held in
Arabella’s house: the noise from the car boot sale disturbs the worshippers. Some of
the visitors to the sale have been taking a short cut across Arabella’s garden, picking
flowers and digging up plants.
Charles opened a barbecue at the entrance to the field selling hamburgers and hot
dogs. One morning, the barbecue exploded and soot and debris landed in Arabella’s
garden.
Advise Arabella.

We will examine the issues in turn:
a. Which forms of nuisance are applicable?
Arabella owns land and there is interference with its use and enjoyment. This
would suggest a potential claim in private nuisance. There are traffic jams in the
village: a possible public nuisance? Soot and debris escape from Charles’ rented
field into Arabella’s land. This suggests a claim under the rule in Rylands v Fletcher.
b. Right to sue?
Arabella owns a house and thus seems to have an interest in land satisfactory
for private nuisance and the rule in Rylands v Fletcher. The Sunday morning
worshippers, however, do not. It must be queried whether Arabella has suffered
‘special damage’ for public nuisance.
c. Will a court find liability?
It is at this stage that we must divide up the potential heads of liability and
identify the particular defendants. There are three potential heads of liability
and three potential defendants: Ben (as landlord), Charles (as tenant) and the
visitors to the sale.
i. Private nuisance
The complaint relates to noise and damage to land by third parties – the
visitors. It is unlikely that any claim may be made against them – they are not
identified in any event. Any claim must therefore be brought against Ben or
Charles. First, did Ben as the landlord authorise this nuisance? If we look at
the purpose of the lease, he knew that it would be used for car boot sales
which would bring a number of people to the area with ensuing noise and
disruption (see Tetley v Chitty (1986)). Would it of necessity lead to property
damage on neighbouring land? Only if this could be established would Ben be
liable to Arabella for the actions of Charles and his visitors. Charles may incur
liability as tenant and occupier of the land. The question here is whether he
should be responsible for the actions of his visitors. Under Sedleigh-Denfield,
where the occupier adopts or continues the nuisance of others, he will be
liable. Has Charles taken reasonable steps to abate the nuisance? A more
fundamental question also arises: do the noise and property damage amount
to a nuisance at all? The noise disturbs the worshippers (who have no rights
to sue), but are they extra-sensitive (see Heath v Mayor of Brighton (1908))?
Damage to property will, however, normally be regarded as a nuisance: see St
Helen’s Smelting Co v Tipping (1865).
ii. Public nuisance
This will be based on the traffic jams in the village. It must be questioned,
however, whether Arabella herself can show special damage.
iii. The rule in Rylands v Fletcher
The exploding barbecue would appear to fit under this head. The four
requirements set out in Cambridge Water would appear to be satisfied,
assuming that the damage is reasonably foreseeable. There is no personal
injury to worry us here.
d. Defences
There do not seem to be any potential defences to discuss.
e. Remedies
Arabella really would like an injunction to stop the property damage and
damages for the barbecue explosion. She would not obtain any damages for
personal injury under private nuisance or the rule in Rylands v Fletcher. It seems
unlikely that social utility would prevent the court from awarding an injunction
(contrast Miller v Jackson (1977)).
19 Elements of defamation
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
19.1 General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
19.2 Removal of the presumption in favour of trial by jury . . . . . . . . . . 195
19.3 Who can sue? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
19.4 Libel and slander . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
19.5 The cause of action . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Introduction
Defamation is a tort which protects the claimant’s reputation. As such, it does not
directly protect claimants from intrusion into their private life, but against wrongful
attacks to their reputation. This has a number of consequences. First, a dead person
cannot sue. Second, a claimant can be a legal as well as a natural legal person (for
example, a company in contrast to a private individual). Third, although abuse in
private may be hurtful, defamation will only occur when a third party knows of the
allegations – that is, when the claim has been published. This area of law has been
undergoing significant changes, with a number of high profile judicial decisions and
the Defamation Act 2013.
Learning outcomes
be able to:
uu explain the cause of action in defamation and, in particular, be able to identify:
uu when a statement will be judged defamatory
uu when a statement refers to a claimant
uu when a statement has been published
uu evaluate the procedural and substantive changes to defamation law introduced

by the Defamation Act 2013
uu discuss the liability in defamation of social media sites as an area of growing
interest
uu explain the human rights dimension in defamation.
Essential reading
¢¢ Lunney and Oliphant, Chapter 13 ‘Defamation’, Sections I ‘Introduction’, II ‘Libel
and slander’ and III ‘Defamation: elements of the cause of action’.
Tort law 19 Elements of defamation page 195
19.1 General principles

The aspects of tort law considered so far mainly concerned protection of personal
safety or protection against some other form of physical interference. However,
defamation is different because it is concerned with protecting against harm caused
by words. The aim of the law of defamation is to provide compensation for those
whose reputations are harmed by untrue statements and to enable those threatened
with loss of reputation to obtain an interim injunction to prevent the publication of a
potentially defamatory statement.
As a tort which protects the claimant’s reputation, defamation does not directly protect
claimants from intrusion into their private life, but against wrongful attacks to their
reputation. Also, it is only untrue words which cause harm to the claimant’s reputation
that are protected; for example, regardless of how much emotional distress or injury
to feelings is suffered as the result of a true statement, this will not be relevant to the
question of whether the statement is defamatory. Tony Weir (2004, p.520) points out:
The law has an extraordinary regard for truth, and just as it makes a person liable for a
white lie, it makes a person immune in respect of a black truth.
The law of defamation must strike a balance between protecting claimants against
untrue statements which attack their reputation and the freedom of the defendant
to express their views. This becomes particularly significant in relation to the press.
The Human Rights Act 1998 and, in particular, Article 10 which deals with freedom of
expression, contains the key principles against which the balance between freedom
of expression and the protection of reputation is struck. Paragraph 2 of Article 10
expressly states that the exercise of freedom of expression must be weighed against
the need to protect the reputation or rights of others. The previous law was criticised
as being costly and unfair. Following a high-profile campaign for law reform, seeking
better protection for freedom of speech and demands for legal recourse for damage
to reputation, led to the Defamation Act 2013 being enacted.
19.2 Removal of the presumption in favour of trial by jury

One difference that previously existed between defamation and other torts was that
defamation was the only tort in which trial by jury was used. The judge and the jury
had separate and distinct functions: the role of the judge was to direct the jury on the
legal meaning of a defamatory statement, but it was the role of the jury to deal with
matters of fact: for example, were the words used in fact defamatory? What level of
damages should be awarded? Was the defendant in fact malicious?
Proceedings in jury trials took longer than cases heard by a judge alone and
significantly increased the costs of defamation claims. This delay and cost was
criticised for restricting free speech and stifling legitimate debate. Consequently,
removal of the presumption in favour of trial by jury is one of the key provisions in
the Defamation Act 2013; s.11 provides that trials for both libel and slander are to be
without a jury unless the court orders otherwise. Yeo v Times Newspapers Ltd [2015]
EWHC 2132 (QB) indicates that the possibility of a jury trial in any future defamation
claim is highly unlikely. Here the judge refused to exercise his discretion to order a
trial by jury in a claim concerning articles alleged to be defamatory of a member of
Parliament. The newspaper sought a jury trial on the ground that members of the
public are best placed to decide whether publication was legitimate in these cases.
However, the judge pointed out that: ‘Parliament no longer regards jury trial as a right
of “the highest importance” in defamation cases. It is no longer a right at all.’
A further restriction introduced by the Defamation Act 2013 (s.9) provides that a
defendant who is not based in the UK or elsewhere in the European Economic Area can
only be sued in the UK if it is ‘clearly the most appropriate place’ to bring proceedings,
having regard to all publication worldwide. The overall intention is partly to eliminate
claims which are trivial and partly to discourage ‘libel tourism’ – using the English courts
to resolve issues which are essentially unconnected to the UK, but where there has been
token publication there.
19.3 Who can sue?

The tort protects an individual’s reputation. Logically, therefore, any human being can
sue, but, as seen above, the claim does not survive death: Law Reform (Miscellaneous
Provisions) Act 1934. More controversially, it extends to companies, which are deemed
to possess a business reputation (see Lewis v Daily Telegraph at Section 19.5.1). However,
the scope for companies to sue for reputational damage is significantly limited by
the Defamation Act 2013; s.1(1) provides that a statement is not defamatory unless its
publication has caused or is likely to cause serious harm to the reputation of the claimant
but, in the case of corporate claimants, s.1(2) provides that harm to the reputation of a
body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause
that body serious financial loss. The need to show ‘serious financial loss’ will restrict
companies from using the threat of defamation proceedings to silence critics who wish
to speak out.
Protection does not extend, however, to governmental bodies or political parties. It is

considered to be contrary to freedom of expression in a parliamentary democracy to
allow such bodies to bring actions which might discourage criticism of their actions.
Case law example

In Derbyshire CC v Times Newspapers Ltd [1993] AC 534, the defendant had published
articles questioning the propriety of dealings in the plaintiff council’s pension
fund. On the preliminary point as to whether the plaintiff council could maintain
an action for libel the House of Lords held that a local authority cannot maintain
an action for libel on the ground that the threat of a civil action for defamation
would have an inhibiting effect on freedom of speech and it was contrary to
public interest that the organs of government, whether central or local, should
have a right to sue for libel. However, individual councillors or officials may bring
proceedings. Lord Keith stated:
If the individual reputation of any of these is wrongly impaired by the
publication any of these can himself bring proceedings for defamation.
Individual councillors or Members of Parliament are not prevented from suing. A BBC
headline of February 2005 that read ‘Tories to sue newspaper for libel’ (http://news.
bbc.co.uk/1/hi/uk_politics/4245521.stm) was therefore incorrect. It was a particular
Conservative party worker who was threatening to sue the Times newspaper.
19.4 Libel and slander

Defamation is a tort which protects the claimant against attacks to their reputation.
This may occur in a number of ways. The attacks may be spoken, written, indicated
by gestures or conduct or even expressed in sign language or in code. The law divides
these modes of communication into libel and slander. Libel generally takes permanent
form, while slander is temporary. This is a relatively crude distinction, but remains part
of English law. On this basis, text or a photograph in a newspaper will amount to libel.
Shouting insults in the classroom will be deemed to be slander.
Slander, due to its temporary nature, is considered to be less serious. Until recently the
courts presumed that harm occurred as a result of libel – it was actionable per se. Damage
is now subject to the serious harm requirement in the Defamation Act 2013 (s.1).
In slander the claimant must prove that the slander resulted in special damage; for
example, as a result of the slander, their business lost money. Equally the loss must not
be too remote: Lynch v Knight (1861) 9 HL Cas 577. Libel, unlike slander, is also a crime,
although few prosecutions are made.
Difficulties have arisen on two grounds. First, the distinction between libel and slander
is sometimes unclear. For example, in Youssoupoff v MGM Pictures Ltd (1934) 50 TLR
581, a Russian Princess had complained about words used in the film soundtrack to
‘Rasputin, the Mad Monk’, which she claimed had falsely suggested that she had been
raped by Rasputin. The court took the view that speech, which was synchronised with
the film, took a permanent form and should be treated as libel. Logically, however, if
the film broke down but the words continued it would be slander. Yet, this ignores the
fact that although the words are merely heard, they are permanently recorded which,
it is submitted, suggests that they should be considered libel. We can also contrast
this with legislation which indicates that performances of a play and broadcasts on
television and radio are to be treated as libel: see s.4(1) of the Theatres Act 1968 and
s.166 of the Broadcasting Act 1990.
A second complication is that although, as a general rule, special damage must be

proved for slander, there are two forms of slander which are actionable per se. There
is no obvious criterion to distinguish these cases except that the damage must be
considered so obvious that it need not be proved.
They are as follows:
uu imputation of a criminal offence punishable by imprisonment
uu imputation of unfitness or incompetence (s.2 of the Defamation Act 1952).
The second category arises most frequently in practice and should therefore be
particularly noted. It extends to all words likely to disparage the claimant’s official,
professional or business reputation, whether or not the words relate to the claimant’s
office, profession, calling, trade or business. Prior to the Defamation Act 2013, words
imputing a contagious or infectious disease likely to prevent people from associating
with the claimant were actionable without proof of damage. However, s.14(2) of the
Act provides that imputation of a contagious or infectious disease does not give
rise to a cause of action for slander unless special damage is shown. Also, under the
common law, either a man or a woman taking an action in slander for the imputation
of unchastity was required to prove damage. The enactment of the Slander of Women
Act 1891 provided that words imputing unchastity or adultery in any woman or girl
(but not in a man) were actionable per se. This potentially discriminatory provision was
addressed in the 2013 Act under which s.14(1) repeals the Slander of Women Act 1891.
19.5 The cause of action

In order to establish a claim in defamation four elements must be proved:
1. that the statement was defamatory
2. that the defendant made a statement which referred to the claimant
3. that the defamatory statement was published
4. that the defendant (the maker of the statement or anyone involved in its
publication) had no lawful defence for either making the statement and/or for
being involved in its publication.
On proof (on the balance of probabilities) of the first three elements (the elements of
the tort), a prima facie case of defamation is established. The first three elements are
considered below.
The fourth element, discussed in Chapter 20 (Defences to defamation), allows a range

of arguments (defences) that a defendant can advance which will serve either to negate
liability or reduce its scope and/or significantly reduce the damages or other remedy
available to the claimant. Because they aim to strike a fair balance between the right
to freedom of expression and protection of reputation, the defences in defamation
play a greater role than defences in other torts. For this reason an understanding of the
defences to defamation is as important as understanding the elements of liability.
The statement is presumed to be false unless proven otherwise.

19.5.1 The statement must be ‘defamatory’

The term ‘defamatory’ has been defined in a number of cases which identify
defamatory statements as those which ‘tend to lower the plaintiff in the estimation of
right-thinking members of society generally’ (Sim v Stretch [1936] 2 All ER 1237) or lead
to the claimant being shunned or avoided (Youssoupoff).
In Sim v Stretch a maid named Edith Saville left the plaintiff’s employment and went to
work for the defendant. The defendant sent a telegram (received at the village shop)
to the plaintiff saying:
Edith has resumed service with us today. Please send her possessions and the money you
borrowed also her wages to Old Barton. Sim.
The plaintiff alleged that the telegram meant that he was in pecuniary difficulties and
had to borrow money from his maid. The House of Lords was doubtful that the words
could carry this meaning but, in any event, Lord Atkin said that such a meaning was
not capable of being defamatory.
This case was authority for the existence of a threshold of seriousness about what
is defamatory. This threshold has been raised by s.1(1) of the Defamation Act 2013
which provides that only cases involving serious harm to the claimant’s reputation
can be brought in defamation. In Cooke v MGN Ltd [2014] EWHC 2831 (QB) the new s.1
‘serious harm’ threshold was considered in the context of a newspaper article about
the exploitation of residents by unscrupulous landlords. The statements in the article
would have been defamatory under the old common law but, on the Sunday following
the publication, the newspaper published an apology. The prompt apology was found
sufficient to eradicate or at least minimise any unfavourable impression created by the
original article. Because the claimants accepted that there was no specific evidence
that the article had caused serious harm to their reputations they failed to meet the
threshold requirement under s.1(1).
Cooke signalled that the threshold for serious harm had been raised significantly by
s.1(1) but more recent guidance by the Court of Appeal in Lachaux v Independent Print
Ltd [2017] EWCA Civ 1334 states that the threshold had merely been raised from one of
‘substantiality’ to one of ‘seriousness’. The requirement that the statement ‘is likely to
cause’ should be taken as connoting a tendency to cause serious harm.
The serious harm threshold in the context of tweets was considered in Monroe v
Hopkins [2017] EWHC 433 (QB). The claimant, who comes from a family with military
connections, alleged that the defendant’s tweets accused her of vandalising a war
memorial and desecrating the memory of those who fought for her freedom and that
she approved or condoned that conduct. The defendant claimed that the tweets did
not bear the meanings complained of and, because tweets are transient in nature, the
claimant had not shown the tweets to have caused serious harm to her reputation.
The court found that, although the abuse the claimant had received in respect of
the tweets from other Twitter users caused her distress and injury to feelings (which
does not amount to serious harm to reputation), the serious harm test was satisfied
because the tweets ‘…not only caused Ms Monroe real and substantial distress, but
also harm to her reputation which was serious’.
The defendant’s argument that tweets are an accepted part of social media activity
and intended to be provocative and should therefore be treated with less credibility
than ‘serious’ media publications was rejected. Although there is some evidence that
statements made on Twitter are not taken seriously, tweets may extend beyond a
defendant to followers of other Twitter users.
†
Do you think this
It is no excuse that the words were not intended to be defamatory, although this may statement would
help support a defence of unintentional defamation. The courts will ignore mere meet the ‘serious
abuse but in Berkoff v Burchill [1996] 4 All ER 1008 a published description of an actor harm’ threshold to Mr
as ‘hideously ugly’ was capable of being defamatory. Although as a general rule mere Berkoff’s reputation as
abuse does not constitute a defamatory statement, in the instant case, the statement now required by s.1(1)
potentially did more than merely injure feelings but was relevant to the claimant’s of the Defamation Act
acting career.† 2013?
In Byrne v Deane [1937] 1 KB 818 some gambling machines were unlawfully kept in
a clubhouse. These were removed by police after somebody had informed of their
illegal presence. Soon after this a verse appeared on the notice board of the club
which ended with the lines: ‘But he who gave the game away, may he byrnn in hell and
rue the day.’ The plaintiff brought an action for libel alleging that by these words the
defendants meant, and were understood to mean, that he was guilty of underhand
disloyalty to his fellow club members. However, it was held not to be defamatory to
say of a member that he had informed the police of an illicit gambling machine on the
club premises, because right-thinking persons would not think less well of such a man,
since right-thinking persons believe that the law should be enforced, and that there is
an obligation to assist the forces of law and order.
Innuendo
Defamation is not confined to direct attacks on the claimant’s reputation. To protect
the claimant’s reputation, defamation must also include implied or veiled attacks,
which are generally known as ‘innuendo’. There are two types of innuendo: true (or
legal) and false (or popular).
True (or legal) innuendo

A true innuendo is a statement where the attack is truly hidden in the absence of
special facts and circumstances, which the claimant must show are known by some of
the people to whom the statement is published. Tolley v JS Fry & Sons Ltd [1931] AC 333 is
an example of this. Here, a famous amateur golfer alleged that a caricature of him had
appeared without his knowledge or consent in an advertisement for Fry’s Chocolate.
This, in itself, was not defamatory. However, Tolley claimed that for people who knew
of his amateur status it would imply that, contrary to acceptable amateur conduct,
he had accepted money. The House of Lords held the advertisement to be capable of
bearing the meaning alleged. People knowing of Tolley’s amateur status might think
less of him and therefore his reputation would be diminished.
Equally, in Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 there was nothing
defamatory in publishing a photograph depicting Cassidy and a young woman
announcing that they were engaged. However, the fact that Mr Cassidy was still
married led the majority of the Court of Appeal to recognise that the words were
defamatory of the existing Mrs Cassidy, on the basis that a reasonable person knowing
of their relationship might assume that she had cohabited with Cassidy outside
marriage. This, in 1928, would be regarded in a negative light. It was no excuse that the
newspaper did not know that Cassidy was already married, and had in fact been told
by Cassidy that he was engaged to the woman with whom he had been photographed.
False (or popular) innuendo

A false innuendo is one which a reasonable person guided by general knowledge
would infer from the natural and ordinary meaning of the words: Lewis v Daily
Telegraph Ltd [1964] AC 234. The court does not have to be informed of any specific
facts to draw this inference. For example, in Lewis itself, a paragraph in a newspaper
had stated that the Fraud Squad were investigating the affairs of a company and
its chairman, Mr Lewis. This was in fact true, but it was claimed that the paragraph
contained an innuendo: that the company was being operated in a fraudulent and
dishonest way. The majority of the House of Lords rejected this interpretation. A
reasonable person might infer from the paragraph that the company and Lewis were
suspected of fraud, but would not assume that Lewis and the company were guilty
of such conduct. The general test is therefore: would the reasonable person view the
statement as defamatory on the particular facts of the case?
In Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, Brooke LJ, drawing on Lord
Devlin’s speech in Lewis, identified three possible defamatory meanings that might
be derived from a publication alleging police investigations into the conduct of a
claimant.
The Chase level one meaning is that the claimant was guilty. The Chase level two
meaning is that there were reasonable grounds to suspect that the claimant was
guilty. The Chase level three meaning is that there were grounds for investigating
whether the claimant was guilty.
It is important to identify which level the words used can and do mean, as this is the
meaning which must be shown to be true.
Considering the statement in context

The courts will not allow claimants to point to a particular sentence in isolation, but
will examine the statement in its whole context.
Case law example

In Charleston v News Group Newspapers Ltd [1995] 2 AC 65, the News of the World
had run a story about a computer game, which featured near-naked bodies of
models in pornographic poses, on which the heads of two characters from the
Australian soap ‘Neighbours’ (Madge and Harold Bishop) had been superimposed.
The headline read ‘Strewth! What’s Harold up to with our Madge?’ and was
accompanied by photographs of the characters as depicted in the game. The
actors complained that the photographs suggested that they had participated in
some way in the making of the game.
Although the accompanying article made it clear that the actors had not
participated in any way, it was argued that a significant proportion of readers
skimming through the newspaper would only read the headlines and look at the
photographs, and would come to the wrong conclusions. The court refused to
approach the case in this way. ‘Defamatory’ was judged by the standard of the
ordinary reasonable person, who would have taken the trouble to discover what
the article was about. It was therefore irrelevant that the News of the World may
have some readers who only read the headlines.
19.5.2 Does the statement refer to the claimant?

A claimant will only be able to bring an action for defamation if they can show that
the words in the statement referred to them. Otherwise, the claimant would not have
standing to sue. This is not a problem where the claimant is named. For example,
‘David cannot be trusted’. It is more difficult when the defendant makes general
statements – ‘politicians cannot be trusted’ – or does not name the claimant expressly
– ‘the man with blue eyes cannot be trusted’. The claimant will have to prove that an
ordinary reasonable person, with knowledge of all the circumstances, would recognise
that the person referred to is the claimant. This is not always easy to achieve.
Case law example

In the leading case of Morgan v Odhams Press [1971] 1 WLR 1239, the Sun newspaper
alleged that a girl had been kidnapped by a dog-doping gang because she was
threatening to inform the police of their activities. At the relevant time the girl
had been staying at the plaintiff’s flat and the plaintiff produced six witnesses
who swore that they understood from the article that he was connected with the
gang. The story was held to be capable of a defamatory meaning. The majority of
the House of Lords found that it was not necessary to find a specific ‘pointer’ in
the article, or a ‘peg’ on which to hang such a reference. It was enough that the
ordinary reasonable person would, on the facts, have drawn the inference that
the article referred to Morgan.
It is irrelevant, however, that the defendant did not intend to defame the claimant. In
the classic example of Hulton & Co v Jones [1910] AC 20, the newspaper had published a
humorous article describing the activities of a fictional churchwarden from Peckham

called Artemus Jones. The claimant, Thomas Artemus Jones, was not a churchwarden
and did not live in Peckham, but was a barrister practising on the North Wales Circuit.
The House of Lords nevertheless held that there was evidence upon which the jury
could conclude that reasonable people would believe Mr Jones was referred to and it
was irrelevant that the defendants had no intention to defame him. (See also Newstead
v London Express Newspaper Ltd [1940] 1 KB 377.) The onus is thus on the newspaper to
identify clearly who they wish to discuss – the real Mr Jones or a fictional character.
Group defamation
Where the statement is general, the claimant will not be able to bring a claim for
defamation unless they can show that it relates to them specifically. For example, if we
use the phrase ‘politicians cannot be trusted’, there are many politicians and there is
nothing to indicate to which politician it refers. In contrast, if the statement criticises a
large company, for example, ‘Tort Enterprises cannot be trusted’, the company, which
has its own legal identity, would be able to sue.
Generally, therefore, criticism of a group of individuals will not support an action

for defamation unless the group is so small that the claimant can establish that the
statement must apply to every member of the class, or the claimant can identify some
particular reference in the statement which singles the claimant out. Therefore, in
the leading case of Knupffer v London Express Newspaper Ltd [1944] AC 116, Knupffer was
unable to succeed in his claim for defamation. The article in question had criticised
the Young Russian political party Mlado Russ, which had a small British branch of 24
members of which Knupffer was the head. He claimed that his position as head was
enough to single him out from the group. The House of Lords disagreed. There was
not even a reference to the British branch in the article, which concerned the party
generally. A reasonable person would therefore not have found Knupffer to be singled
out in the article.
19.5.3 Publication
The tort of defamation seeks to protect the claimant’s reputation. Statements will
only harm the reputation if third parties are aware of them. Publication, that is,
communication of the libel or slander to a third party, is therefore a vital component
of the tort.
This is obviously satisfied by the printing of an article in a newspaper or book or

shouting a remark in front of other people, provided the words are intelligible to the
third party. Problems arise, however, when the defendant alleges that they did not
intend to publish the statement and that it was meant to be a private remark between
the claimant and defendant. Again, intention is not a defence. If it is reasonably
foreseeable that the statement might come to the knowledge of a third party,
publication will exist. In Theaker v Richardson [1962] 1 WLR 151, therefore, the defendant
was liable for sending a defamatory letter to a married woman, which had been
opened by her husband. The letter, which had been addressed to the wife, had been
sealed in a brown envelope which looked like an election circular. The court upheld
†
the view of the jury that it was foreseeable that the husband would open the letter†. Is it likely that a
husband opening
Contrast Huth v Huth [1915] 3 KB 32, where the defendant, in an unsealed envelope, and reading a letter
sent a letter to the plaintiffs’ mother which the plaintiffs alleged to be defamatory of addressed to his wife
them. The letter was opened and read by an inquisitive butler in an admitted breach of would now be viewed
his duty. The plaintiffs argued that since there was a presumption that postmen read as natural and probable
postcards, even though they have no business doing so, the same presumption ought consequence of the
to apply to unsealed envelopes. However, here the Court of Appeal held there was no defendant’s writing and
publication even though the envelope was unsealed; it was not part of the butler’s delivery of it?
duty to open the letter and his conduct was not a direct consequence of sending it.
Repetition of a defamatory statement

It is no defence that the defendant is merely repeating the defamatory statement
made by another. An unauthorised repetition or republication by a third party will
break the chain of causation unless the statement is published to one who is under
a legal or moral duty to repeat it, or the repetition is foreseeable as a natural and
probable consequence of the original publication. In Slipper v BBC [1991] 1 QB 283,
the plaintiff, a senior police officer, claimed that he was defamed in a film about his
unsuccessful attempts to secure the extradition of one of the Great Train Robbers
and that the BBC had caused widespread repetition of the libel through reviews
in the television columns of newspapers. The Court of Appeal held that, in certain
circumstances the original defamer will remain liable if the republication is, on the
facts, the natural and probable result of the original publication.
Note that the Court of Appeal in McManus v Beckham [2002] 1 WLR 2982 doubted
whether the Slipper test was fair to the defendant.
Publication on the internet

The question of who is the publisher of defamatory material posted on the internet is
increasingly important.
Publication by omission (failing to remove the defamatory statement) as in Byrne v

Deane, above, applies where an internet service provider who has been informed of a
libel on its internet server fails to remove it. The ISP will be unable to show that they
had exercised reasonable care in relation to the publication in question. In Godfrey
v Demon Internet [2001] QB 201, statements defamatory of the claimant were posted
by an unknown person on an internet newsgroup hosted on the defendant’s server.
The claimant notified the defendant about the defamatory material which could
be accessed on its server but the defendant did not remove the material from the
internet for about two weeks. The defendants claimed that they were not responsible
for postings by users on their internet sites. Although the defendants successfully
showed that they were not the author, editor or publisher of the defamatory
statement within the meaning of the Defamation Act 1996, they could not show that
they had taken reasonable care in relation to its publication. We will see in Chapter
20 that s.1(b) of the 1996 Act provides a defence of innocent dissemination but this
was not available to the defendant in the instant case because of their failure to take
reasonable care in relation to publication.
Search engine liability

Defamation in respect of search engine liability for publication of statements
claimed to be defamatory was considered in Metropolitan International Schools Ltd v
Designtechnica Corporation, Google UK and Google Inc [2011] 1 WLR 1743, where it was
claimed that Google was responsible for defamatory comments on a website which
appeared on its search results page. The question was whether Google should be
regarded as a ‘publisher’ of the words complained of (whether before or after Google
had been notified of their defamatory comments) or whether it was a mere facilitator.
Mr Justice Eady found that Google was not liable for publication of the statements
because it had no control over the search terms entered by users of the search engine
or of the material which is placed on the web by its users. He confirmed that mere
facilitators, like telephone carriers, are generally not liable for defamatory content
and pointed out that a search engine is different from a website host; merely pressing
a button will not ensure that the offending words will never reappear on a Google
search snippet and there is no control over the search terms typed in by future users.
He further said that if someone feels they have been defamed by material on a website
then they should address their complaint to the person who actually wrote and
published the material. The operator of a search engine simply compiles an index of
pages from the web and it is this index which is examined during the search process.
In Tamiz v Google Inc [2013] EWCA Civ 68, the Court of Appeal examined the law on the
liability of providers of internet platforms such as Google as potential publishers of
defamatory comments posted on a ‘London Muslim’ blog operated by Google. After
the claimant had complained to Google about the defamatory content of the blog,
Google failed to promptly remove it from the website. The Court of Appeal agreed
that Google could not be said to be either a primary or a secondary publisher but after
being notified of the words complained of, there was an arguable case that Google was
a publisher. The facts were found to come within the scope of Byrne v Deane. (However,
liability was denied on other grounds.)
Liability of internet service providers (ISP), websites and search engines is now
governed by s.5 of the Defamation Act 2013. A person defamed on the internet may
seek to have the defamatory statement removed from the public domain as quickly
as possible and immediately approach those responsible for providing the ‘conduit’
for publication and dissemination, such as the ISP. An ISP is not considered to be the
‘publisher’ of the defamatory statement in these circumstances but is treated as a
secondary publisher (distributor) and may be able to rely on the defence of innocent
dissemination: Defamation Act 1996, s.(1)(b).
Single publication rule

In the context of the internet, one of the most significant changes is contained in s.8
of the Defamation Act 2013, which abolishes the longstanding common law principle
that each publication of defamatory material gives rise to a new cause of action. The
particular difficulties this posed for internet publication and for those operating
online archives can be seen in Loutchansky v Times Newspapers Ltd (Nos 2–5) [2002] QB
783, where a Russian businessman brought a libel action in respect of statements in
a printed newspaper and also in The Times newspaper’s website article. A settlement
between the parties was reached in respect of the printed newspaper article but the
claimant brought a second claim in respect of the same story which had been placed
in the newspaper’s online archive.
Where a newspaper article published on the date of the print edition is then archived
on the internet, s.8 provides that no action can be brought if it is accessed online
several years later. In effect this will prevent an action being brought in relation to
publication of the same material by the same publisher after a one year limitation
period. This provision is particularly important for those operating websites and online
archives because the multiple publication rule required costly and time consuming
monitoring of archive content.
Section 8 applies where the statement is substantially the same, so minor differences
of editing or formatting will not constitute a new publication. The rule does not apply
if the manner of the subsequent publication is substantially different, so if the initial
statement has a very limited circulation, and the later publication is in the mass media,
the second publication will have its own limitation period.
Activities
activity 19.1
Core comprehension – defamation and human rights

Find and read the case of Jameel v Wall Street Journal Europe Sprl (No 3) [2006] UKHL
44 and answer the following questions relating to two sections of Lord Bingham’s
judgment, namely (I) Damage [11]–[17] and (2) Article 10 [18]–[22].
Damage
a. Describe the standard of proof required in the common law tort of libel for a
plaintiff to take action.
b. Why was it argued in the South Hetton case that trading companies would need
to prove special damage in order to succeed in the tort of libel?
c. Identify the South Hetton rule.
d. Give three examples of how defamatory statements may affect the economic
activity of businesses.
e. What is the leading case which demonstrates a differentiated approach to the

ability of local authorities to sue in libel?
Article 10
f. Which human right is protected under Article 10 of the ECHR?
g. How does Article 10 protect the reputation and rights of others?
h. Which three types of damages would strengthen an argument that the lack of
proof of financial loss would render any restraint on the freedom to publish
unjustifiable?
i. How does the Convention right of freedom of expression and the obligation of
the court under Article 12 of the Human Rights Act to ‘have particular regard’
to the convention right impact on the aspect of restraint of publication of
defamatory material?
activity 19.2
Core comprehension – privacy and human rights

Find and read the case of Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 and
Reasonable expectation of privacy ([1]–[11])
a. Who is David Murray and what was published which David’s parents objected to?
b. Was the photograph taken with the Murray family’s consent?
Privacy – the principles ([20]–[31])

c. Which right is protected by Article 8 of the ECHR?
d. Which right has precedence over the other?
e. Identify the origin of the cause of action which underpins the essence of the tort
of misuse of private information.
f. Which issue is key in determining whether a person’s right to a private life has
been breached?
g. In balancing Article 8 and Article 10 rights, which test must a claimant satisfy in
order to action the claim and how should that test be approached?
h. Identify the two key questions as expressed in the McKennitt judgment which
must be answered in a case where the complaint is of the wrongful publication
of private information.
i. How did Lord Hope define information which was obviously private?
j. How does the law of privacy protect human autonomy and dignity?
activity 19.3
Applied comprehension – damages and corporate reputation

Find and read the case of Jameel v Wall Street Journal Europe Sprl (No 3) [2006] UKHL
44 and answer the following questions focusing on the speeches of Lord Bingham,
Lord Hoffmann and Lord Scott on the ability of trading companies with a trading
reputation in England and Wales to recover general damages without pleading or
proving special damage.
The facts
a. Why does the common law presumption of damage offer little or no protection
to public bodies and trading companies in respect of defamatory statements?
b. As related to the Derbyshire County Council case what is the distinguishing

feature between corporate entities and private litigants which in that decision
limited the scope of the common law presumption of damage?
Lord Bingham’s judgment

c. Explain the purpose of the tort of defamation.
d. Give three examples of defamatory things which could be said about

corporations.
e. Paraphrase in fewer than 50 words the two reasons advanced for allowing
corporations to sue in their own right even if they cannot prove financial loss.
Opinion of Lord Hoffmann

f. Why does Lord Hoffmann argue that commercial companies should be required
to demonstrate proof of damage in defamation claims?
g. Why does Lord Hoffmann reject the submission that trading companies should
be treated as a special class of plaintiff in actions brought in defamation?
h. What does the right of action for libel enable the client to do?
Opinion of Lord Scott of Foscote

i. Explain in fewer than 50 words the argument Lord Scott advances on the nature
of the difficulty which corporations may have in proving actual damage caused
by defamation.
activity 19.4
Applied comprehension – Defamation Act 2013

Find and read the case of Cooke v MGN Limited [2014] EWHC 2831 (QB) then answer
the following questions.
This is the first case in which the interpretation of the Defamation Act 2013 has
come before the courts.
a. Paraphrase in fewer than 30 words why the claimants considered the text of the
newspaper article cited at [4], when read in context, was defamatory.
b. In the opinion of the Court what was the natural and ordinary meaning of the
words complained of, read in context?
c. Paraphrase in fewer than 50 words how Mrs Cooke evidences that the
publication has caused her serious harm.
d. Identify the basis of the case of serious harm made by Midland Heart, the
housing association.
e. What are the two main weaknesses of the claimants’ cases?

f. What is the threshold of serious harm which has to be proven?
g. How is ‘serious harm’ defined under s.1 of the Defamation Act 2013?
h. Why does the Court conclude that ‘serious harm’ involves a higher threshold of
harm than ‘substantial harm’?
i. When employing the ‘broad assessment approach’ when considering the

likelihood of serious harm, which two considerations are of paramount
importance?
j. Outline in fewer than 40 words why the Court rejects the defendants’ submission
that in every case evidence will be required to satisfy the serious harm test.
k. Why did the Court attach significance to the apology published by the
defendants in dismissing the claimants’ case?
activity 19.5
Applied comprehension – privacy and public figures

Find and read the case of McClaren v News Group Newspapers Limited [2012] EWHC
2466 (QB) then answer the following questions.
This case concerns ‘kiss and tell’ journalism and the extent to which public figures
who engage in affairs can seek relief from the courts to keep details of clandestine
sexual relationships private. The claimant in this case is a professional footballer.
a. How do the courts approach the issue of competing rights (Article 8 and Article
10 ECHR) in privacy disputes?
b. How is the concept of a public figure defined in the law of privacy?
c. In fewer than 30 words paraphrase the relationship between the reasonable

expectation of privacy and public figures.
d. Why might higher standards of conduct be expected of public figures? Give

examples of the professions of people who have been listed as public figures by
the courts.
e. Why do public figures who have courted publicity have less expectation of
privacy than public figures who have not?
f. Identify two freedoms which exist in a plural society.
g. In your own words, explain what type of relief can be granted to claimants if
they succeed in their application for (i) an injunction and (ii) a super-injunction.
h. Identify the three key factors which tipped the balancing exercise in favour of
the defendant and the freedom of expression.
20 Defences to defamation
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
20.1 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
20.2 Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
20.3 Honest opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
20.4 Publication on a matter of public interest . . . . . . . . . . . . . . . . 211
20.5 Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
20.6 Innocent dissemination . . . . . . . . . . . . . . . . . . . . . . . . . 213
20.7 Unintentional defamation . . . . . . . . . . . . . . . . . . . . . . . 213
20.8 Protection for website operators . . . . . . . . . . . . . . . . . . . . 214
20.9 Protection for statements in scientific or academic journals . . . . . . 214
20.10 Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
20.11 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
Introduction
Most controversies surrounding defamation relate to defences. You will be expected
to probe these defences in depth for the critical essay and should pay particular
attention to those based on freedom of expression (honest comment and qualified
privilege) and those that can be relied upon by a defendant who is not the author of
the defamatory statement (innocent dissemination).
Many of the key cases and principles relate to instances in which a politician has
claimed to have been defamed. Also, developments in social media technology have
impacted on the scope and application of defences to defamation with a number of
high profile judicial decisions and a new Defamation Act 2013.
Learning outcomes
be able to:
uu explain the function of the defences in defamation
uu evaluate the different levels of protection afforded by the ‘absolute’ and
‘qualified’ defences
uu analyse the defences available for unintentional or innocent publication
uu evaluate the reforms introduced in the Defamation Act 2013.
Essential reading
¢¢ Lunney and Oliphant, Chapter 13 ‘Defamation’, Sections IV ‘Defamation:
defences’, V ‘Remedies’ and VI ‘Defamation, free speech and the press’.
Tort law 20 Defences to defamation page 209
20.1 Defences
There are a number of defences to defamation. These play a greater role in defamation
than in other torts, and are generally specific to defamation†. They provide a broad, †
The main exception
if complicated, basis on which the defendant can justify publication on the basis is consent, which is
of freedom of expression or truth. We will survey them below, but you should take a defence here as
particular note of truth (20.2), honest opinion (20.3), publication on a matter of public elsewhere.
interest (20.4) and qualified privilege (20.5.2). Recent case law has been particularly
active in the field of qualified privilege, in which the courts have explored the impact
of the Human Rights Act 1998 on the tort of defamation.
The defences to defamation protect freedom of speech in English law: specific

defences protect a defendant where it is in the public interest that the statement
should be published.
Reforms in the Defamation Act 2013 aim to strike a fair balance between the right to
freedom of expression and protection of reputation.
We have seen in Chapter 19 that the Defamation Act 2013 now requires claimants
to show that they have suffered serious harm before suing for defamation, a single
publication rule has been introduced and the presumption in favour of a jury trial has
been removed. The provisions in the Act relating to existing defences to defamation
and the introduction of new defences to protect operators of websites that host user-
generated content are considered below.
The Defamation Act 2013 has also made considerable changes to the defences. You will
see below that many of the common law defences have been abolished and replaced
with statutory defences, usually covering largely the same issues. In theory, the large
body of case law on the abolished defences is no longer the law, but past experience
of similar exercises suggests that counsel and judges will continue to refer to them as
they interpret and apply the new statutory provisions.
20.2 Truth
This defence was introduced by s.1 of the Defamation Act 2013 to replace the common
law defence of justification.
Defamatory statements are presumed to be untrue, unless the defendant proves

otherwise. Truth (or justification) is thus seen as a defence. It is irrelevant that the
defendant’s intention was malicious (contrast honest comment and qualified
privilege). The only exception to this may be found in s.8(5) of the Rehabilitation of
Offenders Act 1974.
The defendant must show that the defamatory statements are substantially true.
Case law example

In Alexander v North Eastern Railway (1865) 6 B&S 340, the plaintiff was charged
before magistrates for travelling on a train from Leeds for which his ticket was not
valid and for his refusal to pay the proper fare. He was convicted and sentenced to
14 days’ imprisonment in default of payment of the fine and costs. The statement
published by the defendant said that the plaintiff was sentenced to three
weeks’ imprisonment for the offence. Nevertheless, the defence of justification
succeeded because the statement was not sufficiently inaccurate to defeat the
defence. The defendant had shown the statement to be substantially true and to
prove the sting of the libel.
Partial justification is not a defence. The defendant must, however, justify every
innuendo and not simply the main allegation: see Wakley v Cooke (1849) 4 Exch 511. The
burden is therefore on the defendant to justify the substantial truth or ‘sting’ of the
allegations. Section 1(1) of the 2013 Act confirms this approach: if the defendant can
establish the ‘essential’ or ‘substantial’ truth of the sting of the libel there is no need to
prove that every word of the statement was true.
To achieve this, the defendant may also wish to raise matters with a ‘common sting’
in support of his or her claim of justification: see Williams v Reason [1988] 1 WLR 96 and
Cruise v Express Newspapers plc [1999] QB 931.
20.3 Honest opinion

A new defence of honest opinion, which replaces the common law defence of fair
comment, was introduced by s.3 of the Defamation Act 2013. Honest opinion, like
justification, is a complete defence to an action in defamation. However, unlike
justification, the defendant is not required to show the truth of the statement.
A purely factual statement is either true or false but the same cannot be said
for expressions of opinion. The statutory defence of honest opinion is largely a
restatement of the current law, so the cases below interpreting what amounts to a
statement of fact and what is a statement of opinion continue to be relevant.
This defence serves to protect defendants who seek to criticise claimants, provided
they act fairly, honestly and base their comments on true facts. It clearly supports
freedom of expression, but within a controlled environment. In looking at this
defence, we can identify some of the tensions which exist between allowing
defendants, and particularly journalists, the right to express criticism and the right of
claimants to protect their reputation from malicious comment.
The statement must be a comment on a true set of facts. This can be inferred, for
example, from a headline as in Kemsley v Foot [1952] AC 345, although the House of
Lords seemed to adopt a stricter line in the more recent case of Telnikoff v Matusevitch
[1992] 2 AC 343. Here, a letter was written in response to a previously published article
in the Daily Telegraph. In deciding whether the allegation of racism was a statement
of fact or comment, the Court examined the letter without reference to the article it
criticised. Their Lordships reasoned that many readers of the letter would not have
read the article or have limited recollection of its contents. It should therefore be
judged in isolation. Section 3 gives protection in situations such as this, where the
defendant is not the author of the statement but is publishing statements made by
others. In these circumstances the defence of honest opinion will succeed unless the
claimant can show that the defendant ought to have known that the opinion stated
was not held by the author. See also s.6 of the Defamation Act 1952. The comment
must also be fair and honest. The courts use an objective test: was the opinion,
however exaggerated, obstinate or prejudiced, honestly held by the person expressing
it? See Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
Honest opinion protects opinions honestly held if the statement complained of:
uu was a statement of opinion
uu indicated, whether in general or specific terms, the basis of the opinion
uu could have been held by an honest person on the basis of any fact which existed at
the time the statement was published.
The statement must be recognisable as comment (as distinct from an imputation

of fact) and the assessment is made on the basis of how the ordinary person would
understand it. This reflects the test approved by the Supreme Court in Joseph v Spiller
(below) that ‘the comment must explicitly or implicitly indicate, at least in general
terms, the facts on which it is based’.
Honest opinion is unlike the defence of qualified privilege (discussed below) because
honest opinion is not limited to those who have a duty to publish the information;
any person is entitled to comment on a matter of public interest. The requirement for
the opinion to be on a matter of public interest is not contained in the 2013 Act, which
gives protection to all opinion. Prior to the Act, honest comment failed if the claimant
could show malice on the part of the defendant. However, all the defendant now
needs to show is an honest belief in the truth of the opinion.
20.4 Publication on a matter of public interest

Section 4 of the Defamation Act 2013 creates a new defence for publication on a
matter of public interest. This new defence is intended to reflect the principles
established in Reynolds (discussed below under qualified privilege at common law)
and in subsequent case law. The defence provided by s.4 may be relied on irrespective
of whether the statement complained of is one of fact or opinion. The Act does not
say that the defence is defeated by malice but since it is based on ‘reasonable belief’
that publication was in the public interest, the presence of malice should be a relevant
factor in determining the defendant’s belief when they published the statement.
The s.4 defence will apply where the defendant can show:
uu the statement complained of was, or formed part of, a statement on a matter of

public interest
uu and the defendant reasonably believed that publishing the statement was in the
public interest.
20.4.1 ‘Reportage’
The new s.4 defence encapsulates the ‘reportage’ defence developed by the common
law. This has been described as ‘a convenient word to describe the neutral reporting
of attributed allegations rather than their adoption by the newspaper’ (per Simon
Brown LJ in Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2002] EMLR 13). Where
the statement complained of was an accurate and impartial account of a dispute to
which the claimant was a party, the defendant does not need to have verified the
information before publication. This means that a defendant newspaper, for example,
would not be prejudiced for a failure to verify.
20.5 Privilege
20.5.1 Absolute privilege

There are two types of privilege in English law: absolute and qualified. Absolute is
the stronger form of privilege and applies on occasions where the need to protect
freedom of speech is so important as to create an absolute defence to any action
for defamation, irrespective of the motives or words of the author. Examples include
statements made in Parliament by MPs (see Hamilton v Al Fayed [2000] 2 WLR 609 and
s.13, Defamation Act 1996), reports and papers ordered to be published by either house
of Parliament, judicial proceedings, fair and accurate contemporaneous reports of
United Kingdom court proceedings (s.14, Defamation Act 1996) and communications
between high officers of state (Chatterton v Secretary of State for India [1895] 2 QB 189).
20.5.2 Qualified privilege

This is a weaker form of privilege. It will apply only on occasions where it is desirable
that freedom of speech should be protected, but not where the author is activated by
malice: see Horrocks v Lowe [1975] AC 135.
It is for the judge to decide whether the occasion is a privileged one, and whether the
author’s dominant motive was malice.
Qualified privilege exists at common law and under the Defamation Act 1996.
Qualified privilege at common law

The courts look for two requirements.
1. That X had a duty or interest in communicating the information to Y. This may be

legal, moral or social.
2. Y has a corresponding interest in receiving the information in question.

Case law example

In Watt v Longsdon [1930] 1 KB 130, the defendant, a company director, received
a letter from the foreign manager of the organisation. The letter alleged that
the plaintiff, who was managing director of the company abroad, was immoral
and dishonest. The defendant informed the company chairman of his suspicion
that the plaintiff was misbehaving with women. He also communicated the
statements, which were false, to the plaintiff’s wife. The Court of Appeal held
that the communication to the chairman was privileged because both publisher
and receiver had a common interest in the affairs of the company. However, the
publication to the plaintiff’s wife was not privileged because the defendant had
no social or moral duty to inform her about unsubstantiated allegations even
though she might have an interest in hearing them.
See also Bryanston Finance Ltd v de Vries [1975] QB 703 and Kearns v General Council
of the Bar [2002] 4 All ER 1075.
Therefore, if my old employer writes a reference for me and sends it to my new

employer, that reference will be protected by qualified privilege. My former employer
is under a social duty to provide such a reference. My new employer has a keen
interest in receiving the reference. Both requirements are thus satisfied, and my
former employer will be protected against a claim for defamation unless the reference
is written with malice: Spring v Guardian Assurance [1995] 2 AC 296.
In view of the importance given to freedom of expression, it has been questioned

whether the media should always be able to claim qualified privilege for any story they
publish, especially when they concern political figures. In Reynolds, the House of Lords
firmly rejected any general head of qualified privilege. The courts would instead look
at each case individually.
Case law example

Reynolds concerned a prominent public figure in Ireland, who claimed that a
newspaper article implied that he had lied to his political colleagues. Although
the House of Lords rejected any general head of qualified privilege, Lord Nicholls
did give some guidance. In future, courts should consider a number of factors
(which are not exhaustive) in deciding whether a duty to publish political
discussion could be established, namely:
• the seriousness of the allegation – the more serious the charge, the
more the public is misinformed, and the individual harmed, if the
allegation is not true
• the nature of the information – is it a matter of public concern?
• the source of the information
• what steps have been taken to verify the information?
• the status of the information, that is, how reliable is the report?
• the urgency of the matter
• whether comment is sought from the claimant
• the tone of the article
• whether the gist of the claimant’s side of the story has been told
• the general circumstances and timing of the publication.
The Reynolds test has been applied subsequently in a number of cases. It is clearly
not an easy test to satisfy. The test is one of ‘responsible journalism’ and it is for
the newspaper, with reference to the criteria listed above, to demonstrate to the
court that they deserve the defence of qualified privilege. See Loutchansky v Times
Newspapers Ltd (No 1) [2001] 4 All ER 115; Loutchansky v Times Newspapers Ltd (No 2)
[2002] QB 783; Bonnick v Morris [2003] 1 AC 300; and Jameel v Wall Street Journal Europe
SPRL [2005] EWCA Civ 74. One of the most significant developments in the 2013 Act is
to abolish the Reynolds defence. Soon to be of historical interest – as far as litigation
is concerned – the Reynolds defence and the whole question of what constitutes
responsible journalism are likely to be discussed for some time.
In Flood v Times Newspapers Ltd [2012] 2 AC 273 the Supreme Court provided guidance
on what is required to meet the test. Note that although the 2013 Act abolished
the Reynolds defence and the courts will be required to apply the words used in the
statute, it does not, for example, define what is meant by ‘the public interest’. The
principles established in Reynolds are set out because the current case law would
constitute a helpful (albeit not binding) guide to interpreting how the new statutory
defence should be applied. It is expected the courts would take the existing case law
into consideration where appropriate. There is no express requirement in the new s.4
defence for the publisher to prove that it acted both fairly and responsibly in gathering
and publishing information. However, in considering whether the defendant’s belief
that publishing the information was in the public interest was reasonable the court
must make such allowance for editorial judgement as it considers appropriate. This
expressly recognises the discretion given to editors in judgments such as that of Flood,
but is not limited to editors in the media context.
Qualified privilege under statute

This may be found under s.15 and Schedule 1 of the Defamation Act 1996. Section 15
provides that publication of any report or statement contained in Schedule 1 of the
Act is privileged unless published with malice. Schedule 1 is divided into two sections.
Part I deals with reports which are privileged ‘without explanation or contradiction’.
Part II deals with reports which are privileged ‘subject to explanation or contradiction’,
that is, that qualified privilege may be lost if it is proved that the defendant has been
requested, by the claimant, to publish in a suitable manner a reasonable letter or
statement by way of explanation or contradiction, and has refused or neglected to do
so: s.15(2). See McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277.
20.6 Innocent dissemination

This defence is found in s.1 of the Defamation Act 1996. It is now a defence to show
that:
uu the defendant is not the author, editor or commercial publisher of the statement
uu the defendant took reasonable care in relation to the publication
uu the defendant did not know, or had no reason to believe, that what they did caused
or contributed to the publication of a defamatory statement.
It thus serves to protect parties involved in the distribution process, who inadvertently
become involved in the publication of defamatory material, provided that they
undertake reasonable care.
Further, s.1(3)(a)–(e) provide a non-comprehensive list of individuals who do not

qualify as ‘authors’, ‘editors’ or ‘publishers’. See Godfrey v Demon Internet Ltd [1999] 4 All
ER 342.
20.7 Unintentional defamation

Sections 2–4 of the Defamation Act 1996 establish a procedure whereby a person who
inadvertently defames another can publish an apology and correction and pay an
agreed sum of compensation to the claimant. This is not, therefore, in strict terms a
defence – indeed, to be effective the defendant must not serve a defence (s.2(5)) – but
a form of settlement avoiding the potentially huge costs of defamation litigation.
Under s.2, the defendant must be prepared:
uu to admit that they were wrong (or partly wrong)
uu to offer in writing to make a suitable correction and apology

uu to publish the correction and apology in a manner that is reasonable and

practicable in the circumstances
uu to pay the claimant such compensation (if any) and such costs as may be agreed or
determined to be payable.
If an offer to make amends under s.2 is made, but not accepted, it is a defence unless
the defendant knew or had reason to believe that the statement referred to the
claimant and was false and defamatory of the claimant: see s.4, as applied in Milne v
Express Newspapers (No 1) [2004] EMLR 24, and Horrocks v Lowe. The person making the
offer need not rely on it as a defence, but if they do, s.4(4) specifies that they may not
rely on any other defence. In any event, any offer may be relied on in mitigation of
damages: s.4(5).
20.8 Protection for website operators

Section 5 of the Defamation Act 2013 provides a new defence aimed at protecting
forums and blog sites who print, distribute and host user generated content from
libel claims arising from defamatory user comments. Section 5 does not replace the
existing law; it is a new defence which is defeated where the operator acted with
malice in respect of posting the statement. However, the defence is not defeated just
because the website operator moderates the statements posted by others.
The Act specifies that a complainant is required to send a notice of complaint to the
website operator which contains the following information:
uu where the material is located (usually the URL)
uu why it is claimed to be defamatory
uu what defamatory meaning the complainant ascribes to the material
uu what specific aspects of the statement are untrue or how a comment is based on
untrue facts.
The website operator is then required to communicate the complaint to the poster of
the statement (if it has the means to do so). The poster then has a chance to respond
and provide their contact details.
In addition to s.5, an intermediary who can show that it was not the author, editor
or publisher of a defamatory statement is provided with a defence by s.1 of the
Defamation Act 1996. Regulation 19 of the Electronic Commerce (EC Directive
Regulations) 2002 provides a defence where an intermediary does not have actual
knowledge in respect of unlawful statements.
20.9 Protection for statements in scientific or academic journals

The case of British Chiropractic Association v Singh [2010] EWCA Civ 350 highlighted
attempts by large corporations to stifle scientific and academic debate with the threat
of libel proceedings. Section 6 of the Defamation Act 2013 responds to public concerns
about defamation laws being used to frustrate robust scientific and academic debate,
or to impede responsible investigative journalism. The Act creates a new defence
of qualified privilege relating to material in scientific or academic journals, whether
published in electronic form or otherwise, which has undergone a responsible peer-
review process.
20.10 Consent
It is a defence if the claimant has expressly or impliedly consented to the publication
of the defamatory matter: Cookson v Harewood [1932] 2 KB 478n; Chapman v Ellesmere
[1932] 2 KB 431.
20.11 Remedies
There are two main remedies: damages and injunctive relief. Damages may include an
award for aggravated damages (where the defendant’s conduct has led to additional
mental distress) and exemplary damages (where the defendant deliberately sets out
to profit at the expense of the claimant’s reputation). Attention should also be drawn
to s.12(1) and (4) of the Human Rights Act 1998 which ask the courts to have particular
regard to freedom of expression when considering whether to grant a remedy which
might affect this right.
In the past, a significant issue in the law of defamation was that the level of damages
was set by the jury. Concern had been expressed that the jury, despite judicial
direction, was not the best body to assess damages. After a series of notoriously high
awards, there have been a number of reforms:
1. s.8 of the Courts and Legal Services Act 1990 empowered the Court of Appeal to
substitute its own figure of damages for that of the jury without the need for a
retrial
2. the cases of Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670 and John
v Mirror Group Newspapers Ltd [1997] QB 586 seek to increase judicial guidance.
Although future trials in defamation will take place without a jury unless the court
orders otherwise, a jury will now be directed to seek guidance from previous Court
of Appeal decisions under s.8, and to consider the purchasing power of the award
and whether it was proportionate to the damage suffered.
Reference may also now be made to the level of damages awarded in personal injury
cases. See also Kiam v MGN Ltd [2003] QB 281 and Grobbelaar v News Group Newspapers
Ltd [2002] 1 WLR 3024. In Cairns v Modi [2013] 1 WLR 1015 the Court of Appeal held
that reference to pain and suffering in personal injury cases could be made when
considering damages in libel cases. The remedies given by the court are obviously
important. They seek to re-establish the reputation of the claimant. Although a large
damages award may express the jury’s indignation as to how the newspaper has
treated the claimant, the courts have been careful to emphasise that damages should
be compensatory and any larger award must be justified as exemplary damages.
The courts are, however, reluctant to grant injunctions prior to trial (interlocutory
injunctions). This would amount to a restriction of freedom of speech without the
benefit of full consideration by the court. As stated in Bonnard v Perryman [1891] 2 Ch
269, the court has the jurisdiction to restrain by injunction the publication of a libel,
but the exercise of this jurisdiction is discretionary. An interlocutory injunction should
therefore not be granted except in the clearest cases, and should not be granted
when the defendant swears that they will be able to justify the libel, and the court is
not satisfied that they may not be able to do so. This was supported by the Court of
Appeal in Holley v Smyth [1998] QB 726. The court’s discretion to grant interlocutory
relief would not ordinarily be exercised to restrain a libel where the defendant had
a defence or claimed justification, unless the claimant had proved that the libel was
plainly untrue.
Claims may also be dealt with summarily under ss.8–10 of the Defamation Act 1996.
Where the claimant has no realistic prospect of success and there is no reason why the
claim should be tried, the claim will be dismissed: s.8(2). Where it appears to the court
that there is no defence to the claim which has a realistic prospect of success and
there is no other reason why the claim should be tried, in contrast, the court may give
judgment and summary relief to the claimant: ss.8(3) and 9.
Activities
activity 20.1
Applied comprehension – public interest defence

Find and read the case of Flood v Times Newspaper Ltd [2012] UKSC 11 and answer the
following questions. The questions focus on the public interest defence, which is
discussed from [1]–[42].
Before commencing this applied comprehension activity you should complete the
Essential reading from Lunney and Oliphant.
a. What was the main issue before the Supreme Court in the Flood case?
b. How is the doctrine of Reynolds privilege defined?
c. Using the Chase levels describe the three levels of defamatory meaning or ‘sting’
to be derived from publications when read as a whole.
d. Identify the three issues considered by the Supreme Court and explain briefly
the relevance of these issues to the facts of this case.
e. Why is ‘the public interest defence’ a more accurate description of Reynolds

privilege?
f. Why is the public interest defence important?
g. Which two fundamental rights are most relevant to defamation cases?
h. Explain the ‘right to know’ test.
i. Is it relevant that Mr Flood was a police officer in terms of your understanding of

the public interest defence and the ‘right to know test’?
j. Explain the ‘principle of reportage’. What is its inherent danger?

A parliamentary by-election is taking place soon in the constituency of Barsetshire
North. The Barsetshire Chronicle carried the following item on its front page about
the candidates. ‘What a motley crew are on offer for the good voters of Barsetshire
North! First there’s Maisie Mazda. Like all politicians, she likes to pass herself off
as something she is not. She may look the glamorous granny, but we know it’s not
nature but the surgeon’s knife which gave her the face and figure she always seems
so anxious to flaunt. Then there’s Tom Toyota. No orator he! His hackneyed phrases
and turgid delivery must make him a prime candidate for “most boring politician
of 2016”. And if you don’t like them, you’re left with Horace Honda. Just what is
Horace whispering into the ear of the lovely girl who calls him “daddy” but isn’t his
daughter (see photo left). For full byelection coverage, see page 7.’
Maisie Mazda had once had cosmetic surgery to remove a small mole from her
cheek. The coverage on page 7 of the newspaper explains that the girl in the
photograph is Horace’s niece, Jackie, whom he and his wife brought up after her
parents were killed in an air crash when she was aged eight.
Advise as to any possible claims in defamation.

It is important to isolate the statements which we think may give rise to an action
in defamation and then ask four questions:
uu Is the statement defamatory?
uu Does it refer to the claimant?
uu Has it been published?
uu Are there any defences?
We will look at each statement in turn.
a. ‘What a motley crew are on offer for the good voters of Barsetshire North!’
The word ‘motley’ is clearly not flattering, but seems to be used in jest. It would
be difficult to allege that this realistically tended ‘to lower the plaintiff in the
estimation of right-thinking members of society generally’ (Sim v Stretch [1936]
2 All ER 1237). Usually, it will, in any event, be difficult for a member of a group to
show that the statement directly points to them: see Knuppfer v London Express
Newspaper Ltd [1944] AC 116, and she may also have difficulty in showing that
the statement caused serious harm to her reputation. Here, one presumes that
the ‘crew’ consists of Maisie, Tom and Horace. This being a small group, group
defamation would not be an obstacle. However, they would be unlikely to
succeed in showing that the statement is defamatory.
b. ‘First there’s Maisie Mazda. Like all politicians, she likes to pass herself off as
something she is not. She may look the glamorous granny, but we know it’s not
nature but the surgeon’s knife which gave her the face and figure she always
seems so anxious to flaunt.’
Here, Maisie will have to show that this statement is defamatory, namely that
it tends ‘to lower the plaintiff in the estimation of right-thinking members of
society generally’. The allegation is that she has had cosmetic surgery. Is such a
statement enough to make ‘right-thinking’ members of society think less of her?
In our society, more and more people are having cosmetic surgery. It is no longer
unusual and indeed common amongst public figures. However, we do note that
people often deny having cosmetic surgery, preferring others to believe that
their good looks are natural. Is this allegation therefore enough to lower her
reputation? It seems doubtful.
However, there is a further allegation that Maisie ‘likes to pass herself off as
something she is not’. The innuendo is that in having cosmetic surgery, she is
showing that she is dishonest and seeks to mislead. This would seem to harm
Maisie’s reputation. Having shown that the statement is defamatory, the
statement clearly refers to Maisie (she is named) and has been published (it is on
the front page of a newspaper). We now need to look at defences.
We are told that Maisie Mazda had once had cosmetic surgery to remove a small
mole from her cheek. On this basis, the Barsetshire Chronicle is likely to try and
prove truth. It must show that the words used were substantially true: Alexander
v North Eastern Railway Co (1865) 6 B&S 340. Even if the statement simply
referred to Maisie having cosmetic surgery, it cannot be said to be substantially
true. There is a considerable difference between surgery to her face and figure
and the removal of a small mole. In any event, the Chronicle must justify
every allegation (or ‘sting’) which arises from the statement: Cruise v Express
Newspapers plc [1999] QB 931. Suggestions of dishonesty are clearly not justified
by the fact that she had minor cosmetic surgery in the past. Other defences
such as honest opinion and qualified privilege might also be considered. An
honest opinion must be based on a substantum of fact (see Kemsley v Foot
[1952] AC 345). There is one fact – the surgery on the mole – and politicians are a
matter of public interest, but was the opinion, however exaggerated, obstinate
or prejudiced, honestly held by the person expressing it? An honest belief in
the truth of the opinion must be shown and the presence of malice would
undermine the defence. Here, the words used go far beyond a comment on
minor cosmetic surgery and must throw doubt on this defence. In the context of
the sensationalist nature of the journalism, the new defence for publication on a
matter of public interest (s.4 of the Defamation Act) is also likely to fail.
On that basis, the statement is defamatory, refers to Maisie, has been published
and the Chronicle has no good defence to the action.
c. ‘Then there’s Tom Toyota. No orator he! His hackneyed phrases and turgid
delivery must make him a prime candidate for “most boring politician of 2016”.’
Again, we can follow the basic structure of our answer in relation to Maisie. Does
this statement ‘tend to lower the plaintiff in the estimation of right-thinking
members of society generally’? The allegation is that he is a poor speaker and
boring. Has the statement caused serious harm to his reputation? Would we
as ‘right-thinking members of society’ think less of a politician for being a poor
speaker and dull? Are there not excellent politicians who work hard for their
country who are poor speakers and rather dull? It might be questioned whether
this is defamatory. Again, the statement clearly refers to Tom (he is named)
and has been published (it is on the front page of a newspaper). We now need
to look at defences. If it is defamatory to call Tom a poor speaker (which is
questionable), defences will arise if in fact Tom is a poor speaker. The Chronicle
will be able to rely on truth and honest opinion.
d. ‘You’re left with Horace Honda. Just what is Horace whispering into the ear of
the lovely girl who calls him “daddy” but isn’t his daughter (see photo left). For
full byelection coverage, see page 7.’ This is clearly an innuendo: that Horace is
having a relationship with a woman who is much younger than him: see Cassidy
v Daily Mirror Newspapers Ltd [1929] 2 KB 331. However, we are later told that ‘The
coverage on page 7 explains that the girl in the photograph is Horace’s niece,
Jackie, whom he and his wife brought up after her parents were killed in an air
crash when she was aged eight.’ With this additional information, the statement
no longer harms Horace’s reputation. In other words, the coverage on page 7
neutralises the defamatory statement. However, the explanation is not on the
front page, but on page 7. The front page did not even indicate that the story is
continued on page 7, but merely stated that ‘full by-election coverage’ may be
found there. This would seem to fall within the warning in Charleston v News
Group Newspapers Ltd [1995] 2 AC 65 that if the explanation was not immediately
apparent to the reader, the courts would find the statement defamatory. Here,
the court will not expect the average reader to turn diligently to page 7 and
would find the statement to be defamatory.
Again, the statement clearly refers to Horace (he is named) and has been
published.
We now need to look at defences. In view of the Chronicle’s conduct, it is difficult

to see any defence. The innuendo is not true and the newspaper has not behaved
responsibly and cannot therefore resort to the defence of publication on a matter
of public interest. It is therefore likely to be liable to Horace, who will seek a high
award of damages. One must also consider the position of Jackie. The statement
also involves her reputation. It is equally defamatory to accuse a young woman of a
relationship with an older and married man. Society is likely to think less of her for
being part of such a relationship: see Youssoupoff v MGM Pictures Ltd (1934) 50 TLR
581. However, she is not named except on page 7. Can she therefore prove that the
statement refers to her? Morgan v Odhams Press Ltd [1971] 1 WLR 1239 asks whether
an ordinary reasonable person would, on the facts, have drawn the inference that
the article referred to Jackie. In view of her photograph on the left of the article, the
answer must be yes. The rest of her claim would follow the same pattern as that of
Horace.
Conclusion
In summary, Maisie, Horace and Jackie would appear to have good claims in
defamation. The claim of Tom seems more problematic.
Feedback to activities
Contents
Chapter 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Chapter 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Chapter 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Chapter 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Chapter 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Chapter 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Chapter 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Notes
Tort law Feedback to activities page 221
Chapter 1
Activity 1.1
Core comprehension – compensation culture

a. ‘Compensation culture’ is a pejorative term and suggests that a decision to seek
compensation to ‘blame and claim’ should be criticised. It suggests greed; rather
than people legitimately enforcing their rights.
b. The ‘have a go’ culture refers to a trend of increased litigation due to ‘no win,
no fee’ arrangements whereby claimants only paid legal fees if their claim was
successful (see para.3 of the extract).
… the ‘have a go’ culture that encourages people to pursue misconceived or

trivial claims:
• Has put a drain on public sector resources
• May make businesses and other organisation more cautious for fear of
litigation
• Contributes to higher insurance premiums; and
• Clogs up the system for those with indisputable claims.
c. The growth of a ‘compensation culture’ implies an increased and unreasonable

willingness to seek legal redress when things go wrong,’ whilst ‘litigation crisis’
implies that this shift in social attitudes has been translated into undesirable
(perhaps unbearable) levels of formal disputing…
d. … it appears that there are too many (successful) claims; at other times that
compensation payouts are too costly, quite commonly that lawyers’ fees are
excessive; sometimes a mixture of all of these…
e. u The volume of litigation (‘too many’).
uu The value of compensation awards (payouts … too costly).
uu The high costs of legal representation (lawyers’ fees … excessive).
f. First, claimant lawyers often point out with considerable (if self-interested)
justification that the great majority of injured persons never resort to the law; that
it is precisely the absence of a compensation culture that characterises our liability
system… A second point is whether legitimate, well-founded claims should be
counted as part of the ‘problem’.
The idea that defendants are beset by ever-increasing numbers of doubtful claims
is not proven.
g. The thrust of this argument is that well-founded claims are deserving of formal
dispute resolution and any resulting compensation awarded by the courts. It is
difficult to assert that reasonable claims and reasonable approaches to litigation
form part of the ‘compensation culture’ as defined above.
h. Williams reminds us that the fear of potential liability claims leads to certain
categories of defendants adopting a defensive approach to their activities to avoid
the likelihood of being unfairly sued.
i. … new types of claims ‘that were simply not considered by lawyers 20 or 30 years
ago are now being pursued’.
j. Theoretically, an expanding liability regime would cause a rise in the price of

insurance policies as the potential risk of being sued would be greater. However,
the practical effect depends on a number of factors.
Activity 1.2
Applied comprehension – challenging views of tort

a. Only certain types of injury are likely to attract compensation. This is because the
claims brought are much affected by the incidence of compulsory insurance so
that the accidents that are compensated closely match the areas where liability
insurance is to be found.
b. … motor accidents comprising 80 per cent of the total and employer liability 8 per cent.
c. This is not only because fault is less readily apparent but also because, in the
absence of insurance, we are less inclined to think of seeking a remedy in tort.
d. Road accident. Liability insurance.
e. The social security system provides a welfare safety net for victims while they
pursue their cases in court.
f. … in 9 out of 10 cases the real defendants are insurance companies, with the
remainder comprising large self-insured organisations or public bodies such as
government departments and health authorities. It is extremely rare indeed for an
uninsured individual to be the real defendant.
g. Almost 60 per cent.
… Almost three in five adults now have some form of this insurance.
h. A key statistic of the tort system reveals how unusual it is for a court to become
involved: 98 per cent of cases are settled before they are even set down for trial,
and of the few that do receive a trial date, most are concluded before that formal
hearing takes place.
i. … the notion of responsibility goes far beyond that of fault and this is reflected in
the strict liability regimes found in the law of tort. These areas of non-fault liability
are usually limited in their practical effect but have widespread popular support
especially in the area involving injuries at work. For example, it has been shown
that people commonly think that employers should pay for injuries caused to their
workforce even in the absence of any fault on their part.
… strict liability, especially if deriving from statute.
j. Tort law is universal and applies to all accidents and injuries.
Tort claims for personal injury are often brought and defended by individuals.
Tort claims are determined in court by judges aided by lawyers and juries.
Tort liability is largely dependent upon proof of fault and findings of law.
Tort cases reflect the justice requirements of due process and fairness.
Tort focuses upon compensating financial loss and serious injuries.
Tort awards full compensation for losses suffered.
Chapter 2
Activity 2.1
Core comprehension – functions of tort law

Appeasement
a. Vengeance.
b. To prevent the continuance of squabbles.
c. In primitive law the victim’s motivation of vengeance was subdued through

requiring the aggressor to pay compensation and by publicly identifying the
aggressor as the wrongdoer. The overall impact was to allay feelings of vengeance
which might be perpetuated, for example, through family feuding or duelling.
Justice
d. ‘One who by his fault has caused damage to another ought as a matter of justice to
make compensation’.
e. The main difference is a shift of focus from the wrongdoer to the wronged party.
Ethical retribution focuses on the wrongdoer paying compensation for the

wrongdoing and is associated with dimensions such as punishment and
deterrence.
Ethical compensation shifts the focus away from the wrongdoer on to the
wronged parties, as it addresses the concern that victims of wrongdoings receive
compensation, for example from the State or insurance companies.
f. See the first paragraph on p.19.
g. Ethical compensation can be placed within the corrective justice system, whereby
a tort law makes good a wrong without any regard to the needs, character, or
worth of the individuals concerned.
h. Weinrib considers tort ‘from an internal perspective’. He advances the view that
tortious liability connects the wrongdoer and the sufferer of the wrong; thus any
instrumental goals (such as economic efficiency or other social contexts) are
external to the internal goal of the disputing parties.
Deterrence
i. It can act as a deterrent by functioning to prevent future wrongdoings. Judgments

inform the community in general of how citizens ought to behave.
j. Both areas of law use sanctions to secure obedience to the rules.
k. As the deterrent punishment must be kept to the minimum effect and serves
primarily as a warning to the wrongdoer, an award of high damages may be viewed
as a punishment which is greater than necessary to repress the wrongdoing.
l. The torts of intention.
m. Economic efficiency means that the threat of liability in itself acts as a deterrent
and produces two main efficiencies, the first that the number of accidents is
reduced and the second that more precautions are taken to avoid accidents
arising.
n. Sugarman lists the following alternative sources of deterrents: self-preservation

instincts, market forces, personal morality and governmental regulation.
Compensation
o. Reparation.
p. In strict liability compensation is awarded on a no fault basis, ‘liability independent

of fault’.
q. The enterprise theory considers liability for torts within the context of normal
business risk, the implication being that the risk taker must take steps to ‘shoulder
the risk’.
Activity 2.2
Core comprehension – compensating victims of diseases

a. The ‘man-made’ description refers to the source of the injury suffered, each of the
sources being non-natural. Latency, when a disease lies dormant for some time and
manifests itself at a later time, and gradual contraction, when victims may contract
the disease over a period of time, are two aspects of man-made disease which may
present together or separately.
… although they stem from a man-made source the injury cannot be attributed to
an isolated and identifiable time and place. (p.249)
b. 1. Occupational injuries
Examples: dust diseases, repetitive movement injury, deafness and dermatitis.
2. Product injuries
Examples: tobacco and chronic adverse drug reactions.
3. Environmental injuries
Examples: caused by fertilisers and man-made radiation.
c. 1. Problems relating to time.
2. Medical causation.
3. Proof of fault.
d. The courts recognised that justice would be best served to extend discretion to
such victims as their injury presented with delay.
e. Victims may not know whom to name as the defendants or may be unable to
trace the defendant. Further, in the case of employers, business entities may have
changed or ceased to trade.
Victims of gradually contracted man-made disease may have worked for multiple
employers and therefore the blame for the wrongdoing may have to be shared or
apportioned.
The reliance on a discretionary grant to proceed with claims which are out of time
presents further uncertainty.
f. Stapleton highlights that the balance of probabilities test used to determine

medical causation for injuries caused by man-made disease relies on the
availability of necessary statistical data. If this data is lacking or incomplete, victims
of man-made disease will have great difficulties in proving that the balance of
probabilities test has been met.
g. Proof of fault relates to the knowledge which defendants (and claimants) had
or ought to have had about the risks of injury by the man-made disease. Much
of the knowledge question is argued using expert evidence, which adds to the
complexity and costs of the proceedings. The aspects of latency and gradual
contraction also impact on answering the knowledge question.
h. 1. Adequate monitoring.
2. Possible defences.
3. Undue sensitivity.
All these issues contribute to the uncertainty of aspects of the injured parties’
claim and add ‘to the relatively high uncertainty of outcome in disease cases even
where medical causation can be established’ (p.253).
i. The law of tort has traditionally favoured accident victims who have suffered
traumatic injury to the detriment of victims of diseases who have suffered non-
traumatic injury. This preferential treatment arises from existing conceptual
machinery, such as insurance and welfare benefits.
Activity 2.3
Applied comprehension – reforming compensation

a. The law of torts has traditionally favoured accident victims who have suffered
traumatic injury to the detriment of victims of diseases who have suffered non-
traumatic injury (‘the accident preference’) as these victims have more difficulty
in providing proof of fault. Stapleton refers to this as preferential treatment. See
p.255.
b. Socially sanctioned activity is activity which is lawful and permissible, in contrast

to criminal activity which is not socially sanctioned. The definition of socially
sanctioned activity extends to include risky activity where the risks were
‘unavoidable by reasonable means which were known but acceptable in view of
the utility of the activity’ (p.253).
c. In the context of the three types of man-made diseases, work would apply to
occupational diseases, taking prescribed and licensed medications would apply
to defective product diseases and treating agricultural crops would apply to
environmental diseases. None of these activities per se indicate any wrongdoing.
In the context of risky activity, further examples are provided in case law where the
issue of the social utility is important, for example, school trips, sporting activities,
etc. Activities such as these carry inherent risks, but are socially sanctioned.
d. Strict liability is also known as ‘no fault’ liability, as the legal responsibility for injury
is imposed on the wrongdoer without proof of negligence or fault. Strict liability is
usually imposed when things or activities have obvious, inherent risks. Examples
would include the liability of occupiers of land for the safety of people coming
on to their land (as per the Occupiers’ Liability Acts of 1957 and 1984) and the
liability of manufacturers for the safety of people using their products (as per the
Consumer Protection Act 1987).
e. Stapleton points to the framework of compensation for claims of tortious liability

and argues that existing conceptual machinery, such as insurance and welfare
benefits, underpins the accident preference.
f. Distributive justice reflects this concept (i.e. ‘equality of treatment is based on

need’ (p.254)).
g. Stapleton reiterates that victims of man-made diseases face greater difficulties

than other victims in establishing proof of fault, and the strict liability approach
would only assist ‘a few classes of disease victims’.
h. Stapleton criticises a needs based approach which distinguishes between two

classes of disabilities which reflects the continued preference to compensate
disability caused by accident over other sources of disability (p.256).
i. Cost is a rational criterion by which reform priorities can be set. It makes sense that
if all cannot be helped, those who can, should be. (p.257)
Cost alone, therefore, is not a sufficient justification for limiting the public
compensation scheme to accidents. (p.258)
Because tort liability is effectively confined to cases of traumatic injury the focus
on tort produced a focus on accidents… Even if reform is primarily aimed not at the
needs basis which is professed but at the substitution of a no-fault system in cases
to which tort formally applied, then reform must also cover man-made diseases.
(p.258)
j. No feedback provided.
k. No feedback provided.
l. Stapleton considers the arguments of a comprehensive form of public

compensation for personal injuries and suggests that a needs based system
of compensation to protect the standard and quality of life of the claimants is
needed.
Chapter 3
activity 3.1
Core comprehension – social value of activities

a. Mr Tomlinson badly executed a dive into a lake owned by the Council. As a result,
he is tetraplegic and unable to walk.
b. It is a requirement that the injury must be someone else’s fault for Mr Tomlinson’s
claim to succeed.
c. ‘… the unauthorised use of the lake and the increasing possibility of an accident;
this is swimming and the use of rubber boats.’ [19]
… the county council’s management plan treated swimming as an ‘unacceptable

water activity’. The minutes of the county council’s Advisory Group of interested
organisations (anglers, windsurfers and so forth) record that… ‘The risk of a fatality
to swimmers was stressed and agreed by all.’ The windsurfers in particular were
concerned about swimmers getting in their way; perhaps being injured by a fast-
moving board. [17]
d. See Lord Hoffmann at [34].
e. River banks
See Lord M’Laren as cited at [57].
Cliff edges
See [60].
Uneven water surfaces
See [61].
f. See Lord Hoffmann at [46].
g. The right to engage in dangerous activities which do not harm others would be
unnecessarily restricted if reckless people are able to obtain compensation for
injuries suffered without proof of fault.
h. See [94].
activity 3.2
Applied comprehension – liability in insurance claims

a. See [1].
b. See [2].
c. Employers operating in the UK are obliged to insure against liability for injuries
sustained by employees with authorised insurance companies.
d. These alternative bases of response (or ‘triggers’ of liability) have been loosely
described as an occurrence (or manifestation) basis and an exposure (or causation)
basis.
e. The exposure or causation basis because it would justify ‘… a conclusion that

there was during the relevant insurance period an occurrence sufficient to trigger
liability under the insurances.’ [3]
f. See [6].
g. See [91].
Examples:
Mesothelioma is a long tail disease in which the problems raised have been
particularly acute. [91]
… These conclusions have application not merely to mesothelioma but to

employers’ liabilities in relation to other long tail industrial diseases such as
asbestosis and pneumoconiosis. [98]
A workplace accident would be an example of a short tail disease where causation

is easily determinable as it manifests itself immediately.
In the vast majority of cases there will be no difficulty in identifying the

moment at which the negligence or breach of duty causes the physical harm,
for the harm will take the form of an obvious injury. [92]
h. See [94].
i. See [95].
j. See [97].
k. Insurers interpreted employer liability insurance contacts more narrowly, namely

from the point in time upon which an actionable injury in the form of malignancy
existed.
l. See [99].
Chapter 4
Activity 4.1
Core comprehension – vicarious liability

a. 1. The law of agency.
2. The imposition of a ‘non-delegable’ duty of care.
3. Vicarious liability.
b. The employer–employee relationship.
The quasi-employment relationship.
c. The employer is not liable for every act of the employee but only for acts that are
committed in the course of the employee’s employment… the better view is that
the employee must commit a wrong in the course of employment; if the employee
is not liable, neither is the employer.
d. He who does anything by another does it by himself.
e. … It is reasonable that he who has made choice of an unskilled or careless person

to execute his orders, should be responsible for any injury resulting from the want
of skill or want of care of the person employed…
f. Williams identifies the ‘deep pockets’ argument.
… We have to admit that vicarious liability owes its explanation, if not its
justification, to the search for a solvent defendant.
g. The employer ‘does not in fact have to meet these liabilities out of his own pocket.
The cost of the liabilities is distributed over a large section of the community, and
spread over some period of time’.
h. … in this case the cost… may be distributed amongst those who, in a commercial
sense, constitute the enterprise itself, i.e. the shareholders and staff and employees
of the enterprise.
i. … It is sound simply because, by and large, it is the most convenient and efficient
way of ensuring that persons injured in the course of business enterprises do not
go uncompensated.
Activity 4.2
Applied comprehension – close connection test

a. ‘… Vicarious liability in tort requires, first, a relationship between the defendant
and the wrongdoer, and secondly, a connection between that relationship and the
wrongdoer’s act or default, such as to make it just that the defendant should be
held legally responsible to the claimant for the consequences of the wrongdoer’s
conduct.’ [1]
b.
uu Legal theories.
uu Models of enterprises.
uu Social attitudes.
uu The court’s sense of justice and fairness.
‘…in part to legal theories, of which there have been several; in part to
changes in the structure and size of economic and other (e.g. charitable)
enterprises; and in part to changes in social attitudes and the courts’ sense
of justice and fairness’. [10]
c. ‘… expansion of commerce and industry’. [12]
‘… whoever employs another is answerable for him, and undertakes for his care to
all that make use of him’. [12]
d. ‘… The first question is what functions or “field of activities” have been entrusted
by the employer to the employee, or, in everyday language, what was the nature of
his job. As has been emphasised in several cases, this question must be addressed
broadly.’ [44] (emphasis added)
e. ‘… Secondly, the court must decide whether there was sufficient connection
between the position in which he was employed and his wrongful conduct to
make it right for the employer to be held liable under the principle of social justice
which goes back to Holt.’ [45]
f. ‘… It was Mr Khan’s job to attend to customers and to respond to their inquiries. His
conduct in answering the claimant’s request in a foul mouthed way and ordering
him to leave was inexcusable but within the “field of activities” assigned to him.’
[47]
g. ‘… He was following up on what he had said to the claimant. It was a seamless

episode.’ [47]
‘… it was an order to keep away from his employer’s premises, which he reinforced
by violence. In giving such an order he was purporting to act about his employer’s
business. It was a gross abuse of his position, but it was in connection with the
business in which he was employed to serve customers’. [47]
h. ‘… Mr Khan’s motive is irrelevant. It looks obvious that he was motivated by

personal racism rather than a desire to benefit his employer’s business, but that is
neither here nor there.’ [48]
i. ‘… To search for certainty and precision in vicarious liability is to undertake a

quest for a chimaera. Many aspects of the law of torts are inherently imprecise. For
example, the imprecise concepts of fairness, justice and reasonableness are central
to the law of negligence. The test for the existence of a duty of care is whether it
is fair, just and reasonable to impose such a duty. The test for remoteness of loss
is one of reasonable foreseeability. Questions such as whether to impose a duty of
care and whether loss is recoverable are not always easy to answer because they
are imprecise. But these tests are now well established in our law.’ [54]
j. ‘… the court has to make an evaluative judgment in each case having regard to
all the circumstances and having regard to the assistance provided by previous
decisions on the facts of other cases.’
k. Example: In the sexual abuse cases the law of vicarious liability developed to
include the ‘type of relationship’ within the vicarious liability regime as a response
to evolving workforce relationships which included members of their workforces
in ‘akin to employment’ relationships. However, in the present case the type
of relationship was not new; it dealt with the traditional employer/employee
relationship. Therefore, the ‘close connection’ test continues to serve the intended
concept of justice. (72 words, paraphrasing [55–56])
Chapter 5
activity 5.1
Core comprehension – liability for omissions

a. 1. The defendant’s creation of a source of danger, even if entirely without fault.
2. The defendant’s undertaking of responsibility for the claimant’s welfare.
3. The defendant’s occupation of an office or position of responsibility.
b. Rescue services include the police and fire authorities, the coastguard and the
ambulance service, although it should be noted that in Kent v Griffiths Lord Woolf
situated the ambulance service within hospital services and thus ‘the staff of the
ambulance service owed a similar duty of care to that owed by doctors and nurses
operating in the health service’.
c. 1. The Station Officer’s act was ‘a positive act of misfeasance which foreseeably
caused the fire to get out of control’.
2. The proximity approach:
proximity will arise where someone possessed of a special skill undertakes,

quite irrespective of contract, to apply that skill for the assistance
of another person who relies upon that skill, and there is direct and
substantial reliance by the plaintiffs on the defendant’s skill.
d. The peculiarity… is that they do not as a rule create the danger which causes injury
to the plaintiff or loss to his property.
e. The act of turning off the water sprinklers.
activity 5.2
Applied comprehension – liability of the police

a. Your answer should reflect the content of the Case Law section of the judgment.
Example:
The common law duty of care, reflected in s.83 of the Police Reform Act 2002, is a
duty owed to the public at large. The courts have been asked to consider whether
there is a private law duty owed to individual members of the public at risk of
violent crime in leading cases such as Hill, but this idea has been generally rejected.
Exceptions do exist in a range of circumstances, for example when the police
created an unnecessary danger to the claimant (for example, the Knightley case
and the Rigby case), but there has been no general extension of the scope of the
duty owed.
b. See [141].
c. The interveners’ liability principle [18(1)].
Lord Bingham’s liability principle [18(2)].
Lord Kerr’s alternative liability principle [144].
d. It is necessary that the victim is ‘an identifiable victim or a member of an

identifiable small group’ [42].
e. See [117].
f. Lord Kerr argued that the necessary proximity existed between Ms Michael and
the police to establish a duty of care, and suggested that proximity in relationship
should include the following elements:
1. ‘closeness of association’
2. information that conveys the likelihood of serious harm and the need for
urgent action
3. reasonable expectation that the defendant provides protection in the

circumstances of the case, and
4. provision of protection is possible without unnecessary danger to the police. [144].
If proximity is established, then ‘the question must also be addressed whether

there are particular policy reasons militating against the imposition of liability in a
specific case.’ [166]
g. See [145].
h. See [196]. See also the formulation of the claim at [2].
i. See [198].
Chapter 6
activity 6.1
Core comprehension – duty, breach, damages

a. Mrs Al-Kandari sued her husband’s solicitors in negligence for loss suffered when
the solicitors failed to keep safe a passport which was issued to both the father and
the children. In possession of the document the father removed the children from
the jurisdiction to Kuwait. He abducted and assaulted the claimant and left her
abandoned in a van.
b. The solicitors voluntarily assumed responsibility towards the claimant and her
children. This wider responsibility fell within the concept of the duty owed to
neighbours as established in Donoghue v Stevenson.
c. 1. The real risk of another abduction.
2. The real risk of Mr Al-Kandari obtaining possession of the passport.
3. Failure to inform the claimant of the whereabouts of the passport.
d. The Court held that the event of abduction was ‘a distinct possibility’ based on the
history of the case and it was therefore reasonably foreseeable that Mr Al-Kandari
might attempt to obtain the passport for the purpose of abduction.
e. Severe injuries, both physical and mental, the latter having long-term effects.
£32,068.14.
f. If you have completed the Additional research exercise you will find more detail of
Mrs Al-Kandari’s ordeal, the threat made to her life and the damages she suffered.
Chapter 7
Activity 7.1
Core comprehension – protection of the public against crime

a. This case concerns victims of domestic violence [19–28]. The wider public interest
in this case is denoted by the fact that three organisations who were not party to
the Act made submissions in the case (interveners) – Liberty, Refuge and the Welsh
Women’s Aid organisation, Cymorth i Ferched Cymru [17].
b. See [33].
c. Twenty-two minutes before being murdered by her ex-boyfriend, Ms Michael had

made an emergency 999 call to the police, informing the call handler that her ex-
boyfriend had hit her and had threatened to return at ‘any minute’ to kill her.
d. See [63], citing Hill, and [97].
e. See [99] and [100].
Chapter 8
No activities for this chapter.
Chapter 9
activity 9.1
Core comprehension – psychiatric injury

a. See para.4.1.
b. See para.4.4.
c. An illness which denotes ‘more than mere mental distress’. See para.5.6.
d. In the Australian jurisdictions… There is no additional requirement that the

plaintiff should establish that the defendant ought reasonably to have foreseen the
possibility that he or she might suffer psychiatric illness. (para.5.7)
The Law Commission recommended that
it should be a requirement for liability for psychiatric illness that a duty of care be
owed to the plaintiff by the defendant; and that in establishing that duty of care
it should be a requirement that, at least where the plaintiff is outside the area
of reasonably foreseeable physical injury, it was reasonably foreseeable that the
plaintiff might suffer psychiatric illness. (para.5.10)
e. See para.5.11.
f. ‘[n]othing will be gained by treating [physical and psychiatric injury] as different

‘kinds’ of personal injury, so as to require the application of different tests in law’.
(para.5.12)
‘… liability for psychiatric illness would no longer turn on the fortuitous absence of
a physical injury.’ (para.5.13)
g. See para.5.14.
h. See para.5.14.
i. in assessing whether psychiatric illness is reasonably foreseeable the defendant,

unless he or she has special knowledge to the contrary, may assume that
the plaintiff is a person of ‘customary phlegm’ and of ‘a normal standard of
susceptibility’. (para.5.21)
… We therefore think that allowing the defendant to assume that the plaintiff
is a person of ‘customary phlegm’ is best interpreted as meaning nothing more
than that, in deciding whether psychiatric illness was reasonably foreseeable (and
analogously to reasonable foreseeability in physical injury cases) , one can take into
account the robustness of the population at large to psychiatric illness. (para.5.26)
This is intended to exclude from compensation those who are abnormally

susceptible to psychiatric illness. (para.5.21)
j. See para.5.25.
activity 9.2
Core comprehension – secondary victims

a. The issue raised in this case is whether the death of Mrs Taylor was a relevant
incident for the purposes of Ms Taylor’s claim as a secondary victim. [25]
b. See [1].
c. See [1].
d. See [2].
e. Example: The defendant’s case advanced the workplace accident in February as

the relevant event at which Ms Taylor was not present. The claimant advanced the
collapse on 19 March 2008 as the relevant event at which she was present. If the
workplace accident prevailed as the relevant event, the claimant would be unable
to meet Requirement (vi), the control factor of physical and temporal proximity.
f. See [8].
g. See the lower court judgment cited in [19].
h. See the citation at [21].
… In a secondary victim case, physical proximity to the event is a necessary, but not
sufficient, condition of legal proximity. [27]
i. See [32].
j. … in secondary victim cases, the word ‘proximity’ is also used in a different sense to
mean physical proximity in time and space to an event. [27]
activity 9.3
Core comprehension – the traditional rule

a. … grief, distress, apprehension, annoyance, worry, sorrow, fear, anxiety,
sleeplessness, outrage, shame, horror, or despondency…
b. … The claimant must establish—as a minimum threshold requirement—that he or

she was suffering from some ‘recognized psychiatric illness’ in order to found a
claim for negligently inflicted pure psychiatric illness.
c. … the American Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR)

and the International Statistical Classification of Mental and Behavioural Disorders
(ICD-10)…
d. … it is argued that the stage has been reached (given the advances in psychiatric
knowledge and the inconsistencies and distortions in the law to which the rule is
giving rise) whereby something lesser than a recognized psychiatric illness should
be sufficient to trigger a compensable injury in law.
e. … the cause of action in negligence and the medical assessment of what constitutes
a mental injury sufficient to warrant compensation will provide numerous
opportunities by which to ‘ring-fence’ the number of potential claimants…
f. … the first hurdle which a plaintiff claiming damages of the kind in question must
surmount is to establish that he is suffering, not merely grief, distress or any other
normal emotion, but a positive psychiatric illness.
g. … First (and most commonly), the Traditional Rule is judicially said to be ‘one of
policy’, (indeed, ‘reasons more to do with policy than logic’), which circumscribes
the duty of care which a defendant may otherwise owe a mentally injured
claimant.
… An alternative justification for the Traditional Rule is that damages for feelings of
grief, anxiety, bereavement, etc, are too remote to be compensable in law.
… A third reason underpinning the Traditional Rule is that, however distressing

anxiety, anger, etc, may be for the claimant (and however ‘damaging’ these emotions
may be in medical terms), it is only a recognized psychiatric illness which meets the
de minimis threshold of damage which the law will compensate in negligence.
h. … [it] reduces the risks of ‘indeterminate liability’ and of ‘impos[ing] an

unreasonable or disproportionate burden on defendants’. In addition, psychiatric
harm is ‘less objectively observable than physical injury’, and hence, is perceived to
be easier to fake or to exaggerate (‘difficult to prove or disprove’).
i. Example: Litigation is a lengthy business, therefore some claimants may feel their
case would be weakened if they had recovered from their mental injury before
their case had been heard.
j. No feedback provided.
activity 9.4
Applied comprehension – developing the law

a. … we think that a codification would result in a freezing of the law at a time before
it is ready. Neither medical knowledge nor legal understanding of psychiatric
illness, its causes and its effects, has developed to a sufficiently mature stage for
complete codification to be attempted. (para.4.1)
b. … in such a turbulent area - where medical knowledge and society’s understanding

are growing apace - there is much to be said for allowing the common law to
develop by incremental judicial decision. (para.4.2)
c. … Legislation can cure the defects in the common law at a stroke and with
certainty… Our policy may therefore be described as one of recommending
minimal legislative intervention curing serious defects in the present law but
otherwise leaving the common law to develop. (para.4.2)
d. See [10].
e. Examples of relevant material:
… the House of Lords decided that liability for psychiatric injury should be
restricted by ‘control mechanisms’, which he said were ‘more or less arbitrary
conditions which a plaintiff had to satisfy and which were intended to keep liability
within what was regarded as acceptable bounds’. He noted that the control
mechanisms had been criticised as drawing distinctions which the ordinary man
would find hard to understand. …. ‘It is now too late to go back on the control
mechanisms as stated in the Alcock case [1992] 1 AC 310. Until there is legislative
change, the courts must live with them and any judicial developments must take
them into account.’ [9]
… Lord Scarman recognised the need for flexibility in dealing with new situations
not clearly covered by existing decisions and that in this still developing area the
courts must proceed incrementally. ([14] citing W v Essex County Council)
f. See [16] and [17].
g. The main argument is that changes in the law should be left to Parliament. See [24]
and [31].
Chapter 10
activity 10.1
Core comprehension – economic torts

a. … the economic torts… have as their primary function the protection of claimants’
economic interests, in the sense of their existing wealth or financial expectations.
b. … the torts of inducing breach of contract, the unlawful means tort, intimidation,
lawful means conspiracy, unlawful means conspiracy, deceit and malicious
falsehood.
c. … negligent interference with economic interests may be actionable.
d. The issue was whether a duty of care would arise in relation to statements where
there is a ‘special relationship’ between the giver and the recipient of the advice.
e. … the two main policy reasons for this being the fear of disproportionate and
limitless liability and the perceived need not to override the ‘contractual matrix’
that may link the parties.
f. … negligence liability looks to dependency; the economic torts look to unlawful

acts. Where tort’s protection is concerned, neighbours are clearly a different
species to competitors.
activity 10.2
Applied comprehension – abstentionist and interventionist policy

a. ‘the infliction of physical injury to the person or property of another universally
requires to be justified. The causing of economic loss does not.’ (Lord Oliver in
Murphy v Brentwood)
‘it is commonplace that the law has always been very wary of imposing any kind of
liability of purely economic loss’. (Lord Hoffmann in OBG v Allan)
b. ‘the law of England does not... take into account motive as constituting an element
of civil wrong... the existence of a bad motive, in the case of an act which is not
of itself illegal, will not convert that act into a civil wrong.’ For Lord Herschell,
provided they did not resort to unlawful acts, the defendants would be entitled ‘to
further their interests in a manner which seems to them best and most likely to be
effectual’. (Citing Allen v Flood)
c. The decision in Derry v Peek, in rejecting liability for careless misrepresentations,

represented an instinctive focus on contract as the main mechanism for protecting
financial interests, while White v Mellin was part of a wider policy to deny
responsibility for determining what is fair and unfair in competition… Thus the
tort of deceit was severely limited by the need to prove fraud, just as the tort of
malicious falsehood was emasculated by the requirement of malice and special
damage.
d. … clear judicial unwillingness to participate in the formulation of economic policy.
e. It developed in the early industrial period when it became apparent that the
protection of trade names had become a commercial need…
… passing off came to focus on the effect of the misrepresentation, rather than the
fault of the defendant.
… From protecting against source misrepresentations, the tort now also protects
against product misrepresentations.
f. … there is still judicial opposition to the creation of wide ‘competition torts’. Thus
passing off has limits provided by the need to show an existing customer base and
a misrepresentation likely to confuse customers when making their purchasing
choice.
g. … ‘these torts have recently experienced something of a resurgence, finding a new

role in resolving the boundaries of commercial ethics, of what can and cannot be
done to further one’s own economic interests at the expense of competitors’.
h. … the power of the trade unions waned.
i. Absentionist policy reflects ‘the traditional reluctance to become involved

in devising rules of fair competition’. Interventionist policy reflects a shift in
becoming involved in devising rules of fair competition. Carty notes the expansion
of types of economic torts which the courts were willing to recognise such as the
economic tort of unlawful interference with trade (now called the unlawful means
tort), and the torts of simple conspiracy.
Chapter 11
activity 11.1
Core comprehension – obligations, omissions and the ECHR

a. … Civil and political rights are essentially those rights which guarantee the liberty
of the citizen against unlawful and arbitrary interference from the state and the
right to participate in a democratic polity.
b. … Economic, social and cultural rights (for example, the rights to food, housing and
work), on the other hand were borne of the later struggle between the working
classes and the dominant elites, and their realisation became central to the
programmes of the socialist governments of the 20th century.
c. … there is no equivalent of the Strasbourg machinery in relation to the Social
Charter and the rights themselves are drafted in terms of aims rather than
absolutes.
Economic and social rights are frequently perceived as raising difficult issues for
states because of their financial implications: if the rights to food, health and
housing are to be implemented, states must put in place programmes to ensure
that these goods are delivered to their peoples. Thus, economic and social rights
impose potentially onerous, positive obligations on states.
d. … the state may be required to expend resources in taking positive steps to ensure
that rights are effectively protected. Example: the provision of a particular form of
policing in the face of a known terrorist threat.
… the state may be required to regulate conduct between non-state actors so that
the rights set out are secured. Example: privacy laws to ensure that the right to
private life is respected.
e. … there can be no liability for an omission.
… the extent to which a duty to rescue on the part of public and private actors,
respectively, is recognised by Strasbourg jurisprudence and consider how such
obligations may be met by English law.
f. i. the failure to include a child of an unmarried mother in the full participation

in family life.
ii. … the failure of the state to afford the applicant legal aid in order to seek a
judicial separation.
iii. … an excessive delay in provision by the public health service.
g. ‘… especially as far as those positive obligations are concerned, the notion of

‘respect’ is not clear-cut: having regard to the diversity of the practices followed...
in the Contracting States, the notion’s requirements will vary considerably
from case to case... Contracting Parties enjoy a wide margin of appreciation in
determining the steps to be taken to ensure compliance with the Convention with
due regard to the needs and resources of the community and individuals’.
h. … in both contexts ‘regard must be had to the fair balance that has to be struck
between the competing interests of the individual and the community as a whole’.
i. i. to regulate the ordering of private relationships: in Marckx, the enactment

of laws to regulate the status of illegitimate children and in Airey, the
possibility of procuring a decree of judicial separation.
ii. the adoption of measures designed to secure respect for private life even
in the sphere of the relations of individuals between themselves in X and Y v
The Netherlands, where, owing to a lacuna in Dutch criminal law, there could
be no criminal prosecution of the person who had sexually assaulted the
applicant.
j. i. … to put in place measures to protect life … to put in place laws which make
the taking of life illegal.
ii. The principle of proportionality suggests that what is required will vary
with the circumstances so that, for example, the negligent taking of life
by careless driving may be treated less harshly than a premeditated case of
poisoning.
activity 11.2
Core comprehension – wrongly suspected parents

a. See [53].
b. 1. i. … that the mother was suffering from Munchausen’s syndrome by proxy

and that she had fabricated M’s condition. [57]
ii. M was also referred to an expert on allergic conditions. He concluded that

M was indeed suffering from extensive and severe allergies. [58]
2. i. Dr Wilson concluded R had been sexually abused… The father and his son,
R’s elder brother, were told they should not sleep at home when R was
released from hospital. [62]–[63]
ii. the correct diagnosis of Schamberg’s disease was made. [63]
3. i. Dr Blumenthal, a consultant paediatrician, diagnosed the baby as having

an ‘inflicted injury’, a spiral fracture of the femur. [66]
ii. the revised medical opinion was that the history and injuries were
consistent with brittle bone disease. [67]
c. … that neither East Berkshire Community Health NHS Trust nor North Staffordshire
Hospital NHS Trust, nor any of the other defendants then being sued, owed a duty
of care to the mother. [60]
… neither defendant owed a duty of care to the parents. [69]
d. … the best interests of [the] child. [71]
e. … the need to safeguard children from abuse by their own parents, and the need to
protect parents from unnecessary interference with their family life. [71]
activity 11.3
Applied comprehension – public authority liability in child abuse cases

a. Example: Children are particularly vulnerable because they are dependent on their
parents and may be too young, or too scared, to complain of parental abuse. See
[72].
b. See [73].
c. See [77].
d. … interference with family life does not justify according a suspected parent
a higher level of protection than other suspected perpetrators is the factor
conveniently labelled ‘conflict of interest’. [85]
This is not to say that the parents’ interests should be disregarded or that the
parents should be kept in the dark. The decisions being made by the health
professionals closely affect the parents as well as the child. Health professionals
are of course fully aware of this… But it is quite a step from this to saying that
the health professionals personally owe a suspected parent a duty sounding in
damages. [87]
e. Example: It would be inconsistent with the discharge of these responsibilities if

health professionals were to be subjected to a legal duty, sounding in damages, to
take care to protect persons suspected of being the source of harm to the child.
See [89].
f. Lord Bingham argued that the legal basis upon which children relied to make
claims should be equally available to parents.
If this consideration does not preclude a claim by the child it is hard to see why it
should preclude a claim by the parent. [31]
If such skill and care are required in relation to the child, there is no reason why this
consideration should preclude a duty to the parent. [32]
g. It is hard to see how, in the present context, imposition of a duty of care towards
parents could encourage healthcare professionals either to overlook signs of abuse
which they should recognise or to draw inferences of abuse which the evidence
did not justify. But it could help to instil a due sense of professional responsibility,
and I see no reason for distinguishing between the child and the parent. To
describe awareness of a legal duty as having an ‘insidious effect’ on the mind of
a potential defendant is to undermine the foundation of the law of professional
negligence. [33]
h. ... there would be a breach of duty to the child, with separation or disruption of
the family as possible or likely consequences. But this would be a breach of the
duty owed to the parents also, and the consequences are not suffered by the child
alone. [37]
i. i. … Thus it is not the formation or communication of a suspicion which is

complained of, but a negligent failure to investigate, test, explore, check
and verify… What the healthcare professionals are required to do is exercise
reasonable skill and care in taking an accurate history and then to form such
professional opinion as, subject to further investigation, may be appropriate. [39]
ii. … a child is much less likely to complain. [39]
i. See [44].
Chapter 12
activity 12.1
Core comprehension – breach of duty

a. 15 years old.
… were engaged in playing around, hitting each other’s white plastic 30 cm rulers
as though in a play sword fight, when one or other of the rulers snapped and a
fragment of plastic entered Teresa’s right eye with the very unhappy result that she
lost all useful sight in that eye…
b. … each had been guilty of negligence, that Teresa’s injury was the foreseeable
result and that, accordingly, her claim against Heidi succeeded subject to a
reduction of 50 per cent for contributory negligence.
c. … The question for the Judge is not whether the actions of the defendant were
such as an ordinarily prudent and reasonable adult in the defendant’s situation
would have realised gave rise to a risk of injury, it is whether an ordinarily prudent
and reasonable 15-year-old schoolgirl in the defendant’s situation would have
realised as much.
d. ‘The standard of care being objective, it is no answer for him, [that is a child] any
more than it is for an adult, to say that the harm he caused was due to his being
abnormally slow-witted, quick-tempered, absent- minded or inexperienced.’
(citation from McHale v Watson [1966] 115 CLR 199)
e. ‘… upon a limitation upon the capacity for foresight or prudence, not as being
personal to himself, but as being characteristic of humanity at his stage of
development and in that sense normal. By doing so he appeals to a standard of
ordinariness, to an objective and not a subjective standard.’
(citation from McHale v Watson [1966] 115 CLR 199)

f. ‘the standard by which his conduct is to be measured is not that to be expected of

a reasonable adult but that reasonably to be expected of a child of the same age,
intelligence and experience.’
‘The question as to whether the Plaintiff can be said to have been guilty of
contributory negligence depends on whether any ordinary child of 13½ can be
expected to have done any more than this child did. I say “any ordinary child”. I do
not mean a paragon of prudence; nor do I mean a scatter-brained child; but the
ordinary girl of 13½.’ (citing Gough v Thorne [1966] 1 WLR 1387)
g. … she has suffered a grave injury through no fault of her own. But unfortunately
she has failed to establish in my view that anyone was legally responsible for that
injury and, accordingly, her claim should have failed.
h. ‘in the absence of relevant statutory provision, children, like everyone else, must
accept as they go about in society the risks from which ordinary care on the part of
others will not suffice to save them. One such risk is that boys of 12 may behave as
boys of 12…’
activity 12.2
Applied comprehension – the Bolitho gloss

a. The Bolitho gloss impacted on negligence claims in that ‘the court, and not the
medical profession, became the final arbiter of medical breach’.
b. The ‘no exceptions’ argument –
… if the court was the final arbiter in respect of these professionals [accountants,
lawyers, underwriters, etc.], then so too should it be with the medical profession.
The ‘conflict of interests’ argument –
‘… Practices may develop in professions… not because they serve the interest of
the clients, but because they protect the interests or convenience of members of
the profession’.
c. … whether the doctor acted in accordance with a practice accepted as proper for
an ordinarily competent doctor by a responsible body of medical opinion; and
secondly, if ‘yes’, whether the practice survived Bolitho judicial scrutiny as being
‘responsible’ or ‘logical’. That two-step analysis was explicitly confirmed as being
the appropriate one…
d. 1. the Bolam test only applies to matters of clinical or professional judgment, or

to tasks that require the exercise of special skill and knowledge
2. the Bolam test only pertains to questions requiring expert opinion, and not to
disputes about mere questions of fact
3. Bolam does not apply where the doctor’s expert opinion does not represent
the views of a responsible body of doctors nor a recognised practice within the
medical profession.
e. The doctor’s expert only has to persuade the court that his views are capable of
withstanding logical analysis, but he does not have to satisfy the court that the
views of the patient’s expert are not capable of withstanding logical analysis.
Obversely, however, the patient’s expert has to do both, if Bolitho is to be applied.
f. 1. The peer professional opinion has overlooked that a ‘clear precaution’ to avoid
the adverse outcome for the patient was available.
2. A question of resources and conflicts of duty.
3. Failure to weigh the comparative risks and benefits of the chosen course of
conduct.
4. Where the accepted medical practice contravenes widespread public opinion.

5. Where the doctor’s peer medical opinion cannot be correct when taken in the
context of the whole factual evidence.
6. Where the doctor’s expert medical opinion is not internally consistent.
7. The peer professional opinion has adhered to the wrong legal test.
g. … the issue was whether pathologists were negligent in failing to inform the
relatives (mainly parents of children who had died either at, or shortly after,
birth) that, at post-mortem examinations of their children, some organs might be
removed and retained for later scientific study.
h. No feedback provided.
Activity 12.3
Core comprehension – common practice

a. Professional bodies have built up knowledge and expertise on the problems which
individuals who work in this field encounter in their work. Certain approaches
have established themselves as the ‘industry standard’ ways of addressing these
problems, the common practice as exercised by the professional in this field. When
I use the services of professional people, I generally expect them to adhere to
common practices.
b. To show that the thing which he did not do was a thing which was commonly done
by other persons in like circumstances
or
to show that the thing which was done was so obviously wanted that it would be
folly in anyone to neglect to provide it.
c. ‘They have no compelling legal force.’
‘There is a requirement to keep up to date as new knowledge may make a former

common practice a less suitable or unsuitable approach.’
d. The man on the Clapham omnibus is used to describe the ordinary, reasonable
person; it does not apply to people who profess to have a special skill.
e. The test used was that ‘of the ordinary skilled man exercising and professing to
have that special skill. A man need not possess the highest expert skill at the risk of
being found negligent.’
f. There may be more than one ‘common practice’ used to approach a given problem.
A doctor is not guilty of negligence if he has acted in accordance with a practice

accepted as proper by a responsible body of medical men skilled in that particular
art… Putting it another way round, a doctor is not negligent, if he is acting in
accordance with such a practice, merely because there is a body of opinion that
takes a contrary view… (J McNair in Bolam)
g. … in some cases, it cannot be demonstrated to the judge’s satisfaction that the

body of opinion relied upon is reasonable or responsible. In the vast majority of
cases the fact that distinguished experts in the field are of a particular opinion will
demonstrate the reasonableness of that opinion. In particular, where there are
questions of assessment of the relative risks and benefits of adopting a particular
medical practice, a reasonable view necessarily presupposes that the relative risks
and benefits have been weighed by the experts in forming their opinions. But if, in
a rare case, it can be demonstrated that the professional opinion is not capable of
withstanding logical analysis, the judge is entitled to hold that the body of opinion
is not reasonable or responsible.
Chapter 13
activity 13.1
Core comprehension – causation and remoteness

a. See [27].
b. See [15].
c. See [27].
d. See [16] and [43].
e. In the past, suicide was viewed as criminal conduct and for reasons of public policy
the recovery of damages in the event of a suicide was difficult, if not impossible.
See [16].
activity 13.2
Applied comprehension – mesothelioma claims

a. … It is caused by exposure to the inhalation of asbestos dust, and has a gestation
period measured typically in decades. The more fibres inhaled, the greater the
risk of contracting mesothelioma. But, beyond that, its specific causation is highly
uncertain… the process of causation may involve (different) fibres acting in a way
which gives rise to a series of as many as six or seven genetic alterations, ending
with a malignant cell in the pleura. [1]
b. See [1].
c. See [3].
d. See [3].
e. See [4].
f. See [4].
g. See [5].
h. See [6].
i. Courts which have embarked on it have had to focus on disputes gradually shifting
from (a) the position between victims and those responsible for their exposure,
on which substantial authority now exists under English law, to (b) the position
between persons so responsible and their insurers. [1].
See also [7].
Chapter 14
activity 14.1
Core comprehension – contributory negligence

a. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 (see [45]).
b. See [2].
c. The standard of care of an ordinary 13-year-old was applied. See [12].
d. See the quote in [12].
e. Two reasons pertained to the 13-year-old, namely ‘insufficient regard’ to the

circumstances of the 13-year-old and a more moderate characterisation of her
conduct, shifting from ‘an act of reckless folly’ to ‘negligent conduct’.
One reason pertained to the adult driver, namely that the ‘defender’s behaviour
was culpable to a substantial degree’.
The fourth reason highlighted a failure of the lower court to consider ‘the causative
potency of the parties’ actings’. (See [15].)
f. See point (4) of the quote at [15].
g. See [16].
h. See [20].
i. In relation to blameworthiness… Hale LJ noted that a car could do much more

damage to a person than a person could usually do to a car, and that the potential
‘destructive disparity’ between the parties could be taken into account as an
aspect of blameworthiness. [26]
Hale LJ stated in Eagle v Chambers… :
‘It is rare indeed for a pedestrian to be found more responsible than a driver unless
the pedestrian has suddenly moved into the path of an oncoming vehicle.’ [50]
j. See [27] and [28].
k. ‘An appeal court will not lightly interfere with an apportionment fixed by the
judge of first instance. It will only do so if it appears that he has manifestly and to a
substantial degree gone wrong.’ (at [32 citing Lord Justice-Clerk Wheatley in Beattie
v Halliday)
‘the appellate court should only interfere when they consider that the judge of
first instance has not merely preferred an imperfect solution which is different
from an alternative imperfect solution which the Court of Appeal might or would
have adopted, but has exceeded the generous ambit within which a reasonable
disagreement is possible.’ (at [34] citing Lord Fraser in G v G)
‘the wide difference between [the House’s] view and that held in the court of first
instance warranted a variation in the proportional amount awarded.’ (at [37] citing
Lord Porter in National Coal Board v England)
l. That blame should be apportioned in equal share, i.e. 50:50. See [43]–[44].
m. The Extra Division were entitled to view her behaviour as both very seriously
blameworthy and of major causative significance and also, because of the extent of
her blameworthiness, to attribute to her the major share of responsibility. [57]
activity 14.2
Applied comprehension – defence of illegality

a. ex turpi causa non oritur actio, meaning ‘no action can be founded upon a wicked
act’.
b. i. The claimant – he had participated in a burglary.
ii. He claimed against the driver of the car for injury suffered whilst holding on to
the outside of a ‘getaway’ car speeding from the scene of the burglary.
iii. The action failed ‘because as a matter of public policy, English law refuses
to recognise a duty of care owed by one participant in a crime to another in
respect of an act done in furtherance of the common purpose’.
c. Not every illegal act bars the claimant from recovering in negligence… The
difficulty lies in assessing the circumstances in which illegality will bar a claim.
d. Mr Gray suffered from a serious psychiatric condition, an injury which resulted

from being a victim of the Ladbroke Grove train crash. Thames Train Ltd had
compensated him for his injury. Two years later, in a separate incident, Mr Gray
stabbed a pedestrian to death. He was found guilty of manslaughter due to
diminished capacity and detained in hospital. He sought compensation from
the rail company for loss of earnings whilst in prison and future loss of earnings,
arguing that the conviction of manslaughter would reduce his ability to find
employment. (Introductory paragraph of case extract.)
e. … but for the tort, Mr Gray would not have killed. (At [44].)
f. See [28].
g. … The maxim ex turpi causa expresses not so much a principle as a policy.

Furthermore, that policy is not based upon a single justification but on a group of
reasons, which vary in different situations. [30]
h. See [29] and [50].
i. See [50].
j. The distribution of (public) resources argument and causation issues. See [51].
Chapter 15
activity 15.1
Core comprehension – defective premises

a. … whether a local authority, whose agents and servants had failed to inspect or
had inspected negligently the foundations of a building under construction, could
be liable in tort towards an ultimate purchaser of that building when it developed
defects which posed an imminent threat to safety and health.
b. 1. whether negligently inflicted economic loss could be compensated through

the law of torts
2. the notion of duty of care and when and how the courts should decide that it
came into existence.
c. … Anns characterised the plaintiffs’ loss as ‘material, physical damage’ even though
Lord Denning had, extrajudicially, made it clear that this was a mis-description –
one presumes in order to help a ‘deserving’ plaintiff. For a time the House of Lords
persisted with this notion but, eventually, it came to accept that the loss was
purely economic.
d. … ‘one element of the structure should be regarded as distinct from another

element so that damage to one part of the structure caused by a hidden defect in
another may qualify to be treated as damage to “other property”.’ In Murphy one
of them, at least, regarded this theory as totally ‘artificial’.
e. The result may be that architects and consulting engineers who give bad advice
leading to the construction of shoddy buildings may be liable to their owners, but
the builders, whose negligence produces the same result, will not.
f. The inconsistency:
… the second purchaser of a building has no action against the local authority
or the builder but may still have an action against the surveyor who has been
employed by the building society to value the premises in question prior to
granting a mortgage to the second purchaser/mortgagor.
Why?
… A technical explanation for this could be found by invoking the notoriously

vague notion of proximity and arguing that it is not satisfied in the case of local
authority inspector and house owner/mortgagor. But that, surely, would not be so
where the house owner pays a fee to the local authority for the inspection needed
when an extension of his house is being planned.
g. … if a buildings stands so close to the boundary of the building owner’s land that
after discovery of the dangerous defect it remains a potential source of injury to
persons or property on neighbouring land or on the highway.
(Note: you will study the law of nuisance in Chapter 17 and will then better
understand the distinction being made ‘between negligence and nuisance’.)
h. … if the builder is not liable, neither should the local authority be liable. The
wisdom of the first part of this argument may be doubtful on policy grounds; but
the linkage of the two liabilities, in a manner that makes them co-extensive, is
seriously questionable and, it is submitted, has yet to be properly justified.
activity 15.2
Applied comprehension –damage to buildings

a. The builders had been negligent in constructing a wall which did not comply with
good building practice and failed to prevent a fire spreading from one area of the
building to another.
… In 1995 a fire broke out in the storage area. It spread from the storage area to
the rest of the dairy and caused much damage… Although a wall was constructed
in the right place… the fire passed over the top of the wall. This it would not have
done had the wall been constructed in accordance with good building practice.
b. No feedback provided.
c. … the defendant did owe a duty of care to the claimant. It was a duty to take
reasonable care to safeguard him against damage to property other than the Dairy
building itself, namely the damage set out in categories B, C, D and E… insofar as
the items mentioned therein had not merged with or become part of the structure
of the Dairy, and in respect of loss of profit and increased costs of working caused
by fire damage to such property. The defendant did not owe a duty of care to the
claimant in respect of damage to the Dairy itself, that is loss in category A, or in
respect of loss of profit and increased costs of working caused by the fire damage
to the Dairy itself.
d. Such damage is to be regarded as pure economic loss in respect of which no duty is

owed in the absence of a contractual or other special relationship of proximity.
e. (i) … had there been no change of ownership the builders would have been liable
in tort for the damage to the building.
(ii) … although the builders were under a duty owed to the original owners to
build the wall in such a way that it contained any fire for a certain period and
although they broke that duty, the original owners can not sue because they
have suffered no damage and the subsequent owners can not sue because
the duty owed to them only extends to chattels in the building and not to the
building itself.
f. … the concept of one building is not hard edged. One building built at one time by
one person for one purpose is at one extreme, but one can have buildings which
are gradually added to over the centuries and used for different purposes, such
as a modern shop added to the end of a Georgian residential terrace at the other
extreme… However, in the present case the whole of the dairy was built at the
same time by the builders, marketed as a unit, bought as a unit to be used as a unit
and was used as a unit. I have no doubt that any holding either that (1) the rooms
on one side of the wall … as constituting a different building from the rooms on
the other side of the wall, or that (2) the wall … as constituting a different building
from the rooms on one side of it, would be a thoroughly undesirable approach to
the issues before us.
g. … in most cases of the direct infliction of physical loss or injury through

carelessness, it is self evident that a civilised system of law should hold that a duty
of care has been broken, whereas the infliction of financial harm may well pose
a more difficult problem. Thus the three so called requirements of a duty of care
are not to be treated as wholly separate and distinct requirements but rather as
convenient and helpful approaches to the pragmatic question whether a duty
should be imposed in any given case. (citing the Marc Rich case)
h. Firstly, following Donoghue v Stevenson and the numerous cases in which the
principle in that case had been applied the duty was to avoid damaging persons
or their property ‘other than to the very piece of property from the defective
condition of which’ the danger arose. Secondly the effect of accepting that the
scope of the duty was wide ‘would be in substance to create as between two
persons who are not in any contractual relationship with each other, obligations
of one of those persons to the other which are only really appropriate as between
persons who do have such a relationship between them… In my view the
imposition of warranties of this kind on one person in favour of another, when
there is no contractual relationship between them, is contrary to any sound policy
requirement.
i. … that decision [i.e. Murphy] establishes clearly that the duty of care owed under
Donoghue v Stevenson principles excludes economic loss consequent upon damage
to the chattel in question itself; and where the damage in question is damage to a
building, that damage is to be treated as economic loss and irrecoverable in the absence
of a contractual or other special relationship.
It upheld the reasoning of the judge in the lower court namely:
… In my view, however, there is no conceptual or qualitative difference (and

certainly none which I feel able to formulate) between the case of defective
foundations which fail to cope with shrinkage or heave in the subsoil and to
support the building, resulting in cracked walls and pipes, and the case of a
defective roof which fails to cope with and to keep out water, and the case of the
defective fire stop wall which fails to cope with and to contain fire which goes on
to injure other parts of the same building. If the resulting injury to the fabric of the
building itself is to be seen as purely economic loss in the first two of those cases it
must, in my view, be seen as economic loss in the third.
Chapter 16
activity 16.1
Core comprehension – visitor and trespasser

a. He was 18. The accident occurred at Brereton Heath Country Park. In about 1980
Congleton Borough Council acquired the land. See [2].
… he ran out into the water and dived. He had done the same thing many times
before. But this time the dive was badly executed because he struck his head hard
on the sandy bottom. So hard that he broke his neck at the fifth vertebra. He is now
a tetraplegic and unable to walk. [3]
b. The common law had distinguished between invitees, in whose visit the occupier
had some material interest, and licensees, who came simply by express or implied
permission. Different duties were owed to each class. [6]
c. The Act… amalgamated (without redefining) the two common law categories,
designated the combined class ‘visitors’ (section 1(2)) and provided that (subject to
contrary agreement) all visitors should be owed a ‘common duty of care’. [6]
d. ‘(2) The common duty of care is a duty to take such care as in all the circumstances
of the case is reasonable to see that the visitor will be reasonably safe in using the
premises for the purposes for which he is invited or permitted by the occupier to
be there.’ (Quoted at [6])
e. ‘(3)… (a) an occupier must be prepared for children to be less careful than adults;
and (b) an occupier may expect that a person, in the exercise of his calling, will
appreciate and guard against any special risks ordinarily incident to it, so far as the
occupier leaves him free to do so.’ (Quoted at [6])
f. 1. Warnings
‘(a) where damage is caused to a visitor by a danger of which he had been

warned by the occupier, the warning is not to be treated without more as
absolving the occupier from liability, unless in all the circumstances it was
enough to enable the visitor to be reasonably safe.’
2. Reasonable steps taken to control the work of independent contractors
‘(b) where damage is caused to a visitor by a danger due to the faulty

execution of any work of construction, maintenance or repair by an
independent contractor employed by the occupier, the occupier is not
to be treated without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to an
independent contractor and had taken such steps (if any) as he reasonably
ought in order to satisfy himself that the contractor was competent and
that the work had been properly done.’
3. Volenti – willing assumption of risks
‘(5) The common duty of care does not impose on an occupier any obligation
to a visitor in respect of risks willingly accepted as his by the visitor (the
question whether a risk was so accepted to be decided on the same
principles as in other cases in which one person owes a duty of care to
another).’
(All at [7])
g. See [8].
h. See subs.(3) quoted at [9].
i. See s.1(4) quoted at [9].
j. See [13].
k. See [13].
Chapter 17
activity 17.1
Core comprehension – nuisance

a. ‘Ought this inconvenience to be considered in fact as more than fanciful and
more than one of mere delicacy or fastidiousness, as an inconvenience materially
interfering with the ordinary comfort physically of human existence, not merely
according to elegant or dainty modes of living, but according to plain and sober
and simple notions among the English people. ‘ (para.12.02)
b. … in respect of smell caused by the emission of diesel fumes from the coaches and
noise from the ‘revving’ of their engines. (para.12.03)
c. ... noises caused by the carrying out of repairs and cleaning were held not
sufficiently serious to warrant relief. (para.12.03)
d. … judges are meticulous in examining the precise extent of the interference to see
whether it exceeds that to be expected in an area in which that general type of
interference has to be tolerated. (para.12.04)
e. ‘In short, if a substantial addition is found as a fact in any particular case, it is no

answer to say that the neighbourhood is noisy, and that the defendants’ machinery
is of first class character.’ (para.12.04)
f. The ‘locality’ principle was applied in the defendants’ favour in a situation in which
the passage of heavy dockyard traffic was considered to have converted an area
from a residential to a commercial one. (para.12.05)
g. i. … The plaintiff owned a small hotel with a garden which was surrounded by
grazing land. In 1975 the local council, which owned the grazing land, built
a housing estate upon it. A playground, which unfortunately adjoined the
plaintiff’s garden, was provided for the children. (para.12.07)
ii. The court perceived social utility in the space provided for children to play.
‘… to hold the balance between the young and the old’. (para.12.07)
iii. … He also granted an injunction which restricted the opening of the

playground to the hours between 10 am and 6.30 pm and limited its use to
children aged twelve years and under. He did not, however, agree to order
the closure of the playground for a period during the afternoon ‘when more
elderly people sometimes want to have a sleep’. (para.12.07)
h. Noise (the Gaunt case).
‘… a nervous, or anxious, or prepossessed listener hears sounds which would

otherwise have passed unnoticed, and magnifies and exaggerates into some new
significance, originating within himself, sounds which at other times would have
been passively heard and not regarded’. (para.12.10)
i. Expert evidence does, however, have its limits. In the final analysis the court has
to form an impression of the volume of noise in terms of day to day experience.
(para.12.13)
activity 17.2
Applied comprehension – planning permission and nuisance

a. First, the grant, or terms and conditions, of a planning permission may permit the
very noise (or other disturbance) which is alleged by the claimant to constitute a
nuisance… Secondly, the grant, or terms and conditions, of a planning permission
may permit the defendant’s property or another property in the locality to be used
for a certain purpose… [77]
b. See [81].
c. … it was nonetheless a correct outcome, as the planning authority ‘had made a

decision in the public interest and the consequences had to be accepted.’ [84]
d. A strategic planning decision affected by considerations of public interest would

be more likely to apply to a major development than planning permission for ‘a
change of use of a very small piece of land’. See [85].
e. … it seems wrong in principle that, through the grant of a planning permission, a

planning authority should be able to deprive a property owner of a right to object
to what would otherwise be a nuisance, without providing her with compensation,
when there is no provision in the planning legislation which suggests such a
possibility. [90]
Examples: (i) Planning Act 2008 (ii) Civil Aviation Act 1982 and Land Compensation
Act 1973 (at [90]).
f. See [91].
g. … In Hunter v Canary Wharf Ltd [1997] AC 655, Lord Cooke (dissenting on this part of
the case) highlighted these changes:
‘the lineaments of the law of nuisance were established before the age of television
and radio, motor transport and aviation, town and country planning, a “crowded
island”, and a heightened public consciousness of the need to protect the
environment. All these are now among the factors falling to be taken into account
in evolving the law….’ [180]
h. The common law of nuisance is there to provide a residual control to ensure that
new or intensified activities do not need lead to conditions which, within that
pattern, go beyond what a normal person should be expected to put up with. [183]
i. i. … it is because it is part of the established pattern of uses in the area, and

society attaches importance to having places for professional football within
urban areas.
ii. ii. … if there is something about the organisation, or lack of it, which takes the
disturbance beyond what is acceptable under the reasonableness test. [185]
j. See [186].
Chapter 18
activity 18.1
Core comprehension – Rylands v Fletcher basics

a. The rule in Rylands v Fletcher is a sub-species of nuisance, which is itself a tort based
on the interference by one occupier of land with the right in or enjoyment of land
by another occupier of land as such. [9]
b. … no claim in nuisance or under the rule can arise if the events complained of take
place wholly on the land of a single occupier. [9]
c. … such a claim does not relate to any right in or enjoyment of land. [9]
d. … ‘a large accumulated mass of water’ stored up in a reservoir…
…the storage of chemicals, for the purpose of making munitions, which ‘exploded
with terrific violence’
… some 500,000 tons of mineral waste tipped on a steep hillside
… the industrial solvents being used by the tannery… [10]
e. … its effect is to impose liability in the absence of negligence for an isolated

occurrence… It must be shown that the defendant has done something which he
recognised, or judged by the standards appropriate at the relevant place and time,
he ought reasonably to have recognised, as giving rise to an exceptionally high risk
of danger or mischief if there should be an escape, however unlikely an escape may
have been thought to be. [10]
f. ‘It is not every use to which land is put that brings into play that principle. It must
be some special use bringing with it increased danger to others, and must not
merely be the ordinary use of the land or such a use as is proper for the general
benefit of the community.’ ([11], citing the Rickards case)
g. An occupier of land who can show that another occupier of land has brought or
kept on his land an exceptionally dangerous or mischievous thing in extraordinary
or unusual circumstances is in my opinion entitled to recover compensation from
that occupier for any damage caused to his property interest by the escape of that
thing, subject to defences of Act of God or of a stranger, without the need to prove
negligence. [11]
h. … the council did not accumulate any water, it merely arranged a supply adequate
to meet the residents’ needs. The situation cannot stand comparison with the
making by Mr Rylands of a substantial reservoir. Nor can the use by the council of
its land be seen as in any way extraordinary or unusual. It was entirely normal and
routine… the conditions to be met before strict liability could be imposed on the
council were far from being met on the facts here. [13]
activity 18.2
Core comprehension – subsuming Rylands within nuisance

a. The first of these would involve its being subsumed within the law of private
nuisance. The second would involve its absorption by its much younger cousin, the
law of negligence.
b. … notwithstanding the juridical distinctions between the two torts, they

nonetheless serve a sufficient similarity of function …
c. … cases decided in nuisance that have imposed liability for isolated escapes…
… nuisance cases recognising the actionability of both damage to real property

and damage to chattels.
d. … the two torts were born at different times and were designed to serve markedly
different purposes… Rylands v Fletcher should quite properly afford a remedy in
respect of personal injuries and damage to chattels, the same cannot be said of
nuisance law…
e. ‘the extension of the tort in this way would transform it from a tort to land into a
tort to the person, in which damages could be recovered in respect of something
less serious than personal injury [and hence irrecoverable in negligence]... [with]
criteria for liability... founded not upon negligence but upon striking a balance
between the interests of neighbours in the use of their land.’ (Citing Lord Goff in
Hunter v Canary Wharf Ltd)
f. i. … it serves merely to quantify in pecuniary terms the injury done to the

plaintiff’s interest in the land (which encompasses the right to exploit the land
for profit)
ii. … [it] protects interests which are quite distinct from the interest in land.
activity 18.3
Applied comprehension – more Rylands v Fletcher

a. … whoever undertakes or authorises potentially injurious activities should be
strictly liable for any ensuing mishaps.
b. … while this argument can be applied with ease to a commercial industrial

enterprise… it does not lend itself at all well to a private house-dwelling neighbour:
a very common defendant in nuisance cases.
c. Example: Claimants would face insurmountable evidentiary burdens, such as

establishing the breach of compliance to existing industry-based rules or lack of
reasonable care according to ordinary negligence principles.
d. Example: The rule is outdated, the language is imprecise and the approach to
interpretation of the rule has made the rule artificial.
e. No feedback provided.
f. Example: The event of industrialisation and the accompanying growth of insurance

products, the cost of which was passed on to the consumers via higher prices,
made the requirement for fault-based liability less convincing. Thus strict liability is
neither ‘immoral nor enterprise-inhibiting.’
g. At the level of tort theory, it might be objected that strict liability torts cannot be
justified because they cannot be reconciled with a system of tort law based upon
corrective justice… This, however, presupposes a commitment to the idea that tort
law, properly understood, is restricted to considerations of corrective justice rather
than broader, instrumentalist concerns… It suffices to note that the arguments in
favour of corrective justice are far from universally accepted and that even among
those who support the idea that it should be the guiding principle behind tort law,
there appears to be no consistent understanding of just what corrective justice
entails. As such, any argument against Rylands v Fletcher based on any given notion of
corrective justice could expect to have only a relatively small number of supporters.
Chapter 19
activity 19.1
Core comprehension – defamation and human rights

a. … A personal plaintiff proves publication of a false statement damaging to his
reputation without lawful justification, he need not plead or prove special damage
in order to succeed. Proof of injury to his reputation is enough. [12]
b. … The newspaper in that case had published an article strongly critical of the way
in which the plaintiff, a colliery owner, housed its workers, and the company had
not pleaded or proved any actual damage. It was argued for the publisher that a
corporation could have no personal character, and that the article had not related
to the business of the company… [13]
c. ‘Then, if the case be one of libel – whether on a person, a firm, or a company – the
law is that damages are at large. It is not necessary to prove any particular damage;
the jury may give such damages as they think fit, having regard to the conduct of
the parties respectively, and all the circumstances of the case.’ [13]
d. See the quote from Lord Keith of Kinkel at [16].
e. Derbyshire County Council v Times Newspapers Ltd [17].
f. Freedom of expression.
g. See [18].
h. Excessive, punitive or exemplary (see [19]).
i. … Thus a national libel law may, consistently with article 10, restrain the
publication of defamatory material. [19]
‘The state therefore enjoys a margin of appreciation as to the means it provides

under domestic law to enable a company to challenge the truth, and limit the
damage, of allegations which risk harming its reputation.’… ‘the court did not hold
the current rule to be necessarily inconsistent with article 10: it was a matter for
the judgment of the national authorities.’ [20]
… the weight placed by the newspaper on the chilling effect of the existing rule is
in my opinion exaggerated… I question whether the possibility of a claim by the
company will add significantly to the chilling effect of a claim by the individuals.
[21]
activity 19.2
Core comprehension – privacy and human rights

a. David is the son of the author JK Rowling. The Murrays objected to the publication
of a colour photograph of their son.
b. No.
c. Right to respect for private and family life.
d. Neither: ‘… Both lie at the heart of liberty in a modern state and neither has
precedence over the other’ [24].
e. Breach of confidence:
(II) (Although the origin of the cause of action relied upon is breach of confidence,
since information about an individual’s private life would not, in ordinary
usage, be called ‘confidential’, the more natural description of the position
today is that such information is private and the essence of the tort is better
encapsulated now as misuse of private information… [24]
f. whether in respect of the disclosed facts the person in question had a reasonable
expectation of privacy… [24]
g. … one of the requirements which a claimant must satisfy is that publication of

matter must be ‘highly offensive in order to be actionable’. [25]
… it is relevant to consider it in the context, not of whether article 8 is engaged,

but of the issues relevant to proportionality, that is to the balance to be struck
between article 8 and article 10. [26]
h. … whether the information is private in the sense that it is in principle protected by

article 8 (i.e. such that article 8 is in principle engaged) and, secondly, if so, whether
in all the circumstances the interest of the owner of the information must yield to
the right to freedom of expression conferred on the publisher by article 10. [27]
i. ‘If the information is obviously private, the situation will be one where the person
to whom it relates can reasonably expect his privacy to be respected. So there is
normally no need to go on and ask whether it would be highly offensive for it to be
published.’ [30]
j. It upholds ‘the right to control the dissemination of information about one’s

private life and the right to the esteem and respect of other people.’ [31]
activity 19.3
Applied comprehension – damages and corporate reputation

a. … The common law presumption of damage is anomalous. It did not develop
rationally or in response to social need but as a result of arcane pleading rules…
b. … Trading companies, unlike human claimants, cannot suffer distress by

defamatory words and they should no longer enjoy an illogical but irrebuttable
presumption entitling them to damages without proof of damage.
c. See [24].
d. See [25].
e. Example: The good reputation of a company has a value which the law should
protect. If unjustified injury to reputation has occurred, corporations should be
entitled to legal redress under the law of defamation, even if financial loss cannot
be proven, provided that any damages are within modest bounds. See [26]–[27].
f. See [91].
g. See [101].
h. … the right of action for libel seeks to serve is to enable the claimant to challenge
the truth, and limit the damage, of allegations which risk harming its reputation. It
is to enable it to nail the lie… [102]
i. Example: Lord Scott highlights that the timelines for taking a claim in defamation
are not compatible with the timelines needed for corporations to evidence the
financial damages which have resulted from defamation. See [12].
activity 19.4
Applied comprehension – Defamation Act 2013

a. Example: The newspaper article claims that the claimants have engaged in serious
misconduct in the way in which they rent out and administer public housing
accommodation.
b. … (a) Midland Heart, whose chief executive is Ruth Cooke, is one of the well-off
landlords of rented properties on James Turner Street who let houses to people
in receipt of housing benefit at rents of up to £650 per month, thereby making
money from the misery of James Turner Street residents; and that (b) Ms Cooke is
personally responsible for this conduct of Midland Heart, and has herself profited
and become rich from it, in that she is paid £179,000 a year and lives in a large
house in Gloucestershire. [19]
c. Example: Mrs Cooke relies on negative inferences which three professional

contacts had expressed as a result of reading the article to suggest that similar
conclusions would be drawn by the large readership of the newspaper. See [24].
d. Midland Heart’s pleaded case on serious harm relies on the fact that they are
dependent on grant and contract income for which they bid on competitive
tender; and that maintaining a strong reputation for the delivery of high quality
services is central to their success in competitive tenders… any suggestion that
Midland Heart fails in the delivery of services is bound to cause those who award
contracts and grants to question whether they should receive public money. [25]
e. … to date Midland Heart is not aware of any contract being lost, although Mr Foster
explains that often they do not know the reasons for the loss of contracts. [25]
… The claimants are not in a position to adduce evidence about specific individuals
who as a result of reading the Article think less of them. [26]
f. See [30].
g. See [27].
h. It is obvious, without the necessity of referring to Hansard, that ‘serious harm’

involves a higher threshold than ‘substantial harm’ would have done; and also that
as the explanatory notes put it, it ‘raises the bar’ over which a claimant must jump.
[37]
i. … the seriousness of the allegations and the extent of the circulation of the libel.
Consistently with the policy of the 2013 Act and this general approach a serious
libel circulated to a very large number of publishees will inevitably pass the ‘serious
harm’ test. [40]
j. Example: Evidence is not necessary in some cases, such as falsely accusing someone
of being a terrorist or a paedophile, as the likelihood of serious harm to reputation
is plainly obvious. See [43].
k. See [44].
activity 19.5
Applied comprehension – privacy and public figures

a. … neither article takes precedence over the other. Where the values under them
are in conflict, the court has to focus intensely on the comparative importance of
the specific rights being claimed in the individual case. It must take account of the
claimed justification for interfering with or restricting each right. And to each of
the two rights the test of proportionality must be applied. [8]
b. See [14].
c. Example: The more a person participates in public life, the more the participant
gives up control over many aspects of life. See [15].
d. ‘… The public figure may be a role model whose conduct could well be emulated
by others. He may set the fashion. The higher the profile of the individual
concerned the more likely that this will be the position.’ [17]
Examples:
‘… headmasters and clergymen, who according to taste may be joined by

politicians, senior civil servants, surgeons and journalists’… the captain of England’s
football team, ‘for a substantial body of the public, would come comfortably within
it’ and that there were ‘many who would indeed see the captain, at least, of the
England football team as a role model’. [18]
e. ‘… If you have courted public attention then you have less ground to object to the
intrusion which follows. In many of these situations it would be overstating the
position to say that there is a public interest in the information being published.
It would be more accurate to say that the public have an understandable and so a
legitimate interest in being told the information.’ [17]
f. Freedom to live as one chooses and the freedom to criticise (within the limits of
the law) the conduct of other members of society as being socially harmful, or
wrong. See [19].
g. Example:
i. An injunction is a court order which restricts the right of free speech in order
to protect the right to privacy.
ii. A super-injunction restricts the right of free speech further by placing a

prohibition on reporting the fact of substantive orders and proceedings and
usually provides party anonymity.
h. 1. Public figure – ‘former manager of England’s football team’.
2. Defendant’s ‘legitimate interest in publishing the story’.
3. Reasonable expectation of ‘a higher standard of conduct’ (all at [34]).
Chapter 20
activity 20.1
Applied comprehension – public interest defence

a. … the appellant defendant (‘TNL’) published an article (‘the Article’) which
defamed the claimant respondent, (‘Sergeant Flood’)… The issue before the court
is whether TNL are protected from liability to Sergeant Flood in defamation under
the doctrine known as Reynolds privilege. [2]
b. … Reynolds privilege protects publication of defamatory matter to the world

at large where (i) it was in the public interest that the information should
be published and (ii) the publisher has acted responsibly in publishing the
information, a test usually referred to as ‘responsible journalism’ although
Reynolds privilege is not limited to publications by the media… [2]
c. The ‘Chase level 1’ meaning is that the claimant was guilty. The ‘Chase level 2’
meaning is that there were reasonable grounds to suspect that the claimant was
guilty. The ‘Chase level 3’ meaning is that there were grounds for investigating
whether the claimant was guilty. [8]
d. 1. the meaning issue –
… how the court should approach the meaning of a publication when

considering a claim to Reynolds privilege. [22]
2. the public interest issue –
… The public interest issue is whether, and in what circumstances, it is in

the public interest to refer to the fact that accusations have been made, and
in particular that accusations have been made to the police, that a named
person has committed a criminal offence. This issue embraces the question of
whether, if it is in the public interest to report the fact of the accusation, it is
also in the public interest to report the details of the accusation. [24]
3. the verification issue –
… is the journalist required to take steps to check whether the accusations

that have been made are well founded, or is his duty to do no more than verify
that the accusations reported were in fact made? [25]
e. See [27].
f. … qualified privilege could protect publication of defamatory matter to the world

at large where the public interest justified the publication. [28]
g. ‘The elasticity of the common law principle enables interference with freedom of
speech to be confined to what is necessary in the circumstances of the case. This
elasticity enables the court to give appropriate weight, in today’s conditions, to
the importance of freedom of expression by the media on all matters of public
concern.’ [29]
h. … responsible journalism requires the striking of the right balance between the
public interest in the subject matter of the publication on the one hand and the
harm to the claimant, should the publication prove to be untrue on the other. [30]
… ‘what it is in the public interest that the public should know and what the
publisher could properly consider that he was under a public duty to tell the
public’. [31]
… ‘in a simpler and more direct way, whether the public was entitled to know the
particular information.’ [32]
… ‘the general obligation of the press, media and other publishers to communicate
important information upon matters of general public interest and the general
right of the public to receive such information.’… ‘there must be some real public
interest in having this information in the public domain’. [42]
i. See the quote from Lord Bingham at [33].
j. The public interest that justified publication was in knowing that the allegations
had been made, it did not turn on the content or the truth of those allegations.
A publication that attracts Reynolds privilege in such circumstances has been
described as ‘reportage’. [34]
It is an example of circumstances in which the public interest justifies publication

of facts that carry defamatory inferences without imposing on the journalist any
obligation to attempt to verify the truth of those inferences. Those circumstances
may include the fact that the police are investigating the conduct of an individual,
or that he has been arrested, or that he has been charged with an offence. [35]
Notes
Tort law page 255
Notes
Notes
Tort law page 257
Notes
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Tort law

Published by: University of London

© University of London 2018

Part I: Organising principles of tort law . . . . . . . . . . . . . . . . . . . 1

3 Modern influences on tort law . . . . . . . . . . . . . . . . . . . . . . 27

5 Liability for omissions . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Part II: Negligence 1: defining the modern duty of care . . . . . . . . . . . 57

7 Development of the duty of care concept . . . . . . . . . . . . . . . . 63

8 Setting the boundaries: problem areas in negligence . . . . . . . . . . 75

10 Pure economic loss and negligent statements . . . . . . . . . . . . . . 91

10.4 Economic loss cases (ii): performance of a service . . . . . . . . . . . . . . 97

11 Liability of public bodies . . . . . . . . . . . . . . . . . . . . . . . . 103

Part III: Negligence 2: breach of duty, causation and remoteness, defences

12 Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

13 Causation and remoteness of damage . . . . . . . . . . . . . . . . . 127

14 Defences to negligence . . . . . . . . . . . . . . . . . . . . . . . . . 143

Part IV: Property and reputation . . . . . . . . . . . . . . . . . . . . . . 153

15 Defective premises: pure economic loss . . . . . . . . . . . . . . . . 153

16 Defective premises: occupiers’ liability . . . . . . . . . . . . . . . . 159

17 The law of nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . 171

18 The rule in Rylands v Fletcher . . . . . . . . . . . . . . . . . . . . . 185

19 Elements of defamation . . . . . . . . . . . . . . . . . . . . . . . . 193

20 Defences to defamation . . . . . . . . . . . . . . . . . . . . . . . . 207

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

Courses on which this module is offered

Notional study time

MODULE PURPOSE AND OVERVIEW

LEARNING OUTCOMES: KNOWLEDGE

1. Demonstrate a critical awareness of the relationship between policy and principle

3. Analyse the legal principles governing liability of occupiers of premises;

4. Explain the law of nuisance and the rule in Rylands v Fletcher;

LEARNING OUTCOMES: SKILLS

6. A developed capacity for effective legal analysis and argument;

7. Enhanced reasoning skills in relation to moderately complex legal questions and

BENCHMARK FOR LEARNING OUTCOMES

(b) Organising themes. Damage, fault, vicarious liability.

(c) The principles of duty, breach and damage components of negligence.

(e) Defences to negligence.

(f) Defective premises and the law.

(g) The tort of nuisance and the rule in Rylands v Fletcher.

LEARNING AND TEACHING

The Laws Virtual Learning Environment

uu a complete version of the module guides;

uu online audio presentations;

uu past examination papers and reports;

uu computer marked assessments – multiple-choice questions with feedback

The Online Library

uu the professional legal databases LexisLibrary and Westlaw;

uu cases and up-to-date statutes;

uu key academic law journals;

uu links to important websites.

Summative assessment is through a three hour and fifteen minute examination.

1.1 How to use this guide . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.4 Impact of European Union law . . . . . . . . . . . . . . . . . . . . . . . 7

1.5 Impact of the Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . 7

1.1 How to use this guide

The purpose of a lecture is to provide an overview (not a detailed analysis) of a topic,

1.1.1 Comprehension activities

1.1.2 Examination topics