Tort

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Tort

SEVENTH EDITION

by
Paula Giliker, M.A. (Oxon.), B.C.L., Ph.D. (Cantab.)
Barrister, Professor of Law, University of Bristol

SWEET & MAXWELL

LONDON • 2020
 First edition (2000)
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Dedication

To my family
Guide to the Book
Preface

This book is designed for readers approaching tort law for the first
time. I have sought to set out clearly and succinctly the rules
applicable to each tort and illustrate how they work in practice by
reference to case law. Whilst the discussion of case law can by no
means replace reading the cases themselves, I have set out the
salient points to serve as an aide mémoire and to enable the reader to
consider the law in a factual context. Similarly, I have outlined the
main statutory provisions in this area of law and have sought to help
the reader understand the wording and impact of these provisions.
The book has a traditional structure. The first chapter gives an
overview of tort liability and considers its aims and objectives, the
interests it seeks to protect, and its role in modern society. Chapters
2–6 examine the tort of negligence. Negligence is the most
commonly used tort and forms an essential part of any tort law
course. It is therefore considered in some detail and is divided into a
number of issues which tend to be studied separately. Chapter 6
examines the law relating to causation. This is dealt with in the
context of negligence, although it is relevant to all torts. The second
half of the book deals with negligence-related liability, strict
liability, and other torts. Chapter 7 explores tort liability arising in
an employment relationship, whilst Ch.8 examines tort liability
arising from occupation of premises. Chapter 9 considers two
examples of strict liability statutes—the Consumer Protection Act
1987 and the Animals Act 1971—and their role within the law of
tort. The book then deals with other torts, namely nuisance (and
associated liability under the rule in Rylands v Fletcher), trespass,
economic torts, defamation and privacy law. The final two chapters
deal with the important subjects of defences and remedies.
No understanding of the law would be complete without an
appreciation of the impact of government reforms and recent case
law in the law of tort. This new edition examines the impact of the
Civil Liability Act 2018 and key recent cases in the fields of
negligence, notably in relation to duty of care where the Supreme
Court has been very active (Robinson v Chief Constable of West
Yorkshire Police,1 Darnley v Croydon Health Services NHS Trust,2
James-Bowen v Commissioner of Police of the Metropolis3 and
Poole BC v GN4), and pure economic loss (Dryden v Johnson
Matthey Plc,5 Playboy Club London Ltd v Banca Nazionale del
Lavoro SpA6 and Steel v
NRAM Ltd7). It also considers significant developments in the field
of vicarious liability (Armes v Nottinghamshire CC,8 Barclays Bank
Plc v Various Claimants9 and WM Morrison Supermarkets Plc v
Various Claimants10), false imprisonment (R. (Jalloh (formerly
Jollah) v Secretary of State for the Home Department11), defamation
(Lachaux v Independent Print Ltd,12 Stocker v Stocker13 and
Economou v de Freitas14), privacy (Richard v BBC15), defences
(Henderson v Dorset Healthcare University NHS Foundation
Trust16) and damages (Whittington Hospital NHS Trust v XX17).
In writing this book, I have received considerable support from
my colleagues, friends and family, to whom I would like to express
my thanks. I have also benefited from teaching students over a
number of years at the University of Bristol. I would also like to
thank all at Sweet and Maxwell, in particular Nicola Thurlow for
her ongoing support and Keith and Jasper Syrett for their help and
encouragement. I have attempted to state the law as it stood in April
2020.
Two final points on terminology. The Civil Procedure Rules
came into force on 26 April 1999. Their aim is to speed up and
simplify civil litigation. Accordingly, in an effort to demystify the
law, the term “plaintiff” was replaced in 1999 by the term
“claimant”. The latter term is thus used when discussing principles
of law and recent cases. The term “plaintiff”, however, will be used
when discussing cases decided prior to the date of the change. More
recently in October 2009, the Supreme Court replaced the Appellate
Committee of the House of Lords as the highest court in the UK.
 For cases decided after this date, the term “Supreme Court” will be
used; prior to that date the text will refer to “the House of Lords”.
Both signify the highest court in the UK.

Paula Giliker
Bristol, April 2020.

1 [2018] UKSC 4; [2018] A.C. 736.

2 [2018] UKSC 50; [2019] A.C. 831.

3 [2018] UKSC 40; [2018] 1 W.L.R. 4021.

4 [2019] UKSC 25; [2019] 2 W.L.R. 1478.

5 [2018] UKSC 18; [2019] A.C. 403.

6 [2018] UKSC 43; [2018] 1 W.L.R. 4041.

7 [2018] UKSC 13; [2018] 1 W.L.R. 1190.

8 [2017] UKSC 60; [2018] A.C. 355.

9 [2020] UKSC 13; [2020] 2 W.L.R. 960, overturning [2018] EWCA Civ
1670.

10 [2020] UKSC 12; [2020] 2 W.L.R. 941, overturning [2018] EWCA Civ
2339.

11 [2020] UKSC 4; [2020] 2 W.LR. 418.

12 [2019] UKSC 27; [2020] A.C. 612.

13 [2019] UKSC 17; [2019] 2 W.L.R. 1033.

14 [2018] EWCA Civ 2591; [2019] E.M.L.R. 7.

15 [2018] EWHC 1837 (Ch); [2019] Ch 169.

16 [2018] EWCA Civ 1841; [2018] 3 W.L.R. 1651.

17 [2020] UKSC 14; [2020] 2 W.L.R. 972.

Acknowledgments

Grateful acknowledgment is made to the following authors and

publishers for permission to quote from their works:

THE INCORPORATED COUNCIL OF LAW REPORTING FOR

ENGLAND AND WALES: Law Reports and Weekly Law Reports.

We have also quoted from the following sources:

Published by Appellate Press:

Lord Hoffmann, “Constitutionalism and private law” (2014–15)
6 UKSCY 177.

Published by Bloomsbury Professional, an imprint of Bloomsbury

Publishing:
M. A. Jones, (2007) 23 P.N. 238.
P. Case, “Limitation periods and sexual abuse” (2009) 25 P.N.
22.

Published by Hart Publishing, an imprint of Bloomsbury Publishing:

J. Wright, Tort Law and Human Rights, 2nd edn (Hart, 2017).

Published by The Guardian:

J. Rozenberg, “The Supreme Court’s ruling will be greeted with
dismay at the MoD” The Guardian, 19 June 2013.

Published by Reed Elsevier (UK) Limited, trading as LexisNexis:

Daborn v Bath Tramways Motor Co Ltd [1946] 2 All E.R. 333.
A v National Blood Authority [2001] 3 All E.R. 289.

Published by Thomson Reuters, trading as Sweet & Maxwell:

McHale v Watson (1966) 115 C.L.R. 119.
 Khatun v United Kingdom (38387/97) (1998) 26 E.H.R.R. CD
212.
Osman v United Kingdom (1998) 29 E.H.R.R. 245.
Von Hannover v Germany (59320/00) (2005) 40 E.H.R.R. 1.
Kaye v Robertson [1991] F.S.R. 62.
P. H. Winfield, “The history of negligence in the law of torts”
(1926) 42 L.Q.R. 184.

While every care has been taken to establish and acknowledge

copyright, and contact copyright owners, the publishers tender their
apologies for any accidental infringement. They would be pleased to
come to a suitable arrangement with the rightful owners in each
case.
 Table of Contents

Preface ix
Acknowledgments xi
Table of Contents xiii
Table of Cases xxxiii
Table of Statutes xcvii
Table of Statutory Instruments cvii
Table of EU & International Legislation cix

1 The Nature of Tortious Liability

What is tort? 1–002
Principles of Liability 1–003
(1) Compensation 1–004
(2) Fault 1–005
(3) Retributive justice 1–006
(4) Deterrence 1–007
(5) Economic efficiency (market deterrence) 1–008
(6) Loss distribution 1–009
Conclusions 1–010
The Interests Protected by Tort 1–011
(1) Personal harm 1–012
(2) Harm to property 1–013
(3) Harm to reputation 1–014
(4) Harm to financial interests 1–015
(5) Harm to the due process of law 1–016
The Role of Tort in the Law of Obligations 1–017
The distinction between tort and contract 1–018
 The distinction between tort and restitution 1–019
The Impact of European and Human Rights Law 1–020
Tort in Modern Society 1–021
Tort and other compensation systems 1–022
Why not tort? 1–023
Cost 1–024
Time 1–025
Risk 1–026
Difficulty 1–027
Absence of litigation consciousness 1–028
Proposals for reform 1–029
(1) A mixed system 1–030
(2) No-fault liability 1–031
(3) Insurance 1–032
Tortious liability: conclusion 1–033

2 Negligence: The Duty of Care

Introduction 2–001
Definition of Negligence 2–002
Studying Negligence 2–003
An Overview of Negligence 2–004
The Duty of Care
An overview 2–005
The historical background 2–006
The first step: identifying a general principle 2–007
Lord Atkin’s “neighbour principle” 2–008
The second step: applying the neighbour principle 2–009
The decision in Hedley Byrne 2–010
The decision in Dorset Yacht 2–011
Lord Wilberforce’s “two-stage test” 2–012
The third step: the retreat from Anns 2–013
The modern approach: Robinson and Caparo 2–014
The Caparo criteria for novel cases 2–015
 (1) Foreseeability 2–016
The foreseeable claimant 2–017
Is an unborn child a “foreseeable claimant”? 2–018
(2) Proximity 2–019
(3) “Fair, just and reasonable” 2–020
Further factors relevant to the imposition of a duty of
care 2–021
Liability for omissions? 2–022
No duty to rescue 2–023
No general duty to prevent others from causing
damage 2–024
(1) Special relationship between the defendant
and the claimant 2–026
(2) Special relationship between the defendant
and the third party 2–027
(3) Creating a source of danger “sparked off” by
a third party 2–028
(4) Failing to take reasonable steps to abate a
danger created by a third party 2–029
The Type of Defendant 2–030
(1) Local authorities 2–031
Policy arguments 2–032
Statutory functions and the intention of
Parliament 2–033
“Policy matters” and “operational matters” 2–034
When does a local authority “assume
responsibility” for a claimant’s welfare? 2–035
Human rights issues 2–037
The decision in Z v United Kingdom 2–038
The Impact of the Human Rights Act 1998 2–039
Jain, Rabone and DSD: Keeping negligence
and human rights separate 2–040
Any remaining influence: D v East Berkshire
NHS Trust? 2–041
The education cases 2–042
 (2) Other public servants 2–043
The police 2–044
Cases where the police owe a duty of care 2–045
Cases where the police do not owe a duty of
care 2–046
The fire brigade 2–049
The coastguard 2–050
The ambulance service 2–051
The National Health Service 2–052
The “unintended children” cases 2–053
The armed forces 2–054
(3) Advisory bodies and regulators 2–055
Ship classification societies 2–056
Scientific advisory bodies 2–057
Sports regulators 2–058
(4) The legal profession 2–059
The old law 2–060
Arguments for advocates’ immunity 2–061
(1) Divided loyalty 2–061
(2) The “cab rank” rule 2–062
(3) The collateral challenge rule 2–063
(4) Other grounds: The length of trials and
witness immunity 2–064
The decision in Hall v Simons 2–065
Duty of care: conclusion 2–066

3 Negligence: Economic Loss

Introduction 3–001
Definition of “pure economic loss” 3–002
“Pure” and “consequential” economic loss 3–003
An illustration: Spartan Steel 3–004
Policy considerations 3–006
(1) Tort law should not impose “crushing 3–007
 liability” on defendants for financial losses
(2) Tort law should not undermine the contractual
allocation of risk 3–008
(3) Financial loss is not considered as important
as physical harm 3-009
Pure Economic Loss Caused by Negligent Activities
The traditional approach 3–010
A brief period of expansion: Anns and Junior Books 3–011
The decision in Anns 3–012
The decision in Junior Books 3–013
The retreat from Junior Books 3–014
Junior Books and the Contracts (Rights of Third
Parties) Act 1999 3–015
The “Activity” Cases: The modern rule against
recovery 3–016
Exceptions to the rule against recovery 3–018
(i) A claimant may recover where the defect is a
potential source of liability to neighbouring
landowners 3–019
(ii) The “complex structure theory” 3–020
(iii) The Defective Premises Act 1972 3–021
(iv) A landlord may owe a common law duty of
care to his tenant for personal injury caused
by an apparent defect 3–022
Pure Economic Loss Caused By Negligent
Statements and Services 3–023
The old law 3–024
The “Hedley Byrne principle” 3–025
(1) “Special relationship” and “assumption of
responsibility” 3–026
When will a “special relationship”or “assumption
of responsibility” normally arise? 3–027
Can a “special relationship” arise in a purely
social context? 3–031
Must the defendant be “in the business of giving 3–032
 advice”?
Assumption of responsibility: an objective test 3–033
(2) “Reasonable reliance” 3–035
Reliance must be reasonable 3–036
Reliance must, in fact, take place 3–037
Provision of services (the “extended Hedley Byrne
principle”) 3–038
Employment references 3–039
Will drafting 3-040
Pensions advice 3–043
Do you have to prove reliance in relation to the
provision of services? 3-044
Should the assumption of responsibility test be the
only test for recovery? 3–045
Economic loss: conclusion 3–047

4 Negligence: Psychiatric Illness

Introduction 4–001
Definition of “psychiatric illness” 4–002
Types of claimant 4–003
Historical Development
The old law 4–004
The “impact theory” 4–005
The law expands: Hambrook v Stokes 4–006
No further expansion: Bourhill v Young 4–007
The emergence of the modern law: McLoughlin v
O’Brian 4–008
Lord Wilberforce’s “control mechanisms” 4–009
Modern Law: Preliminary issues 4–010
Psychiatric illness resulting from personal injury 4–011
Psychiatric illness resulting from property damage 4–012
Policy considerations 4–013
Foreseeability of psychiatric illness 4–014
 Primary Victims
What is the test for primary victims? 4–016
What do we mean by “fear for your own safety”? 4–018
There may be a requirement of “actual danger” 4–019
The claimant’s fear for his or her own safety must
be reasonable 4–020
Secondary Victims
What is the test for secondary victims? 4–021
The Alcock “Control Mechanisms” 4–022
(1) Proximity of relationship 4–023
(2) Proximity in time and space 4–024
(3) The means by which the psychiatric illness is
caused 4–025
No liability where the claimant is merely informed
about the accident 4–026
No liability when informed about the accident by
live television coverage 4–028
Psychiatric illness caused by a defendant harming
or imperilling himself or herself 4–029
(4) The “sudden shock” requirement 4–030
The Impact of White 4–031
(1) Employees 4–032
(2) “Unwitting agents” 4–033
(3) Rescuers 4–034
Rescuers who suffer physical injury 4–035
Rescuers who suffer only psychiatric harm 4–037
Psychiatric Illness Law: Proposals for Reform 4–039
“Close ties of love and affection”: the “fixed list” 4–040
The “just and reasonable” proviso 4–041
The “actual danger” proviso 4–042
Defences 4–043
Liability for psychiatric illness: conclusion 4–044

5 Negligence: Breach of Duty

 Introduction 5–001
The “reasonable person” 5–002
The standard of care is objective 5–003
The standard of care is a “hypothetical”, not an
“average” standard 5–004
Factors Relevant to the Standard of Care 5–005
Foreseeability of harm 5–006
The magnitude of the risk 5–007
(1) The likelihood of harm 5–008
(2) The seriousness of the consequences 5–009
The burden of taking precautions 5–010
The defendant’s financial circumstances 5–011
The utility of the defendant’s conduct 5–012
The Compensation Act 2006 and Social Action,
Responsibility andHeroism Act 2015 5–013
Common practice 5–014
The “Learned Hand” test 5–015
Special Standards of Care 5–016
Children 5–017
Defendants acting in an emergency 5–018
Participants in sport 5–019
The Professional Standard of Care 5–020
The Bolam test 5–021
The standard of the “reasonable skilled person” 5–022
The relevance of common practice and
professional opinion 5–023
The limits of the “Bolam principle” 5–024
Disclosure of the risks of treatment 5–025
Policy issues in medical negligence cases 5–027
Proof of Breach 5–028
Civil Evidence Act 1968 5–029
Res ipsa loquitur 5–030
When does the maxim apply? 5–031
(1) The occurrence must be one that will not 5–032
 normally happen
(2) The defendant must have control of the thing
which causes the harm 5–033
(3) The cause of the occurrence must be unknown
to the claimant 5–034
What is the effect of the maxim? 5–035
Breach of duty: conclusion 5–036

6 Causation and Remoteness

Introduction 6–001
Factual Causation 6–002
The pragmatic approach 6–003
The “but for” test 6–004
Problems with the “but for” test 6–005
Concurrent Causes 6–006
“Indeterminate cause” 6–007
“Cumulative cause” 6–008
Successive Causes 6–009
Proof of Causation 6–011
(i) The “all or nothing” approach 6–012
(ii) The “material contribution to injury”
approach 6–015
(iii) The “vindication of rights” approach:
Chester v Afshar 6–016
(iv) The “material increase in risk” approach:
Fairchild 6–017
Contribution between defendants: Compensation
Act 2006 6–018
When will the “material increase in risk”
approach apply? 6–019
Novus Actus Interveniens 6–021
Intervening act of a third party 6–022
Natural or “instinctive” intervention 6–023
 Negligent intervention 6–024
Intentional acts of wrongdoing 6–025
Intervening act of the claimant 6–026
Remoteness of Damage 6–027
The old law 6–028
The modern law: The Wagon Mound (No.1) 6–029
Foreseeability of the “kind of damage” 6–030
Foreseeability of the “way the damage is caused” 6–031
Foreseeability of the “extent” of the damage 6–032
The “Eggshell Skull” Rule 6–033
Causation and remoteness: conclusion 6–035

7 Employers’ Liability
Introduction 7–001
The development of employers’ liability 7–002
Personal Liability 7–003
The nature of the duty 7–004
(1) Provision of competent staff 7–005
(2) Provision of adequate plant and equipment
and a safe place to work 7–006
(3) Provision of a safe system of work 7–007
The modern scope of personal liability 7–008
Stress in the workplace 7–009
Breach of Statutory Duty 7–011
Construing Parliamentary intention 7–012
(1) Protection of a class 7–013
(2) The nature of the legislation 7–014
(3) Alternative remedies 7–015
Further considerations 7–017
(1) Is the duty owed to this particular claimant? 7–018
(2) Has the defendant breached his or her duty to
the claimant? 7–019
(3) Did the breach cause the damage concerned? 7–020
 (4) Is the damage of the kind which the statute 7–021
intended to prevent?
Defences 7–022
Breach of statutory duty and EU law 7–023
Vicarious Liability 7–025
(1) The employee committed a tort 7–026
(2) The relationship between the tortfeasor and the
employer 7–027
Factors identifying “employees”
The terms of the contract 7–028
Control 7–029
The relationship as a whole 7–030
Relationships “akin” to employment 7–031
Lending an employee 7–032
(3) A connection that links the relationship between
the tortfeasor and employer and the commission of
the tort—Acting in the course of employment 7–033
Prohibited and criminal conduct by employees 7–035
The application of the Lister “close connection”
test 7–037
Summary 7–038
Liability for the torts of independent contractors 7–039
Can vicarious liability be justified? 7–040
Employers’ liability: conclusion 7–041

8 Occupiers’ Liability
Introduction 8–001
The old law 8–002
(1) Contractual entrants 8–003
(2) Invitees 8–004
(3) Licensees 8–005
(4) Trespassers 8–006
The need for reform 8–007
Occupiers’ Liability Act 1957 8–008
The scope of the 1957 Act
(1) The Act covers damage to property as well as
personal injury 8–009
(2) Liability under the Act may be limited by an
express term of a contract, or by a notice given
to visitors 8–010
(3) The Act is thought to apply only to the
“occupancy duty” 8–011
Definition of “occupier” 8–012
Definition of “premises” 8–013
Definition of “visitor” 8–014
Persons entering by authority of law 8–015
Persons exercising rights of way 8–016
Implied permission 8–017
Limitations on permission 8–018
The “common duty of care” 8–019
Discharging the common duty of care 8–020
Children 8–021
Professional visitors 8–022
Giving a warning of the danger 8–023
Entrusting work to independent contractors 8–024
Exclusion of liability 8–026
(1) Displaying a notice on the premises 8–027
(2) An express term of a contract 8–028
The contract’s effect on third parties 8–029
The Unfair Contract Terms Act 1977 8–030
The Consumer Rights Act 2015 8–031
A minimum non-excludable standard of care? 8–032
Liability to Non-Visitors 8–033
The old law 8–034
Occupiers’ Liability Act 1984 8–035
Tomlinson v Congleton BC 8–036
Applying the 1984 Act 8–037
 Defences 8–038

9 Strict Liability Statutes

Consumer Protection Act 1987
Introduction 9–002
The Common Law Position 9–003
The scope of Donoghue v Stevenson 9–004
The duty of care 9–005
Breach 9–006
Causation and remoteness 9–007
The type of loss recoverable 9–008
Particular problems relating to defective products
(1) What is a product? 9–009
(2) Has there been intermediate examination or
interference? 9–010
(3) The manufacture/design distinction 9–011
The need for change? 9–012
Consumer Protection Act 1987 9–013
Who can sue? 9–014
Who is liable? 9–015
(1) Producer—ss.1(2) and 2(2)(a) 9–016
(2) Own-brander—s.2(2)(b) 9–017
(3) Importer into EU—s.2(2)(c) 9–018
(4) Supplier—s.2(3) 9–019
What is a product? 9–020
What is a defect? 9–021
What damage? 9–024
Defences 9–025
(a) The defect is attributable to compliance with a
requirement imposed by law 9–026
(b) The defendants did not at any time supply the
product to another 9–027
(c) Supply by the defendants was not in the course 9–028
 of their business
(d) The defect did not exist in the product at the
relevant time, i.e. when it was put into
circulation 9–029
(e) The development risk defence 9–030
(f) The defect was a defect in a finished product
(X) in which the product in question had been
comprised AND was wholly attributable to the
design of X or to compliance with the producer
of X’s instructions 9–032
Contributory negligence 9–033
Exclusion clauses 9–034
Limitation periods 9–035
Causation and remoteness 9–036
Assessment of the Impact of the Act
Continuing practical problems 9–037
Standard and non-standard products 9–038
Use of settlements 9–039
Breach of Statutory Duty 9–040
Reform of the Product Liability Directive 9–041
Animals Act 1971 9–042
Dangerous/non-dangerous species 9–043
Dangerous species 9–044
Non-dangerous species 9–045
Defences 9–047
(i) Fault of the victim 9–048
(ii) Voluntary acceptance of risk 9–049
(iii) The victim is a trespasser 9–050
Conclusion 9–051

10 Nuisance and the Rule in Rylands v

Fletcher
Introduction 10–001
Nuisance 10–002
Private Nuisance 10–003
What amounts to private nuisance? 10–004
“Reasonable user” 10–005
Factors determining reasonable user 10–006
(1) The nature of the locality 10–007
(2) Duration and frequency 10–008
(3) Utility of the defendant’s conduct 10–009
(4) Abnormal sensitivity 10–010
(5) Malice 10–012
Who can sue? 10–013
Rights in the land 10–014
Losses incurred prior to acquisition of a right to
land 10–015
Landlords 10–016
The Human Rights Act 1998 10–017
Who can be sued? 10–018
(1) The occupier of the land 10–019
(i) The occupier exercises control over the
creator 10–020
(ii) The occupier has adopted or continued a
nuisance created by a trespasser 10–021
(iii) The occupier has adopted or continued a
nuisance created by an act of nature 10–022
The measured duty of care 10–023
(iv) The creator is the occupier’s predecessor
in title 10–024
(2) The landlord 10–025
(i) Where the landlord participates directly in
the commission of or authorises the nuisance 10–026
(ii) The landlord knew or ought to have known
of the nuisance before letting 10–028
(iii) The landlord covenanted to repair, or has
a right to enter to repair
10–029
 Must the nuisance emanate from the defendant’s 10–030
land?
Relevant defences 10–031
(1) Statutory authority 10–032
(2) 20 years’ prescription 10–033
(3) Inevitable accident 10–034
(4) Act of a stranger 10–035
Ineffective defences 10–036
(1) Coming to the nuisance 10–037
(2) Utility 10–038
(3) Jus Tertii 10–039
(4) Due to many 10–040
Relationship between Private Nuisance and Other
Torts 10–041
The relationship between private nuisance and
negligence 10–042
The relationship between private nuisance and
trespass to land 10–043
Public Nuisance 10–044
Obstructions on the highway 10–045
Projections over the highway 10–046
Particular damage 10–047
The Rule in Rylands v Fletcher 10–048
What is the significance of Rylands v Fletcher? 10–049
Transco and the role of Rylands in modern society 10–050
Liability under the rule in Rylands v Fletcher 10–051
(1) The defendant brings on his lands for his own
purposes something likely to do mischief 10–052
(2) If it escapes 10–053
(3) Non-natural user 10–054
(4) Foreseeability of damage of the relevant type 10–055
Who can sue? 10–056
Who can be sued? 10–057
Defences 10–058
(1) Claimant’s default 10–059
 (2) Unforeseeable act of stranger 10–060
(3) Act of God 10–061
(4) Statutory authority 10–062
(5) Consent 10–063
Remedies 10–064
(1) Injunctions 10–065
(2) Abatement 10–066
(3) Damages 10–067
Personal injury 10–068
Economic loss 10–069
Damage to chattels 10–070
Remoteness 10–071
The Human Rights Act 1998 10–072
Conclusion 10–073

11 Trespass
Introduction 11–001
Trespass to the Person 11–002
Battery 11–003
(1) It must be intentional 11–004
(2) It must be direct 11–005
(3) Immediate force 11–006
Assault 11–007
(1) Reasonable apprehension of harm 11–008
(2) It must be intentional 11–009
(3) It must be immediate and direct 11–010
Can words amount to an assault? 11–011
False imprisonment 11–012
(1) A complete restriction of the claimant’s
freedom of movement 11–013
It is unnecessary to show the claimant knew of the
imprisonment 11–015
(2) Without legal authorisation 11–016
The Rule in Wilkinson v Downton 11–017
Trespass to the Person: Defences 11–018
(1) Consent 11–019
Refusal of consent 11–020
Limits to consent 11–021
(2) Necessity 11–022
(3) Self-defence 11–023
(4) Provocation 11–024
(5) Contributory negligence 11–025
(6) Lawful authority 11–026
Can Trespass to the Person be Committed
Negligently? 11–027
Protection from Harassment Act 1997 11–028
What is harassment? 11–029
Remedies 11–030
Malicious Prosecution 11–031
Misfeasance in public office 11–033
Trespass to Land 11–034
(1) Direct and unjustifiable interference 11–035
(2) Possession of land 11–036
Trespass to Land: Defences 11–037
(1) Licence 11–038
(2) Necessity 11–039
(3) Justification by law 11–040
Trespass to Land: Remedies 11–041
(1) Self-help 11–042
(2) Order for possession of land 11–043
(3) Mesne profits 11–044
Trespass to Goods 11–045
The requirements of trespass to goods
(1) It must be intentional 11–046
(2) It must be direct 11–047
(3) Actionable per se? 11–048
(4) Possession 11–049
 Defences 11–050

12 The Economic Torts

Introduction 12–001
Regulating competition: the scope of the economic
torts 12–002
Inducing a Breach of Contract 12–003
The defendant must know of the existence of the
contract 12–004
The defendant must know that the induced conduct
will amount to a breach 12–005
Knowledge of the contractual terms 12–006
Knowledge of the legal effect of the induced
conduct 12–007
The defendant must “intend” to induce the breach 12–008
What counts as “intending”? 12–009
Must the defendant intend to cause loss? 12–010
What counts as inducing? 12–011
Defences to inducing a breach of contract 12–012
Where the defendant has an equal or superior
right to the third party’s performance 12–013
Where the defendant has statutory authority to
interfere with the
contract 12–014
Where the defendant has a moral or social duty to
interfere with the contract 12–015
Causing Loss by Unlawful Means 12–016
The defendant’s actions must be “unlawful” in the
relevant sense 12–017
The defendant’s actions must affect the third party’s
freedom to deal with the claimant 12–018
The defendant must intend to cause the claimant loss 12–019
Ways of committing the unlawful means tort 12–020
 The “interference with contractual relations” 12–021
scenarios
The “intimidation” scenario 12–022
The modern torts applied: the OBG v Allan appeals 12–023
Mainstream Properties Ltd v Young 12–024
OBG v Allan 12–025
Douglas v Hello! 12–026
Conspiracy 12–027
Unlawful means conspiracy 12–028
What must the conspirators intend? 12–029
What counts as “unlawful means” for the purpose
of establishing this tort? 12–030
Lawful means conspiracy 12–032
The economic torts: conclusion 12–033

13 Defamation
Introduction 13–001
Libel and Slander 13–002
Types of slander actionable per se 13–003
(1) Imputation of a criminal offence punishable by
imprisonment 13–004
(2) Imputation of professional unfitness or
incompetence 13–005
(3) Imputation of unchastity or adultery by a
female (abolished by the Defamation Act 2013
s.14(1)) 13–006
(4) Imputation of a contagious disease (now
requires special damage: Defamation Act 2013
s.14(2)) 13–007
The General Requirements of Defamation 13–008
Judge and jury? 13–009
(1) Is the statement defamatory? 13–010
Innuendo 13–013
 (2) Does the statement refer to the claimant? 13–015
Group defamation 13–017
(3) Has the statement been published to a third
party? 13–018
Who can sue?
(1) Any living human being 13–020
(2) Companies 13–021
Who cannot sue?
(1) Governmental bodies 13–022
(2) Political parties 13–023
Conclusion 13–024

14 Defences to Defamation
Introduction 14–001
Truth 14–002
Honest Opinion 14–004
Condition one: statement of opinion 14–005
Condition two: the statement must indicate, in
general or specific terms,the basis for this opinion 14–006
Condition three: honest 14–007
Privilege 14–008
Absolute privilege 14–009
(1) Statements in Parliament 14–010
(2) Reports, papers, votes and proceedings
ordered to be published by either House of
Parliament 14–011
(3) Judicial proceedings 14–012
(4) Reports of UK court proceedings 14–013
(5) Communications between certain officers of
state 14–014
Qualified privilege 14–015
Traditional common law qualified privilege: the
duty/interest test 14–016
 What is a legal, moral or social duty? 14–017
What is an interest? 14–018
Examples 14–019
Common law qualified privilege and the media:
the Reynolds test 14–020
The application of Reynolds 14–022
Reform? 14–023
Qualified privilege under the Defamation Act 2013
Section 4: publication on matter of public
interest 14–024
Section 6: peer-reviewed statements in scientific
or academicjournals, etc 14–025
Qualified privilege under the Defamation Act 1996 14–026
(i) Reports of parliamentary proceedings 14–027
(ii) Reports of judicial proceedings 14–028
(iii) Registers 14–029
(iv) Other matters covered by the Defamation Act
1996 s.15 and Sch.1 14–030
Offer of Amends under the Defamation Act 1996 14–031
Innocent Dissemination 14–032
Internet defamation 14–033
Reform: Defamation Act 2013 ss.5, 8 and 10 14–035
Limitation 14–036
Remedies: Damages and Injunctive Relief 14–037
Damages: controlling the level of damages awarded 14–038
Aggravated and exemplary damages 14–039
The impact of Defamation Act 2013, s.11 14–040
Procedural reforms 14–041
Interim Injunctions 14–042
Malicious or Injurious Falsehood 14–043
Defamation: conclusion 14–045

15 Privacy (or Misuse of Private Information)

 Protection of privacy by existing torts 15–002
The impact of the Human Rights Act 1998 15–003
The Current Legal Position
(1) Rejection of a stand-alone tort of invasion of
privacy 15–004
(2) The “extended” breach of confidence action 15–005
Campbell v Mirror Group Newspapers Ltd 15–006
McKennitt v Ash 15–007
(3) Application of the two-stage test
(i) Is the information private? 15–008
(ii) Balancing art.8 and art.10 15–009
Information in the Public Domain 15-010
Remedies 15–011
(i) Damages 15–012
(ii) Interlocutory injunctions 15–013
Conclusion 15–014

16 General Defences and Extinction of

Liability
Introduction 16–001
Defences
(1) Consent 16–002
(i) Consent 16–003
(ii) Voluntary assumption of risk 16–004
(a) Agreement 16–005
(b) Full knowledge and acceptance of the
nature and extent of the risk 16–006
(c) Voluntary choice by claimant 16–007
Other uses of “consent” in negligence 16–009
(a) Setting the standard of care in
negligence 16–010
(b) Exclusion clauses 16–011
(iii) Leave or licence 16–012
 (2) Illegality 16–013
Establishing the test for illegality 16–015
The wide policy ground and joint criminal
enterprise 16–017
Rationalising the illegality defence: the Law
Commission and
Patel v Mirza 16–018
(3) Contributory negligence 16–019
The statutory position 16–020
(i) Was the claimant acting negligently? 16–021
(ii) Did the claimant’s actions contribute to the
damage suffered? 16–022
(iii) To what extent should the claimant’s
damages be reduced?
What is “just and equitable” in these
circumstances? 16–023
(a) Failure to wear a seatbelt 16–024
(b) Failure to wear a crash helmet 16–025
(c) Negligent valuation cases 16–026
Multiple defendants 16–027
General defences: conclusion 16–028
Extinction of Liability
(1) Limitation of actions for personal injury 16–029
Section 11 16–030
Section 14 16–031
Section 12 16–032
Section 33 16–033
Limitation problems
(i) Deliberate concealment 16–035
(ii) Disability 16–036
The burden of proof 16–037
Reform? 16–038
(2) Judgment 16–039
(3) Death 16–040
 General defences and extinction of liability: 16–041
conclusion

17 Remedies
Introduction 17–001
Damages 17–002
Types of damages 17–003
(1) Compensatory 17–004
(2) Contemptuous 17–006
(3) Nominal 17–007
(4) Aggravated 17–008
(5) Exemplary or punitive 17–009
The three kinds of punitive damages 17–010
(i) Oppressive, arbitrary or
unconstitutional actions by government
servants 17–011
(ii) Conduct calculated by the defendant
to make a profit which may well exceed
any compensation payable to the claimant 17–012
(iii) Expressly authorised by statute 17–013
The cause of action test 17–014
(6) Restitutionary 17–016
(7) Damages under the Human Rights Act
1998 17–017
Actions for Personal Injury 17–019
Pecuniary loss 17–020
(1) Loss of earnings 17–021
Discount rate 17–022
(2) Lost years 17–024
(3) Loss of earning capacity 17–025
(4) Deductions 17–026
(i) Charity 17–027
(ii) Voluntary payments by the defendant 17–028
 (iii) Insurance 17–029
(iv) Sick pay 17–030
(v) Pension 17–031
(vi) Social security benefits 17–032
(5) Expenses 17–033
Cost of a carer 17–034
(6) Other damages 17–035
Non-pecuniary loss
(1) Pain and suffering 17–036
(2) Loss of amenity 17–037
(3) Injury itself 17–038
Assessment 17–039
Interest 17–040
(1) Pecuniary loss 17–041
(2) Non-pecuniary
loss 17–042
Alternatives to lump sum
payments 17–043
(1) Provisional
damages 17–044
(2) Interim
payments 17–045
(3) Periodical
payments 17–046
Indexation 17–047
Actions on Death 17–048
(1) Action by the
deceased’s estate 17–049
(2) Action by the
deceased’s dependants 17–050
Fatal Accidents Act
1976 17–051
(1) Is the claimant a
dependant within
s.1(3) of the Act? 17–052
 (2) Was the claimant 17–053
financially dependent
on the deceased?
Assessment 17–054
Deductions 17–055
Damages for
bereavement 17–057
Actions for Loss or
Damage to Property 17–058
Joint and Several
Liability 17–059
Assessment 17–060
Settlements 17–061
Other Remedies
Self-help 17–062
Injunctions 17–063
Prohibitory and
mandatory
injunctions 17–064
Interim injunctions 17–065
Quia timet
injunctions 17–066
Remedies: conclusion 17–067
Page
Index 665
 Table of Cases

A (Children) (Conjoined Twins: Medical Treatment) (No.1), Re; sub nom.

A (Children) (Conjoined Twins: Surgical Separation), Re [2001] Fam.
147; [2001] 2 W.L.R. 480 CA (Civ Div) 11–020
A (Mental Patient: Sterilisation), Re; sub nom. A (Medical Treatment: Male
Sterilisation), Re; R-B (A Patient) v Official Solicitor; RB (Male
Patient: Sterilisation), Re [2000] 1 F.L.R. 549; [2000] 1 F.C.R. 193 CA
(Civ Div) 11–022
A Train & Sons Ltd v Fletcher [2008] EWCA Civ 413; [2008] 4 All E.R.
699; (2008) 152(18) S.J.L.B. 28 17–041
A v B Plc; sub nom. B and C v A; A v B (A Firm) [2002] EWCA Civ 337;
[2003] Q.B. 195; [2002] 3 W.L.R. 542 15–007
A v Bottrill [2002] UKPC 44; [2003] 1 A.C. 449; [2002] 3 W.L.R. 1406
PC (NZ) 17–014
A v Hoare; Xv Wandsworth LBC; H v Suffolk CC; C v Middlesbrough
Council; Young v Catholic Care (Diocese of Leeds) [2008] UKHL 6;
[2008] 1 A.C. 844; [2008] 2 W.L.R. 311 11–027, 16–031, 16–034, 16–
038
A v National Blood Authority (No.1); sub nom. Hepatitis C Litigation
(No.1), Re [2001] 3 All E.R. 289; [2001] Lloyd’s Rep. Med. 187 QBD
9–021, 9–031, 9–037, 9–038
A v United Kingdom (35373/97) (2003) 36 E.H.R.R. 51; 13 B.H.R.C. 623
ECHR 14–010
AB v Ministry of Defence. See B v Ministry of Defence
AB v South West Water Services Ltd; Gibbons v South West Water
Services Ltd [1993] Q.B. 507; [1993] 2 W.L.R. 507 CA (Civ Div) 17–
011, 17–014
AB v Tameside and Glossop HA [1997] 8 Med. L.R. 91; (1997) 35
B.M.L.R. 79 CA (Civ Div) 4–027
Abbahall Ltd v Smee [2002] EWCA Civ 1831; [2003] 1 W.L.R. 1472;
[2003] 1 All E.R. 465 10–023
Abbott v Strong [1998] 2 B.C.L.C. 420 Ch D 3–037
Abouzaid v Mothercare (UK) Ltd [2000] All E.R. (D) 2436 CA (Civ Div)
9–021, 9–023, 9–031, 9–037
Abu v MGN Ltd [2002] EWHC 2345 (QB); [2003] 1 W.L.R. 2201; [2003]
2 All E.R. 864 14–031
Adam v Ward [1917] A.C. 309 HL 14–016
Adams v Bracknell Forest BC; sub nom. Bracknell Forest BC v Adams
[2004] UKHL 29; [2005] 1 A.C. 76; [2004] 3 W.L.R. 89 16–030, 16–
031, 16–033
Adams v Lancashire & Yorkshire Railway Co (1868-69) L.R. 4 C.P. 739
CCP 16–021
Adams v Ursell [1913] 1 Ch. 269 Ch D 10–038
Admiralty Commissioners v Owners of the SS Amerika [1917] A.C. 38 HL
17–050
Agar v Hyde [2000] HCA 41 2–058
Aintree University Hospitals NHS Foundation Trust v James; sub nom.
James v Aintree University Hospitals NHS Foundation
Trust [2013] UKSC 67; [2014] A.C. 591; [2013] 3 W.L.R. 1299 11–022
Airedale NHS Trust v Bland [1993] A.C. 789; [1993] 2 W.L.R. 316; [1993]
1 All E.R. 821 HL 11–021, 11–022
Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] EWCA Civ
609; [2011] Q.B. 497; [2011] 2 W.L.R. 91 14–044
AK (Adult Patient) (Medical Treatment: Consent), Re [2001] 1 F.L.R. 129;
[2001] 2 F.C.R. 35 Fam Div 11–020
Akenzua v Secretary of State for the Home Department [2002] EWCA Civ
1470; [2003] 1 W.L.R. 741; [2003] 1 All E.R. 35 11–033
Aktas v Adepta; Dixie v British Polythene Industries Plc [2010] EWCA Civ
1170; [2011] Q.B. 894; [2011] 2 W.L.R. 945 16–037
Al Amoudi v Brisard [2006] EWHC 1062; [2007] 1 W.L.R. 113; [2006] 3
All E.R. 294 14–034
Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ
1634; [2002] E.M.L.R. 13 14–024
Al-Ko Kober Ltd v Sambhi [2019] EWHC 2409 (QB) 14–043
Albert v Lavin; sub nom. Lavin v Albert [1982] A.C. 546; [1981] 3 W.L.R.
955 HL 11–026
Albonetti v Wirral MBC [2008] EWCA Civ 783 16–031
Alcoa Minerals of Jamaica Inc v Broderick [2002] 1 A.C. 371; [2000] 3
W.L.R. 23 PC (Jam) 17–058
Alcock v Chief Constable of South Yorkshire; sub nom. Jones v Wright;
Penk v Wright; Jones v Chief Constable of South Yorkshire; Copoc v
Chief Constable of South Yorkshire [1992] 1 A.C. 310; [1991] 3 W.L.R.
1057 HL 2–019, 4–001, 4–002, 4–003, 4–008, 4–009, 4–012, 4–021, 4–
022, 4–023, 4–024, 4–025, 4–026, 4–028, 4–029, 4–030, 4–031, 4–032,
4–033, 4–036, 4–039, 4–040, 4–041, 4–042, 4–044, 7–009
Aldred’s Case (1610) 9 Co. Rep. 57b 10–003
Alexander v North Eastern Railway Co, 122 E.R. 1221; (1865) 6 B. & S.
340 QB 14–002
Alexandrou v Oxford [1993] 4 All E.R. 328; (1991) 3 Admin. L.R. 675 CA
(Civ Div) 2–045, 2–049, 2–051
Ali v Heart of England NHS Foundation Trust [2018] EWHC 591 (Ch) 11–
012
Aliakmon, The. See Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd
(The Aliakmon)
Alker v Collingwood Housing Association [2007] EWCA Civ 343; [2007]
1 W.L.R. 2230; [2007] H.L.R. 29 10–029
Allen v British Rail Engineering Ltd (BREL) [2001] EWCA Civ 242;
[2001] I.C.R. 942; [2001] P.I.Q.R. Q10 6–008, 6–015
Allen v Flood; sub nom. Flood v Jackson [1898] A.C. 1 HL 12–002
Allen v Gulf Oil Refining Ltd [1981] A.C. 1001; [1981] 2 W.L.R. 188 HL
10–032
Allen v Hounga; Hounga v Allen [2014] UKSC 47; [2014] 1 W.L.R. 2889;
[2014] 4 All E.R. 595 16–018
Alliance & Leicester Building Society v Edgestop Ltd (Application for
Leave); Alliance & Leicester Building Society v Dhanoa; Alliance &
Leicester Building Society v Samra; Mercantile Credit Co Ltd v
Lancaster; Alliance & Leicester Building Society v Hamptons, LTA
94/5856/B CA (Civ Div) 11–025, 16–019,
Allied Maples Group Ltd v Simmons & Simmons [1995] 1 W.L.R. 1602;
[1995] 4 All E.R. 907 CA (Civ Div) 6–014
Allsop v Church of England Newspapers [1972] 2 Q.B. 161; [1972] 2
W.L.R. 600 CA (Civ Div) 13–013
Alsaifiv Amunwa [2017] EWHC 1443 (QB); [2017] 4 W.L.R. 172 14–013
Amaca Pty Ltd v Ellis (2010) 240 C.L.R. 111 6–020
American Cyanamid Co (No.1) v Ethicon Ltd [1975] A.C. 396; [1975] 2
W.L.R. 316 HL 15–013, 17–065
Amerika, The. See Admiralty Commissioners v Owners of the SS Amerika
AMF International v Magnet Bowling [1968] 1 W.L.R. 1028; [1968] 2 All
E.R. 789 QBD 8–009, 8–025
Ammah v Kuehne+Nagal Logistics Ltd [2009] EWCA Civ 11 7–007
An Informer v Chief Constable [2012] EWCA Civ 197; [2013] Q.B. 579;
[2013] 2 W.L.R. 694 2–045
An NHS Trust v Y; sub nom. NHS Trust v Y [2018] UKSC 46; [2019] A.C.
978; [2018] 3 W.L.R. 751 11–022
Ancell & Ancell v McDermott [1993] 4 All E.R. 355; [1993] R.T.R. 235
CA (Civ Div) 2–046
Anchor Brewhouse Developments Ltd v Berkley House (Docklands
Developments) Ltd 38 B.L.R. 82; (1987) 284 E.G. 625 Ch D 11–035
Anderson v Newham College of Further Education [2002] EWCA Civ 505;
[2003] I.C.R. 212 7–020, 16–019, 16–025
Anderson v United Kingdom (33689/96) [1998] E.H.R.L.R. 218; (1998) 25
E.H.R.R. CD172 Eur Comm HR 11–038
Andreae v Selfridge & Co Ltd [1938] Ch. 1 CA 10–008, 10–069
Andrews v Hopkinson [1957] 1 Q.B. 229; [1956] 3 W.L.R. 732 Assizes 9–
010
Andrews v Reading BC (No.2) [2005] EWHC 256 (QB); [2006] R.V.R. 56
10–072
Anns v Merton LBC; sub nom. Anns v Walcroft Property Co Ltd [1978]
A.C. 728; [1977] 2 W.L.R. 1024 HL 2–012, 2–013, 2–015, 2–034, 3–
011, 3–012, 3–013, 3–016, 3–017, 3–020, 3–021, 3–047
Appleton v Garrett [1996] P.I.Q.R. P1; [1997] 8 Med. L.R. 75 QBD 17–008
Arab News Network v Al-Khazen [2001] EWCA Civ 118 13–010
ARB v IVF Hammersmith [2018] EWCA Civ 2803; [2020]
Q.B. 93; [2018] 2 W.L.R. 1094 2–053
Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd; Chishty Coveney &
Co v Raja [1998] 1 W.L.R. 1426; [1998] 2 All E.R. 181 CA (Civ Div)
16–037
Archer v Brown [1985] Q.B. 401; [1984] 3 W.L.R. 350 QBD 17–015
Arenson v Arenson. See Arenson v Casson Beckman Rutley & Co.
Arenson v Casson Beckman Rutley & Co; sub nom. Arenson v Arenson
[1977] A.C. 405; [1975] 3 W.L.R. 815 HL 2–059
Argyll v Argyll. See Duchess of Argyll v Duke of Argyll
Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] A.C. 717; [1986] 2
W.L.R. 1063 HL 7–036
Armes v Nottinghamshire CC [2017] UKSC 60; [2018] A.C. 355; [2017] 3
W.L.R. 1000 7–025, 7–031, 7–038, 7–039, 7–040
Arnup v MW White Ltd [2008] EWCA Civ 447; [2008] I.C.R. 1064;
(2008) 105(20) L.S.G. 24 17–055
Arscott v Coal Authority [2004] EWCA Civ 892; [2005] Env. L.R. 6;
(2004) 148 S.J.L.B. 880 10–072
Arthur JS Hall & Co v Simons; sub nom. Harris v Scholfield Roberts &
Hall; Barratt v Ansell (t/a Woolf Seddon);
Barratt v Woolf Seddon; Cockbone v Atkinson Dacre & Slack; Harris v
Scholfield Roberts & Hill [2000] UKHL 38; [2002] 1 A.C. 615; [2000]
3 W.L.R. 543 HL 2–059, 2–060, 2–061, 2–062, 2–063, 2–064, 2–065,
14–012
Arthur v Anker [1997] Q.B. 564; [1996] 2 W.L.R. 602 CA (Civ Div) 16–
002
Ashcroft v Mersey RHA [1985] 2 All E.R. 96 CA (Civ Div) 5–027
Ashdown v Samuel Williams & Sons Ltd [1957] 1 Q.B. 409; [1956] 3
W.L.R. 1104 CA 7–006, 8–027
Ashley v Chief Constable of Sussex [2008] UKHL 25; [2008] 1 A.C. 962;
[2008] 2 W.L.R. 975 11–002, 11–023
Ashton v Turner [1981] Q.B. 137; [1980] 3 W.L.R. 736 QBD 16–013
Aspro Travel Ltd v Owners Abroad Group Plc [1996] 1 W.L.R. 132; [1995]
4 All E.R. 728 CA (Civ Div) 13–017
Associated Newspapers Ltd v Burstein [2007] EWCA Civ 600; [2007] 4
All E.R. 319; (2007) 151 S.J.L.B. 856 14–007
Aston Cantlow and Wilmcote with Billesley Parochial Church Council v
Wallbank; sub nom. Wallbank v Aston Cantlow and Wilmcote with
Billesley Parochial Church Council [2003] UKHL 37; [2004] 1 A.C.
546; [2003] 3 W.L.R. 283 1–020
Aswan Engineering Establishment Co v Lupdine Ltd. See M/S Aswan
Engineering Establishment Co v Lupdine Ltd
Atkins v Butlins Skyline Ltd [2006] 1 C.L. 510 8–019
Atkinson v Newcastle & Gateshead Waterworks Co (1876-77) L.R. 2 Ex.
D. 441 CA 7–013
Attia v British Gas Plc [1988] Q.B. 304; [1987] 3 W.L.R. 1101 CA (Civ
Div) 4–003, 4–012
Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12;
[2004] 1 W.L.R. 1273; [2004] P.I.Q.R. P27 6–025, 6–031
Attorney General v Guardian Newspapers Ltd (No.2). See Attorney General
v Observer Ltd.
Attorney General v Observer Ltd; Attorney General v Times Newspapers
Ltd (No.2); Attorney General v Guardian Newspapers Ltd (No.2)
[1990] 1 A.C. 109; [1988] 3 W.L.R. 776 HL 15–005
Attorney General v PYA Quarries Ltd (No.1) [1957] 2 Q.B. 169; [1957] 2
W.L.R. 770 CA 10–044, 10–047
Attorney General v Tod Heatley [1897] 1 Ch. 560 CA 10–021
Attorney General’s Reference (No.6 of 1980), Re [1981] Q.B. 715; [1981] 3
W.L.R. 125 CA (Crim Div) 11–021
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 C.L.R. 1 2–059
Austin v Commissioner of Police of the Metropolis [2009] UKHL 5; [2009]
1 A.C. 564; [2009] 2 W.L.R. 372 11–022
Austin v Dowling (1869-70) L.R. 5 C.P. 534 CCP 11–012
Auty v National Coal Board [1985] 1 W.L.R. 784; [1985] 1 All E.R. 930
CA (Civ Div) 17–019
Aventis Pasteur SA v OB (C-358/08); sub nom. O’Byrne v Aventis Pasteur
SA (C-358/08) EU:C:2009:744; [2010] 1 W.L.R. 1375; [2010] Bus.
L.R. 1344 9–035
Awoyomi v Radford [2007] EWHC 1671 (QB); (2007) 157 N.L.J. 1046;
[2007] P.N.L.R. 34 2–059
Axa Insurance UK Plc v Financial Claims Solutions Ltd [2018] EWCA Civ
1330; [2019] R.T.R. 1 17–012, 17–014
Axel Springer AG v Germany (39954/08)
[2012] E.M.L.R. 15; (2012) 55 E.H.R.R. 6 15–009
B (A Child) v McDonald’s Restaurants Ltd [2002] EWHC 490 (QB) 9–021
B (Consent to Treatment: Capacity), Re; sub nom. B v NHS Hospital Trust;
B (Adult: Refusal of Medical Treatment), Re [2002] EWHC 429 (Fam);
[2002] 2 All E.R. 449; [2002] 1 F.L.R. 1090 11–020
B v Ministry of Defence; sub nom. Ministry of Defence v AB; AB v
Ministry of Defence [2012] UKSC 9; [2013] 1 A.C. 78; [2012] 2
W.L.R. 643 16–029, 16–031, 16–038
B v NHS Hospital Trust; B (Adult: Refusal of Medical Treatment), Re. See
B (Consent to Treatment: Capacity) Re
B v Nugent Care Society; R v Wirral MBC; sub nom. GR v Wirral MBC;
AB v Nugent Care Society [2009] EWCA Civ 827; [2010] 1 W.L.R.
516; [2010] 1 F.L.R. 707 16–034
Bacardi-Martini Beverages Ltd v Thomas Hardy Packaging Ltd; sub nom.
Messer UK Ltd v Bacardi-Martini Beverages Ltd; Messer UK Ltd v
Thomas Hardy Packaging Ltd [2002] EWCA Civ 549; [2002] 2 All
E.R. (Comm) 335; [2002] 2 Lloyd’s Rep. 379 3–020, 9–008
Badger v Ministry of Defence [2005] EWHC 2941 (QB); [2006] 3 All E.R.
173; (2006) 91 B.M.L.R. 1 16–021
Baggs v United Kingdom (9310/81) (1987) 9 E.H.R.R. CD235, Eur Comm
HR 10–072
Bailey v Armes [1999] E.G. 21 (C.S.); (1999) 96(7) L.S.G. 37 CA (Civ
Div) 8–012
Bailey v HSS Alarms Ltd, Times, 20 June, 2000 CA (Civ Div) 2–051
Bailey v Ministry of Defence [2008] EWCA Civ 883; [2009] 1 W.L.R.
1052; [2008] LS Law Medical 481 6–015
Baker v Bolton, 170 E.R. 1033; 1808) 1 Camp. 493 Assizes 17–050
Baker v Quantum Clothing Group Ltd [2011] UKSC 17; [2011] 1 W.L.R.
1003; [2011] 4 All E.R. 223 5–014
Baker v TE Hopkins & Son Ltd; Ward v TE Hopkins & Son Ltd [1959] 1
W.L.R. 966; [1959] 3 All E.R. 225 CA 4–035, 16–008
Baker v Willoughby [1970] A.C. 467; [1970] 2 W.L.R. 50 HL 6–009, 6–
010
Balden v Shorter [1933] Ch. 427 Ch D 14–043
Bank of Credit and Commerce International (Overseas) Ltd (In Liquidation)
v Price Waterhouse (No.2) [1998] Lloyd’s Rep. Bank. 85; [1998] B.C.C.
617 3–046
Bank of Montreal v Dominion Gresham Guarantee and Casualty Co Ltd
[1930] A.C. 659 PC (Can) 5–014
Bank of Tokyo-Mitsubishi UFJ Ltd v Baskan Gida Sanayi Ve Pazarlama AS
[2009] EWHC 1276 (Ch); [2010] Bus. L.R. D1 12–028
Banks v Ablex Ltd [2005] EWCA Civ 173; [2005] I.C.R. 819; [2005]
I.R.L.R. 357 11–029
Barber v Somerset CC; sub nom. Jones v Sandwell MBC; Hatton v
Sutherland; Bishop v Baker Refractories Ltd; Somerset CC v Barber;
 Baker Refractories Ltd v Bishop; Sutherland v Hatton; Sandwell MBC
v Jones [2004] UKHL 13; [2004] 1 W.L.R. 1089; [2004] 2 All E.R. 385
7–009, 7–010
Barclay v Penberthy (2012) 86 A.L.J.R. 1206 3–047
Barclays Bank Plc v Fairclough Building Ltd (No.1) [1995] Q.B. 214;
[1994] 3 W.L.R. 1057 CA (Civ Div) 16–020
Barclays Bank v Various Claimants; sub nom. Various Claimants v Barclays
Bank
Plc [2020] UKSC 13; [2020] 2 W.L.R. 960; [2020] I.C.R. 893 7–025,
7–031, 7–038, 7–040
Barker v Baxendale Walker Solicitors (A Firm) [2017] EWCA Civ 2056;
[2018] 1 W.L.R. 1905; [2018] S.T.C. 310 5–026
Barker v Corus UK Ltd; sub nom. Barker v Saint Gobain Pipelines Plc;
Murray (Deceased) v British Shipbuilders (Hydrodynamics) Ltd;
Patterson (Deceased) v Smiths Dock Ltd [2006] UKHL 20; [2006] 2
A.C. 572; [2006] 2 W.L.R. 1027 6–007, 6–018, 6–019
Barkway v South Wales Transport Co Ltd [1950] A.C. 185; [1950] 1 All
E.R. 392 HL 5–034
Barnes v Lucille Ltd [1907] L.T.R. 680 9–046
Barnes v Nayer, Times, 19 December 1986 CA (Civ Div) 11–024
Barnett v Chelsea and Kensington Hospital Management Committee [1969]
1 Q.B. 428; [1968] 2 W.L.R. 422 QBD 2–014, 6–004
Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2013] Q.B. 455;
[2012] 3 W.L.R. 795 10–005, 10–007, 10–032, 10–065, 17–063
Barrett v Enfield LBC [2001] 2 A.C. 550; [1998] 1 W.L.R. 277 HL 2–034
Barrett v Ministry of Defence [1995] 1 W.L.R. 1217; [1995] 3 All E.R. 87
CA (Civ Div) 2–054
Barretts & Baird (Wholesale) Ltd v Institution of Professional Civil
Servants [1987] I.R.L.R. 3; [1987] 1 F.T.L.R. 121, QBD 12–019, 12–
021
Barron v Vines [2016] EWHC 1226 (QB) 14–040
Bartlett v English Cricket Board Association of Cricket Officials unreported
27 August 2015 CC 2–058
Bartonshill Coal Co v Reid (1858) 3 Macq. 266 7–002
Barwick v English Joint Stock Bank (1866-67) L.R. 2 Ex. 259; (1867) 36
L.J. Ex. 147 Ex Chamber 7–035
Bates v Parker [1953] 2 Q.B. 231; [1953] 2 W.L.R. 642 CA 8–022
Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; [2011] 1 W.L.R.
1526; [2011] E.M.L.R. 19 13–013, 13–016
Baxter v Camden LBC (No.2) [2001] Q.B. 1; [1999] 2 W.L.R. 566; [1999]
1 All E.R. 237 CA (Civ Div) 10–004, 10–028
Bayer Plc v Shook [2004] EWHC 332 (QB)_ 11–029
Bayley v Manchester Sheffield and Lincolnshire Railway Co; sub nom.
Bayley v Manchester (1872-73) L.R. 8 C.P. 148 Ex Chamber 7–034
Bazley v Curry (1999) 174 D.L.R. (4th) 45 Sup Ct (Can) 7–036
Beard v London General Omnibus Co [1900] 2 Q.B. 530 CA 7–035
Beechwood Birmingham Ltd v Hoyer Group UK Ltd [2010] EWCA Civ
647; [2011] Q.B. 357; [2010] 3 W.L.R. 1677 17–058
Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1; [1957] 2 W.L.R. 404
QBD 9–044
Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB); [2017]
I.R.L.R. 124 7–037
Belmont Finance Corp v Williams Furniture Ltd (No.2) [1980] 1 All E.R.
393 CA (Civ Div) 12–027
Benham v Gambling [1941] A.C. 157 HL 17–024
Benson v Lee [1972] V.R. 879 4–008
Berezovsky v Forbes Inc (No.1); sub nom. Berezovsky v Michaels;
Glouchkov v Michaels; Glouchkov v Forbes Inc [2000]
1 W.L.R. 1004; [2000] 2 All E.R. 986 HL 14–034
Berezovsky v Michaels. See Berezovsky v Forbes Inc (No.1)
Berkoff v Burchill [1996] 4 All E.R. 1008; [1997] E.M.L.R. 139 CA (Civ
Div) 13–012
Bernstein (Lord) v Skyviews and General Ltd [1978] Q.B. 479; [1977] 3
W.L.R. 136 QBD 11–035, 15–002
Bhamra v Dubb (t/a Lucky Caterers) [2010] EWCA Civ 13 5–022
Bici v Ministry of Defence [2004] EWHC 786 (QB), Times, 11 June, 2004
2–054, 11–004, 11–009, 11–023, 11–027
Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008]
EWCA Civ 1257; [2009] Q.B. 725; [2009] 3 W.L.R. 324 7–032, 7–039
Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926; [1999] 4 All E.R. 934
CA (Civ Div) 16–037
Billett v Ministry of Defence [2015] EWCA Civ 773; [2016] P.I.Q.R. Q1
17–025
Bilta (UK) Ltd (In Liquidation) v Nazir; sub nom. Jetivia SA v Bilta (UK)
Ltd (In Liquidation) [2015] UKSC 23; [2016] A.C. 1; [2015] 2 W.L.R.
1168 16–015
Bird v Jones (1845) 7 Q.B. 742 11–013
Birkett v Hayes [1982] 1 W.L.R. 816; [1982] 2 All E.R. 70 CA (Civ Div)
17–042
Black v Fife Coal Co Ltd [1912] A.C. 149; 1912 S.C. (H.L.) 33 HL 7–015
Blackshaw v Lord [1984] Q.B. 1; [1983] 3 W.L.R. 283 CA (Civ Div) 14–
020
Blackwater v Plint (2005) 258 D.L.R. (4th) 275 17–014
Blake v Galloway [2004] EWCA Civ 814; [2004] 1 W.L.R. 2844; [2004] 3
All E.R. 315 5–017, 5–019, 16–010
Bliss v Hall, 132 E.R. 758; (1838) 4 Bing. N.C. 183 Comm Pl 10–037
Bloodworth v Gray, 135 E.R. 140; (1844) 7 Man. & Gr. 334; Comm Pl 13–
007
Blyth v Birmingham Waterworks Co, 156 E.R. 1047; (1856) 11 Ex. 781 Ex
Ct 5–002
Boardman v Sanderson [1964] 1 W.L.R. 1317; (1961) 105 S.J. 152 CA 4–
007
Bocardo SA v Star Energy UK Onshore Ltd; sub nom. Star Energy UK
Onshore Ltd v Bocardo SA; Star Energy Weald Basin Ltd v Bocardo
SA [2010] UKSC 35; [2010] 3 W.L.R. 654; [2010] 3 All E.R. 975 11–
035
Bodey v Hall [2011] EWHC 2162 (QB); [2012] P.I.Q.R. P1 9–049
Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582;
[1957] 2 All E.R. 118, QBD 2–030, 5–021, 5–022, 5–023, 5–024, 5–
025, 5–026, 5–027, 9–030
Bole v Huntsbuild Ltd [2009] EWCA Civ 1146; 127 Con. L.R. 154 3–021
Bolitho (Deceased) v City and Hackney HA [1998] A.C. 232; [1997] 3
W.L.R. 1151 HL 5–023, 5–024, 6–004
Bolton v Stone; sub nom. Stone v Bolton [1951] A.C. 850; [1951] 1 All
E.R. 1078 HL 5–008, 5–009, 5–010, 5–015, 5–034
Bone v Seale [1975] 1 W.L.R. 797; [1975] 1 All E.R. 787 CA (Civ Div)
10–068
Bonnard v Perryman [1891] 2 Ch. 269; [189194] All E.R. Rep. 965 CA 14–
042, 17–065
Bonnick v Morris [2002] UKPC 31; [2003] 1 A.C. 300; [2002] 3 W.L.R.
820 PC (Jam) 14–022
Bonnington Castings Ltd v Wardlaw; sub nom. Wardlaw v Bonnington
Castings Ltd [1956] A.C. 613; [1956] 2 W.L.R. 707 HL 6–015
Bookbinder v Tebbit (No.1) [1989] 1 W.L.R. 640; [1989] 1 All E.R. 1169
CA (Civ Div) 14–003
Borders (UK) Ltd v Commissioner of Police of the Metropolis [2005]
EWCA Civ 197; [2005] Po. L.R. 1; (2005) 149 S.J.L.B. 301 17–015
Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt - Die
Gesundheitskasse (C-503/13); Boston Scientific Medizintechnik GmbH
v Betriebskrankenkasse RWE (C-504/13) EU:C:2015:148; [2015] 3
C.M.L.R. 6; [2016] C.E.C. 36 9–022
Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575; [2004]
P.I.Q.R. P18; (2003) 100(48) L.S.G. 18 7–039, 8–024
Bourhill v Young; sub nom. Bourhill v Young’s Executor [1943] A.C. 92;
[1942] 2 All E.R. 396 HL 2–017, 4–007, 4–009, 4–014, 6–033
Bourne Leisure Ltd (t/a British Holidays) v Marsden; sub nom. Marsden v
Bourne Leisure Ltd (t/a British Holidays) [2009] EWCA Civ 671;
[2009] 29 E.G. 99 (C.S.); (2009) 153(28) S.J.L.B. 31 8–021
Bow Valley Husky (Bermuda) v Saint John Shipbuilding Ltd (1998) 153
D.L.R. (4th) 385 3–010
Bower v Peate (1875-76) L.R. 1 Q.B.D. 321 QBD 7–039, 10–020
Box v Jubb (1879) 4 Ex.D. 76 10–060
Boyle v Kodak [1969] 1 W.L.R. 661; [1969] 2 All E.R. 439 HL 7–020
Bradburn v Great Western Railway Co (187475) L.R. 10 Ex. 1 Ex Ct 17–
029
Bradford Corp v Pickles [1895] A.C. 587 HL 10–012
Bradford v Robinson Rentals, Ltd [1967] 1 W.L.R. 337; [1967] 1 All E.R.
267 Assizes (Devon) 6–030
Bradford-Smart v West Sussex CC [2002] EWCA Civ 7; [2002] 1 F.C.R.
425; [2002] B.L.G.R. 489 2–042
Brasserie du Pecheur SA v Germany (C-46/93); R. v Secretary of State for
Transport Ex p. Factortame Ltd (C-48/93) [1996] Q.B. 404; [1996] 2
W.L.R. 506 1–020, 7–023, 7–024
Brett Wilson LLP v Person(s) Unknown [2015] EWHC 2628 (QB); [2016]
4 W.L.R. 69; [2016] 1 All E.R. 1006 13–012
Bretton v Hancock [2005] EWCA Civ 404; [2005] R.T.R. 22; [2005]
Lloyd’s Rep. I.R. 454; [2006] P.I.Q.R. P1 7–015
Brew Bros Ltd v Snax (Ross) Ltd [1970] 1 Q.B. 612; [1969] 3 W.L.R. 657
CA (Civ Div) 10–028
Brian Warwicker Partnership Plc v HOK International Ltd; sub nom.
Burford NW3 Ltd v Brian Warwicker Partnership Plc [2005] EWCA
Civ 962; 103 Con. L.R. 112; [2005] Lloyd’s Rep. Med. 464 17–060
Brice v Brown [1984] A.C. 92; [1984] 1 All E.R. 997 QBD 4–015
Bridlington Relay v Yorkshire Electricity Board [1965] Ch. 436; [1965] 2
W.L.R. 349 Ch D 10–011
Brimelow v Casson [1924] 1 Ch. 302 Ch D 12–015
Brink’s Global Services Inc v Igrox Ltd [2010] EWCA Civ 1207; [2011]
I.R.L.R. 343 7–036
Bristol & West Building Society v Mothew (t/a Stapley & Co); sub nom.
Mothew v Bristol & West Building Society [1998] Ch. 1; [1997] 2
W.L.R. 436; CA (Civ Div) 3–037
British Celanese Ltd v AH Hunt (Capacitors) Ltd [1969] 1 W.L.R. 959;
[1969] 2 All E.R. 1252 QBD 10–008, 10–069
British Chiropractic Association v Singh [2010] EWCA Civ 350; [2011] 1
W.L.R. 133; [2011] E.M.L.R. 1 14–005, 14–025
British Columbia Electric Railway Co Ltd
v Loach [1916] 1 A.C. 719 PC (Can) 16–019
British Industrial Plastics Ltd v Ferguson [1940] 1 All E.R. 479 HL 12–006,
12–007
British Railways Board v Herrington; sub nom. Herrington v British
Railways Board [1972] A.C. 877; [1972] 2 W.L.R. 537 HL 8–032, 8–
034, 8–037
British Transport Commission v Gourley [1956] A.C. 185; [1956] 2 W.L.R.
41 HL 17–021
British Waterways Board v Severn Trent Water Ltd [2001] EWCA Civ 276;
[2002] Ch. 25; [2001] 3 W.L.R. 613 11–035
BritishWestinghouse Electric & Manufacturing Co Ltd v Underground
Electric Railways Co of London Ltd (No.2) [1912] A.C. 673 HL 17–
004
Brocklesby v Armitage & Guest [2002] 1 W.L.R. 598; [2001] 1 All E.R.
172 CA (Civ Div) 16–035
Brook v Bool; sub nom. Brooke v Bool [1928] 2 K.B. 578 KBD 12–029
Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24;
[2005] 1 W.L.R. 1495; [2005] 2 All E.R. 489 2–044, 2–046
Broome v Cassell & Co Ltd (No.1) [1972] A.C. 1027; [1972] 2 W.L.R. 645
HL 14–003, 14–039, 17–008, 17–009, 17–011, 17–012
Brown v Cotterill (1934) 51 T.L.R. 21 9–009
Brown v Rolls Royce Ltd [1960] 1 W.L.R. 210; [1960] 1 All E.R. 577 HL
5–014
Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] Q.B.
103; [2007] 3 W.L.R. 289 15–010, 15–013
Brumder v Motornet Service and Repairs Ltd [2013] EWCA Civ 195;
[2013] 1 W.L.R. 2783; [2013] 3 All E.R. 412 7–020
Brunsden v Humphrey (1884-85) L.R. 14 Q.B.D. 141 CA 17–005
Bruton v London & Quadrant Housing Trust; sub nom. Bruton v Quadrant
Housing Trust [2000] 1 A.C. 406; [1999] 3 W.L.R. 150 HL 10–027
Bryan v Maloney 74 B.L.R. 35; 51 Con. L.R. 29; 182 C.L.R. 609 HC (Aus)
3–047
Bryanston Finance Ltd v De Vries (No.1) [1975] Q.B. 703; [1975] 2 W.L.R.
718 CA (Civ Div) 14–016
Buchanan v Jennings; sub nom. Jennings v Buchanan [2004] UKPC 36;
[2005] 1 A.C. 115; [2004] 3 W.L.R. 1163 14–010
Buckley v Dalziel [2007] EWHC 1025 (QB); [2007] E.M.L.R. 23; [2007] 1
W.L.R. 2933 14–012
Buckley v Henkel Ltd unreported 25 November 2013 CC 9–023
Bunker v Charles Brand & Son Ltd [1969] 2 Q.B. 480; [1969] 2 W.L.R.
1392 QBD 8–013, 8–038
Bunt v Tilley [2006] EWHC 407 (QB); [2007] 1 W.L.R. 1243; [2006] 3 All
E.R. 336 14–033, 14–034
Burgess v Lejonvarn; sub nom. Lejonvarn v Burgess [2016] EWHC 40
(TCC); [2016] T.C.L.R. 3; 164 Con. L.R. 165 3–031
Burnie Port Authority v General Jones (1994) 120 A.L.R. 42 10–049
Burns v Edman [1970] 2 Q.B. 541; [1970] 2 W.L.R. 1005 QBD 17–053
Burrows v Brent LBC [1996] 1 W.L.R. 1448; [1996] 4 All E.R. 577 HL 10–
014
Burton v Islington HA; sub nom. B v Islington HA; De Martell v Merton
and Sutton HA (No.1) [1993] Q.B. 204; [1992] 3 W.L.R. 637 CA (Civ
Div) 2–018
Butt v Secretary of State for the Home Department [2019] EWCA Civ 933
[2019] E.M.L.R. 23 13–014, 14–005
Butterfield v Forrester, 103 E.R. 926; (1809) 11 East 60 KB 16–019
BVC v EWF [2019] EWHC 2506 (QB) 15–008
Bybrook Barn Garden Centre Ltd v Kent CC; sub nom. Bybrook Barn
Centre Ltd v Kent CC [2001] B.L.R. 55; [2001] Env. L.R. 30 CA (Civ
Div) 10–022
Byrne v Boadle, 159 E.R. 299; (1863) 2 Hurl. & C. 722 QB 5–032
Byrne v Deane [1937] 1 K.B. 818 CA 13–010, 13–019
C (A Child) (HIV Testing), Re; sub nom. C (A Minor) (HIV Test), Re
[2000] Fam. 48; [2000] 2 W.L.R. 270 Fam Div 11–020
C (A Child) (Immunisation: Parental Rights), Re; F (A Child)
(Immunisation: Parental Rights), Re; sub nom. B (A Child)
(Immunisation: Parental Rights), Re; C (Welfare of Child:
Immunisation), Re [2003] EWCA Civ 1148; [2003] 2 F.L.R. 1095;
[2003] 3 F.C.R. 156 11–020
C (A Child) v Burcome [2003] C.L.Y. 3030 5–004
C (Adult: Refusal of Medical Treatment), Re [1994] 1 W.L.R. 290; [1994] 1
All E.R. 819 Fam Div 11–020
C v D [2006] EWHC 166 (QB) 11–017
C v Holland [2012] 3 N.Z.L.R. 672 15–001, 15–014
C v WH [2015] EWHC 2687 (QB); [2016] E.L.R. 1; [2016] P.I.Q.R. Q2
10–017
C, Re [CICA; Liability; [2002] 3 December,2002; [2003] 7 C.L. 10 9–042
Cachia v Faluyi [2001] EWCA Civ 998; [2001] 1 W.L.R. 1966; [2002] 1
All E.R. 192 17–051
Cain v Francis; McKay v Hamlani [2008] EWCA Civ 1451; [2009] Q.B.
754; [2009] 3 W.L.R. 551 16–034
Cairns v Modi; KC v MGN Ltd; sub nom. C v MGN Ltd [2012] EWCA
Civ 1382; [2013] 1 W.L.R. 1015; [2013] E.M.L.R. 8 14–039
Caldwell v Maguire; Caldwell v Fitzgerald [2001] EWCA Civ 1054; [2002]
P.I.Q.R. P6 5–019, 16–010
Calland v Financial Conduct Authority [2015] EWCA Civ 192 11–029
Calveley v Chief Constable of Merseyside; Worrall v Chief Constable of
Merseyside; Park v Chief Constable of Greater Manchester [1989] A.C.
1228; [1989] 2 W.L.R. 624 HL 11–033
Calvert v William Hill Credit Ltd [2008] EWCA Civ 1427; [2009] Ch. 330;
[2009] 2 W.L.R. 1065 2–002, 2–019
Cambridge Water Co Ltd v Eastern Counties Leather Plc; Cambridge Water
Co Ltd v Hutchings & Harding Ltd [1994] 2 A.C. 264; [1994] 2 W.L.R.
53 HL 6–035, 10–001, 10–042, 10–049, 10–051, 10–053, 10–054, 10–
055, 10–056, 10–068, 10–071, 10–073
Campbell v Mirror Group Newspapers Ltd (Costs); sub nom. Campbell v
MGN Ltd (Costs); Campbell v MGN Ltd (No.2) [2005] UKHL 61;
[2005] 1 W.L.R. 3394; [2005] 4 All E.R. 793 1–024
Campbell v Mirror Group Newspapers Ltd; sub nom. Campbell v MGN Ltd
[2004] UKHL 22; [2004] 2 A.C. 457; [2004] 2 W.L.R. 1232 7–015, 15–
005, 15–006, 15–008, 15–009
Campbell v Peter Gordon Joiners Ltd; sub nom. Campbell v Gordon [2016]
UKSC 38; [2016] A.C. 1513; [2016] 3 W.L.R. 294 7–015
Campbell-James v Guardian Media Group Plc [2005] EWHC 893 (QB);
[2005] E.M.L.R. 24 14–031
Candler v Crane Christmas & Co [1951] 2 K.B. 164; [1951] 1 All E.R. 426
CA 2–010, 3–024, 3–025
Caparo Industries Plc v Dickman [1990] 2 A.C. 605; [1990] 2 W.L.R. 358
HL
2–005, 2–014, 2–015, 3–028, 3–029, 3–045, 3–046
Capital and Counties Bank Ltd v George Henty & Sons (1881–82) L.R. 7
App. Cas. 741 HL 13–009
Capital and Counties Bank Ltd v Hampshire CC; John Munroe (Acrylics)
Ltd v London Fire and Civil Defence Authority; Church of Jesus Christ
of Latter Day Saints (Great Britain) v West Yorkshire Fire and Civil
Defence Authority; Digital Equipment Co Ltd v Hampshire CC [1997]
Q.B. 1004; [1997] 3 W.L.R. 331 CA (Civ Div) 2–023, 2–030, 2–049, 2–
050
Capps v Miller [1989] 1 W.L.R. 839; [1989] 2 All E.R. 333 CA (Civ Div)
16–025
Carder v Secretary of State for Health; sub nom. Carder v University of
Exeter [2016] EWCA Civ 790; [2017] I.C.R. 392; [2016] Med. L.R.
562 6–015
Carey v Vauxhall Motors Ltd [2019] EWHC 238 (QB) 7–006
Carlgarth, The; Otarama, The [1927] P. 93 CA 8–018, 11–038
Carmichael v National Power Plc [1999] 1 W.L.R. 2042; [1999] 4 All E.R.
897 HL 7–027
Carroll v Fearon; Barclay v Dunlop Ltd; Carroll v Bent [1999] E.C.C. 73;
[1998] P.I.Q.R. P416, CA (Civ Div) 9–006
Carslogie Steamship Co Ltd v Royal Norwegian Government (The
Carslogie) [1952] A.C. 292; [1952] 1 All E.R. 20 HL 6–021
Carstairs v Taylor (1870-71) L.R. 6 Ex. 217 Ex Ct 10–063
Carty v Croydon LBC [2005] EWCA Civ 19; [2005] 1 W.L.R. 2312; [2005]
2 All E.R. 517 2–042, 7–014
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 K.B. 331; 69 A.L.R. 720
CA 13–013, 14–031
Cassidy v Ministry of Health [1951] 2 K.B. 343; [1951] 1 All E.R. 574 CA
5–032, 7–029, 7–039
Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 HL 7–
022
Cattanach v Melchior [2003] HCA 38; [2003] Lloyd’s Rep. Med. 447 HC
(Aus) 2–053
Cattle v Stockton Waterworks Co (1874-75) L.R. 10 Q.B. 453; [1874-80]
All E.R. Rep. 492 QBD 3–010
Cave v Robinson Jarvis & Rolf; sub nom. Robinson Jarvis & Rolf v Cave;
Cave v Robinson Jarvis & Rolfe [2002] UKHL 18; [2003] 1 A.C. 384;
[2002] 2 W.L.R. 1107 16–035
CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] A.C. 1013;
[1988] 2 W.L.R. 1191 HL 12–011
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942]
A.C. 509; [1942] 1 All E.R. 491 HL (NI) 7–034
CGL Group Ltd v Royal Bank of Scotland; Bartles v Barclays Bank Plc;
WW Property Investments Ltd v National Westminster Bank Plc [2017]
EWCA Civ 1073; [2018] 1 W.L.R. 2137; [2017] 2 C.L.C. 86 3–046
Chadwick v British Railways Board; sub nom. Chadwick v British
Transport Commission [1967] 1 W.L.R. 912; [1967] 2 All E.R. 945
QBD 4–037, 4–038
Chambers v Donaldson, 103 E.R. 929 (1809) 11 East. 65 KB 11–037
Chapman v Ellesmere; sub nom. Chapman v Lord Ellesmere [1932] 2 K.B.
431 CA 14–001
Chaproniere v Mason (1905) 21 T.L.R. 633 5–032
Charing Cross Electricity Supply Co v Hydraulic Power Co; sub nom.
Charing Cross West End and City Electricity
Supply Co v London Hydraulic Power Co [1914] 3 K.B. 772 CA 10–
057, 10–062
Charleston v News Group Newspapers Ltd [1995] 2 A.C. 65; [1995] 2
W.L.R. 450 HL 13–014, 13–015, 15–002
Charman v Orion Publishing Group Ltd [2007] EWCA Civ 972; [2008] 1
All E.R. 750; [2008] E.M.L.R. 16 14–024
Chartered Trust Plc v Davies (1998) 76 P. & C.R. 396; [1997] 2 E.G.L.R.
83 CA (Civ Div) 10–027
Chatterton v Gerson [1981] Q.B. 432; [1980] 3 W.L.R. 1003 QBD 11–019
Chatterton v Secretary of State for India in Council [1895] 2 Q.B. 189 CA
14–014
Chaudhry v Prabhakar [1989] 1 W.L.R. 29; [1988] 3 All E.R. 718 CA (Civ
Div) 3–031
Cheng v Tse Wai Chun. See Tse Wai Chun Paul v Albert.
Chester v Afshar [2004] UKHL 41; [2005] 1 A.C. 134; [2004] 3 W.L.R.
927 5–026, 6–016, 11–019
Chester v Waverly Municipal Council (1939) 62 C.L.R. 1 4–008
Chewings v Williams [2009] EWHC 2490 (QB); [2010] P.I.Q.R. Q1 17–
044
Chic Fashions (West Wales) v Jones; sub nom. Chic Fashions v Chief
Constable of Carmarthenshire and Cardiganshire [1968] 2 Q.B. 299;
[1968] 2 W.L.R. 201 CA (Civ Div) 11–040
Chief Constable of Greater Manchester v Carroll; sub nom. Carroll v Chief
Constable of Greater Manchester [2017] EWCA Civ 1992; [2018] 4
W.L.R. 32 16–033
Chief Constable of Thames Valley v Hepburn. See Hepburn v Chief
Constable of Thames Valley
Chief Land Registrar v Caffrey & Co [2016] EWHC 161 (Ch); [2016]
P.N.L.R. 23 3–028
Chipchase v British Titan Products Co [1956] 1 Q.B. 545; [1956] 2 W.L.R.
677 CA 7–019
Christie v Davey [1893] 1 Ch. 316 Ch D 10–012
Christmas v Caledonian Club Trust. See General Cleaning Contractors v
Christmas
Church of Jesus Christ of Latter Day Saints (Great Britain) v West
Yorkshire Fire and Civil Defence Authority. See Capital and Counties
Bank Ltd v Hampshire CC
Church of Jesus Christ of the Latter-Day Saints v Price; sub nom. Church of
Jesus Christ of Latter Day Saints v Price [2004] EWHC 3245 (QB) 10–
030
Church of Scientology of California v Johnson-Smith [1972] 1 Q.B. 522;
[1971] 3 W.L.R. 434 QBD 14–010
CIN Properties Ltd v Rawlins [1995] 2 E.G.L.R. 130; [1995] 39 E.G. 148
CA (Civ Div) 11–038
Cinnamond v British Airports Authority [1980] 1 W.L.R. 582; [1980] 2 All
E.R. 368 CA (Civ Div) 11–040
CJD Group B Plaintiffs v Medical Research Council; sub nom. Creutzfeldt-
Jakob Disease Litigation (No.5), Re; CJD Litigation (No.5), Re [2000]
Lloyd’s Rep. Med. 161; (2000) 54 B.M.L.R. 92, QBD 4–027
Clark Fixing Ltd v Dudley MBC [2001] EWCA Civ 1898 2–029, 6–025
Clark v Bowlt [2006] EWCA Civ 978; [2007] P.I.Q.R. P12; (2006) 150
S.J.L.B. 886 9–046
Clark v Chief Constable of Cleveland [2000] C.P. Rep. 22; (1999) 96(21)
L.S.G. 38 CA (Civ Div) 11–031
Clarke v Davey [2002] EWHC 2342 QBD 14–012
Clenshaw v Tanner [2002] EWCA Civ 1848 17–032
Clunis v Camden and Islington HA [1998] Q.B. 978; [1998] 2 W.L.R. 902
CA (Civ Div) 16–016, 16–018
Co-operative Group (CSW) Ltd v Pritchard [2011] EWCA Civ 329; [2012]
Q.B. 320; [2011] 3 W.L.R. 1272 11–025, 16–019
Cocking v Eacott [2016] EWCA Civ 140; [2016] Q.B. 1080; [2016] 3
W.L.R. 125 10–021, 10–027
Coco v AN Clark (Engineers) Ltd [1968] F.S.R. 415; [1969] R.P.C. 41 Ch
D 15–005
Cole v Davis-Gilbert [2007] EWCA Civ 396; (2007) 151 S.J.L.B. 335 8–
020
Cole v Turner, 90 E.R. 958; (1704) 6 Mod. Rep. 149 KB 11–006
Colliers CRE Plc v Pandya [2009] EWHC 211 (QB) 12–003
Collings v Home Office [2006] 12 C.L. 22 9–046
Collins Stewart Ltd v Financial Times Ltd (No.2) [2005] EWHC 262;
[2006] E.M.L.R. 5 17–013
Collins v Wilcock [1984] 1 W.L.R. 1172; [1984] 3 All E.R. 374 DC 11–006
Colour Quest Ltd v Total Downstream UK Plc; Total UK Ltd v Chevron
Ltd; sub nom. Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180;
[2011] Q.B. 86; [2010] 3 W.L.R. 1192 10–008
Coltman v Bibby Tankers Ltd (The Derbyshire) [1988] A.C. 276; [1987] 3
W.L.R. 1181 HL 7–006
Colvilles Ltd v Devine. See Devine v Colvilles Ltd
Commission of the European Communities v France (C-52/00)
EU:C:2002:252; [2002] E.C.R. I-3827 9–041
Commission of the European Communities v France (C-177/04)
EU:C:2006:173; [2006] E.C.R. I-2461 9–041
Commission of the European Communities v United Kingdom (C-300/95);
sub nom. Product Liability Directive, Re (C-300/95) EU:C:1997:255;
[1997] All E.R. (EC) 481; [1997] E.C.R. I-2649; [1997] 3 C.M.L.R. 923
9–030, 9–037
Commissioner of Police of the Metropolis v Copeland; sub nom. Copeland
v Commissioner of Police of the Metropolis [2014] EWCA Civ 1014;
[2015] 3 All E.R. 391 11–031
Commissioner of Police of the Metropolis v DSD; sub nom. D v
Commissioner of Police of the Metropolis, V v Commissioner of Police
of the Metropolis; DSD v Commissioner of Police of the Metropolis
[2018] UKSC 11; [2019] A.C. 196; [2018] 3 All E.R. 369 2–039, 2–
040, 17–018
Condon v Basi [1985] 1 W.L.R. 866; [1985] 2 All E.R. 453 CA (Civ Div)
5–019, 16–010
Conn v Sunderland City Council, Times, 23 November 2007 CA (Civ Div)
11–029
Connor v Surrey CC [2010] EWCA Civ 286; [2010] 3 W.L.R. 1302; [2010]
P.T.S.R. 1643 2–034, 2–036
Constantine v Imperial Hotels Ltd [1944] K.B. 693 KBD 17–007
Conway v George Wimpey & Co Ltd (No.2) [1951] 2 K.B. 266; [1951] 1
All E.R. 363 CA 11–034
Cook v Lewis [1952] 1 D.L.R. 1; [1951] S.C.R. 830 Sup Ct (Can) 6–006,
6–007
Cooke v MGN Ltd [2014] EWHC 2831 (QB); [2015] 1 W.L.R. 895; [2015]
2 All E.R. 622 13–011
Cooke v United Bristol Healthcare NHS Trust; Sheppard v Stibbe; Page v
Lee [2003] EWCA Civ 1370; [2004] 1 W.L.R.
251; [2004] 1 All E.R. 797 17–021, 17–047
Cookson v Harewood [1932] 2 K.B. 478 (Note) CA 14–001
Cookson v Knowles [1979] A.C. 556; [1978] 2 W.L.R. 978 HL 17–041,
17–054
Cooper v Hobart (2002) 206 D.L.R. (4th) 193 2–013, 3–047
Corby Group Litigation Claimants v Corby BC [2008] EWCA Civ 463;
[2009] Q.B. 335; [2009] 2 W.L.R. 609 10–068
Cork v Kirby Maclean Ltd [1952] 2 All E.R. 402; [1952] 2 T.L.R. 217 CA
6–004
Cornwall Gardens Pte Ltd v RO Garrard & Co Ltd [2001] EWCA Civ 699;
Times, 19 June 2001. 14–036
Corporacion Nacional del Cobre de Chile v Sogemin Metals Ltd [1997] 1
W.L.R. 1396; [1997] 2 All E.R. 917 Ch D 16–021
Corr v IBC Vehicles Ltd [2008] UKHL 13; [2008] 1 A.C. 884; [2008] 2
W.L.R. 499 4–016, 6–021, 6–026, 16–020
Correia v University Hospital of North Staffordshire NHS Trust; [2017]
EWCA Civ 356; [2017] E.C.C. 37; [2017] Med. L.R. 292 6–017
Costello v Chief Constable of Northumbria [1999] 1 All E.R. 550; [1999]
I.C.R. 752 CA (Civ Div) 2–045
Couch v Attorney General (No.2) [2010] NZSC 27 (Sup Ct (NZ) 17–014
Couch v Steel, 118 E.R. 1193 (1854) 3 E. & B. 402 KB 7–013
Coulson & Sons v James Coulson & Co (1887) 3 T.L.R. 846 14–042
Coventry (t/a RDC Promotions) v Lawrence; sub nom. Lawrence v Fen
Tigers Ltd; Lawrence v Coventry (t/a RDC Promotions) [2014] UKSC
13; [2014] A.C. 822; [2014] 2 W.L.R. 433 10–005, 10–007, 10–033,
10–037, 10–065, 17–063
Coventry v Lawrence; sub nom. Lawrence v Fen Tigers Ltd [2015] UKSC
50; [2015] 1 W.L.R. 3485; [2016] 2 All E.R. 97; [2015] 4 Costs L.O.
507; [2015] H.R.L.R. 16; 40 B.H.R.C. 734 1–024
Coventry v Lawrence; sub nom. Lawrence v Fen Tigers Ltd; Lawrence v
Coventry (t/a RDC Promotions) [2014] UKSC 46; [2015] A.C. 106;
[2014] 3 W.L.R. 555; [2014] 4 All E.R. 517; [2014] P.T.S.R. 1014;
[2014] 5 Costs L.O. 759; [2014] H.L.R. 42; [2014] 2 P. & C.R. 19;
[2015] L. & T.R. 2; [2014] 3 E.G.L.R. 71 10–026
Cowan v Chief Constable of Avon and Somerset [2002] H.L.R. 44 CA (Civ
Div) 2–045
Cox v Ministry of Justice [2016] UKSC 10; [2016] A.C. 660; [2016] 2
W.L.R. 806 7–025, 7–029, 7–031, 7–038, 7–040
Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd 013] UKPC
17; [2013] 3 W.L.R. 927; [2013] 4 All E.R. 8 11–032, 11–033
Cream Holdings Ltd v Banerjee [2004] UKHL 44; [2005] 1 A.C. 253;
[2004] 3 W.L.R. 918 15–013, 17–065
Credit Lyonnais Bank Nederland NV (now Generale Bank Nederland NV)
v Export Credits Guarantee Department ; sub nom. Generale Bank
Nederland NV (formerly Credit Lyonnais Bank Nederland NV) v
Export Credits Guarantee Department [2000] 1 A.C. 486; [1999] 2
W.L.R. 540 HL 7–026
Crocker v British Coal Corp (1996) 29 B.M.L.R. 159 QBD 16–037
Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] A.C. 435;
[1942] 1 All E.R. 147 HL 12–032
Croke (A Minor) v Wiseman [1982] 1 W.L.R. 71; [1981] 3 All E.R. 852 CA
(Civ Div) 17–024, 17–025
Cross v Kirkby, Times, 5 April 2000 CA (Civ Div) 11–023, 16–016
Crossley v Faithful & Gould Holdings Ltd [2004] EWCA Civ 293; [2004] 4
All E.R. 447; [2004] I.C.R. 1615 7–008
Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB) 14–
013
Crossley v Rawlinson [1982] 1 W.L.R. 369; [1981] 3 All E.R. 674 DC 6–
031
Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep.
533; [1996] C.L.C. 1214 QBD (Comm) 10–008, 10–053
Cruddas v Calvert [2015] EWCA Civ 171; [2015] E.M.L.R. 16 14–043
Cruise v Express Newspapers Plc [1999] Q.B. 931; [1999] 1 W.L.R. 327
CA (Civ Div) 14–003
CSC Computer Sciences Ltd v Price [2018] EWHC 3990 (QB) 11–030
Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL
39; [2003] 1 W.L.R. 1763; [2004] 2 All E.R. 237 7–015
Cummings v Grainger [1977] Q.B. 397; [1976] 3 W.L.R. 842 CA (Civ Div)
9–045, 9–046, 9–047, 9–049, 9–050
Cunningham v Harrison [1973] Q.B. 942; [1973] 3 W.L.R. 97 CA (Civ
Div) 17–033, 17–034
Curistan v Times Newspapers Ltd [2007] EWHC 926 (QB); [2009] Q.B.
231; [2009] 2 W.L.R. 149; 14–027
Curran v Northern Ireland Coownership Housing Association Ltd [1987]
A.C. 718; [1987] 2 W.L.R. 1043 HL (NI) 2–013, 2–035
Curtis v Betts [1990] 1 W.L.R. 459; [1990] 1 All E.R. 769 CA (Civ Div) 9–
045, 9–046
Customs and Excise Commissioners v Barclays Bank Plc [2006] UKHL 28;
[2007] 1 A.C. 181; [2006] 3 W.L.R. 1 2–015, 3–036, 3–037, 3–046, 3–
047
Customs and Excise Commissioners v Total Network SL; sub nom.
Revenue and Customs Commissioners v Total Network SL; Total
Network SL v Revenue and Customs Commissioners [2008] UKHL 19;
[2008] 1 A.C. 1174; [2008] 2 W.L.R. 711 12–029, 12–030, 12–031, 12–
032
Cutler v Wandsworth Stadium Ltd [1949] A.C. 398; [1949] 1 All E.R. 544
HL 7–011, 7–013, 7–015
D v East Berkshire Community Health NHS Trust. See JD v East Berkshire
Community Health NHS Trust
D&F Estates Ltd v Church Commissioners for England [1989] A.C. 177;
[1988] 3 W.L.R. 368 HL 3–013, 3–016, 3–020, 7–039, 9–008
Daborn v Bath Tramways Motor Co Ltd [1946] 2 All E.R. 333 CA 5–012
Daiichi Pharmaceuticals UK Ltd v Stop Huntingdon Animal Cruelty; Asahi
Glass Fluoropolymers UK Ltd v Stop Huntingdon Animal Cruelty;
Eisai Ltd v Stop Huntingdon Animal Cruelty; Yamanouchi Pharma UK
Ltd v Stop Huntingdon Animal Cruelty; Sankyo Pharma UK Ltd v Stop
Huntingdon Animal Cruelty [2003] EWHC 2337; [2004] 1 W.L.R.
1503; [2005] 1 B.C.L.C. 27 11–029
Dalton v Henry Angus & Co; sub nom. Angus & Co v Dalton;
Commissioners of HM Works & Public Buildings v Henry Angus & Co
(1880-81) L.R. 6 App. Cas. 740 HL 10–014
Daly v General Steam Navigation Co (The Dragon) [1981] 1 W.L.R. 120;
[1980] 3 All E.R. 696 CA (Civ Div) 17–034
Dann v Hamilton [1939] 1 K.B. 509 KBD 16–006
Darby v National Trust for Places of Historic Interest or Natural Beauty
[2001] EWCA Civ 189; (2001) 3 L.G.L.R. 29; [2001] P.I.Q.R. P27 8–
023
Darker v Chief Constable of the West Midlands; sub nom. Docker
(Deceased) v Chief Constable of the West Midlands [2001] 1 A.C. 435;
[2000] 3 W.L.R. 747 HL 14–012
Darnley v Croydon Health Services NHS Trust [2018] UKSC 50; [2019]
A.C. 831; [2018] 3 W.L.R. 1153 2–014, 2–052
Davidson v Chief Constable of North Wales [1994] 2 All E.R. 597 CA (Civ
Div) 11–012
Davidson v Handley Page Ltd [1945] 1 All E.R. 235 7–008
Davie v New Merton Board Mills Ltd [1959] A.C. 604; [1959] 2 W.L.R.
331 HL 7–006, 9–006
Davies v Mann, 152 E.R. 588; (1842) 10 M. & W. 546 Exch 16–019
Davies v Snead (1869-70) L.R. 5 Q.B. 608 QB 14–019
Davies v Swan Motor Co (Swansea) Ltd [1949] 2 K.B. 291; [1949] 1 All
E.R. 620 CA 16–023
Davies v Taylor [1974] A.C. 207; [1972] 3 W.L.R. 801 HL 17–053
Davis v Radcliffe [1990] 1 W.L.R. 821; [1990] 2 All E.R. 536 PC (IoM) 2–
013
Daw v Intel Corp (UK) Ltd; sub nom. Intel Corp (UK) Ltd v Daw [2007]
EWCA Civ 70; [2007] 2 All E.R. 126; [2007] I.R.L.R. 355 7–010
Day v High Performance Sports Ltd [2003] EWHC 197(QB) 2–023
Day v Womble Bond Dickinson (UK) LLP [2020] EWCA Civ 447; [2020]
P.N.L.R. 19 16–018
DC Thomson & Co Ltd v Deakin [1952] Ch. 646; [1952] 2 All E.R. 361
CA 12–003, 12–021
De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914) 30 T.L.R. 257 10–
008
De Sales v Ingrilli (2002) 193 A.L.R. 130 17–053
Delaney v Pickett [2011] EWCA Civ 1532; [2012] 1 W.L.R. 2149; [2012]
R.T.R. 16 16–017
Delaware Mansions Ltd v Westminster City Council; sub nom. Flecksun
Ltd v Westminster City Council [2001] UKHL 55; [2002] 1 A.C. 321;
[2001] 3 W.L.R. 1007 10–003, 10–015, 10–066
Dennis v Ministry of Defence [2003] EWHC 793 (QB); [2003] Env. L.R.
34; [2003] E.H.L.R. 17 10–065, 10–072
Department of Transport v North West Water Authority [1984] A.C. 336;
[1983] 3 W.L.R. 707 HL 10–032
Derbyshire CC v Times Newspapers Ltd [1993] A.C. 534; [1993] 2 W.L.R.
449 HL 13–016, 13–022, 13–023
Derry v Peek; sub nom. Peek v Derry (1889) L.R. 14 App. Cas. 337; (1889)
5 T.L.R. 625 HL 1–015, 2–010
Design Services Ltd v Canada [2008] 1 S.C.R. 737; 2008 1 S.C.R. 737 3–
014
Devenish Nutrition Ltd v Sanofi-Aventis SA [2008] EWCA Civ 1086;
[2009] Ch. 390; [2009] 3 W.L.R. 198 17–016
Devine v Colvilles Ltd; sub nom. Colvilles Ltd v Devine [1969] 1 W.L.R.
475; [1969] 2 All E.R. 53 HL 5–035
Dhesi v Chief Constable of the West Midlands, Times, 9 May 2000 CA (Civ
Div) 9–049
Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA
Civ 585; [2019] P.I.Q.R. P12; [2019] Med. L.R. 273 11–019
Dimond v Lovell [2002] 1 A.C. 384; [2000] 2 W.L.R. 1121 HL 17–058
Dobson v Asda Stores [2002] C.L.Y. 4551 5–032
Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28; [2009] 3 All
E.R. 319; [2009] B.L.R. 287 10–068, 10–072
Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 W.L.R.
433; [1980] 1 All E.R. 928 CA (Civ Div) 6–034, 17–058
Dodd v Raebarn Estates Ltd [2017] EWCA Civ 439; [2017] H.L.R. 34;
[2017] P.I.Q.R. P19 10–029
Dodds v Dodds [1978] Q.B. 543; [1978] 2 W.L.R. 434 QBD 17–051
Donaghey v Boulton & Paul Ltd; sub nom. Donaghey v P O’Brien & Co
[1968] A.C. 1; [1967] 3 W.L.R. 829 HL 7–021
Donnelly v Joyce [1974] Q.B. 454; [1973] 3 W.L.R. 514 CA (Civ Div) 17–
034
Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231; [2003] Q.B.
1008; [2003] 2 W.L.R. 1138 8–035, 8–037
Donoghue v Stevenson; sub nom. McAlister v Stevenson [1932] A.C. 562;
1932 S.C. (H.L.) 31 HL 1–005, 2–004, 2–007, 2–008, 2–009, 2–010, 2–
011, 2–012, 2–022, 3–024, 3–025, 3–040, 6–028, 9–002, 9–003, 9–005,
9–006, 9–009, 9–010, 9–011
Donovan v Gwentoys Ltd [1990] 1 W.L.R. 472; [1990] 1 All E.R. 1018 HL
16–033, 16–034
Dooley v Cammell Laird & Co Ltd; Dooley v Mersey Insulation Co Ltd
[1951] 1 Lloyd’s Rep. 271, Assizes (Liverpool) 4–032, 4–033
Doughty v Turner Manufacturing Co [1964] 1 Q.B. 518; [1964] 2 W.L.R.
240 CA 6–031
Douglas v Hello! Ltd (No.1) [2001] Q.B. 967; [2001] 2 W.L.R. 992 CA
(Civ Div) 15–007
Douglas v Hello! Ltd (No.3). See Douglas v Hello! Ltd (No.6)
Douglas v Hello! Ltd (No.6); sub nom. Douglas v Hello! Ltd (Trial Action:
Breach of Confidence) (No.3) [2005] EWCA Civ 595; [2006] Q.B. 125;
[2005] 3 W.L.R. 881 15–005, 15–007, 15–008, 15–009, 15–012
Douglas v Hello! Ltd. See OBG Ltd v Allan
Doyle v Olby (Ironmongers) Ltd [1969] 2 Q.B. 158; [1969] 2 W.L.R. 673
CA (Civ Div) 1–015, 6–035
Doyle v Smith [2018] EWHC 2935 (QB); [2019] E.M.L.R. 15 14–024
DPP v Dziurzynski [2002] EWHC 1380 (Admin); (2002) 166 J.P. 545;
[2002] A.C.D. 88 11–029
DPP v Fearon [2010] EWHC 340 (Admin); [2010] 2 Cr. App. R. 22; (2010)
174 J.P. 145 10–044
DPP v Jones [1999] 2 A.C. 240; [1999] 2 W.L.R. 625 HL 11–035
DPP v K (A Minor) [1990] 1 W.L.R. 1067; [1990] 1 All E.R. 331 QBD 11–
005, 11–047
DPP v Moseley; DPP v Selvanayagam; DPP v Woodling, Times, 23 June,
1999; Independent, 21 June 1999, QBD 11–029
Drake v Foster Wheeler Ltd [2010] EWHC 2004 (QB); [2011] 1 All E.R.
63; [2010] P.I.Q.R. P19 17–034
Drane v Evangelou [1978] 1 W.L.R. 455; [1978] 2 All E.R. 437 CA (Civ
Div) 17–012
Draper v Hodder [1972] 2 Q.B. 556; [1972] 2 W.L.R. 992 CA (Civ Div) 9–
042
Dryden v Johnson Matthey Plc [2018] UKSC 18; [2019] A.C. 403; [2018] 2
W.L.R. 1109 3–003
Dubai Aluminium Co Ltd v Salaam; Dubai Aluminium Co Ltd v Amhurst;
Dubai Aluminium Co Ltd v Amhurst Brown Martin & Nicholson
[2002] UKHL 48; [2003] 2 A.C. 366; [2002] 3 W.L.R. 1913 7–025, 7–
036, 7–037, 7–040
Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ
1307; [2018] P.I.Q.R. P18 5–026, 6–016
Duchess of Argyll v Duke of Argyll [1967] Ch. 302; [1965] 2 W.L.R. 790
Ch D 15–005
Duke of Brunswick v Harmer, 117 E.R. 75; (1849) 14 Q.B. 185 QB 14–034
Dulieu v White & Sons [1901] 2 K.B. 669 KBD 4–005, 4–006, 6–033, 11–
017
Dunlop v Woollahra Municipal Council [1982] A.C. 158; [1981] 2 W.L.R.
693 PC (Aus) 11–033
Dunnage v Randall [2015] EWCA Civ 673; [2016] Q.B. 639; [2016] 2
W.L.R. 839 5–003, 5–004
Dunne v North Western Gas Board; Lambert v North Western Gas Board;
Doyle v North Western Gas Board [1964] 2 Q.B. 806; [1964] 2 W.L.R.
164 CA 10–062
Durham v BAI (Run Off) Ltd; sub nom. Fleming v Independent Insurance
Co Ltd; Edwards v Excess Insurance Co Ltd; Thomas Bates & Son Ltd
v BAI (Run Off) Ltd; Akzo Nobel UK Ltd v Excess Insurance Co Ltd;
Municipal Mutual Insurance Ltd v Zurich Insurance Co [2012] UKSC
14; [2012] 1 W.L.R. 867; [2012] 3 All E.R. 1161 6–020
Dwek v Macmillan Publishers Ltd; Dwek v Associated Newspapers Ltd
[2000] E.M.L.R. 284 CA (Civ Div) 13–016
Dyer v Munday [1895] 1 Q.B. 742 CA 7–036
Dymond v Pearce [1972] 1 Q.B. 496; [1972] 2 W.L.R. 633; [1972] 1 All
E.R. 1142 CA (Civ Div) 10–045
E Hobbs (Farms) Ltd v Baxenden (Chemical Co) Ltd; Gerber Foods
(Holdings) Ltd v E Hobbs (Farms) Ltd [1992] 1 Lloyd’s Rep. 54 QBD
9–006
E Hulton & Co v Jones; sub nom. Jones v E Hulton & Co [1910] A.C. 20
HL 13–016
Ev English Province of Our Lady of Charity; sub nom. JGE v English
Province of Our Lady of Charity; JGE v Portsmouth Roman Catholic
Diocesan Trust [2012] EWCA Civ 938; [2013] Q.B. 722; [2013] 2
W.L.R. 958 7–031
Eagle v Chambers (No.1) [2003] EWCA Civ 1107; [2004] R.T.R. 9; (2003)
100(36) L.S.G. 43 16–023
Earl of Sefton v Tophams Ltd (No.2); Earl of Sefton v Capital and Counties
Property Co Ltd [1967] 1 A.C. 50; [1966] 2 W.L.R. 814 HL 12–010
Earl Spencer v United Kingdom (28851/95); Countess Spencer v United
Kingdom (28852/95) (1998) 25 E.H.R.R. CD105 Eur Comm HR 15–
004
Easson v London & North Eastern Railway Co [1944] K.B. 421 CA 5–033
Eastern and South African Telegraph Co Ltd v Cape Town Tramway Cos
Ltd [1902] A.C. 381 PC (Cape) 10–057
Eaton Mansions (Westminster) Ltd v Stinger Compania de Inversion SA
[2013] EWCA Civ 1308; [2014] C.P. Rep. 12; [2014] H.L.R. 4 17–008,
17–016
Economou v de Freitas [2018] EWCA Civ 2591; [2019] E.M.L.R. 7 14–024
Eden v West & Co [2002] EWCA Civ 991; [2003] P.I.Q.R. Q2 8–022
Edgington v Fitzmaurice (1885) L.R. 29 Ch. D. 459 CA 1–015, 16–020
Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] A.C. 296;
[1984] 2 W.L.R. 1 PC (HK) 5–024
Edwards v Law Society of Upper Canada (2002) 206 D.L.R. (4th) 211 3–
047
Edwards v Railway Executive [1952] A.C. 737; [1952] 2 All E.R. 430 HL
8–017
Edwards v Sutton LBC; sub nom. Sutton LBC v Edwards [2016] EWCA
Civ 1005; [2017] P.I.Q.R. P2 8–023
Edwin Hill & Partners v First National Finance Corp [1989] 1 W.L.R. 225;
[1988] 3 All E.R. 801, CA (Civ Div) 12–013
Eglantine Inn v Smith [1948] N.I. 29 HC (NI) 13–018
Elguzouli-Daf v Commissioner of Police of the Metropolis; McBrearty v
Ministry of Defence [1995] Q.B. 335; [1995] 2 W.L.R. 173, CA (Civ
Div) 2–047
Elias v Pasmore [1934] 2 K.B. 164 KBD 11–040
Ellis v Burton [1975] 1 W.L.R. 386; [1975] 1 All E.R. 395 DC 11–002
Ellis v Kelly [2018] EWHC 2031 (QB); [2018] 4 W.L.R. 124; [2018]
R.T.R. 27 16–021
Ellis v Sheffield Gas Consumers Co, 118 E.R. 955; (1853) 2 E. & B. 767
KB 7–039
Ellor v Selfridge & Co (1930) 46 T.L.R. 236 5–032
Emeh v Kensington and Chelsea and Westminster AHA [1985] Q.B. 1012;
[1985] 2 W.L.R. 233 CA (Civ Div) 2–053
Emerald Construction Co v Lowthian [1966] 1 W.L.R. 691; [1966] 1 All
E.R. 1013 CA 12–006
Emerald Supplies Ltd v British Airways Plc [2015] EWCA Civ 1024;
[2016] Bus. L.R. 145; [2016] U.K.C.L.R. 567 12–019
Emmens v Pottle (1885-86) L.R. 16 Q.B.D. 354 CA 14–032
Energy Solutions EU Ltd v Nuclear Decommissioning Authority; sub nom.
Nuclear Decommissioning Authority v ATK Energy EU Ltd (formerly
Energy Solutions EU Ltd); Nuclear Decommissioning Authority v
EnergySolutions EU Ltd [2017] UKSC 34; [2017] 1 W.L.R. 1373;
[2017] 4 All E.R. 1 7–024
English Heritage v Taylor [2016] EWCA Civ 448; [2016] P.I.Q.R. P14 8–
023, 8–038
Entick v Carrington, 95 E.R. 807; (1765) 2 Wils. K.B. 275 KB 15–002
Equitas Insurance Ltd v Municipal Mutual Insurance Ltd [2019] EWCA
Civ 718; [2020] Q.B. 418; [2019] 3 W.L.R. 613 6–020
Esso Petroleum Co Ltd v Mardon [1976] Q.B. 801; [1976] 2 W.L.R. 583
CA (Civ Div) 3–032
Esso Petroleum Co Ltd v Southport Corp [1956] A.C. 218; [1956] 2 W.L.R.
81 HL 10–044, 10–045
Etheridge v K (A Minor) [1999] Ed. C.R. 550 QBD 5–017
Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1657; [2002] P.I.Q.R.
Q5 17–034
Evans v Triplex Safety Glass Co Ltd [1936] 1 All E.R. 283 KBD 9–010
Everitt v Martin [1953] N.Z.L.R. 298 11–048
F v West Berkshire HA; sub nom. F (Mental Patient: Sterilisation), Re
[1990] 2 A.C. 1; [1989] 2 W.L.R. 1025 HL 11–006, 11–022
F, Re. See F v West Berkshire HA
Fadeyeva v Russia (55723/00) (2007) 45 E.H.R.R. 10 ECHR 10–072
Fagan v Commissioner of Police of the Metropolis [1969] 1 Q.B. 439;
[1968] 3 W.L.R. 1120 DC 11–004
Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son);
Pendleton v Stone & Webster Engineering Ltd; Dyson v Leeds City
Council (No.2); Matthews v Associated Portland Cement Manufacturers
(1978) Ltd; Fox v Spousal (Midlands) Ltd; Babcock International
Ltd v National Grid Co Plc; Matthews v British Uralite Plc [2002]
UKHL 22; [2003] 1 A.C. 32; [2002] 3 W.L.R. 89 6–013, 6–017, 6–018,
6–019, 6–020
Falconer v ASLEF and NUR [1986] I.R.L.R. 331 CC (Sheffield) 12–001
Fardon v Harcourt Rivington (1932) 146 L.T. 391 9–042
Farrell v Avon HA [2001] Lloyd’s Rep. Med. 458 QBD 4–018
Fearn v Tate Gallery Board of Trustees [2020] EWCA Civ 104; [2020] 2
W.L.R. 1081 10–013, 10–017, 15–002, 15–014
Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46; [2010] 1 W.L.R.
785; [2009] 3 All E.R. 304 11–029
Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 W.L.R.
1213; [1976] 3 All E.R. 817 CA (Civ Div) 7–028
Ferguson v Welsh [1987] 1 W.L.R. 1553; [1987] 3 All E.R. 777 HL 8–024,
8–025
Fielding v Variety Inc [1967] 2 Q.B. 841; [1967] 3 W.L.R. 415 CA (Civ
Div) 14–044
Filburn v Peoples Palace and Aquarium Co Ltd (1890) L.R. 25 Q.B.D. 258
CA 9–044
Firman v Ellis; Pheasant v Smith (Tyres); Down v Harvey; Ince v Rogers
[1978] Q.B. 886; [1978] 3 W.L.R. 1 CA (Civ Div) 16–033
Firth v State of New York (2002) NY Int 83 14–034
Fish & Fish Ltd v Sea Shepherd UK; Steve Irwin, The; sub nom. Sea
Shepherd UK v Fish & Fish Ltd [2015] UKSC 10; [2015] A.C. 1229;
[2015] 2 W.L.R. 694 12–011
Fitzgerald v Lane [1989] A.C. 328; [1988] 3 W.L.R. 356 HL 6–008, 16–
027, 17–060
Flack v Hudson [2001] Q.B. 698; [2001] 2 W.L.R. 982 CA (Civ Div) 9–043
Flint v Tittensor [2015] EWHC 466 (QB); [2015] 1 W.L.R. 4370; [2016]
R.T.R. 2 11–006
Flood v Times Newspapers Ltd [2010] EWCA Civ 804; [2011] 1 W.L.R.
153; [2010] E.M.L.R. 26 14–022, 14–023,14–024
Flora v Wakom (Heathrow) Ltd (formerly Abela Airline Catering Ltd)
[2006] EWCA Civ 1103; [2007] 1 W.L.R. 482; [2006] 4 All E.R. 982
17–047
Football Dataco Ltd v Sportradar GmbH; Football Dataco Ltd v Stan James
(Abingdon) Ltd [2013] EWCA Civ 27; [2013] Bus. L.R. 837; [2013] 2
C.M.L.R. 36 12–011
Foreign and Commonwealth Office v Warsama; Warsama v Foreign and
Commonwealth Office [2020] EWCA Civ 142 14–010
Forsikringsaktieselskapet Vesta v Butcher [1989] A.C. 852; [1989] 2
W.L.R. 290 HL 16–020
Foster v Biosil (2001) 59 B.M.L.R. 178 CC (Central London) 9–021
Foster v British Gas Plc [1991] 2 A.C. 306; [1991] 2 W.L.R. 1075 HL 7–
023
Foster v Zott GmbH & Co unreported 24 May 2000 CA 16–030
Fouldes v Willoughby, 151 E.R. 1153; (1841) 8 M. & W. 540 Exch 11–045
Fowler v Lanning [1959] 1 Q.B. 426; [1959] 2 W.L.R. 241 QBD 11–027,
11–046
Francovich v Italy (C-6/90); Bonifacti v Italy (C-9/90) EU:C:1991:428;
[1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66 1–020, 7–023, 7–024
Freeman v Higher Park Farm [2008] EWCA Civ 1185; [2009] P.I.Q.R. P6;
(2008) 152(43) S.J.L.B. 32 9–045, 9–049
Freeman v Home Office [1984] Q.B. 524; [1984] 2 W.L.R. 802 CA (Civ
Div) 11–019, 16–003
Froom v Butcher [1976] Q.B. 286; [1975] 3 W.L.R. 379 CA (Civ Div) 16–
020, 16–024, 16–025, 17–060
Frost v Aylesbury Dairy Co Ltd [1905] 1 K.B. 608, CA 9–003
Frost v Chief Constable of South Yorkshire. See White v Chief Constable of
South Yorkshire
Fytche v Wincanton Logistics Plc [2004] UKHL 31; [2004] 4 All E.R. 221;
[2004] I.C.R. 975 7–021
Gaca v Pirelli General Plc; sub nom. Pirelli General Plc v Gaca [2004]
EWCA Civ 373; [2004] 1 W.L.R. 2683; [2004] 3 All E.R. 348 17–027,
17–028
Gallardo v Imperial College Healthcare NHS Trust [2017] EWHC 3147
(QB); [2018] P.I.Q.R. P6 5–026
Galli-Atkinson v Seghal [2003] EWCA Civ 697; [2003] Lloyd’s Rep. Med.
285; (2004) 78 B.M.L.R. 22 4–024
Galloway v Telegraph Group Ltd [2006] EWCA Civ 17; [2006] E.M.L.R.
11; [2006] H.R.L.R. 13 14–024
Galt v British Railways Board (1983) 133 N.L.J. 870 4–032
Garcia v St Mary’s NHS Trust [2006] EWHC 2314 (QB); [2011] Med. L.R.
348 5–024
Garden Cottage Foods Ltd v Milk Marketing Board [1984] A.C. 130;
[1983] 3 W.L.R. 143 HL 7–023
Garrod v North Devon NHS Primary Care Trust [2006] EWHC 850; [2007]
P.I.Q.R. Q1 7–010
Gates v McKenna [1998] Lloyd’s Rep. Med. 405; (1999) 46 B.M.L.R. 9
QBD 5–022
GB v Home Office [2015] EWHC 819 (QB) 7–039
Geary v JD Wetherspoon Plc [2011] EWHC 1506 (QB); [2011] L.L.R. 485;
[2011] N.P.C. 60 8–018
Gee v DePuy International Ltd; sub nom. Depuy Pinnacle Metal on Metal
Hip Litigation, Re [2018] EWHC 1208 (QB); [2018] Med. L.R. 347 9–
022
Gee v Metropolitan Railway Co (1872-73) L.R. 8 Q.B. 161 Ex Chamber 5–
033
General Cleaning Contractors v Christmas; sub nom. Christmas v
Caledonian Club Trust [1953] A.C. 180; [1953] 2 W.L.R. 6 HL 7–007,
8–022
George v Eagle Air Services Ltd [2009] UKPC 21; [2009] 1 W.L.R. 2133;
[2009] 1 C.L.C. 736 5–030
Ghaidan v Godin-Mendoza; sub nom. Mendoza v Ghaidan; Ghaidan v
Mendoza; Godin-Mendoza v Ghaidan [2004] UKHL 30; [2004] 2 A.C.
557; [2004] 3 W.L.R. 113 1–020, 10–032
Giacomelli v Italy (59909/00) (2007) 45 E.H.R.R. 38 ECHR 10–072
Giannarelli v Wraith (1988) 165 C.L.R. 543 2–059
Gibbs v Rea [1998] A.C. 786; [1998] 3 W.L.R. 72 PC (CI) 11–032
Gilbert v Stone (1647) Style 72; 82 E.R. 539 11–039
Giles v Walker (1890) L.R. 24 Q.B.D. 656 QBD 10–054
Gillick v West Norfolk and Wisbech AHA [1986] A.C. 112; [1985] 3
W.L.R. 830 HL 11–020
Gillingham BC v Medway (Chatham Docks) Co Ltd [1993] Q.B. 343;
[1992] 3 W.L.R. 449 QBD 10–007
Ginty v Belmont Building Supplies Ltd [1959] 1 All E.R. 414 QBD 7–020
Glasgow Corp v Muir; sub nom. Muir v Glasgow Corp [1943] A.C. 448;
[1943] 2 All E.R. 44 HL 5–003
Glasgow Corp v Taylor. See Taylor v Glasgow City Council.
Glass v United Kingdom (61827/00) [2004] 1 F.L.R. 1019; [2004] 1 F.C.R.
553 ECHR 11–020
Gleaner Co Ltd v Abrahams; sub nom. Abrahams v Gleaner Co Ltd [2003]
UKPC 55; [2004] 1 A.C. 628; [2003] 3 W.L.R. 1038 14–038
Glinski v McIver [1962] A.C. 726; [1962] 2 W.L.R. 832 HL 11–032
Godfrey v Demon Internet Ltd (Application to Strike Out) [2001] Q.B. 201;
[2000] 3 W.L.R. 1020, QBD 14–033, 14–034
Goldman v Hargrave; sub nom. Hargrave v Goldman [1967] 1 A.C. 645;
[1966] 3 W.L.R. 513 PC (Aus) 5–011, 10–022, 10–023, 10–042, 10–050
Goldsmith v Bhoyrul [1998] Q.B. 459; [1998] 2 W.L.R. 435 QBD 13–023
Goldsmith v Patchcott [2012] EWCA Civ 183; [2012] P.I.Q.R. P11; (2012)
156(9) S.J.L.B. 31 9–049
Gorham v British Telecommunications Plc [2000] 1 W.L.R. 2129; [2000] 4
All E.R. 867 CA (Civ Div) 3–043
Gorringe v Calderdale MBC; sub nom. Calderdale MBC v Gorringe [2004]
UKHL 15; [2004] 1 W.L.R. 1057; [2004] 2 All E.R. 326 2–033, 2–035,
2–036
Gorris v Scott (1873-74) L.R. 9 Ex. 125 Ex Ct 7–021
Gough v Thorne [1966] 1 W.L.R. 1387; [1966] 3 All E.R. 398 CA 16–021
Gould v McAuliffe [1941] 2 All E.R. 527 CA 8–018, 9–042
Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co
Ltd [1985] A.C. 210; [1984] 3 W.L.R. 953 HL 2–013, 2–035
Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47; [2015]
I.C.R. 665; [2015] P.I.Q.R. P15 7–005
Graham v Dodds [1983] 1 W.L.R. 808; [1983] 2 All E.R. 953 HL 17–054
Grainger v Hill, 132 E.R. 769; (1838) 4 Bing. N.C. 212 QB 11–015, 11–032
Grant v Australian Knitting Mills Ltd; sub nom. Australian Knitting Mills v
Grant Ltd [1936] A.C. 85 PC (Aus) 9–003, 9–006, 9–010
Grappelli v Derek Block (Holdings) Ltd [1981] 1 W.L.R. 822; [1981] 2 All
E.R. 272, CA (Civ Div) 13–015
Gray v Fire Alarm Fabrication Services Ltd; sub nom. EH Humphries
(Norton) Ltd v Fire Alarm Fabrication Services Ltd [2006] EWCA Civ
1496; [2007] I.C.R. 247 8–025
Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339; [2009] 3
W.L.R. 167 6–010,16–013, 16–016, 16–017, 16–018
Greater Nottingham Cooperative Society v Cementation Piling &
Foundations Ltd [1989] Q.B. 71; [1988] 3 W.L.R. 396 CA (Civ Div) 3–
014
Greatorex v Greatorex [2000] 1 W.L.R. 1970; [2000] 4 All E.R. 769 QBD
4–029, 4–036, 4–038, 4–041
Green v Chelsea Waterworks Co (1894) 70 L.T. 547 10–062
Green v Fibreglass [1958] 2 Q.B. 245; [1958] 3 W.L.R. 71 Assizes
(Newcastle) 8–025
Green v Lord Somerleyton [2003] EWCA Civ 198; [2004] 1 P. & C.R. 33;
[2003] 11 E.G. 152 (C.S.) 10–022
Greene v Associated Newspapers Ltd; sub nom. Green v Associated
Newspapers Ltd [2004] EWCA Civ 1462; [2005] Q.B. 972; [2005] 3
 W.L.R. 281 14–042, 17–065
Greenfield v Irwin (A Firm); sub nom.
Greenfield v Flather [2001] EWCA Civ 113; [2001] 1 W.L.R. 1279;
[2001] 1 F.L.R. 899 2–053
Greenhalgh v British Railways Board [1969] 2 Q.B. 286; [1969] 2 W.L.R.
892 CA (Civ Div) 8–016
Greenock Corp v Caledonian Railway Co; sub nom. Caledonian Railway
Co v Corp of Greenock; Greenock Corp v Glasgow & South Western
Railway Co [1917] A.C. 556; 1917 S.C. (H.L.) 56 HL 10–061
Gregg v Scott [2005] UKHL 2; [2005] 2 A.C. 176; [2005] 2 W.L.R. 268 6–
013, 6–014, 6–016, 6–020
Gregoire v GP Putnam’s Sons (1948) 81 NE 2d 45 14–034
Gregory v Portsmouth City Council [2000] 1 A.C. 419; [2000] 2 W.L.R.
306 HL 11–032
Grieves v FT Everard & Sons Ltd; Quinn v George Clark & Nem Ltd;
Mears v RG Carter Ltd; Jackson v Brock Plc; Rothwell v Chemical &
Insulating Co Ltd; Downey v Charles Evans Shopfitters Ltd; Storey v
Clellands Shipbuilders Ltd; Topping v Benchtown Ltd (formerly Jones
Bros (Preston) Ltd); Johnston v NEI International Combustion Ltd;
Hindson v Pipe House Wharf (Swansea) Ltd [2007] UKHL 39; [2007] 3
W.L.R. 876; [2007] 4 All E.R. 1047 3–003, 4–015, 4–016, 17–036
Griffiths v Arch Engineering Co (Newport) Ltd [1968] 3 All E.R. 217
Assizes 9–010
Griffiths v British Coal Corp [2001] EWCA Civ 336; [2001] 1 W.L.R.
1493; [2001] P.I.Q.R. Q11 17–032
Grimshaw v Ford Motor Co, 119 Cal.App. 3d 757 (1981) 1–007
Grinstead v Lywood, 2002 WL 31397573 2–056
Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 1
W.L.R. 3024; [2002] 4 All E.R. 732 14–038, 14–040
Groves v Lord Wimborne [1898] 2 Q.B. 402; [1895–99] All E.R. Rep. 147
CA 7–002, 7–015
Grovit v Doctor [1997] 1 W.L.R. 640; [1997] 2 All E.R. 417 HL 16–037
Guerra v Italy (1998) 26 E.H.R.R. 357; 4 B.H.R.C. 63 ECHR 10–072
Gulati v MGN Ltd; Taggart v MGN Ltd; Yentob v MGN Ltd; Alcorn v
MGN Ltd; Roche v MGN Ltd; Gascoigne v MGN Ltd; Ashworth v
MGN Ltd; Frost v MGN Ltd; sub nom. Representative Claimants v
 MGN Ltd [2015] EWCA Civ 1291; [2017] Q.B. 149; [2016] 2 W.L.R.
1217 15–012
Gwilliam v West Hertfordshire Hospitals NHS Trust; sub nom. Gwilliam v
West Hertfordshire Hospital NHS Trust [2002] EWCA Civ 1041;
[2003] Q.B. 443; [2002] 3 W.L.R. 1425 8–024
GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 T.L.R. 376 12–021
H (A Child) v S (Damages); sub nom. ATH v MS; A (Children) v MS
[2002] EWCA Civ 792; [2003] Q.B. 965; [2002] 3 W.L.R. 1179 17–056
H v B [2009] EWCA Civ 1092; Times, 28 October, 2009 11–031
H West & Son Ltd v Shephard; sub nom. Shepherd v H West & Son Ltd
[1964] A.C. 326; [1963] 2 W.L.R. 1359 HL 17–019, 17–036, 17–037
H&N Emanuel v Greater London Council [1971] 2 All E.R.
835; [1971] 2 Lloyd’s Rep. 36 CA (Civ Div) 10–050
Hackney LBC v Issa; sub nom. Issa v Hackney LBC [1997] 1 W.L.R. 956;
[1997] 1 All E.R. 999 CA (Civ Div) 7–015, 10–002
Hadley v Baxendale 156 E.R. 145; (1854) 9 Ex. 341 Ex Ct 9–003
Haim v Kassenzahnaertzliche Vereinigung Nordrhein [2000] ECR I-5123
7–024
Hale v Jennings [1938] 1 All E.R. 579 10–068
Haley v London Electricity Board [1965] A.C. 778; [1964] 3 W.L.R. 479
HL 5–008
Halford v Brookes (No.1) [1991] 1 W.L.R. 428; [1991] 3 All E.R. 559 CA
(Civ Div) 11–002
Hall & Co v Simons. See Arthur JS Hall & Co v Simons.
Hall v Barclay. See J&E Hall Ltd v Barclay
Hall v Brooklands Auto Racing Club [1933] 1 K.B. 205 CA 5–004
Hall v Herbert (1993) 2 S.C.R. 159 SC (Can) 16–018
Hall v Holker Estate Co Ltd [2008] EWCA Civ 1422; [2008] N.P.C. 143 5–
032
Halsey v Esso Petroleum Co Ltd [1961] 1 W.L.R. 683; [1961] 2 All E.R.
145 QBD 10–002, 10–007, 10–070
Hamble Fisheries Ltd v L Gardner & Sons Ltd (The Rebecca Elaine) [1999]
2 Lloyd’s Rep. 1; (1999) 15 Const. L.J. 152 CA (Civ Div) 9–006, 9–008
Hambrook v Stokes Bros [1925] 1 K.B. 141 CA 4–006, 4–007
Hamilton v Al-Fayed (No.1) [2001] 1 A.C. 395; [2000] 2 W.L.R. 609 HL
14–010
Hamilton v Guardian Newspapers, Times, 22 July 22 1995 14–010
Hamilton v Papakura DC [2002] UKPC 9; (2002) 146 S.J.L.B. 75; Times, 5
March 2002 10–055
Hardwick v Hudson [1999] 1 W.L.R. 1770; [1999] 3 All E.R. 426 CA (Civ
Div) 17–034
Harper v GN Haden & Sons Ltd; sub nom. Harper v GN Hayden & Sons
[1933] Ch. 298; 86 A.L.R. 89 CA 10–045
Harris v Birkenhead Corp; sub nom. Harris v Wirral BC (Formerly
Birkenhead Corp) [1976] 1 W.L.R. 279; [1976] 1 All E.R. 341 CA (Civ
Div) 8–012
Harris v Empress Motors Ltd; Cole v Crown Poultry Packers Ltd [1984] 1
W.L.R. 212; [1983] 3 All E.R. 561 CA (Civ Div) 17–024, 17–054
Harris v James (1876) 45 L.J. Q.B. 545 10–026
Harrison v British Railways Board [1981] 3 All E.R. 679 QBD 4–036, 16–
021
Harrison v Jackson, 138 C.L.R. 438; (1977) 16 S.A.S.R. 182 Sup Ct (S
Aus) (Full Ct) 16–015
Hartman v South Essex Mental Health and Community Care NHS Trust;
Best v Staffordshire University; Wheeldon v HSBC Bank Ltd; Green v
Grimsby and Scunthorpe Newspapers Ltd; Moore v Welwyn
Components Ltd; Melville v Home Office [2005] EWCA Civ 6; [2005]
I.C.R. 782; [2005] I.R.L.R. 293 7–010
Hartwell v Grayson, Rollo and Clover Docks [1947] K.B. 901; (1947) 80
Ll. L. Rep. 381 CA 8–012
Haseldine v Daw & Son Ltd [1941] 2 K.B. 343 CA 8–013, 8–025, 9–005,
9–009, 9–010
Hassan-Daniel v Revenue and Customs Commissioners [2010] EWCA Civ
1443; (2011) 108(1) L.S.G. 14; (2011) 161 N.L.J. 64 16–013
Hatton v United Kingdom (36022/97) (2003) 37 E.H.R.R. 28; 15 B.H.R.C.
259 ECHR (Grand Chamber) 10–072
Haward v Fawcetts (A Firm) [2006] UKHL 9; [2006] 1 W.L.R. 682; [2006]
3 All E.R. 497 16–031
Hawley v Luminar Leisure Ltd; sub nom. Hawley v Luminar Leisure Plc
[2006] EWCA Civ 18; [2006] I.R.L.R. 817; [2006] Lloyd’s Rep. I.R.
307 7–032
Hay v Hughes [1975] Q.B. 790; [1975] 2 W.L.R. 34 CA (Civ Div) 17–056
Hayden v Hayden [1992] 1 W.L.R. 986; [1993] 2 F.L.R. 16 CA (Civ Div)
17–056
Hayes v Willoughby [2013] UKSC 17; [2013] 1 W.L.R. 935; [2013] 2 All
E.R. 405 11–029
Haynes v Harwood; sub nom. Hynes v Harwood [1935] 1 K.B. 146; [1934]
All E.R. Rep. 103 CA 2–028, 4–035, 4–036, 16–008
Haystead v Chief Constable of Derbyshire; sub nom. Haystead v DPP
[2000] 3 All E.R. 890; [2000] 2 Cr. App. R. 339 DC 11–005
Hayward v Thompson [1982] Q.B. 47; [1981] 3 W.L.R. 470 CA (Civ Div)
13–013, 13–015
Heath v Mayor of Brighton (1908) 98 L.T. 718 10–010
Heaton v Axa Equity & Law Life Assurance Society Plc [2002] UKHL 15;
[2002] 2 A.C. 329; [2002] 2 W.L.R. 1081 17–061
Heaven v Pender (t/a West India Graving Dock Co) (1882-83) L.R. 11
Q.B.D. 503 CA 2–007, 2–008
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465; [1963] 3
W.L.R. 101 HL 2–010, 3–024, 3–025, 3–027, 3–031, 3–032, 3–033, 3–
035, 3–038, 3–038, 3–040, 3–041, 3–043, 3–046, 3–047
Hegarty v Shine (1878) 14 Cox C.C.124 11–019
Heil v Rankin (Appeal against Damages) [2001] P.I.Q.R. Q3, CA (Civ Div)
6–010
Heil v Rankin; Rees v Mabco (102) Ltd (Non-Pecuniary Damages);
Schofield v Saunders & Taylor Ltd; Ramsay v Rivers; Kent v Griffiths
(Non-Pecuniary Damages); W (A Child) v Northern General Hospital
NHS Trust; Annable v Southern Derbyshire HA; Connolly v Tasker
[2001] Q.B. 272; [2000] 2 W.L.R. 1173 CA (Civ Div) 14–040, 17–039
Hemmens v Wilson Browne (A Firm) [1995] Ch. 223; [1994] 2 W.L.R.
323; [1993] 4 All E.R. 826 Ch D 3–042
Henderson v Dorset Healthcare University NHS Foundation Trust; sub
nom. EH v Dorset Healthcare University NHS Foundation Trust [2016]
EWHC 3275 (QB); [2017] Med. L.R. 69; (2017) 154 B.M.L.R. 67 16–
018
Henderson v Henderson [1843-60] All E.R. Rep. 378; 67 E.R. 313; (1843)
3 Hare 100 Ct of Chancery 17–005
Henderson v Henry E Jenkins & Sons [1970] A.C. 282; [1969] 3 W.L.R.
732 HL 5–035
Henderson v Merrett Syndicates Ltd (No.1); sub nom. Gooda Walker Ltd v
Deeny; McLarnon Deeney v Gooda Walker Ltd; Arbuthnott v Fagan;
Hallam-Eames v Merrett Syndicates Ltd; Hughes v Merrett Syndicates
 Ltd; Feltrim Underwriting Agencies Ltd v Arbuthnott; Deeny v Gooda
Walker Ltd (Duty of Care) [1995] 2 A.C. 145; [1994] 3 W.L.R. 761 HL
1–017, 3–038, 3–044, 3–045
Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86; [2016] 1
W.L.R. 2036; [2016] I.C.R. 671 , 6–019
Henry v BBC (Qualified Privilege) [2005] EWHC 2787 (QB) 14–026
Henry v Chief Constable of Thames Valley [2010] EWCA Civ 5; [2010]
R.T.R. 14; (2010) 107(4) L.S.G. 14 5–018
Hepburn v Chief Constable of Thames Valley; sub nom. Chief Constable of
Thames Valley v Hepburn [2002] EWCA Civ 1841; (2003) 147 S.J.L.B.
59 11–008, 11–015
Herbert v HH Law Ltd [2019] EWCA Civ 527; [2019] 1 W.L.R. 4253;
[2019] 4 All E.R. 835 1–024
Herd v Weardale Steel Coal & Coke Co Ltd [1915] A.C. 67 HL 11–014
Herniman v Smith [1938] A.C. 305 HL 11–032
Herring v Boyle (1834) 1 Cr. M. & R. 377; 149 E.R. 1126 11–015
Hevican v Ruane [1991] 3 All E.R. 65; (1991) 141 N.L.J. 235 QBD 4–026
Hicks v Chief Constable of South Yorkshire Police; sub nom. Hicks v
Wright; Wafer v Wright [1992] 2 All E.R. 65; [1992] P.I.Q.R. P433 HL
17–036, 17–049
Higgs v Foster (t/a Avalon Coaches) [2004] EWCA Civ 843 8–037
Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1 W.L.R.
1434; [1961] 3 All E.R. 709 QBD 5–008
Hill v Chief Constable of West Yorkshire [1989] A.C. 53; [1988] 2 W.L.R.
1049 HL 1–010, 2–046, 2–048
Hill v Church of Scientology of Toronto [1995] 2 S.C.R. 1130; (1995) 126
D.L.R. (4th) 129 17–014
Hill v Hamilton-Wentworth Regional Police Services Board 2007 S.C.C.
41; (2007) 285 D.L.R. (4th) 620 11–032
Hill v James Crowe (Cases) Ltd [1978] 1 All E.R. 812; [1977] 2 Lloyd’s
Rep. 450 QBD 9–006
Hinz v Berry [1970] 2 Q.B. 40; [1970] 2 W.L.R. 684 CA (Civ Div) 4–002
Hipgrave v Jones; sub nom. Jones v Hipgrave [2004] EWHC 2901 (QB);
[2005] 2 F.L.R. 174; [2005] A.C.D. 67 11–030
HL Motorworks (Willesden) v Alwahbi [1977] R.T.R. 276 CA (Civ Div)
17–058
HL v United Kingdom (45508/99); sub nom. L v United Kingdom
(45508/99) (2005) 40 E.H.R.R. 32; 17 B.H.R.C. 418 ECHR 11–013
Hobson v Gledhill [1978] 1 W.L.R. 215; [1978] 1 All E.R. 945 DC 11–042
Hodge & Sons v Anglo American Oil Co; Willmott v Anglo-American Oil
Co (1923) 16 Ll. L. Rep. 61 HL 9–003
Hodgson v Trapp [1989] A.C. 807; [1988] 3 W.L.R. 1281 HL 17–032
Hogan v Bentinck West Hartley Collieries [1949] 1 All E.R. 588; [1949]
W.N. 109 HL 6–024
Holbeck Hall Hotel Ltd v Scarborough BC [2000] Q.B. 836; [2000] 2
W.L.R. 1396 CA (Civ Div) 10–023
Holden v Chief Constable of Lancashire [1987] Q.B. 380; [1986] 3 W.L.R.
1107 CA (Civ Div) 17–011
Holden v White [1982] Q.B. 679; [1982] 2 W.L.R. 1030 CA (Civ Div) 8–
016
Holley v Smyth [1998] Q.B. 726; [1998] 2 W.L.R. 742 CA (Civ Div) 14–
042
Holliday v National Telephone Co [1899] 2 Q.B. 392 CA 7–039
Hollis v Dow Corning (1996) 129 D.L.R. (4th) 609 9–006
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 K.B. 468 KBD 10–012
Holman v Johnson, 98 E.R. 1120; (1775) 1 Cowp. 341 KB 16–013
Holmes v Mather (1874-75) L.R. 10 Ex. 261; (1875) L.T. 361 Ex Ct 11–046
Holmes v Wilson, 113 E.R. 190; (1839) 10 Ad. & E. 503 KB 11–041
Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All E.R. 421; [2000]
I.C.R. 1086 CA (Civ Div) 6–008, 6–015
Home Office v Dorset Yacht Co Ltd [1970] A.C. 1004; [1970] 2 W.L.R.
1140 HL 2–011, 2–027, 6–025
Honeywill & Stein Ltd v Larkin Bros (London’s Commercial
Photographers) Ltd [1934] 1 K.B. 191 CA 7–039
Hopwood v Muirson [1945] K.B. 313; [1945] 1 All E.R. 453 CA 13–005
Horrocks v Lowe [1975] A.C. 135; [1974] 2 W.L.R. 282 HL 14–015, 14–
031
Horsefall v Haywards; sub nom. Horsfall v Haywards [1999] 1 F.L.R. 1182;
[1999] Lloyd’s Rep. P.N. 332, CA (Civ Div) 3–042
Horsford v Bird; sub nom. Horsfold v Bird [2006] UKPC 3; [2006] 1
E.G.L.R. 75; [2006] 15 E.G. 136 11–044, 17–008, 17–016
Horsley v MacLaren (The Ogopogo); sub nom. Matthews v McLaren
[1971] 2 Lloyd’s Rep. 410, Sup Ct (Can) 2–023
Horton v Sadler [2006] UKHL 27; [2007] 1 A.C. 307; [2006] 2 W.L.R.
1346 16–033
Hosking v Runting [2005] 1 N.Z.L.R. 1 15–001
Hotson v East Berkshire HA; sub nom. Hotson v Fitzgerald [1987] A.C.
750; [1987] 3 W.L.R. 232 HL 6–007, 6–013
Housecroft v Burnett [1986] 1 All E.R. 332; (1985) 135 N.L.J. 728 CA (Civ
Div) 17–033, 17–034
Howard Marine & Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd
[1978] Q.B. 574; [1978] 2 W.L.R. 515 CA (Civ Div) 3–032, 3–036
Howlett v Holding [2006] EWHC 41; (2006) 150 S.J.L.B. 161 11–029
Howmet Ltd v Economy Devices Ltd [2016] EWCA Civ 847; [2016]
B.L.R. 555; 168 Con. L.R. 27 9–006
HRH Prince of Wales v Associated Newspapers Ltd; sub nom. Associated
Newspapers Ltd v HRH Prince of Wales [2006] EWCA Civ 1776;
[2008] Ch. 57; [2007] 3 W.L.R. 222 15–008, 15–009, 15–014
Huckle v Money (1763) 2 Wils. K.B. 206; 95 E.R.768 17–011
Hucks v Cole (1968) [1993] 4 Med. L.R. 393 CA (Civ Div) 5–024
Hudson v Ridge Manufacturing Co [1957] 2 Q.B. 348; [1957] 2 W.L.R. 948
Assizes (Manchester) 7–005
Hughes v Lord Advocate; sub nom. Hughes v Postmaster General [1963]
A.C. 837; [1963] 2 W.L.R. 779 HL 6–030, 6–031, 6–032
Hughes v Williams (Deceased); sub nom. Williams v Williams (Deceased)
[2013] EWCA Civ 455; [2013] P.I.Q.R. P17 17–060
Hulton & Co v Jones. See E Hulton & Co v Jones
Humphrey v Aegis Defence Services Ltd [2016] EWCA Civ 11; [2017] 2
All E.R. 235 5–012
Humphreys v Dreamland (Margate) Ltd (1930) 144 L.T. 529 8–012
Hunt v Severs; sub nom. Severs v Hunt [1994] 2 A.C. 350; [1994] 2 W.L.R.
602 HL 1–032, 17–034, 17–056
Hunt v Wallis [1994] P.I.Q.R. P128 QBD 9–045, 9–046
Hunter v Canary Wharf Ltd; sub nom. Hunter v London Docklands
Development Corp [1997] A.C. 655; [1997] 2 W.L.R. 684 HL 10–001,
10–011, 10–012, 10–013, 10–014, 10–017, 10–030, 10–042, 10–053,
10–056, 10–068, 10–069, 10–070, 10–073, 11–017, 15–002
Hunter v Chief Constable of the West Midlands; McIlkenny v Chief
Constable of the West Midlands; Walker v Chief Constable of the West
 Midlands; Power v Chief Constable of Lancashire [1982] A.C. 529;
[1981] 3 W.L.R. 906 HL 2–063, 2–065
Huntingdon Life Sciences Ltd v Curtin, Times, 11 December 1997 QBD
11–029
Huntley v Thornton [1957] 1 W.L.R. 321; [1957] 1 All E.R. 234 Ch D 12–
032
Hurley v Dyke [1979] R.T.R. 265 HL 9–010
Hurnam v Bholah [2010] UKPC 12 2–063
Hurst v Hone [2010] EWHC 1159 (QB); (2010) 154(22) S.J.L.B. 30 3–031
Hurst v Picture Theatres [1915] 1 K.B. 1 CA 11–038
Hussain v Chief Constable of West Mercia [2008] EWCA Civ 1205; Times,
17 November 2008 11–033
Hussain v Cuddy Woods & Cochrane [2001] Lloyd’s Rep. P.N. 134 CA
(Civ Div) 2–052
Hussain v EUI Ltd [2019] EWHC 2647 (QB); [2020] R.T.R. 7 6–035
Hussain v Lancaster City Council [2000] Q.B. 1; [1999] 2 W.L.R. 1142 CA
(Civ Div) 10–030
Hussain v New Taplow Paper Mills Ltd [1988] A.C. 514; [1988] 2 W.L.R.
266 HL 17–027, 17–030, 17–031
Hutcheson v News Group Newspapers Ltd; sub nom. KGM v News Group
Newspapers Ltd [2011] EWCA Civ 808; [2012] E.M.L.R. 2; [2011]
U.K.H.R.R. 1329 5–013
Huth v Huth [1915] 3 K.B. 32 CA 13–018
Hyett v Great Western Railway Co (GWR) [1948] 1 K.B. 345; [1947] 2 All
E.R. 264 CA 4–036
ICI Ltd v Shatwell; sub nom. Shatwell v ICI Ltd. [1965] A.C. 656; [1964] 3
W.L.R. 329 HL 7–022, 7–040, 16–005, 16–007
Ide v ATB Sales Ltd; Lexus Financial Services (t/a Toyota Financial
Services (UK) Plc v Russell [2008] EWCA Civ 424; [2009] R.T.R. 8;
[2008] P.I.Q.R. P13 9–036
Ilkiw v Samuels [1963] 1 W.L.R. 991; [1963] 2 All E.R. 879 CA 7–035
Indermaur v Dames (1866) L.R. 1 C.P. 274 8–004
Innes v Wylie, 174 E.R. 800; (1844) 1 Car. & K. 257 QB 11–008
International Energy Group Ltd v Zurich Insurance Plc UK; sub nom.
Zurich Insurance Plc UK v International Energy Group Ltd [2015]
UKSC 33; [2016] A.C. 509; [2015] 2 W.L.R. 1471 6–018
Invercargill City Council v Hamlin [1996] A.C. 624; [1996] 2 W.L.R. 367
PC (NZ) 3–047
Inverugie Investments Ltd v Hackett [1995] 1 W.L.R. 713; [1995] 3 All
E.R. 841 PC (Bah) 11–044
Iqbal v Mansoor; sub nom. Iqbal v Dean Manson Solicitors [2013] EWCA
Civ 149; [2013] C.P. Rep. 27 14–012
Iqbal v Prison Officers Association; sub nom. Prison Officers Association v
Iqbal [2009] EWCA Civ 1312; [2010] Q.B. 732; [2010] 2 W.L.R. 1054
11–013, 11–014
Iqbal v Whipps Cross University Hospital NHS Trust; sub nom. Whipps
Cross University NHS Trust v Iqbal [2007] EWCA Civ 1190; [2008]
P.I.Q.R. P9; [2008] LS Law Medical 22 17–024
Isaac v Chief Constable of the West Midlands [2001] EWCA Civ 1405;
[2001] Po. L.R. 280 11–032
Island Records Ltd v Corkindale; sub nom. Island Records Ltd, Ex p.
[1978] Ch. 122; [1978] 3 W.L.R. 23 CA (Civ Div) 7–011, 12–018
Islington LBC v University College London Hospital NHS Trust [2005]
EWCA Civ 596; [2006] B.L.G.R. 50; (2005) 8 C.C.L. Rep. 337; [2006]
P.I.Q.R. P3 17–032
Issa v Hackney LBC. See Hackney LBC v Issa
Itria, The v Koursk, The [1924] P. 140; (1924) 18 Ll. L. Rep. 228 CA 6–008
J (A Child) v Wilkins [2001] R.T.R. 19; [2001] P.I.Q.R. P12 CA (Civ Div)
16–024
J&E Hall Ltd v Barclay [1937] 3 All E.R. 620 CA 17–058
JA (A Minor) (Medical Treatment: Child
Diagnosed with HIV), Re; sub nom. An NHS Trust v A [2014] EWHC
1135 (Fam); [2015] 2 F.L.R. 1030; [2015] Med. L.R. 26 11–020
Jackson v Harrison. See Harrison v Jackson
Jackson v Murray [2015] UKSC 5; [2015] 2 All E.R. 805; 2015 S.C.
(U.K.S.C.) 105 16–023
Jacobi v Griffiths (1999) 174 D.L.R. (4th) 71 7–036
Jaensch v Coffey; sub nom. Coffey v Jaensch 155 C.L.R. 549; (1984) 54
A.L.R. 417 HC (Aus) 4–024, 4–029
Jaggard v Sawyer [1995] 1 W.L.R. 269; [1995] 2 All E.R. 189 CA (Civ
Div) 17–063, 17–064
Jain v Trent SHA; sub nom. Trent SHA v Jain [2009] UKHL 4; [2009] 1
A.C. 853; [2009] 2 W.L.R. 248 2–040
Jameel v Dow Jones & Co Inc; sub nom. Dow Jones & Co Inc v Jameel
[2005] EWCA Civ 75; [2005] Q.B. 946; [2005] 2 W.L.R. 1614 13–002,
13–011, 14–034
Jameel v Wall Street Journal Europe SPRL (No.3) [2006] UKHL 44; [2007]
1 A.C. 359; [2006] 3 W.L.R. 642; 13–021, 14–002, 14–022, 14–023
James Gilbert Ltd v MGN Ltd [2000] E.M.L.R. 680 QBD 14–041
James McNaughton Paper Group Ltd v Hicks Anderson & Co [1991] 2
Q.B. 113; [1991] 2 W.L.R. 641 CA (Civ Div) 3–030
James v Butler [2005] EWCA Civ 1014 5–022
James v Campbell (1832) 5 C. & P. 372; 172 E.R. 1015 11–004
James v United Kingdom (A/98); sub nom. Trustees of the Duke of
Westminster’s Estate v United Kingdom (8793/79); James v United
Kingdom (8793/79) (1986) 8 E.H.R.R. 123; [1986] R.V.R. 139 ECHR
10–072
James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC
40; [2018] 1 W.L.R. 4021; [2018] 4 All E.R. 1007 2–014, 7–008
Jameson v Central Electricity Generating Board (No.1) [2000] 1 A.C. 455;
[1999] 2 W.L.R. 141 HL 17–061
Jan De Nul (UK) Ltd v Axa Royale Belge SA (formerly NV Royale Belge);
sub nom. Jan De Nul (UK) Ltd v Royale Belge SA [2002] EWCA Civ
209; [2002] 1 All E.R. (Comm) 767; [2002] 1 Lloyd’s Rep. 583 10–069
Janvier v Sweeney [1919] 2 K.B. 316 CA 11–017
JD v East Berkshire Community Health NHS Trust; sub nom. MAK v
Dewsbury Healthcare NHS Trust; D v East Berkshire Community NHS
Trust; Joined Cases K v Dewsbury Healthcare NHS Trust; RK v
Oldham NHS Trust [2005] UKHL 23; [2005] 2 A.C. 373; [2005] 2
W.L.R. 993 2-039, 2–041
Jebson v Ministry of Defence [2000] 1 W.L.R. 2055; [2001] R.T.R. 2 CA
(Civ Div) 2–054
Jefford v Gee [1970] 2 Q.B. 130; [1970] 2 W.L.R. 702 CA (Civ Div) 17–
041
Jenson v Faux [2011] EWCA Civ 423; [2011] 1 W.L.R. 3038; [2011]
T.C.L.R. 4 3–021
Jeynes v News Magazines Ltd [2008] EWCA Civ 130 13–010
JJ Coughlan Ltd v Ruparelia [2003] EWCA Civ 1057; [2004] P.N.L.R. 4;
(2003) 100(37) L.S.G. 34 7–037
JL v Bowen [2017] EWCA Civ 82; [2017] P.I.Q.R. P11 16–035
Jobling v Associated Dairies [1982] A.C. 794; [1981] 3 W.L.R. 155 HL 6–
010
Joel v Morrison, 172 E.R. 1338; (1834) 6 C. & P. 501 Assizes 7–038
John Munroe (Acrylics) Ltd v London Fire and
Civil Defence Authority. See Capital and Counties Bank Ltd v
Hampshire CC
John v Central Manchester and Manchester Children’s University Hospitals
NHS Foundation Trust [2016] EWHC 407 (QB); [2016] 4 W.L.R. 54;
(2016) 150 B.M.L.R. 168 6–015
John v MGN Ltd [1997] Q.B. 586; [1996] 3 W.L.R. 593 CA (Civ Div) 14–
038, 14–039, 14–040, 17–008, 17–012
Johnson v Emerson; Johnson v Sparrow (1870-71) L.R. 6 Ex. 329; (1871)
40 L.J. Ex. 201 Ex Ct 11–032
Johnson v Gore Wood & Co (No.1); sub nom. Johnson v Gore Woods & Co
[2002] 2 A.C. 1; [2001] 2 W.L.R. 72 HL 17–005
Johnson v Tennant Bros Ltd unreported 19 November 1954 16–025
Johnson v WH Lindsay & Co [1891] A.C. 371 HL 7–002
Jolley v Sutton LBC [2000] 1 W.L.R. 1082; [2000] 3 All E.R. 409 HL 6–
031, 8–021, 8–037
Jones v Boyce, 171 E.R. 540; (1816) 1 Stark. 493 CCP 5–018, 16–021
Jones v Jones (1916) [1916] 2 A.C. 481 HL 13–005
Jones v Kaney [2011] UKSC 13; [2011] 2 A.C. 398; [2011] 2 W.L.R. 823
2–059, 14–012
Jones v Livox Quarries Ltd [1952] 2 Q.B. 608; [1952] 1 T.L.R. 1377 CA
16–021, 16–022
Jones v Llanrwst Urban DC [1911] 1 Ch. 393 Ch D 10–016, 11–036
Jones v Ruth [2011] EWCA Civ 804; [2012] 1 W.L.R. 1495; [2012] 1 All
E.R. 490 10–068, 11–030
Jones v Swansea City Council [1990] 1 W.L.R. 1453; [1990] 3 All E.R. 737
HL 11–033
Joseph v Spiller; sub nom. Spiller v Joseph [2010] UKSC 53; [2010] 3
W.L.R. 1791; [2011] I.C.R. 1 14–004, 14–006, 14–040
Joyce v O’Brien [2013] EWCA Civ 546; [2014] 1 W.L.R. 70; [2013]
Lloyd’s Rep. I.R. 523 16–013, 16–017
Joyce v Sengupta [1993] 1 W.L.R. 337; [1993] 1 All E.R. 897 CA (CIv
Div) 14–043, 14–044
JR (A Protected Party) v Sheffield Teaching Hospitals NHS Foundation
Trust [2017] EWHC 1245 (QB); [2017] 1 W.L.R. 4847; [2017] P.I.Q.R.
Q3; (2017) 157 B.M.L.R. 148 17–024
JSC BTA Bank v Khrapunov; sub nom. JSC BTA Bank v Ablyazov [2018]
UKSC 19; [2018] 2 W.L.R. 1125; [2018] 3 All E.R. 293; [2018] 2 All
E.R. (Comm) 479 12–002, 12–030, 12–031
JT (Adult: Refusal of Medical Treatment), Re [1998] 1 F.L.R. 48; [1998] 2
F.C.R. 662 Fam Div 11–020
JT Stratford & Son Ltd v Lindley (No.1) [1965] A.C. 269; [1964] 3 W.L.R.
541 HL 12–021
Juman v Attorney General of Trinidad and Tobago [2017] UKPC 3 11–032
Junior Books Ltd v Veitchi Co Ltd [1983] 1 A.C. 520; [1982] 3 W.L.R. 477
HL 2–012, 3–011, 3–013, 3–014, 3–015, 3–025, 9–008
K v A Local Authority [2012] EWCA Civ 79; [2012] 1 F.C.R. 441; (2012)
15 C.C.L. Rep. 112 11–022
K v News Group Newspapers Ltd [2011] EWCA Civ 439; [2011] 1 W.L.R.
1827; [2011] E.M.L.R. 22 15–009
Kallang Shipping SA Panama v AXA Assurances Senegal (The Kallang)
[2008] EWHC 2761 (Comm); [2009] 1 Lloyd’s Rep. 124 12–003
Kamloops v Nielsen (1984) 10 D.L.R. 641; [1984] 5 W.W.R. 1 Sup Ct
(Can) 3–047
Kane v New Forest DC (No.1) [2001] EWCA
Civ 878; [2002] 1 W.L.R. 312; [2001] 3 All E.R. 914 2–035
Karagozlu v Commissioner of Police of the Metropolis [2006] EWCA Civ
1691; [2007] 1 W.L.R. 1881; [2007] 2 All E.R. 1055 11–033
Kars v Kars (1996) 141 A.L.R. 37 17–034
Kay v Hibbert [1977] Crim. L.R. 226 QBD 8–018
Kay v ITW Ltd. See Kay, Re
Kay, Re; sub nom. Kay v ITW Ltd [1968] 1 Q.B. 140; [1967] 3 W.L.R. 695
CA (Civ Div) 7–035
Kaye v Robertson [1991] F.S.R. 62 CA (Civ Div) 14–044, 15–002
KD v Chief Constable of Hampshire [2005] EWHC 2550 (QB); [2005] Po.
L.R. 253 11–029
Kearn-Price v Kent CC [2002] EWCA Civ 1539; [2003] E.L.R. 17; [2003]
P.I.Q.R. P11 2–042
Kearns v General Council of the Bar [2003] EWCA Civ 331; [2003] 1
W.L.R. 1357; [2003] 2 All E.R. 534 14–016
Keegan v Chief Constable of Merseyside [2003] EWCA Civ 936; [2003] 1
W.L.R. 2187; [2003] Po. L.R. 408 11–032
Keenan v United Kingdom (27229/95) (2001) 33 E.H.R.R. 38; 10 B.H.R.C.
319 ECHR 16–008
Kelsen v Imperial Tobacco Co [1957] 2 Q.B. 334; [1957] 2 W.L.R. 1007
QBD 11–035
Kemsley v Foot [1952] A.C. 345; [1952] 1 All E.R. 501 HL 14–006
Kennaway v Thompson [1981] Q.B. 88; [1980] 3 W.L.R. 361 CA (Civ Div)
10–065
Kennedy v Chief Constable of Merseyside [2004] Po. L.R. 226 CC
(Liverpool). 11–032
Kennedy v Chivas Brothers Ltd [2013] CSIH 57; 2013 S.L.T. 981; 2013
G.W.D. 24-462 7–022
Kent CC v M [2016] EWFC 28; [2016] 4 W.L.R. 97; (2016) 19 C.C.L. Rep.
289 17–018
Kent v Griffiths (No.3) [2001] Q.B. 36; [2000] 2 W.L.R. 1158 CA (Civ
Div) 2–051
Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39; [2006] 1
W.L.R. 953; [2006] P.I.Q.R. P19 8–021, 8–037
Kerry v Carter [1969] 1 W.L.R. 1372; [1969] 3 All E.R. 723 CA (Civ Div)
16–023, 17–060
Khatun v United Kingdom (38387/97) (1998) 26 E.H.R.R. CD212 Eur
Comm HR 10–017
Khodaparast v Shad [2000] 1 W.L.R. 618; [2000] 1 All E.R. 545 CA (Civ
Div) 14–044
Khorasandjian v Bush [1993] Q.B. 727; [1993] 3 W.L.R. 476 CA (Civ Div)
10–013, 11–017, 11–028, 15–002
Kiam v MGN Ltd [2002] EWCA Civ 43; [2003] Q.B. 281; [2002] 3 W.L.R.
1036 14–038, 14–040
Kiapasha (t/a Takeaway Supreme) v Laverton; sub nom. Laverton v
Kiapasha (t/a Takeaway Supreme) [2002] EWCA Civ 1656; (2002) 146
S.J.L.B. 266; [2002] N.P.C. 14 8–038
Kiddle v City Business Properties Ltd [1942] 1 K.B. 269 KBD 10–063
King v Liverpool City Council [1986] 1 W.L.R. 890; [1986] 3 All E.R. 544
CA (Civ Div) 2–024
King v Phillips [1953] 1 Q.B. 429; [1953] 2 W.L.R. 526 CA 4–007
King v Sussex Ambulance NHS Trust [2002] EWCA Civ 953; [2002]
I.C.R. 1413; (2002) 68 B.M.L.R. 177 2–051
Kirk v Brent LBC [2005] EWCA Civ 1701; [2006] Env. L.R. D7 10–066
Kirk v Gregory (1875-76) L.R. 1 Ex. D. 55 Exch Div 11–050
Kirkham v Chief Constable of Greater Manchester; sub nom. Kirkham v
Anderton [1990] 2 Q.B. 283; [1990] 2 W.L.R. 987 CA (Civ Div) 16–
008
Kirvek Management & Consulting Services Ltd v Attorney General of
Trinidad and Tobago [2002] UKPC 43; [2002] 1 W.L.R. 2792 7–015
Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563; [1958] 2 All
E.R. 241 CA 16–035
KJO v XIM [2011] EWHC 1768 (QB) 14–002
Knapp v Railway Executive [1949] 2 All E.R. 508 CA 7–018
Knauer v Ministry of Justice [2016] UKSC 9; [2016] A.C. 908; [2016] 2
W.L.R. 672 17–054
Knightley v Johns [1982] 1 W.L.R. 349; [1982] 1 All E.R. 851 CA (Civ
Div) 2–045, 6–024
Knowles v Liverpool City Council [1993] 1 W.L.R. 1428; [1993] 4 All E.R.
321 HL 7–006
Knuppfer v London Express Newspaper Ltd [1944] A.C. 116 HL 13–017
Kobler v Austria (C-224/01) EU:C:2003:513; [2004] Q.B. 848; [2004] 2
W.L.R. 976 7–023
Kolasa v Ealing Hospital NHS Trust [2015] EWHC 289 (QB) 8–037
Kooragang Investments Pty v Richardson & Wrench [1982] A.C. 462;
[1981] 3 W.L.R. 493 PC (Aus) 7–036
Kotke v Saffarini [2005] EWCA Civ 221; [2005] 2 F.L.R. 517; [2005] 1
F.C.R. 642 17–052
Koursk, The. See Itria, The v Koursk, The
Kralj v McGrath and St Theresa’s Hospital [1986] 1 All E.R. 54; (1985)
135 N.L.J. 913 QBD 4–011, 17–008
Kubach v Hollands [1937] 3 All E.R.907 9–010
Kuddus v Chief Constable of Leicestershire [2001] UKHL 29; [2002] 2
A.C. 122; [2001] 2 W.L.R. 1789 17–014
Kuwait Oil Tanker Co SAK v Al-Bader (No.3) [2000] 2 All E.R. (Comm)
271; (2000) 97(23) L.S.G. 44 CA (Civ Div) 12–029
L (A Child) v Barry May Haulage [2002] P.I.Q.R. Q3 QBD 17–056
L (A Patient) v Chief Constable of Staffordshire [2000] P.I.Q.R. Q349 CA
(Civ Div) 17–042
L v Birmingham City Council; YL v Birmingham City Council [2007]
UKHL 27; [2008] 1 A.C. 95; [2007] 3 W.L.R. 112 1–020
Lachaux v Independent Print Ltd; Lachaux v Evening Standard Ltd [2019]
UKSC 27; [2019] 3 W.L.R 18; [2019] 4 All E.R. 485 13–002, 13–011
Lagden v O’Connor; sub nom. Clark v Tull (t/a Ardington Electrical
Services); Clark v Ardington Electrical Services; Dennard v Plant; Sen
v Steelform Engineering Co Ltd; Burdis v Livsey [2003] UKHL 64;
[2004] 1 A.C. 1067; [2003] 3 W.L.R. 1571 6–034, 17–004, 17–058
Laiqat v Majid [2005] EWHC 1305; [2005] 26 E.G. 130 (C.S.); [2005]
N.P.C. 81 11–035
Lamb v Camden LBC [1981] Q.B. 625; [1981] 2 W.L.R. 1038 CA (Civ
Div) 2–024, 6–021, 6–025
Lambert v Barratt Homes Ltd [2010] EWCA Civ 681; [2010] B.L.R. 527;
131 Con. L.R. 29 10–023
Lambton v Mellish; Lambton v Cox [1894] 3 Ch. 163 Ch D 10–040
Land Securities Plc v Fladgate Fielder (A Firm) [2009] EWCA Civ 1402;
[2010] Ch. 467; [2010] 2 W.L.R. 1265 11–032
Lane v Holloway [1968] 1 Q.B. 379; [1967]
3 W.L.R. 1003 CA (Civ Div) 11–023, 11–024
Lange v Atkinson [2000] 3 N.Z.L.R. 385 14–023
Lange v Australian Broadcasting Corp (1997) 189 C.L.R. 520 14–023
Laskey v United Kingdom; Jaggard v United Kingdom; Brown v United
Kingdom (1997) 24 E.H.R.R. 39 ECHR 11–021
Latimer v AEC Ltd [1953] A.C. 643; [1953] 3 W.L.R. 259 HL 5–010
Lau v DPP [2000] 1 F.L.R. 799; [2000] Crim. L.R. 580 DC 11–029
Launchbury v Morgans; sub nom. Morgans v Launchbury [1973] A.C. 127;
[1972] 2 W.L.R. 1217 HL 7–025
Law Society v KPMG Peat Marwick; sub nom. R. v KPMG Peat Marwick
McLintock [2000] 1 W.L.R. 1921; [2000] 4 All E.R. 540 CA (Civ Div)
3–028
Lawrence v Pembrokeshire CC; sub nom. L v Pembrokeshire CC; SL v
Pembrokeshire CC [2007] EWCA Civ 446; [2007] 1 W.L.R. 2991;
[2007] 2 F.L.R. 705 2–040
Laws v Florinplace Ltd [1981] 1 All E.R. 659 Ch D 10–030
LE Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002]
EWCA Civ 1723; [2003] 1 W.L.R. 427; [2003] B.L.R. 67 10–003
Le Lievre v Gould [1893] 1 Q.B. 491 CA 2–007
Leach v Chief Constable of Gloucestershire [1999] 1 W.L.R. 1421; [1999] 1
All E.R. 215 CA (Civ Div) 2–044
League Against Cruel Sports Ltd v Scott [1986] Q.B. 240; [1985] 3 W.L.R.
400 QBD 9–042, 11–034
Leakey v National Trust for Places of Historic Interest or Natural Beauty
[1980] Q.B. 485; [1980] 2 W.L.R. 65 CA (Civ Div) 5–011, 10–022, 10–
042
Lee Ting Sang v Chung Chi-Keung [1990] 2 A.C. 374; [1990] 2 W.L.R.
1173 PC (HK) 7–030
Leeman v Montague [1936] 2 All E.R. 1677 KBD 9–042
Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon); sub
nom. Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd (The
Aliakmon) [1986] A.C. 785; [1986] 2 W.L.R. 902 HL 2–013, 3–010
Lemmon v Webb [1895] A.C. 1 HL 10–003, 10–066
Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2015] A.C. 430;
[2014] 3 W.L.R. 1257 16–018
Lessees and Management Co of Herons Court v Heronslea Ltd [2019]
EWCA Civ 1423; [2019] 1 W.L.R. 5849; [2019] 2 All E.R. 145 3–021
Letang v Cooper [1965] 1 Q.B. 232; [1964] 3 W.L.R. 573 CA 11–027, 11–
034
Levi v Bates [2015] EWCA Civ 206; [2016] Q.B. 91; [2015] 3 W.L.R. 769
11–029
Lewis v Daily Telegraph Ltd. See Rubber Improvement Ltd v Daily
Telegraph Ltd
Lewis v Six Continents Plc (formerly Bass plc) [2005] EWCA Civ 1805;
Times, 20 January 2006 8–020
Liesbosch Dredger v SS Edison. See Liesbosch, The.
Liesbosch, The; sub nom. Owner of the Liesbosch v Owners of the Edison;
Liesbosch Dredger v SS Edison [1933] A.C. 449; [1933] All E.R. Rep.
144 HL 6–034, 17–004, 17–058
Lim Poh Choo v Camden and Islington AHA [1980] A.C. 174; [1979] 3
W.L.R. 44, HL 17–019, 17–021, 17–033, 17–036, 17–037
Limpus v London General Omnibus Co, 158 E.R. 993; (1862) 1 Hurl. & C.
526 QB 7–035
Lindsay v Berkeley Homes (Capital) Plc [2018] EWHC 2042 (TCC). 10–
053
Lingens v Austria (A/103); sub nom. Lingens v Austria (9815/82) (1986) 8
E.H.R.R. 407 ECHR 13–023
Lippiatt v South Gloucestershire Council [2000] Q.B. 51; [1999] 3 W.L.R.
137 CA (Civ Div) 10–027, 10–030
Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 A.C. 215; [2001] 2
W.L.R. 1311 7–002, 7–033, 7–036, 7–037
Lister v Romford Ice and Cold Storage Co Ltd; sub nom. Romford Ice &
Cold Storage Co v Lister [1957] A.C. 555; [1957] 2 W.L.R. 158 HL 1–
032, 7–025
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015]
EWCA Civ 588; [2015] P.I.Q.R. P20; (2015) 145 B.M.L.R. 110 4–030
Livingstone v Rawyards Coal Co (1879-80) L.R. 5 App. Cas. 25 HL 1–004,
1–018, 17–004, 17–058
Lloyd v Grace Smith & Co [1912] A.C. 716 HL 7–035
LNS v Persons Unknown; sub nom. Terry v Persons Unknown [2010]
EWHC 119 (QB); [2010] E.M.L.R. 16; [2010] 2 F.L.R. 1306 14–042,
15–013, 17–065
Loftus-Brigham v Ealing LBC [2003] EWCA Civ 1490; 103 Con. L.R.
102; (2004) 20 Const. L.J. 82 10–003
Logdon v DPP [1976] Crim. L.R. 121 DC 11–007
London Artists v Littler; Grade Organisation v Littler; Associated
Television v Littler [1969] 2 Q.B. 375; [1969] 2 W.L.R. 409 CA (Civ
Div) 14–004
London Corp, The [1935] P. 70; (1935) 51 Ll. L. Rep. 67 CA 17–058
Longden v British Coal Corp [1998] A.C. 653; [1997] 3 W.L.R. 1336 HL
17–031
Lonrho Ltd v Shell Petroleum Co Ltd (No.2) [1982] A.C. 173; [1981] 3
W.L.R. 33 HL 7–011, 7–012, 7–015, 12–032
Lonrho Plc v Al-Fayed (No.1); sub nom. Lonrho Plc v Fayed [1992] 1 A.C.
448; [1991] 3 W.L.R. 188 HL 12–029, 12–032
Lopez Ostra v Spain (A/303-C) (1995) 20 E.H.R.R. 277 ECHR 10–072
Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB) 13–018
Loutchansky v Times Newspapers Ltd (Nos 2–5) [2001] EWCA Civ 1805;
[2002] Q.B. 783; [2002] 2 W.L.R. 640 14–022, 14–034, 14–041
Lowe v Guise [2002] EWCA Civ 197; [2002] Q.B. 1369; [2002] 3 W.L.R.
562 17–034
Lowery v Walker [1911] A.C. 10 HL 8–017
Lucas-Box v News Group Newspapers Ltd; Lucas-Box v Associated
Newspapers Group Plc [1986] 1 W.L.R. 147; [1986] 1 All E.R. 177 CA
(Civ Div) 14–003
Lumley v Gye, 118 E.R. 749; (1853) 2 El. & Bl. 216 QB 12–003, 12–008,
12–011, 12–012, 12–014, 12–016, 12–019, 12–021
Lunney v Prodigy, 529 U.S. 1098 (2000) 14–033
Lynch v Knight, 11 E.R. 854; (1861) 9 H.L. Cas. 577 HL 13–002
M (A Child) (Refusal of Medical Treatment), Re; sub nom. M (A Child)
(Medical Treatment: Consent) [1999] 2 F.L.R. 1097; [1999] 2 F.C.R.
577 Fam Div 11–020
M v Commissioner of Police of the Metropolis [2007] EWCA Civ 1361;
(2008) 152(2) S.J.L.B. 35 2–047
M’Pherson v Daniels (1829) 10 B. & C. 263; 109 E. DR. 448 14–002
M/S Aswan Engineering Establishment Co v Lupdine Ltd; sub nom. Aswan
Engineering Establishment Co v Lupdine Ltd [1987] 1 W.L.R. 1; [1987]
1 All E.R. 135 CA (Civ Div) 3–020, 9–008
Macnab v Richardson [2008] EWCA Civ 1631; [2009] 3 E.G.L.R. 1;
[2009] 35 E.G. 108 11–042
Macpherson v London Passenger Transport Board (1946) 175 L.T. 279 10–
023
Madden v Quirk [1989] 1 W.L.R. 702; [1989] R.T.R. 304 QBD 17–060
Maguire v Sefton MBC [2006] EWCA Civ 316; [2006] 1 W.L.R. 2550;
[2006] P.I.Q.R. P25 8–028
Mahon v Osborne [1939] 2 K.B. 14 CA 5–032
Mahon v Rahn (No.2) [2000] 1 W.L.R. 2150; [2000] 4 All E.R. 41 CA (Civ
Div) 11–031
Mainstream Properties Ltd v Young. See OBG Ltd v Allan
Majrowski v Guy’s and St Thomas’s NHS Trust; sub nom. Majorowski v
Guy’s and St Thomas’s NHS Trust [2006] UKHL 34; [2007] 1 A.C.224;
[2006] 3 W.L.R. 125 , 11–029, 11–030
Makudi v Triesman; sub nom. Makudi v Baron Triesman of Tottenham
[2014] EWCA Civ 179; [2014] Q.B. 839; [2014] 2 W.L.R. 1228 14–010
Malette v Shulman [1991] 2 Med. L.R. 162; (1990) 67 D.L.R. (4th) 321 CA
(Ont) 11–020
Mallett v McMonagle [1970] A.C. 166; [1969] 2 W.L.R. 767 HL 17–022
Maloco v Littlewoods Organisation Ltd; Smith v Littlewoods Organisation
Ltd [1987] A.C. 241; [1987] 2 W.L.R. 480 HL 2–022, 2–023, 2–024, 2–
025, 2–028, 2–029, 6–025, 10–023
Malone v Laskey [1907] 2 K.B. 141 CA 10–013
Maloney v Torfaen CBC [2005] EWCA Civ 1762; [2006] P.I.Q.R. P21 8–
037
Malzy v Eicholz; sub nom. Malzy v Eichholz [1916] 2 K.B. 308 CA 10–
026
Manley v Commissioner of Police of the Metropolis [2006] EWCA Civ
879; [2006] Po. L.R. 117; (2006) 150 S.J.L.B. 889 11–032
Mansfield v Weetabix Ltd [1998] 1 W.L.R. 1263; [1998] R.T.R. 390 CA
(Civ Div) 5–004
Mapp v News Group Newspapers Ltd; Gillan v News Group Newspapers
Ltd; Goscomb v News Group Newspapers Ltd; Watton v News Group
Newspapers Ltd [1998] Q.B. 520; [1998] 2 W.L.R. 260 CA (Civ Div)
13–013
Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H)
[1996] A.C. 211; [1995] 3 W.L.R. 227 HL 2–020, 2–056
Marcic v Thames Water Utilities Ltd; sub nom. Thames Water Utilities Ltd
v Marcic [2003] UKHL 66; [2004] 2 A.C. 42; [2003] 3 W.L.R. 1603
10–022, 10–072
Mark v Associated Newspapers Ltd (No.1) [2002] EWCA Civ 772; [2002]
E.M.L.R. 38 13–009, 13–018
Market Investigations Ltd v Minister of Social Security [1969] 2 Q.B. 173;
[1969] 2 W.L.R. 1 QBD 7–029, 7–030
Marshall v Osmond [1983] Q.B. 1034; [1983] 3 W.L.R. 13 CA (Civ Div)
5–018
Martin v Watson [1996] A.C. 74; [1995] 3 W.L.R. 318 HL 1–016, 11–031
Mason v Williams & Williams Ltd; sub nom. Mason v Williams and
Williams and Thomas Turton & Sons [1955] 1 W.L.R. 549; [1955] 1 All
E.R. 808 Assizes (Chester) 9–006
Masper v Brown (1875-76) L.R. 1 C.P.D. 97 CPD 11–002
Massey v Crown Life Insurance Co [1978] 1 W.L.R. 676; [1978] 2 All E.R.
576 CA (Civ Div) 7–028
Masters v Brent LBC [1978] Q.B. 841; [1978] 2 W.L.R. 768 QBD 10–015
Matania v National Provincial Bank Ltd [1936] 2 All E.R. 633 CA 10–020
Mattis v Pollock (t/a Flamingos Nightclub) [2003] EWCA Civ 887; [2003]
1 W.L.R. 2158; [2004] 4 All E.R. 85 7–037
Mattocks v Mann [1993] R.T.R. 13 CA (Civ Div) 6–034
Maynard v West Midlands RHA; sub nom. Maynard v West Midlands AHA
[1984] 1 W.L.R. 634; [1985] 1 All E.R. 635 HL 5–023
MB (Caesarean Section), Re; sub nom. MB (Medical Treatment), Re [1997]
2 F.L.R. 426; [1997] 2 F.C.R. 541 CA (Civ Div) 11–020
Mbasogo v Logo Ltd (No.1) [2006] EWCA Civ 1370; [2007] 2 W.L.R.
1062; [2007] Q.B. 846 11–010
McCafferty v Metropolitan Police District Receiver [1977] 1 W.L.R. 1073;
[1977] 2 All E.R. 756 CA (Civ Div) 16–031
McCall v Abelesz [1976] Q.B. 585; [1976] 2 W.L.R. 151 CA (Civ Div) 7–
011, 7–015
McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 W.L.R. 963; [1990]
1 All E.R. 854 CA (Civ Div) 17–028
McCarey v Associated Newspapers Ltd [1965] 2 Q.B. 86; [1965] 2 W.L.R.
45 CA 17–008
McCoubrey v Ministry of Defence [2007] EWCA Civ 17; [2007] 1 W.L.R.
1544; [2007] LS Law Medical 150 16–031
McCoy v East Midlands SHA [2011] EWHC 38 (QB); [2011] Med. L.R.
103; (2011) 118 B.M.L.R. 107 1–018
McDermid v Nash Dredging & Reclamation Co Ltd [1987] A.C. 906;
[1987] 3 W.L.R. 212 HL 7–008
McDonald v Department for Communities and Local Government; sub
nom. McDonald (Deceased) v National Grid Electricity Transmission
Plc; National Grid Electricity Transmission Plc v McDonald (Deceased)
[2013] EWCA Civ 1346; [2014] P.I.Q.R. P 7 7–019
McDonald’s Corp v Steel (No.1) [1995] 3 All E.R. 615; [1995] E.M.L.R.
527 CA (Civ Div) 13–021
McDonnell v Walker [2009] EWCA Civ 1257; [2010] C.P. Rep. 14; [2010]
P.I.Q.R. P5 16–034
McFarlane v EE Caledonia Ltd [1994] 2 All E.R. 1; [1994] 1 Lloyd’s
Rep. 16 CA (Civ Div) 4–020, 4–023, 4–037, 4–040
McFarlane v Tayside Health Board; sub nom. Macfarlane v Tayside Health
Board [2000] 2 A.C. 59; [1999] 3 W.L.R. 1301 HL 1–009, 1–010, 2–
053
McGeown v Northern Ireland Housing Executive [1995] 1 A.C. 233;
[1994] 3 W.L.R. 187 HL (NI) 8–016, 8–033
McGhee v National Coal Board [1973] 1 W.L.R. 1; [1972] 3 All E.R. 1008
HL 6–012, 6–017, 6–019, 7–007
McHale v Watson [1966] A.L.R. 513 HC (Aus) 5–017
McIntyre v Harland & Wolff Plc; sub nom. Harland & Wolff Plc v McIntyre
[2006] EWCA Civ 287; [2006] 1 W.L.R. 2577; [2007] 2 All E.R. 24
17–055
McKay v Essex AHA [1982] Q.B. 1166; [1982] 2 W.L.R. 890, CA (Civ
Div) 2–018
McKenna v British Aluminium Ltd; sub nom. McKenna v British
Aluminum Ltd [2002] Env. L.R. 30 Ch D 10–017, 10–056
McKennitt v Ash; sub nom. Ash v McKennitt [2006] EWCA Civ 1714;
[2008] Q.B. 73; [2007] 3 W.L.R. 194 15–005, 15–007, 15–010, 15–014
McKenny v Foster (t/a Foster Parnership) [2008] EWCA Civ 173 9–045
McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All E.R.
1621; 1970 S.C. (H.L.) 20 HL 6–026
McKinnon Industries Ltd v Walker (1951) 3 D.L.R. 577 PC 10–010
McLaughlin v Lambeth LBC [2010] EWHC 2726 (QB); [2011] E.M.L.R.
8; [2011] H.R.L.R. 2 13–023
McLoughlin v O’Brian [1983] 1 A.C. 410; [1982] 2 W.L.R. 982 HL 2–003,
4–002, 4–007, 4–008, 4–009, 4–013, 4–021, 4–022, 4–024, 4–026, 4–
028
McManus v Beckham [2002] EWCA Civ 939; [2002] 1 W.L.R. 2982;
[2002] 4 All E.R. 497 13–002, 13–019
McWilliams v Sir William Arrol & Co Ltd [1962] 1 W.L.R. 295; [1962] 1
All E.R. 623 HL 6–004, 7–020
Meade’s v Belt’s Case (1823) 1 Lew. C.C. 184; 168 E.R.1006 11–011
Meah v McCreamer (No.1) [1985] 1 All E.R. 367; (1985) 135 N.L.J. 80
QBD 16–016
Meering v Graham White Aviation Co (1920) 122 L.T. 44 11–015
Melville v Home Office. See Hartman v South Essex Mental Health and
Community Care NHS Trust
Meretz Investments NV v ACP Ltd [2007] EWCA Civ 1303; 2008] Ch.
244; [2008] 2 W.L.R. 904 12–027, 12–029
Merivale v Carson (1888) L.R. 20 Q.B.D. 275 CA 14–007
Merlin Entertainments LPC v Cave [2014] EWHC 3036 (QB); [2015]
E.M.L.R. 3 11–029
Merrett v Babb [2001] EWCA Civ 214; [2001] Q.B. 1174; [2001] 3 W.L.R.
1 3–034, 3–037
Merricks v Nott-Bower [1965] 1 Q.B. 57; [1964] 2 W.L.R. 702 CA 14–014
Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd;
sub nom. McFarlane v Coggins & Griffiths (Liverpool) Ltd [1947] A.C.
1; [1946] 2 All E.R. 345 HL 7–028, 7–032
Mersey Docks and Harbour Board v Procter; sub nom. Procter v Mersey
Docks and Harbour Board [1923] A.C. 253; (1923) 14 Ll. L. Rep. 432
HL 8–018
Messenger Newspaper Group v National Graphical Association (NGA)
[1984] 1 All E.R. 293; [1984] I.C.R. 345 CA (Civ Div) 17–008
Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 Q.B.
391; [1989] 3 W.L.R. 563 CA (Civ Div) 11–032
Metropolitan Asylum District Managers v Hill (No.2); Metropolitan
Asylum District Managers v Lund (1880-81) L.R. 6 App. Cas. 193;
[1881-85] All E.R. Rep. 536 HL 10–032
Metropolitan International Schools Ltd (t/a SkillsTrain and t/a Train2Game)
v Designtechnica Corp (t/a Digital Trends) [2009] EWHC 1765 (QB);
[2010] 3 All E.R. 548; [2009] E.M.L.R. 27 14–033
MGN Ltd v United Kingdom (39401/04) [2011] 1 Costs L.O. 84; [2011]
E.M.L.R. 20; (2011) 53 E.H.R.R. 5. 1–024, 15–005
Michael v Chief Constable of South Wales [2015] UKSC 2; [2015] A.C.
1732; [2015] 2 W.L.R. 343 2–004, 2–014, 2–020, 2–022, 2–024, 2–025,
2–026, 2–045, 2–048, 2–066, 15–014
Middlebrook Mushrooms v Transport and General Workers Union [1993]
I.C.R. 612; [1993] I.R.L.R. 232, CA (Civ Div) 12–006
Midland Bank Plc v Bardgrove Property Services Ltd 60 B.L.R. 1; 37 Con.
L.R. 49; (1993) 65 P. & C.R. 153 CA (Civ Div) 10–003
Midwood & Co v Manchester Corp; sub nom. Midwood & Co Ltd v
Mayor, Aldermen, and Citizens of Manchester [1905] 2 K.B. 597 CA
10–057
Miliangos v George Frank (Textiles) Ltd
(No.1) [1976] A.C. 443; [1975] 3 W.L.R. 758 HL 17–058
Millar v Bassey [1994] E.M.L.R. 44 CA (Civ Div) 12–009
Miller v Jackson [1977] Q.B. 966; [1977] 3 W.L.R. 20 CA (Civ Div) 10–
007, 10–037, 10–065
Milne v Express Newspapers Ltd (No.1) [2004] EWCA Civ 664; [2005] 1
W.L.R. 772; [2005] 1 All E.R. 1021 14–031
Mineral Transporter, The. See Candlewood Navigation Corp v Mitsui Osk
Lines (The Mineral Transporter and The Ibaraki Maru)
Mint v Good [1951] 1 K.B. 517; [1950] 2 All E.R. 1159 CA 10–029, 10–
046
Minter v Priest [1930] A.C. 558 HL 14–012
Mirvahedy v Henley [2003] UKHL 16; [2003] 2 A.C. 491; [2003] 2 W.L.R.
882 9–044, 9–045, 9–046, 9–051
Mitchell v Glasgow City Council [2009] UKHL 11; [2009] 1 A.C. 874;
[2009] 2 W.L.R. 481 2–024, 2–036
Mogul Steamship Co Ltd v McGregor Gow & Co [1892] A.C. 25; [1891-4]
All E.R. Rep. 263 HL 12–002, 12–032
Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11; [2016] A.C.
677; [2016] 2 W.L.R. 821 7–025, 7–033, , 7–037, 7–038
Monarch Airlines Ltd v Yaqab [2016] EWHC 1003 (QB) 11–030
Monk v PC Harrington Ltd [2008] EWHC 1879 (QB); [2009] P.I.Q.R. P3
4–033
Monk v Warbey [1935] 1 K.B. 75; (1934) 50 Ll. L. Rep. 33 CA 7–015, 7–
016
Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4 W.L.R. 68; [2017]
E.M.L.R. 16 13–013
Monsanto Plc v Tilly [2000] Env. L.R. 313; [1999] E.G. 143 (C.S.) CA (Civ
Div) 11–039
Monson v Tussauds Ltd; sub nom. Monson v Louis Tussaud; Monson v
Louis Tussaud [1894] 1 Q.B. 671, CA 13–002
Montgomery v Lanarkshire Health Board; sub nom. NM v Lanarkshire
Health Board [2015] UKSC 11; [2015] A.C. 1430; [2015] 2 W.L.R. 768
5–026, 5–027, 11–019
Moore v DER Ltd [1971] 1 W.L.R. 1476; [1971] 3 All E.R. 517 CA (Civ
Div) 17–058
Moores v Snow Dome Ltd [2005] C.L.Y. 4195 8–020
More v Weaver [1928] 2 K.B. 520 CA 14–012
Morgan Crucible Co Plc v Hill Samuel Bank & Co Ltd; sub nom. Morgan
Crucible Co Plc v Hill Samuel & Co Ltd [1991] Ch. 295; [1991] 2
 W.L.R. 655 CA (Civ Div) 3–028
Morgan v Odhams Press [1971] 1 W.L.R. 1239; [1971] 2 All E.R. 1156 HL
13–012, 13–015
Morgans v Launchbury. See Launchbury v Morgans
Morris v CW Martin & Sons Ltd; sub nom. Morris v Martin [1966] 1 Q.B.
716; [1965] 3 W.L.R. 276 CA 7–036
Morris v Murray [1991] 2 Q.B. 6; [1991] 2 W.L.R. 195 CA (Civ Div) 16–
006, 16–008, 16–010
Morrison Sports Ltd v Scottish Power Plc; Pitchers v Scottish Power Plc;
Singh v Scottish Power Plc [2010] UKSC 37; [2010] 1 W.L.R. 1934;
2010 S.L.T. 1027 7–013
Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB); [2008]
E.M.L.R. 20; (2008) 158 N.L.J. 1112 15–008, 15–012, 17–014
Mosley v United Kingdom (48009/08) [2012] E.M.L.R. 1; [2012] 1 F.C.R.
99; (2011) 53 E.H.R.R. 30 ECHR 15–012
Motherwell v Motherwell (1976) 73 D.L.R. (3d) 62 10–013
Moulton v Chief Constable of the West Midlands [2010] EWCA Civ 524
11–032
Mouncher v Chief Constable of South Wales [2016] EWHC 1367 (QB) 11–
033
Mount Isa Mines Ltd v Pusey (1970) 125 C.L.R. 383 4–032
Mowan v Wandsworth LBC (2001) 33 H.L.R. 56; [2001] B.L.G.R. 228 CA
(Civ Div) 10–026, 10–027
Moy v Pettman Smith (A Firm) [2005] UKHL 7; [2005] 1 W.L.R. 581;
[2005] 1 All E.R. 903 2–059
Muirhead v Industrial Tank Specialities Ltd; Muirhead v ITT (UK) Ltd;
Muirhead v Leroy Somer Electric Motors Ltd [1986] Q.B. 507; [1985] 3
W.L.R. 993 CA (Civ Div) 3–014, 3–016, 3–025
Mulcahy v Ministry of Defence [1996] Q.B. 732; [1996] 2 W.L.R. 474 CA
(Civ Div) 2–053
Mullaney v Chief Constable of the West Midlands [2001] EWCA Civ 700;
[2001] Po. L.R. 150 2–045, 7–004, 7–008
Mullin v Richards [1998] 1 W.L.R. 1304; [1998] 1 All E.R. 920 CA (Civ
Div) 5–017
Murphy v Brentwood DC [1991] 1 A.C. 398; [1990] 3 W.L.R. 414 HL 2–
012, 2–013, 2–019, 2–032, 3–012, 3–017, 3–018, 3–019, 3–020, 3–021,
3–022, 9–008
Murphy v Culhane [1977] Q.B. 94; [1976] 3 W.L.R. 458 CA (Civ Div) 11–
021, 11–024, 11–025
Murray v Express Newspapers Plc; sub nom. Murray v Big Pictures (UK)
Ltd [2008] EWCA Civ 446; [2009] Ch. 481; [2008] 3 W.L.R. 1360 15–
008
Murray v Ministry of Defence [1988] 1 W.L.R. 692; [1988] 2 All E.R. 521
HL (NI) 11–015
Murray v Shuter [1976] Q.B. 972; [1975] 3 W.L.R. 597 CA (Civ Div) 17–
051
Musgrove v Pandelis [1919] 2 K.B. 43 CA 10–050, 10–054
Mutual Life & Citizens Assurance Co v Evatt [1971] A.C. 793; [1971] 2
W.L.R. 23 PC (Aus) 3–032
Muuse v Secretary of State for the Home Department [2010] EWCA Civ
453; (2010) 107(19) L.S.G. 24 11–033, 17–011
Nail v News Group Newspapers Ltd; Nail v Jones [2004] EWCA Civ 1708;
[2005] 1 All E.R. 1040; [2005] E.M.L.R. 12 14–031
Nance v British Columbia Electric Railway Co Ltd [1951] A.C. 601; [1951]
2 All E.R. 448 PC (Can) 16–020
Nash v Eli Lilly & Co [1993] 1 W.L.R. 782; [1993] 4 All E.R. 383 CA (Civ
Div) 16–033
National Coal Board v England; sub nom. England v National Coal Board
[1954] A.C. 403; [1954] 2 W.L.R. 400 HL 16–013
National Coal Board v JE Evans & Co (Cardiff) Ltd; National Coal Board v
Maberley Parker [1951] 2 K.B. 861; [1951] 2 All E.R. 310 CA 11–046
National Phonographic Co Ltd v Edison-Bell Consolidated Phonographic
Co Ltd [1908] 1 Ch. 335 CA 12–017
National Provincial Bank Ltd v Ainsworth; sub nom. National Provincial
Bank Ltd v Hastings Car Mart Ltd [1965] A.C. 1175; [1965] 3 W.L.R. 1
11–038
Nationwide Building Society v Dunlop Haywards (DHL) Ltd (t/a Dunlop
Heywood Lorenz) [2009] EWHC 254 (Comm); [2010] 1 W.L.R. 258;
[2009] 2 All E.R. (Comm) 715 16–027
Naylor (t/a Mainstreet) v Paylin. See Payling v Naylor (t/a Mainstreet)
Nelson v Chief Constable of Cumbria [2000] C.L.Y. 4217 5–012, 5–018
Nettleship v Weston [1971] 2 Q.B. 691; [1971] 3 W.L.R. 370 CA (Civ Div)
1–007, 1–032, 5–003, 16–005
Network Rail Infrastructure Ltd v Conarken Group Ltd; Network Rail
Infrastructure Ltd v Farrell Transport Ltd; sub nom. Conarken Group
Ltd v Network Rail Infrastructure Ltd 2011] EWCA Civ 644; [2012] 1
All E.R. (Comm) 692; [2011] 2 C.L.C. 1 3–005
Network Rail Infrastructure Ltd v Morris (t/a Soundstar Studio) [2004]
EWCA Civ 172; [2004] Env. L.R. 41; (2004) 148 S.J.L.B. 266 10–011
Network Rail Infrastructure Ltd v Williams [2018] EWCA Civ 1514;
[2019] Q.B. 601; [2018] 3 W.L.R. 1105 10–022, 10–067
New York Times v Sullivan, 376 U.S. 254 (1964) 13–023, 14–023
Newstead v London Express Newspaper Ltd [1940] 1 K.B. 377 CA 13–
016, 14–031
Ng Chun Pui v Lee Chuen Tat [1988] R.T.R. 298; (1988) 132 S.J. 1244 PC
(HK) 5–018, 5–032, 5–035
NHS Trust A v M; NHS Trust B v H [2001] Fam. 348; [2001] 2 W.L.R. 942
Fam Div 11–022
Nicholas H, The. See Marc Rich & Co AG v Bishop Rock Marine Co Ltd
(The Nicholas H)
Nicholls v Ely Beet Sugar Factory (No.1) [1931] 2 Ch. 84 Ch D 11–036,
11–037
Nicholls v Ely Beet Sugar Factory Ltd (No.2) [1936] Ch. 343 CA 10–003,
10–039
Nichols v Marsland (1876-77) L.R. 2 Ex. D. 1 CA 10–061
Nimmo v Alexander Cowan & Sons Ltd [1968] A.C. 107; [1967] 3 W.L.R.
1169 HL 7–019
Nitrigin Eireann Teoranta v Inco Alloys Ltd [1992] 1 W.L.R. 498; [1992] 1
All E.R. 854 QBD 9–008
Noble v Harrison [1926] 2 K.B. 332; 49 A.L.R. 833 KBD 10–046
Noel v Poland [2001] 2 B.C.L.C. 645; [2002] Lloyd’s Rep. I.R. 30 QBD
(Comm) 7–036
Non-Marine Uinderwriters v Scalera (2000) 185 D.L.R. (4th) 1 11–019
Nor-Video Services v Ontario Hydro (1978) 84 D.L.R. (3d) 221 HC (Ont)
10–011
Norman v Ali (Limitation Period); Aziz v Norman [2000] R.T.R. 107;
[2000] Lloyd’s Rep. I.R. 395 CA (Civ Div) 7–015
Norman v Future Publishing Ltd [1999] E.M.L.R. 325 CA (Civ Div) 13–
012
Norsk (The) (Canadian National Railway Co v Norsk Pacific Steamship
Co) (1992) 91 D.L.R. (4th) 289 3–010
North Western Utilities Ltd v London Guarantee & Accident Co Ltd; sub
nom. London Guarantee & Accident Co Ltd v North Western Utilities
Ltd [1936] A.C. 108; (1935) 53 Ll. L. Rep. 67 PC (Can) 10–060
Northumbrian Water Ltd v Sir Robert McAlpine [2014] EWCA Civ 685;
[2014] B.L.R. 605; 154 Con. L.R. 26 10–008
Nottingham City Council v Zain [2001] EWCA Civ 1248; [2002] 1 W.L.R.
607; [2003] H.L.R. 16 10–047
Nottinghamshire Healthcare NHS Trust v News Group Newspapers Ltd
[2002] EWHC 409 (Ch); [2002] E.M.L.R. 33; [2002] R.P.C. 49 17–013
O v A; sub nom. O (A Child) v Rhodes; Rhodes v OPO; OPO v MLA; OPO
v Rhodes [2015] UKSC 32; [2016] A.C. 219; [2015] 2 W.L.R. 1373 11–
017
O’Byrne v Aventis Pasteur MSD Ltd; sub nom. O’Byrne v Aventis Pasteur
SA
[2008] UKHL 34; [2008] 4 All E.R. 881; [2008] 3 C.M.L.R. 10 9–035
O’Byrne v Aventis Pasteur MSD Ltd; sub nom. OB v Aventis Pasteur SA;
O’Byrne v Aventis Pasteur SA [2010] UKSC 23; [2010] 1 W.L.R. 1412;
[2010] Bus. L.R. 1381 9–035
O’Byrne v Aventis Pasteur SA (C-358/08). See Aventis Pasteur SA v OB
(C-358/08)
O’Byrne v SanofiPasteur MSD Ltd (formerly Aventis Pasteur MSD Ltd)
(C-127/04) EU:C:2006:93; [2006] 1 W.L.R. 1606; [2006] All E.R. (EC)
674 9–035
O’Connell v Jackson [1972] 1 Q.B. 270; [1971] 3 W.L.R. 463 CA (Civ Div)
16–025
O’Connor v Pennine Acute Hospitals NHS Trust [2015] EWCA Civ 1244;
[2016] Med. L.R. 11 5–035
O’Connor v Waldron [1935] A.C. 76 PC (Can) 14–012
O’Grady v Westminster Scaffolding [1962] 2 Lloyd’s Rep. 238 QBD 17–
058
O’Hare v Coutts & Co [2016] EWHC 2224 (QB) 5–026
O’Rourke v Camden LBC [1998] A.C. 188; [1997] 3 W.L.R. 86 HL 7–013,
7–014
O’Shea v MGN Ltd [2001] E.M.L.R. 40 QBD 13–016
OBG Ltd v Allan; sub nom. OBG Ltd v Allen; Douglas v Hello! Ltd;
Mainstream Properties Ltd v Young [2007] UKHL 21; [2007] 2 W.L.R.
920; [2007] 4 All E.R. 545 12–001, 12–004, 12–006, 12–007, 12–008,
12–009, 12–010, 12–011, 12–012, 12–016, 12–017, 12–019, 12–020,
12–021, 12–022, 12–023, 12–024, 12–025, 12–026, 12–029, 12–030,
12–031, 12–032, 15–007, 15–013
Ogwo v Taylor [1988] A.C. 431; [1987] 3 W.L.R. 1145 HL 4–036, 8–011,
8–022
Oliver v Ashman; Oliver v Staton [1962] 2 Q.B. 210; [1961] 3 W.L.R. 669
CA 17–024
Oliver v Williams [2013] EWHC 600 (QB); [2013] Med. L.R. 344 6–013
OLL Ltd v Secretary of State for the Home Department [1997] 3 All E.R.
897; (1997) 147 N.L.J. 1099, QBD 2–050
One Money Mail Ltd v RIA Financial Services [2015] EWCA Civ 1084
12–006
OPO v Rhodes. See O v A
Orange v Chief Constable of West Yorkshire [2001] EWCA Civ 611;
[2002] Q.B. 347; [2001] 3 W.L.R. 736 2–045, 16–008
Orchard v Lee [2009] EWCA Civ 295; [2009] E.L.R. 178; [2009] P.I.Q.R.
P16 5–017
Oren v Red Box Toy Factory Ltd; Tiny Love Ltd v Martin Yaffe
International Ltd; Tiny Love Ltd v Red Box Toy Factory Ltd; Tiny Love
Ltd v Red Box Toy (UK) Ltd; Tiny Love Ltd v Index Ltd [1999] F.S.R.
785; (1999) 22(4) I.P.D. 22038 Ch D (Patents Ct) 12–018
Ormrod v Crosville Motor Services Ltd [1953] 1 W.L.R. 1120; [1953] 2 All
E.R. 753 CA 7–025
Oropesa, The; sub nom. Edwin Lord v Pacific Steam Navigation Co [1943]
P. 32; [1943] 1 All E.R. 211 CA 6–023
Osborn v Thomas Boulter & Son [1930] 2 K.B. 226 CA 13–002, 13–018,
14–016
Osman v United Kingdom (23452/94) [1999] 1 F.L.R. 193; (2000) 29
E.H.R.R. 245 ECHR 2–046, 2–047, 2–048
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon
Mound) (No.2); sub nom. Miller Steamship Co Pty Ltd v Overseas
Tankship (UK) Ltd; RW Miller & Co Pty Ltd v Overseas Tankship
(UK) Ltd [1967] 1 A.C. 617; [1966] 3 W.L.R. 498 PC (Aus) 5–010, 5–
015, 6–029, 10–042, 10–045, 10–071
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon
Mound) (No.1); sub nom. Morts Dock & Engineering Co v Overseas
Tankship (UK) Ltd [1961] A.C. 388; [1961] 2 W.L.R. 126 PC (Aus) 5–
010, 6–028, 6–029, 6–030, 6–031, 6–033, 6–035, 7–021, 10–023, 10–
042, 10–071, 11–030
Owen and Smith (T/A Nuagin Car Service) v Reo Motors (Britain) (1934)
151 L.T. 274 11–049
Owens v Brimmell [1977] Q.B. 859; [1977] 2 W.L.R. 943 QBD 16–006
Owers v Medway NHS Foundation Trust [2015] EWHC 2363 (QB); [2015]
Med. L.R. 56 4–030
P Perl (Exporters) Ltd v Camden LBC [1984] Q.B. 342; [1983] 3 W.L.R.
769 CA (Civ Div) 2–024
Pacific Associates v Baxter [1990] 1 Q.B. 993; [1989] 3 W.L.R. 1150 CA
(Civ Div) 3–014
Padbury v Holliday and Greenwood Ltd (1912) 28 T.L.R. 494 7–039
Page Motors v Epsom and Ewell BC 80 L.G.R. 337; [1982] J.P.L. 572 CA
(Civ Div) 10–021, 10–023
Page v Read (1984) 134 N.L.J. 723 DC 8–012
Page v Smith [1996] A.C. 155; [1995] 2 W.L.R. 644 HL 4–009, 4–011, 4–
012, 4–014, 4–015, 4–016, 4–017, 4–018, 4–031, 4–037, 6–033, 4–038,
7–009
Palmer Birch (A Partnership) v Lloyd [2018] EWHC 2316 (TCC); [2018] 4
W.L.R. 164; 2018] B.L.R. 722 12–031
Palmer v Palmer; Palmer v Motor Insurers’ Bureau; Palmer v PZ Products
[2006] EWHC Civ 1284; [2008] C.P. Rep. 21; [2008] 4 Costs L.R. 513
9–022
Palsgraf v Long Island Railroad, 248 N.Y. 339 (1928); 162 N.E. 99 2–017
Paris v Stepney BC [1951] A.C. 367; [1951] 1 All E.R. 42 HL 5–009, 7–
008
Parkes v Prescott (1868-69) L.R. 4 Ex. 169 Ex Ct 13–018
Parkinson v St James and Seacroft University Hospital NHS Trust [2001]
EWCA Civ 530; [2002] Q.B. 266; [2001] 3 W.L.R. 376 2–053
Parry v Cleaver [1970] A.C. 1; [1969] 2 W.L.R. 821 HL 17–026, 17–027,
17–028, 17–031
Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] Q.B. 791; [1977]
3 W.L.R. 990 CA (Civ Div) 6–030, 6–032
Patchett v Swimming Pool & Allied Trades Association Ltd [2009] EWCA
Civ 717; [2010] 2 All E.R. (Comm) 138; [2009] Info. T.L.R. 185 3–027
Patel v Mirza [2016] UKSC 42; [2016] 3 W.L.R. 399; [2017] 1 All E.R.
191 16–015, 16–018
Patel v Patel (1988) [1988] 2 F.L.R. 179; [1988] Fam. Law 213; [1988]
E.G. 30 (C.S.) CA 11–017, 11–028
Payling v Naylor (t/a Mainstreet); sub nom. Naylor (t/a Mainstreet) v
Payling [2004] EWCA Civ 560; [2004] P.I.Q.R. P36; (2004) 101(23)
L.S.G. 33 8–024
Pearce v United Bristol Healthcare NHS Trust [1999] E.C.C. 167; [1999]
P.I.Q.R. P53 CA (Civ Div) 11–019
Peck v United Kingdom (44647/98) [2003] E.M.L.R. 15; (2003) 36
E.H.R.R. 41 ECHR 15–004
Peires v Bickerton’s Aerodromes Ltd [2016] EWHC 560 (Ch); [2016] Env.
L.R. 27 10–033
Pemberton v Southwark LBC [2000] 1 W.L.R. 1672; [2000] 3 All E.R. 924
CA (Civ Div) 10–014
Penney v East Kent HA [2000] Lloyd’s Rep. Med. 41; (2000) 55 B.M.L.R.
63 CA (Civ Div) 5–023
Performance Cars v Abraham [1962] 1 Q.B. 33; [1961] 3 W.L.R. 749 CA
6–009
Perkowski v Wellington City Corp [1959] A.C. 53; [1958] 3 W.L.R. 564 PC
(NZ) 8–013
Perre v Apand Pty Ltd (1999) 198 C.L.R. 108 2–015, 3–047
Perrett v Collins [1998] 2 Lloyd’s Rep. 255; [1999] P.N.L.R. 77 CA (Civ
Div) 2–019, 2–056, 2–057
Perry v Kendricks Transport [1956] 1 W.L.R. 85; [1956] 1 All E.R. 154 CA
10–056, 10–060, 10–068
Peters v East Midlands SHA; East Midlands SHA v Nottingham City
Council [2009] EWCA Civ 145; [2010] Q.B. 48; [2009] 3 W.L.R. 737
17–033
Phelps v Hillingdon LBC; sub nom. G (A Child), Re; Jarvis v Hampshire
CC; G (A Child) v Bromley LBC; Anderton v Clwyd CC [2001] 2 A.C.
619; [2000] 3 W.L.R. 776 HL 2–032, 2–042, 3–033, 7–014, 7–015, 16–
030
Philips v William Whitely Ltd [1938] 1 All E.R. 566 5–022
Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 K.B. 832 CA 7–
013, 7–015
Phipps v Rochester Corp [1955] 1 Q.B. 450; [1955] 2 W.L.R. 23 QBD 8–
021
Phonographic Performance Ltd v Reader [2005] EWHC 416; [2005]
E.M.L.R. 26; [2005] F.S.R. 42 17–013
Pickering v Liverpool Daily Post and Echo; sub nom. P v Liverpool Daily
Post and Echo [1991] 2 A.C. 370; [1991] 2 W.L.R. 513 HL 7–015
Pickett v British Rail Engineering Ltd; sub nom. Ralph Henry Pickett
(Deceased), Re [1980] A.C. 136; [1978] 3 W.L.R. 955 HL 17–024
Pierce v Doncaster MBC [2008] EWCA Civ 1416; [2009] 1 F.L.R. 1189;
[2009] 3 F.C.R. 572 16–031
Pimlico Plumbers Ltd v Smith [2018] UKSC 29; [2018] 4 All E.R. 641;
[2018] I.C.R. 1511 7–027
Piper v JRI (Manufacturing) Ltd [2006] EWCA Civ 1344; (2006) 92
B.M.L.R. 141; (2006) 150 S.J.L.B. 1391 9–029
Pitts v Hunt [1991] 1 Q.B. 24; [1990] 3 W.L.R. 542 CA (Civ Div) 16–006,
16–015, 16–019, 16–025
PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] A.C. 1081;
[2016] 2 W.L.R. 1253 15–008, 15–012, 15–013
Platform Home Loans Ltd v Oyston Shipways Ltd [2000] 2 A.C. 190;
[1999] 2 W.L.R. 518 HL 16–020, 16–026
Playboy Club London Ltd v Banca Nazionale del Lavoro SpA [2016]
EWCA Civ 457; [2016] 1 W.L.R. 3169; [2017] 1 All E.R. (Comm) 309
3–027, 3–046
Poland v John Parr & Sons [1927] 1 K.B. 236 CA 7–035, 7–036
Polemis and Furness Withy & Co Ltd, Re; sub nom. Polemis v Furness
Withy & Co [1921] 3 K.B. 560; (1921) 8 Ll. L. Rep. 351 CA 6–028, 6–
029
Polly Peck (Holdings) Plc v Trelford [1986] Q.B. 1000; [1986] 2 W.L.R.
845 CA (Civ Div) 14–003
Ponting v Noakes [1894] 2 Q.B. 281 QBD 10–059
Poole BC v GN; sub nom. Poole BC v N; GN v Poole BC; N v Poole BC
[2019] UKSC 25; [2019] 2 W.L.R. 1478; [2019] 4 All E.R. 581 2–024,
2–036, 2–038, 2–041, 3–038, 3–039
Poole v HM Treasury [2007] EWCA Civ 1021; (2007) 104(43) L.S.G. 32
7–024
Poppleton v Trustees of the Portsmouth Youth Activities Committee; sub
nom. Trustees of the Portsmouth Youth Activities Committee v
Poppleton [2008] EWCA Civ 646; [2009] P.I.Q.R. P1; [2008] N.P.C. 65
, 8–036
Porter v Commissioner of Police of the Metropolis unreported 20 October
1999 11–038
Portsmouth NHS Trust v Wyatt; sub nom. Wyatt (A Child) (Medical
Treatment: Continuation of Order), Re [2005] EWCA Civ 1181; [2005]
1 W.L.R. 3995; [2006] 1 F.L.R. 554 11–022
Powell v Boladz; sub nom. Powell v Boldaz [1998] Lloyd’s Rep. Med. 116;
(1998) 39 B.M.L.R. 35 CA (Civ Div) 12–030
PQ v Australian Red Cross Society [1992] 1 V.R. 19 5–011
Practice Statement (HL: Judicial Precedent); sub nom. Practice Note (HL:
Judicial Precedent) [1966] 1 W.L.R. 1234; [1966] 2 Lloyd’s Rep. 151
HL 2–013
Pratley v Surrey CC [2003] EWCA Civ 1067; [2004] I.C.R. 159; [2003]
I.R.L.R. 794 7–010
Prebble v Television New Zealand Ltd [1995] 1 A.C. 321; [1994] 3 W.L.R.
970 PC (NZ) 14–010
Pretty v United Kingdom (2346/02); sub nom. R. (on the application of
Pretty) v DPP (2346/02) [2002] 2 F.L.R. 45; [2002] 2 F.C.R. 97; (2002)
35 E.H.R.R. 1 ECHR 11–021
Priestley v Fowler (1837) 3 M. & W. 1; 150 E.R. 1030 7–002
Prince Albert v Strange, 41 E.R. 1171; (1849) 1 Mac. & G. 25; (1849 1 De
G. & Sm. 652 QB 15–005
Prince Alfred College Incorporated v ADC [2016] HCA 37 7–037
Pritchard v Briggs [1980] Ch. 338; [1979] 3 W.L.R. 868 CA (Civ Div) 12–
015
Probert v Moore [2012] EWHC 2324 (QB) 16–021
Proform Sports Management Ltd v Proactive Sports Management Ltd
[2006] EWHC 2903 (Ch); [2007] 1 All
E.R. 542; [2007] 1 All E.R. (Comm) 356 12–003
Pullman v Walter Hill & Co Ltd [1891] 1 Q.B. 524 CA 13–018
Purnell v Roche [1927] 2 Ch. 142 Ch D 16–036
QBE Management Services (UK) Ltd v Dymoke [2012] EWHC 80 (QB);
[2012] I.R.L.R. 458; (2012) 162 N.L.J. 180 12–028
Quaquah v Group 4 Falck Global Solutions Ltd (Malicious Prosecution)
[2003] EWHC 1504 (QB); [2004] Prison L.R. 1; [2003] Po. L.R. 318
11–032
Quarman v Burnett 151 E.R. 509; (1840) 6 M. & W. 499 Exch 7–039
Quartz Hill Consolidated Gold Mining Co v Eyre (1882-83) L.R. 11 Q.B.D.
674 CA 11–032
Quinland v Governor of Swaleside Prison; sub nom. Quinland v Governor
of Belmarsh Prison [2002] EWCA Civ 174; [2003] Q.B. 306; [2002] 3
W.L.R. 807 11–012
Quinn v Leathem [1901] A.C. 495, HL (UK-Irl) 12–032
R. v A (Complainant’s Sexual History); sub nom. R. v A (No.2); R. v Y
(Sexual Offence: Complainant’s Sexual History) [2001] UKHL 25;
[2002] 1 A.C. 45; [2001] 2 W.L.R. 1546 10–032
R. v Belmarsh Magistrates Court Ex p. Watts [1999] 2 Cr. App. R. 188,
QBD 2–063
R. v Bishop (Roger Anthony) [1975] Q.B. 274; [1974] 3 W.L.R. 308 CA
(Crim Div) 13–010
R. v BM; R. v M [2018] EWCA Crim 560; [2019] Q.B. 1; [2018] 3 W.L.R.
883 11–021
R. v Bournewood Community and Mental Health NHS Trust Ex p. L; sub
nom. L, Re [1999] 1 A.C. 458; [1998] 3 W.L.R. 107 HL 11–013
R. v Brown; R. v Laskey; R. v Lucas; R. v Carter; R. v Jaggard; R. v
Cadman [1994] 1 A.C. 212; [1993] 2 W.L.R. 556 HL 11–021
R. v C (Sean Peter) [2001] EWCA Crim 1251; [2001] 2 F.L.R. 757; [2001]
3 F.C.R. 409 11–029
R. v Clarence (1888) 22 Q.B.D. 23 11–019
R. v Criminal Injuries Compensation Board Ex p. K (Children) [1999] Q.B.
1131; [1999] 2 W.L.R. 948 QBD 17–056, 17–056
R. v Deputy Governor of Parkhurst Prison Ex p. Hague; Weldon v Home
Office; sub nom. Hague v Deputy Governor of Parkhurst Prison; [1992]
1 A.C. 58; [1991] 3 W.L.R. 340 HL 7–013, 7–015
R. v Dica [2004] EWCA Crim 1103; [2004] Q.B. 1257; [2004] 3 W.L.R.
213 11–019
R. v Emmet, Times, 15 October 1999; Independent, 19 July 1999 CA (Crim
Div) 11–021
R. v Governor of Brockhill Prison Ex p. Evans (No.2); sub nom. Evans v
Governor of Brockhill Prison [2001] 2 A.C. 19; [2000] 3 W.L.R. 843
 HL 11–012
R. v Ireland; R. v Burstow [1998] A.C. 147; [1997] 3 W.L.R. 534 HL 11–
011
R. v Linekar [1995] Q.B. 250; [1995] 2 W.L.R. 237 CA (Crim Div) 11–019
R. v Rimmington; R. v Goldstein [2005] UKHL 63; [2006] 1 A.C. 459;
[2005] 3 W.L.R. 982 10–044
R. v Savage (Susan); sub nom. DPP v Parmenter (Philip Mark); R. v
Parmenter (Philip Mark) (No.1) [1992] 1 A.C. 699; [1991] 3 W.L.R.
914 HL 11–004
R. v Secretary of State for Transport Ex p. Factortame Ltd (No.5) [2000] 1
A.C. 524; [1999] 3 W.L.R. 1062; [1999] 3 C.M.L.R. 597 HL 7–024
R. v Secretary of State for Transport ex parte Factortame Ltd (No.7) [2000]
EWHC (Tech) 179 [2001] 1 W.L.R. 942 7–023, 16–029
R. v Self (Graham) [1992] 1 W.L.R. 657; [1992] 3 All E.R.
476 CA (Crim Div) 11–026
R. v Shorrock (Peter Coar) [1994] Q.B. 279; [1993] 3 W.L.R. 698 CA
(Crim Div) 10–021, 10–044
R. v St George (1840) 9 C. & P. 483; 173 E.R. 921 11–007
R. v Tabassum (Naveed); sub nom. R. v Tabassum (Navid) [2000] 2 Cr.
App. R. 328; [2000] Lloyd’s Rep. Med. 404 CA (Crim Div) 11–019
R. v Venna (Henson George) [1976] Q.B. 421; [1975] 3 W.L.R. 737 CA
(Crim Div) 11–004, 11–009
R. v Wacker (Perry) [2002] EWCA Crim 1944; [2003] Q.B. 1207; [2003] 2
W.L.R. 374 16–013
R. v Williams (Owen Richard) [1923] 1 K.B. 340; (1924) 17 Cr. App. R. 56
CCA 11–019
R. v Wilson [1997] Q.B. 47; [1996] 3 W.L.R. 125 CA (Crim Div) 11–021
R. (on the application of Fullard) v Woking Magistrates Court [2005]
EWHC 2922 (Admin) 8–018
R. (on the application of Greenfield) v Secretary of State for the Home
Department [2005] UKHL 14; [2005] 1 W.L.R. 673; [2005] 2 All E.R.
240 17–017
R. (on the application of Jalloh (formerly Jollah) v Secretary of State for the
Home Department [2020] UKSC 4; [2020] 2 W.L.R. 418; [2020] 1 Cr.
App. R. 31 11–013
R. (on the application of KB) v Mental Health Review Tribunal (Damages);
R. (on the application of B) v Mental Health Review Tribunal
 (Damages); R. (on
the application of TB) v Mental Health Review Tribunal (Damages); R.
(on the application of PD) v Mental Health Review Tribunal
(Damages); R. (on the application of GM) v Mental Health Review
Tribunal (Damages); R. (on the application of JR) v Mental Health
Review Tribunal (Damages); R. (on the application of MK) v Mental
Health Review Tribunal (Damages); sub nom. R. (on the application of
KB) v South London and South West Region Mental Health Review
Tribunal (Damages) [2003] EWHC 193 (Admin); [2004] Q.B. 936;
[2003] 3 W.L.R. 185 17–018
R. (on the application of Laporte) v Chief Constable of Gloucestershire
[2006] UKHL 55; [2007] 2 A.C. 105; [2007] 2 W.L.R. 46 11–026
R. (on the application of Lee-Hirons) v Secretary of State for Justice; sub
nom. Lee-Hirons v Secretary of State for Justice [2016] UKSC 46;
[2017] A.C. 52; [2016] 3 W.L.R. 590 17–017
R. (on the application of Lumba) v Secretary of State for the Home
Department; R. (on the application of Mighty) v Secretary of State for
the Home Department; sub nom. Abdi v Secretary of State for the Home
Department; Ashori v Secretary of State for the Home Department;
Madami v Secretary of State for the Home Department; Mighty v
Secretary of State for the Home Department; Lumba v Secretary of
State for the Home Department; R. (on the application of WL (Congo))
v Secretary of State for the Home Department; R. (on the application of
KM (Jamaica)) v Secretary of State for the Home Department [2011]
UKSC 12; [2012] 1 A.C. 245; [2011] 2 W.L.R. 671 11–012, 11–015,
17–002, 17–007
R. (on the application of Nicklinson) v Ministry of Justice; R. (on the
application of AM) v Ministry of Justice; R. (on the application of
Lamb) v Ministry of Justice; sub nom. Nicklinson v Ministry of [2014]
UKSC 38; [2015] A.C. 657; [2014] 3 W.L.R. 200 11–021
R. (on the application of Pennington) v Parole Board [2010] EWHC 78
(Admin) 17–017
R. (on the application of Sturnham) v Parole Board; R. (on the application
of Faulkner) v Secretary of State for Justice; sub nom. R. (on the
application of Sturnham) v Secretary of State for Justice [2013] UKSC
23; [2013] 2 A.C. 254; [2013] 2 W.L.R. 1157 17–017, 17–018
Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2; [2012] 2
A.C. 72; [2012] 2 W.L.R. 381 2–040, 2–052, 17–018, 17–057
Raflatac Ltd v Eade [1999] 1 Lloyd’s Rep. 506; [1999] B.L.R. 261 QBD
(Comm) 16–020
Rahman v Arearose Ltd [2001] Q.B. 351; [2000] 3 W.L.R. 1184 CA (Civ
Div) 17–059
Rainham Chemical Works Ltd (In Liquidation) v Belvedere Fish Guano Co
Ltd; Ind Coope & Co v Rainham Chemical Works Ltd; sub nom.
Belvedere Fish Guano Co Ltd v Rainham Chemical Works Ltd [1921] 2
A.C. 465 HL 10–054, 10–056
Ramzan v Brookwide Ltd [2011] EWCA Civ 985; [2012] 1 All E.R. 903;
[2012] 1 All E.R. (Comm) 979 11–044, 17–012
Rantzen v Mirror Group Newspapers (1986) Ltd [1994] Q.B. 670; [1993] 3
W.L.R. 953 CA (Civ Div) 14–038
Rapier v London Tramways Co [1893] 2 Ch. 588 CA 10–005, 10–042
Ratcliff v McConnell [1999] 1 W.L.R. 670; (1999) 1 L.G.L.R. 276 CA (Civ
Div) 8–037, 8–038
Ratcliffe v Evans [1892] 2 Q.B. 524 CA 14–043
Ravenscroft v Rederi AB Transatlantic [1992] 2 All E.R. 470 (Note) CA
(Civ Div) 4–026
Raymond v Young [2015] EWCA Civ 456; [2015] H.L.R. 41 10–068
RCA Corp v Pollard [1983] Ch. 135; [1982] 3 W.L.R. 1007 CA (Civ Div)
12–018
RE (A Child) v Calderdale and Huddersfield NHS Foundation Trust [2017]
EWHC 824 (QB); [2017] Med. L.R. 390; (2017) 156 B.M.L.R. 204 4–
023
Re-Source America International Ltd v Platt Site Services Ltd [2004]
EWCA Civ 665; 95 Con. L.R. 1; [2004] N.P.C. 89 17–060
Read v Coker (1853) 13 C.B. 850; 138 E.R. 1437 11–011
Read v Great Eastern Railway Co (1867-68) L.R. 3 Q.B. 555 QB 17–051
Read v J Lyons & Co Ltd [1947] A.C. 156; [1946] 2 All E.R. 471 HL 10–
013, 10–049, 10–053, 10–054, 10–056, 10–068
Reader v Molesworths Bright Clegg Solicitors; sub nom. Reader v
Molesworths Bright Clegg (A Firm) [2007] EWCA Civ 169; [2007] 1
W.L.R. 1082; [2007] 3 All E.R. 107 17–051
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and
National Insurance; Minister for Social Security v Greenham Ready
 Mixed Concrete Ltd; Minister for Social Security v Ready Mixed
Concrete (South East) Ltd [1968] 2 Q.B. 497; [1968] 2 W.L.R. 775
QBD 7–030
Reaney v University Hospital of North Staffordshire NHS Trust [2015]
EWCA Civ 1119; [2016] P.I.Q.R. Q3; [2016] Med. L.R. 23 6–009
Rebecca Elaine, The. See Hamble Fisheries Ltd v L Gardner & Sons Ltd
(The Rebecca Elaine)
Redgrave v Hurd (1881-82) L.R. 20 Ch. D. 1 CA 16–020
Redland Bricks v Morris; sub nom. Morris v Redland Bricks [1970] A.C.
652; [1969] 2 W.L.R. 1437 HL 17–064, 17–066
Reeman v Department of Transport [1997] 2 Lloyd’s Rep. 648; [1997]
P.N.L.R. 618 CA (Civ Div) 2–056, 3–036
Rees v Commissioner of Police of the Metropolis [2018] EWCA Civ 1587
11–031, 11–032
Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004]
1 A.C. 309; [2003] 3 W.L.R. 1091 2–053
Rees v Skerrett; sub nom. Rees v Skeret; Rees v Skerret [2001] EWCA Civ
760; [2001] 1 W.L.R. 1541; (2001) 3 T.C.L.R. 27 10–023
Reeves v Commissioner of Police of the Metropolis [2000] 1 A.C. 360;
[1999] 3 W.L.R. 363 HL 2–045, 6–026, 16–008, 16–020
Reid v Rush & Tompkins Group [1990] 1 W.L.R. 212; [1989] 3 All E.R.
228, CA (Civ Div) 7–008
Rendlesham Estates Plc v Barr Ltd [2014] EWHC 3968 (TCC); [2015] 1
W.L.R. 3663; [2015] B.L.R. 37 3–021
Renfrew Golf Club v Motocaddy Ltd [2016] CSIH 57; 2016 S.C. 860; 2016
S.L.T. 781 9–024
Revill v Newbery [1996] Q.B. 567; [1996] 2 W.L.R. 239 CA (Civ Div) 8–
011, 8–037, 16–014, 17–062
Reynolds v Commissioner of Police of the Metropolis [1985] Q.B. 881;
[1985] 2 W.L.R. 93 CA (Civ Div) 11–032
Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127; [1999] 3 W.L.R.
1010 HL 13–001, 14–001, 14–008, 14–008, 14–019, 14–020, 14–021,
14–022, 14–023, 14–024, 17–006
Reynolds v United Kingdom (2694/08) (2012) 55 E.H.R.R. 35 ECHR 2–
052
Rhind v Astbury Water Park Ltd [2004] EWCA Civ 756; (2004) 148
S.J.L.B. 759; [2004] 8–035
RHM Bakeries (Scotland) Ltd v Strathclyde RC, 1985 S.C. (H.L.) 17; 1985
S.L.T. 214 HL 10–050
Ribee v Norrie; sub nom. Ribbee v Norrie (2001) 33 H.L.R. 69; [2001]
P.I.Q.R. P8 CA (Civ Div) 10–060
Richard v BBC [2018] EWHC 1837 (Ch); [2019] Ch 169 15–008, 15–012
Richardson v Howie [2004] EWCA Civ 1127; [2005] P.I.Q.R. Q3; (2004)
101(37) L.S.G. 36 17–008
Richardson v LRC Products Ltd [2000] P.I.Q.R. P164; [2000] Lloyd’s Rep.
Med. 280 QBD. 9–021, 9–022
Richardson v Pitt-Stanley [1995] Q.B. 123; [1995] 2 W.L.R. 26 CA (Civ
Div) 7–015, 7–016
Richley v Faull (Richley, Third Party) [1965] 1 W.L.R. 1454; [1965] 3 All
E.R. 109 QBD 5–032
Rickards v Lothian [1913] A.C. 263 PC (Aus) 10–054, 10–060
Rigby v Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242;
[1985] 2 All E.R. 985 QBD 2–045, 5–018, 10–053, 11–035, 11–039
Rimmer v Liverpool City Council [1985] Q.B. 1; [1984] 2 W.L.R. 426, CA
(Civ Div) 3–022
Risk v Rose Bruford College [2013] EWHC 3869 (QB); [2014] E.L.R. 157
8–023
Robert Addie & Sons (Collieries) Ltd v Dumbreck; sub nom. Dumbreck v
Robert Addie & Sons (Collieries) Ltd; Dumbreck v Addie & Sons
Collieries [1929] A.C. 358; 1929 S.C. (H.L.) 51 HL 8–006, 8–034
Roberts v Bank of Scotland Plc [2013] EWCA Civ 882 11–029
Roberts v Bettany [2001] EWCA Civ 109; [2001] N.P.C. 45 6–024
Roberts v Gable [2007] EWCA Civ 721; [2008] Q.B. 502; [2008] 2 W.L.R.
129; 14–024
Roberts v Ramsbottom [1980] 1 W.L.R. 823; [1980] 1 All E.R. 7 QBD 5–
004
Robinson v Balmain New Ferry Co Ltd [1910] A.C. 295 PC (Aus) 11–014
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4;
[2018] A.C. 736; [2018] 2 W.L.R. 595 2–006, 2–014, 2–015, 2–045, 2–
048, 2–066
Robinson v Harman [1843-60] All E.R. Rep. 383; 154 E.R. 363 Ex Ct 1–
018
Robinson v Kilvert (1889) L.R. 41 Ch. D. 88 CA 10–010, 10–011
Robinson v Post Office [1974] 1 W.L.R. 1176; [1974] 2 All E.R. 737 CA
(Civ Div) 6–034
Robinson v St Helens MBC [2002] EWCA Civ 1099; [2002] E.L.R. 681;
[2003] P.I.Q.R. P9 16–030, 16–033
Robson v Hallett [1967] 2 Q.B. 939; [1967] 3 W.L.R. 28 QBD 8–017, 8–
018
Roche v United Kingdom (32555/96) (2006) 42 E.H.R.R. 30; 20 B.H.R.C.
99 ECHR (Grand Chamber) 2–065
Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) 15–009,
15–013
Roe v Ministry of Health; Woolley v Ministry of Health [1954] 2 Q.B. 66;
[1954] 2 W.L.R. 915 CA 5–006, 9–011
Roe v Sheffield City Council (No.1); Roe v South Yorkshire Light Rail Ltd
[2003]
EWCA Civ 1; [2004] Q.B. 653; [2003] 2 W.L.R. 848 7–015
Rogerson v Bolsover DC [2018] EWHC 1837 (Ch); [2019] Ch. 169; [2018]
3 W.L.R. 1715 10–029
Roles v Nathan (t/a Manchester Assembly Rooms) [1963] 1 W.L.R. 1117;
[1963] 2 All E.R. 908, CA 8–022, 8–023
Rondel v Worsley; sub nom. Rondel v W [1969] 1 A.C. 191; [1967] 1
W.L.R. 142 HL 2–060
Rookes v Barnard (No.1) [1964] A.C. 1129; [1964] 2 W.L.R. 269 HL 1–
007, 12–022, 12–029, 17–008, 17–009, 17–011, 17–014
Ropaigealach v Barclays Bank Plc [2000] Q.B. 263; [1999] 3 W.L.R. 17
CA (Civ Div) 11–042
Rose v Plenty; sub nom. Rose v Plenty and Cooperative Retail Services
[1976] 1 W.L.R. 141; [1976] 1 All E.R. 97 CA (Civ Div) 7–035, 7–040
Ross v Caunters [1980] Ch. 297; [1979] 3 W.L.R. 605 Ch D 3–040, 3–041,
3–042
Rothschild v Associated Newspapers Ltd [2013] EWCA Civ 197; [2013]
E.M.L.R. 18 13–001, 14–003
Rothwell v Chemical & Insulating Co Ltd. See Grieves v FT Everard &
Sons Ltd
Rouse v Squires [1973] Q.B. 889; [1973] 2 W.L.R. 925 CA (Civ Div) 6–
008, 6–024
Rowe v Herman [1997] 1 W.L.R. 1390; 58 Con. L.R. 33 CA (Civ Div) 7–
039
Rowlands v Chief Constable of Merseyside [2006] EWCA Civ 1773;
[2007] 1 W.L.R. 1065; [2006] Po. L.R. 187 17–008, 17–014
Rowling v Takaro Properties Ltd [1988] A.C. 473; [1988] 2 W.L.R. 418 PC
(NZ) 2–034
Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson
[1892] 1 Q.B. 431 CA 14–012
Royal Baking Powder Co v Wright Crossley & Co (1900) 18 R.P.C. 95 14–
043
Royal Bank of Scotland Plc v McCarthy [2015] EWHC 3626 (QB) 12–013
Royal Brompton Hospital NHS Trust v Hammond (No.3) [2002] UKHL 14;
[2002] 1 W.L.R. 1397; [2002] 2 All E.R. 801 17–059
Rubber Improvement Ltd v Daily Telegraph Ltd; Lewis v Daily Telegraph
Ltd; Lewis v Associated Newspapers Ltd; Rubber Improvement Ltd v
Associated Newspapers Ltd [1964] A.C. 234; [1963] 2 W.L.R. 1063,
HL 13–010, 13–013
Ruxley Electronics & Construction Ltd v Forsyth; Laddingford Enclosures
Ltd v Forsyth [1996] A.C. 344; [1995] 3 W.L.R. 118 HL 10–068
Rylands v Fletcher; sub nom. Fletcher v Rylands (1868) L.R. 3 H.L. 330
HL 1–013, 6–035, 7–039, 10–001, 10–008, 10–017, 10–044, 10–048,
10–049, 10–050, 10–051, 10–052, 10–053, 10–054, 10–055, 10–056,
10–057, 10–058, 10–060, 10–062, 10–064, 10–068, 10–070, 10–071,
10–073, 11–017
S (A Child) (Identification: Restrictions on Publication), Re [2004] UKHL
47; [2005] 1 A.C. 593; [2004] 3 W.L.R. 1129 HL 15–006
S (Adult Patient: Sterilisation: Patient’s Best Interests), Re; sub nom. SL v
SL; SL (Adult Patient) (Medical Treatment), Re [2001] Fam. 15; [2000]
3 W.L.R. 1288 CA (Civ Div) 11–022
S v France (1990) 65 D. & R. 250, Eur Comm HR 10–072
Sabir v Osei-Kwabena; sub nom. Osei-Kwabena v Sabir
[2015] EWCA Civ 1213; [2016] R.T.R. 9; [2016] P.I.Q.R. Q4 16–023
Sacco v Chief Constable of South Wales unreported 15 May 1998 CA (Civ
Div) 16–015
Sack v Jones [1925] Ch. 235 Ch D 10–023
Saif Ali v Sydney Mitchell & Co [1980] A.C. 198; [1978] 3 W.L.R. 849 HL
2–059
Sallows v Griffiths [2001] F.S.R. 15; (2000) 23(4) I.P.D. 23035 CA (Civ
Div) 11–031
Salmon v Seafarer Restaurants Ltd [1983] 1 W.L.R. 1264; [1983] 3 All E.R.
729 QBD 8–022
Salsbury v Woodland [1970] 1 Q.B. 324; [1969] 3 W.L.R. 29 CA (Civ Div)
7–039, 10–046
Sam (aka Al-Sam) v Atkins [2005] EWCA Civ 1452; [2006] R.T.R. 14 2–
002
Sandhar v Department of Transport, Environment and the Regions; sub
nom. Sandhar v Department of Transport, Local Government and the
Regions [2004] EWCA Civ 1440; [2005] 1 W.L.R. 1632; [2005] R.T.R.
9 2–035
Saunders v Edwards [1987] 1 W.L.R. 1116; [1987] 2 All E.R. 651 CA (Civ
Div) 16–016
Savage v Fairclough [2000] Env. L.R. 183; [1999] N.P.C. 103 CA (Civ Div)
10–055
Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC
865 (QB); [2010] H.R.L.R. 24; [2010] U.K.H.R.R. 838 17–017
Savile v Roberts, 91 E.R. 1147; (1698) 1 Ld. Raym. 374 KB 11–031
Sayers v Chelwood (Deceased) sub nom. Sayers v Hunters [2012] EWCA
Civ 1715; [2013] 1 W.L.R. 1695; [2013] 2 All E.R. 232 16–033
SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd [1971] 1 Q.B. 337;
[1970] 3 W.L.R. 694 CA (Civ Div) 10–008
Scott v Gavigan [2016] EWCA Civ 544 6–026
Scott v London & St Katherine Docks Co [1861-73] All E.R. Rep. 248; 159
E.R. 665; (1865) 3 Hurl. & C. 596 Ex Ct 5–030, 5–032
Scott v Shepherd (1773) 2 Wm. Bl. 892; 96 E.R. 525 6–023, 11–001, 11–
005
Scout Association v Barnes [2010] EWCA Civ 1476 5–013
Scullion v Bank of Scotland Plc (t/a Colleys) [2011] EWCA Civ 693;
[2011] 1 W.L.R. 3212; [2011] B.L.R. 449 3–033
Seaga v Harper [2008] UKPC 9; [2009] 1 A.C. 1; [2008] 3 W.L.R. 478 14–
022
Searles v Scarlett [1892] 2 Q.B. 56 CA 14–029
Sebry v Companies House [2015] EWHC 115 (QB); [2016] 1 W.L.R. 2499;
[2015] 4 All E.R. 681; [2015] B.C.C. 236; [2015] 1 B.C.L.C. 670 3–
027, 3–041
Secretary of State for Health v Servier Laboratories Ltd [2019] EWCA Civ
1160; [2019] 3 W.L.R. 938; [2020] 2 All E.R. 514 12–018
Seddon v Driver and Vehicle Licensing Agency [2019] EWCA Civ 14;
[2019] 1 W.L.R. 4593; [2019] R.T.R. 32 3–027
Sedleigh-Denfield v O’Callagan (Trustees for St Joseph’s Society for
Foreign Missions) [1940] A.C. 880; [1940] 3 All E.R. 349 HL 1–005,
10–004, 10–021, 10–022, 10–023, 10–024, 10–035
Sefton v Tophams Ltd. See Earl of Sefton v Tophams Ltd (No.2)
Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue
Commissioners [2007] UKHL 34; [2008] 1 A.C. 561; [2007] 3 W.L.R.
354 7–023
Senior v Ward (1859) 1 El. & El. 385; 120 E.R. 954 7–002
Severn Trent Water Ltd v Barnes [2004]
EWCA Civ 570; [2004] 2 E.G.L.R. 95; [2004] 26 E.G. 194 17–016
Seymour v Butterworth (1862) 3 F. & F. 372; 176 E.R. 166 14–004
Shah v Standard Chartered Bank [1999] Q.B. 241; [1998] 3 W.L.R. CA
(Civ Div) 13–018
Shapiro v La Morta (1923) 40 T.L.R. 201 14–043
Shaw v Redbridge LBC [2005] EWHC 150 (QB); [2005] E.L.R. 320 2–042
Shaw, Savill & Albion Co ltd v Commonwealth (1940) 66 C.L.R. 344 2–
054
Shelfer v City of London Electric Lighting Co (No.1); Meux’s Brewery Co
v City of London Electric Lighting Co [1895] 1 Ch. 287 CA 10–065,
17–063
Shelley v Paddock [1980] Q.B. 348; [1980] 2 W.L.R. 647 CA (Civ Div) 6–
035
Shiffman v Order of the Hospital of St John of Jerusalem [1936] 1 All E.R.
557 10–056, 10–068
Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614
(QB); (2015) 144 B.M.L.R. 136 4–030
Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] A.C.
871; [1985] 2 W.L.R. 480 HL 5–025, 5–026
Siddorn v Patel [2007] EWHC 1248 (QB) QBD 8–037
Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 W.L.R. 523;
[2011] I.C.R. 391 6–015, 6–019
Sihler-Jauch v Germany (68273/10) [2016] E.C.H.R. 456 15–009
Silkin v Beaverbrook Newspapers [1958] 1 W.L.R. 743; [1958] 2 All E.R.
516 QBD 14–007
Silkman v Heard unreported 28 February 2001 QBD 14–002
Silver v United Kingdom (1983) 6 E.H.R.R. 62 17–018
Silverton v Gravett unreported 19 October 2001 QBD 11–030
Sim v Stretch [1936] 2 All E.R. 1237 HL 13–010, 13–018
Simaan General Contracting Co v Pilkington Glass Ltd [1988] Q.B. 758;
[1988] 2 W.L.R. 761 CA (Civ Div) 3–014
Simkiss v Rhondda BC 81 L.G.R. 460 CA (Civ Div) 8–021
Simmons v British Steel Plc [2004] UKHL 20; 2004 S.C. (H.L.) 94; 2004
S.L.T. 595; [2004] I.C.R. 585 4–014
Simmons v Castle [2012] EWCA Civ 1288; [2013] 1 W.L.R. 1239; [2013]
1 All E.R. 334 1–024, 17–039
Simmons v Mitchell (1880-81) L.R. 6 App. Cas. 156 PC (Wind) 13–004
Simms v Simms; sub nom. A v A; JS v An NHS Trust; DS v JS; PA v JA
[2002] EWHC 2734 (Fam); [2003] Fam. 83; [2003] 2 W.L.R. 1465 11–
022
Simon v Lyder [2019] UKPC 38; [2019] 3 W.L.R. 537; [2019] E.M.L.R. 26
13–015
Simonds v Isle of Wight Council [2003] EWHC 2303; [2004] E.L.R. 59;
(2003) 100(39) L.S.G. 40 8–036
Sindell v Abbott Laboratories, 607 P. 2d 924 (1980) 6–007
Singh v City of Cardiff Council [2017] EWHC 1499 (QB) 8–023
Singh v Reading BC; sub nom. Singh v Moorlands Primary School
Governing Body [2013] EWCA Civ 909; [2013] 1 W.L.R. 3052; [2013]
C.P. Rep. 46 14–012
Sion v Hampstead HA [1994] 5 Med. L.R. 170; [1994] J.P.I.L. 241 CA (Civ
Div) 4–030
Sirros v Moore [1975] Q.B. 118; [1974] 3 W.L.R. 459 CA (Civ Div) 2–059
Six Carpenters Case 77 E.R. 695; (1610) 8 Co. Rep. 146a QB 11–040
Skinner v Secretary of State for Transport, Times, 3 January 1995, QBD 2–
050
Slater v Swann, 93 E.R. 906; (1731) 2 Str. 872 KB 11–048
Slim v Daily Telegraph [1968] 2 Q.B. 157; [1968] 2 W.L.R. 599 CA (Civ
Div) 14–007
Slipper v BBC [1991] 1 Q.B. 283; [1990] 3 W.L.R. 967 CA (Civ Div) 13–
018, 13–019
Smith v Ainger, Times, 5 June 1990; Independent, 21 May 1990 CA (Civ
Div) 9–045, 9–046
Smith v Charles Baker & Sons [1891] A.C. 325 HL 7–002, 7–003, 16–007
Smith v Chief Constable of Sussex. See Van Colle v Chief Constable of
Hertfordshire
Smith v Crossley Brothers (1971) 95 S.J. 655 CA 7–005
Smith v Eric S Bush (A Firm); Harris v Wyre Forest DC [1990] 1 A.C. 831;
[1989] 2 W.L.R. 790 HL 3–033, 3–034, 3–045
Smith v Finch [2009] EWHC 53 (QB) 16–025
Smith v Fordyce [2013] EWCA Civ 320 5–030, 5–032
Smith v Johnson & Co unreported 4–006
Smith v Lancashire Teaching Hospitals NHS Trust; sub nom. Bulloch
(Deceased), Re [2017] EWCA Civ 1916; [2018] Q.B. 804; [2018] 2
W.L.R. 1063 1–020, 17–057
Smith v Leech Brain & Co [1962] 2 Q.B. 405; [1962] 2 W.L.R. 148 QBD
6–033
Smith v Linskills [1996] 1 W.L.R. 763; [1996] 2 All E.R. 353 CA (Civ Div)
2–063
Smith v Littlewoods Organisation Ltd. See Maloco v Littlewoods
Organisation Ltd.
Smith v London & South Western Railway Co (1870-71) L.R. 6 C.P. 14 Ex
Chamber 6–030
Smith v Manchester Corp; sub nom. Smith v Manchester CC (1974) 17
K.I.R. 1; (1974) 118 S.J. 597 CA (Civ Div) 17–025
Smith v Ministry of Defence; Allbutt v Ministry of Defence; Ellis v
Ministry of Defence; Redpath v Ministry of Defence; sub nom. Ministry
of Defence v Ellis; Ministry of Defence v Allbutt [2013] UKSC 41;
[2014] 1 A.C. 52; [2013] 3 W.L.R. 69 1–020, 2–049, 2–054
Smith v Morrison; sub nom. Morrison’s Contracts, Re; Smith v Chief Land
Registrar [1974] 1 W.L.R. 659; [1974] 1 All E.R. 957 Ch D 12–004
Smith v Scott [1973] Ch. 314; [1972] 3 W.L.R. 783 Ch D 10–026
Smith v Stages [1989] A.C. 928; [1989] 2 W.L.R. 529 HL 7–034
Smith v Stone (1647) Style 65; 82 E.R. 533 11–034
Smithies v National Association of Operative Plasterers [1909] 1 K.B. 310
CA 12–013
Smoker v London Fire and Civil Defence Authority; Wood v British Coal
Corp [1991] 2 A.C. 502; [1991] 2 W.L.R. 1052 HL 17–031
Smoldon v Whitworth [1997] E.L.R. 249; [1997] P.I.Q.R. P133 CA (Civ
Div) 5–019
South Australia Asset Management Corp v York Montague Ltd; United
Bank of Kuwait Plc v Prudential Property Services Ltd; Nykredit
Mortgage Bank Plc v Edward Erdman Group Ltd [1997] A.C. 191;
[1996] 3 W.L.R. 87 HL 16–026
South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1
Q.B. 133 CA 13–021, 14–004
South Wales Miners Federation v Glamorgan Coal Co Ltd; sub nom.
Glamorgan Coal Co Ltd v South Wales Miners Federation [1905] A.C.
239 HL 12–010, 12–015
Southern Gas Networks Plc v Thames Water Utilities Ltd [2018] EWCA
Civ 33; [2018]
1 W.L.R. 5977; [2018] 2 All E.R. 717 10–072
Southport Corp v Esso Petroleum Co Ltd. See Esso Petroleum Co Ltd v
Southport Corp
Southwark LBC v Dennett [2007] EWCA Civ 1091; [2008] H.L.R. 23;
[2008] B.L.G.R. 94 11–033
Southwark LBC v Mills; sub nom. Southwark LBC v Tanner; Baxter v
Camden LBC (No.2) [2001] 1 A.C. 1; [1999] 3 W.L.R. 939 HL 10–004,
10–026
Southwark LBC v Williams; Southwark LBC v Anderson [1971] Ch. 734;
[1971] 2 W.L.R. 467 CA (Civ Div) 11–039
Southwark v Williams; Southwark LBC v Anderson [1971] Ch. 734; [1971]
2 W.L.R. 467 CA (Civ Div) 11–039
Sowande v Crown Prosecution Service [2017] EWHC 1234 (Admin) 11–
026
Spargo v North Essex DHA [1997] P.I.Q.R. P235; [1997] 8 Med. L.R. 125
CA (Civ Div) 16–031
Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] Q.B.
27; [1972] 3 W.L.R. 502 CA (Civ Div) 3–004, 3–006, 3–008, 3–009 3–
010, 3–014, 9–008
Spencer v Secretary of State for Work and Pensions; Moore v Secretary of
State for Transport [2008] EWCA Civ 750; [2009] Q.B. 358; [2009] 2
W.L.R. 593 7–024
Spencer v Wincanton Holdings Ltd (Wincanton Logistics Ltd) [2009]
EWCA Civ 1404; [2010] P.I.Q.R. P8; (2010) 154(1) S.J.L.B. 29 6–026
Spicer v Smee [1946] 1 All E.R. 489 KBD 10–020
Spiller v Joseph. See Joseph v Spiller
Spring v Guardian Assurance Plc [1995] 2 A.C. 296; [1994] 3 W.L.R. 354
HL 3–038, 3–039, 3–045, 3–047, 14–019, 14–043
St Anne’s Well Brewery Co v Roberts (1928) 140 L.T. 1 10–024
St George v Home Office [2008] EWCA Civ 1068; [2009] 1 W.L.R. 1670;
[2008] 4 All E.R. 1039 16–022
St George’s Healthcare NHS Trust v S (Guidelines); R. v Collins Ex p. S
(No.2) [1999] Fam. 26; (1997-98) 1 C.C.L. Rep. 578 CA (Civ Div) 11–
020
St Helen’s Smelting Co v Tipping. See Tipping v St Helen’s Smelting Co
St John Poulton’s Trustee in Bankruptcy v Ministry of Justice; sub nom.
Trustee in Bankruptcy of St John Poulton v Ministry of Justice [2010]
EWCA Civ 392; [2011] Ch. 1; [2010] 3 W.L.R. 1237 7–013
Standard Chartered Bank v Pakistan National Shipping Corp (No.2);
Standard Chartered Bank v Mehra [2002] UKHL 43; [2003] 1 A.C. 959;
[2002] 3 W.L.R. 1547 11–025, 16–019, 16–020
Stanley v Saddique [1992] Q.B. 1; [1991] 2 W.L.R. 459 CA (Civ Div) 17–
055, 17–056
Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248; [2014] Q.B.
1; [2013] 3 W.L.R. 623 10–050, 10–053
Stansbie v Troman [1948] 2 K.B. 48; [1948] 1 All E.R. 599 CA 2–026, 6–
025
Stanton v Collinson [2010] EWCA Civ 81; [2010] C.P. Rep. 27; [2010]
R.T.R. 26 16–024
Stapley v Gypsum Mines Ltd [1953] A.C. 663; [1953] 3 W.L.R. 279 HL 6–
026, 16–020, 16–022
State of New South Wales v Ibbett [2006] HCA 57; (2007) 231 A.L.R. 485
17–014
Staton v National Coal Board [1957] 1 W.L.R. 893; [1957] 2 All E.R. 667
QBD 7–034
Staveley Iron and Chemical Co v Jones; sub nom. Jones v Staveley Iron and
Chemical
Co [1956] A.C. 627; [1956] 2 W.L.R. 479 HL 7–002
Steedman v BBC [2001] EWCA Civ 1534; [2002] E.M.L.R. 17; (2001)
98(47) L.S.G. 27 14–036
Steel v NRAM Ltd (formerly NRAM Plc) [2018] UKSC 13; [2018] 1
W.L.R. 1190; [2018] 3 All E.R. 81 3–036
Steel v United Kingdom (68416/01); Morris v United Kingdom (68416/01)
[2005] E.M.L.R. 15; (2005) 41 E.H.R.R. 22 13–021, 14–002
Stennett v Hancock [1939] 2 All E.R. 578 KBD 9–005
Stephens v Avery [1988] Ch. 449; [1988] 2 W.L.R. 1280 Ch D 15–005
Stephens v Myers, 172 E.R. 735; (1840) 4 C. & P. 349 Assizes 11–008
Stern v Piper [1997] Q.B. 123; [1996] 3 W.L.R. 715 CA (Civ Div) 13–018
Stevenson Jordan & Harrison v McDonnell & Evans [1952] 1 T.L.R. 101;
(1952) 69 R.P.C. 10 CA 7–030
Stevenson v Singh [2012] EWHC 2880 (QB) 12–028
Stocker v Stocker [2019] UKSC 17; [2019] 2 W.L.R. 1033; [2019] 3 All
E.R. 647 13–014
Stoke on Trent City Council v B&Q (Retail) Ltd; Wolverhampton BC v
B&Q (Retail) Ltd; Barking and Dagenham LBC v Home Charm Retail
[1984] A.C. 754; [1984] 2 W.L.R. 929 HL 10–047
Stoke on Trent v W & J Wass Ltd (No.1) [1988] 1 W.L.R. 1406; [1988] 3
All E.R. 394 CA (Civ Div) 17–016
Stokes v Guest Keen & Nettlefold (Bolt & Nuts) Ltd [1968] 1 W.L.R. 1776;
5 K.I.R. 401 Assizes 5–014, 7–010
Stone & Rolls Ltd (In Liquidation) v Moore Stephens (A Firm); sub nom.
Moore Stephens (A Firm) v Stone & Rolls Ltd (In Liquidation) [2009]
UKHL 39; [2009] 1 A.C. 1391; [2009] 3 W.L.R. 455 16–015
Stone v Taffe [1974] 1 W.L.R. 1575; [1974] 3 All E.R. 1016 CA (Civ Div)
8–038
Storey v Ashton (1868-69) L.R. 4 Q.B. 476 QB 7–034
Storey v Challands, 173 E.R. 475; (1837) 8 Car. & P. 234 QB 13–002
Stott v Gamble [1916] 2 K.B. 504 KBD 12–014
Stovin v Wise [1996] A.C. 923; [1996] 3 W.L.R. 388 HL 1–008, 2–022, 2–
023, 2–032, 2–033, 2–034, 2–035, 2–036
Street v Mountford [1985] A.C. 809; [1985] 2 W.L.R. 877 HL 10–027
Stuart v Bell [1891] 2 Q.B. 341 CA 14–017
Stubbings v United Kingdom (22083/93) [1997] 1 F.L.R. 105; [1997] 3
F.C.R. 157; (1997) 23 E.H.R.R. 213 ECHR 16–034
Stubbings v Webb [1993] A.C. 498; [1993] 2 W.L.R. 120 HL 16–034
Sturges v Bridgman; sub nom. Sturge v Bridgman (1879) L.R. 11 Ch. D.
852; (1879) 43 J.P. 716 CA 10–007, 10–033, 10–037
Sullivan v Moody (2001) 207 C.L.R. 562 HC (Aus) 2–015
Summers v Bundy [2016] EWCA Civ 126; [2016] P.I.Q.R. Q6 17–039
Summers v Tice, 119 P. 2d 1 (1948) 6–006, 6–007
Sumner v Colborne [2018] EWCA Civ 1006; [2019] Q.B. 430; [2019] 2
W.L.R. 145 2–035
Sutherland Shire Council v Heyman [195595] P.N.L.R. 238; 157 C.L.R.
424; (1985) 60 A.L.R. 1 HC (Aus) 2–013
Sutherland v Hatton. See Barber v Somerset CC.
Sutradhar v Natural Environment Research Council [2006] UKHL 33;
[2006] 4 All E.R. 490; [2007] Env. L.R. 10 2–019, 2–020, 2–022, 2–057
Swain v Natui Ram Puri [1996] P.I.Q.R. P442 CA (Civ Div) 8–037
Swift v Secretary of State for Justice [2013] EWCA Civ 193; [2013] 3
W.L.R. 1151; [2013] 2 F.C.R. 1 17–052
Swinney v Chief Constable of Northumbria (No.1) [1997] Q.B. 464; [1996]
3 W.L.R. 968 CA (Civ Div) 2–045
Swinney v Chief Constable of Northumbria (No.2) (1999) 11 Admin. L.R.
811 QBD 2–045
Swiss Bank Corp v Lloyds Bank Ltd [1982] A.C. 584; [1981] 2 W.L.R. 893
HL 12–006
Sykes v North Eastern Railway (1875) 44 L.J. C.P. 191 17–053
Szalatnay-Stacho v Fink [1947] K.B. 1; [1946] 2 All E.R. 231 CA 14–014
T (Adult: Refusal of Treatment), Re; sub nom. T (Consent to Medical
Treatment) (Adult Patient), Re [1993] Fam. 95; [1992] 3 W.L.R. 782
CA (Civ Div) 11–020
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd (No.1) [1986] A.C.
80; [1985] 3 W.L.R. 317 PC (HK) 1–017
Talbot v Berkshire CC [1994] Q.B. 290; [1993] 3 W.L.R. 708 CA (Civ Div)
17–005
Tameside and Glossop Acute Services NHS Trust v Thompstone; South
West London SHA v De Haas; United Bristol Healthcare NHS Trust v
RH; South Yorkshire SHA v Corbett; sub nom. Thompstone v Tameside
and Glossop Acute Services NHS Trust [2008] EWCA Civ 5; [2008] 1
W.L.R. 2207; [2008] 2 All E.R. 537 17–047
Tamiz v Google Inc [2013] EWCA Civ 68; [2013] 1 W.L.R. 2151; [2013]
E.M.L.R. 14 13–019, 14–033
Targett v Torfaen BC [1992] 3 All E.R. 27; (1992) 24 H.L.R. 164 CA (Civ
Div) 3–022
Tarleton v McGawley, 170 E.R. 153; (1794) 1 Peake 270 KB 12–017, 12–
019
Tarry v Ashton (1875-76) L.R. 1 Q.B.D. 314 QBD 7–039, 10–046
Taylor v A Novo (UK) Ltd 013] EWCA Civ 194; [2014] Q.B. 150; [2013]
3 W.L.R. 989 4–024, 4–044
Taylor v Glasgow City Council; sub nom. Taylor v Glasgow Corp [1922] 1
A.C. 44; [1921] All E.R. Rep. 1 HL 8–017, 8–021, 8–034
Taylor v Somerset HA [1993] P.I.Q.R. P262; [1993] 4 Med. L.R. 34 QBD
4–039
Taylorson v Shieldness Produce Ltd [1994] P.I.Q.R. P329 CA (Civ Div) 4–
039
Tchenguiz v Imerman; Imerman v Imerman; sub nom. Imerman v
Tchenguiz [2010] EWCA Civ 908; [2011] Fam. 116; [2011] 2 W.L.R.
592 15–005
TCP Europe Ltd v Perry [2012] EWHC 1940 (QB) 12–006
Tedstone v Bourne Leisure Ltd (t/a Thoresby Hall Hotel & Spa) [2008]
EWCA Civ 654; (2008) 152(19) S.J.L.B. 32 8–020
Telnikoff v Matusevitch [1992] 2 A.C. 343; [1991] 3 W.L.R. 952 HL 14–
006
Tesco Stores Ltd v Pollard [2006] EWCA Civ 393; (2006) 103(17) L.S.G.
23; (2006) 150 S.J.L.B. 537 9–022
Tesla Motors Ltd v BBC [2013] EWCA Civ 152; (2013) 163 N.L.J. 290
14–043
Tetley v Chitty [1986] 1 All E.R. 663; (1985) 135 N.L.J. 1009 QBD 10–026
Thake v Maurice [1986] Q.B. 644; [1986] 2 W.L.R. 337 CA (Civ Div) 2–
053
Thames Trains Ltd v Health and Safety Executive; sub nom. Health and
Safety Executive v Thames Trains Ltd [2003] EWCA Civ 720; (2003)
147 S.J.L.B. 661 7–013
Theaker v Richardson [1962] 1 W.L.R. 151; [1962] 1 All E.R. 229 CA 13–
018
Theakston v MGN Ltd [2002] EWHC 137 (QB); [2002] E.M.L.R. 22 15–
009Thomas v Brighton HA; Page v Sheerness Steel Co Plc. See Wells v
Wells
Thomas v Kwik Save Stores Ltd Times, 27 June 2000 CA (Civ Div) 17–053
Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch.
20; [1985] 2 W.L.R. 1081 Ch D 11–010
Thomas v News Group Newspapers Ltd; sub nom. Thomas v News Group
International Ltd; Thomas v Hughes [2001] EWCA Civ 1233; [2002]
 E.M.L.R. 4; (2001) 98(34) L.S.G. 43 11–029
Thomas v Quartermaine (1887) L.R. 18 Q.B.D. 685 CA 2–008
Thomas v Sorrell, 124 E.R. 1098; (1673) Vaugh. 330 CCP 11–038
Thompson v Brown (t/a George Albert Brown (Builders) & Co); sub nom.
Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 1 W.L.R.
744; [1981] 2 All E.R. 296 HL 16–033
Thompson v Commissioner of Police of the Metropolis; Hsu v
Commissioner of Police of the Metropolis [1998] Q.B. 498; [1997] 3
W.L.R. 403 CA (Civ Div) 11–002, 17–008
Thompson v Gibson, 151 E.R. 845; (1841) 7 M. & W. 456 Ex Ct 10–018
Thompson-Schwab v Costaki; sub nom. Ex p. Thompson-Schwab and
Wingate [1956] 1 W.L.R. 335; [1956] 1 All E.R. 652 CA 10–030
Thompstone v Tameside and Glossop Acute Services NHS Trust. See
Tameside and Glossop Acute Services NHS Trust v Thompstone
Thomson v Cremin; sub nom. Cremin v Thomson [1956] 1 W.L.R. 103
(Note); [1953] 2 All E.R. 1185 HL 8–024
Thornton v Telegraph Media Group 13–011
Three Rivers DC v Bank of England (No.3) [2001] UKHL 16; [2003] 2
A.C. 1; [2000] 2 W.L.R. 1220 HL 7–024, 11–033
Tibbs v Islington LBC [2002] EWCA Civ 1682; [2003] B.P.I.R. 743;
[2003] Po. L.R. 248 11–032
Tilbrook v Parr [2012] EWHC 1946 (QB) 13–017
Times Newspapers Ltd v Flood; Miller v Associated Newspapers Ltd; Frost
v MGN Ltd [2017] UKSC 33; [2017] 1 W.L.R. 1415; [2017] 4 All E.R.
733 1–024
Times Newspapers Ltd v United Kingdom (3002/03); Times Newspapers
Ltd v United Kingdom (23676/03) [2009] E.M.L.R. 14 ECHR 14–034
Tinsley v Milligan [1994] 1 A.C. 340; [1993] 3 W.L.R. 126 HL 16–015
Tipping v St Helen’s Smelting Co (1865) 11 H.L.C. 642; 11 E.R. 1483 10–
003
Titchener v British Railways Board [1983] 1 W.L.R. 1427; [1983] 3 All
E.R. 770 HL 16–005
Todd v Adams (t/a Trelawney Fishing Co) (The Maragetha Maria); sub
nom. Todd v Adam [2002] EWCA Civ 509; [2002] 2 All E.R. (Comm)
97; [2002] 2 Lloyd’s Rep. 293 7–015, 7–031
Tolley v JS Fry & Sons Ltd [1931] A.C. 333 HL 13–010, 13–013, 15–002
Tolstoy Miloslavsky v United Kingdom (A/323) [1996] E.M.L.R. 152;
(1995) 20 E.H.R.R. 442 ECHR 14–038
Tomlinson v Congleton BC [2003] UKHL 47; [2004] 1 A.C. 46; [2003] 3
W.L.R. 705 1–028, 2–035, 5–013, 8–023, 8–035, 8–036, 8–037
Toogood v Spyring, 149 E.R. 1044; (1834) 1 Cr. M. & R. 181 KB 14–019
Topp v London Country Bus (South West)
Ltd [1993] 1 W.L.R. 976; [1993] 3 All E.R. 448 CA (Civ Div) 6–025
Total Network SL v Revenue and Customs Commissioners. See Customs
and Excise Commissioners v Total Network SL
Totham v King’s College Hospital NHS Foundation Trust [2015] EWHC 97
(QB); [2015] Med. L.R. 55 17–024
TP v United Kingdom (28945/95) [2001] 2 F.L.R. 549; [2001] 2 F.C.R. 289
ECHR 2–065
Traghetti del Mediterraneo SpA (In Liquidation) v Italy (C-173/03)
EU:C:2006:391; [2006] E.C.R. I-5177; [2006] All E.R. (EC) 983;
[2006] 3 C.M.L.R. 19 7–023
Transco Plc v Stockport MBC; Stockport MBC v Reddish Vale Golf Club;
sub nom. British Gas Plc v Stockport MBC; Stockport MBC v British
Gas Plc; [2003] UKHL 61; [2004] 2 A.C. 1; [2003] 3 W.L.R. 1467 10–
001, 10–042, 10–050, 10–052, 10–054, 10–056, 10–062, 10–068, 10–
073
Trapp v Mackie [1979] 1 W.L.R. 377; [1979] 1 All E.R. 489 HL 14–012
Trecarrell, The [1973] 1 Lloyd’s Rep. 402 QBD (Admlty) 6–031
Tremain v Pike [1969] 1 W.L.R. 1556; [1969] 3 All E.R. 1303 Assizes
(Exeter) 6–030
Trotman v North Yorkshire County Council [1999] L.G.R. 584 7–036
Tse Wai Chun Paul v Albert; sub nom. Albert v Tse Wai Chun Paul [2001]
E.M.L.R. 31; [2001] E.M.L.R. 777 CFA (HK) 14–005, 14–007
Tuberville v Savage (1669) 1 Mod. Rep. 3; 86 E.R. 684 11–011
Tullett Prebon Plc v BGC Brokers LP; BGC Brokers LP v Tullett Prebon
Plc [2011] EWCA Civ 131; [2011] I.R.L.R. 420 12–028
Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB) 14–002
Turnbull v Warrener [2012] EWCA Civ 412; [2012] P.I.Q.R. P16; (2012)
156(14) S.J.L.B. 31 9–045, 9–049, 9–051
Turner v Metro Goldwyn Mayer Pictures [1950] 1 All E.R. 449; 66 T.L.R.
342 HL 14–007
Turner v Sterling (1671) 2 Vent 25 11–033
Tutton v AD Walter Ltd [1986] Q.B. 61; [1985] 3 W.L.R. 797 QBD 8–035
Twine v Bean’s Express Ltd [1946] 1 All E.R. 202; (1945) 62 T.L.R. 458;
(1946) 175 L.T. 131 KBD 7–035
Ultramares Corp v Touche, 255 N.Y. Rep. 170 (1931); 174 N.E. Rep. 441
(1931) 1–015
Undre v Harrow LBC [2016] EWHC 931 (QB); [2017] E.M.L.R. 3 13–011
Unilever Plc v Chefaro Proprietaries Ltd (Discovery) [1994] F.S.R. 135 CA
(Civ Div) 12–011
United States v Carroll Towing Co, 159 F. 2d 169 (1947) 5–015
Uren v John Fairfax & Sons Pty Ltd (1966) 117 C.L.R. 118 HC (Aus.) 17–
014
Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 K.B. 248
CA 7–036
Vacwell Engineering Co Ltd v BDH Chemicals Ltd; sub nom. Vacwell
Engineering Co v British Drug House Chemicals [1971] 1 Q.B. 111;
[1970] 3 W.L.R. 67 CA (Civ Div) 6–032, 9–009, 9–010
Van Colle v Chief Constable of Hertfordshire; Smith v Chief Constable of
Sussex; sub nom. Chief Constable of Hertfordshire v Van Colle [2008]
UKHL 50; [2009] 1 A.C. 225; [2008] 3 W.L.R. 593 2-039, 2–040, 2–
045, 2–046, 2–047, 2–048, 2–066, 11–032
Van Colle v United Kingdom (7678/09) (2013) 56 E.H.R.R. 23 ECHR 2–
047
Van Marle v Netherlands (A/101); sub nom. Van Marle v Netherlands
(8543/79) (1986) 8 E.H.R.R. 483 ECHR 2–040
Various Claimants v Catholic Child Welfare Society. See Various Claimants
v Institute of the Brothers of the Christian Schools
Various Claimants v Institute of the Brothers of the Christian Schools; sub
nom; Catholic Child Welfare Society v Various ClaimantsVarious
Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2
A.C. 1; [2012] 3 W.L.R. 1319 7–025, 7–030, 7–031, 7–032, 7–033, 7–
036, 7–037, 7–038, 7–040
Veakins v Kier Islington Ltd [2009] EWCA Civ 1288; [2010] I.R.L.R. 132
11–029
Veliu v Mazrekaj [2006] EWHC 1710 (QB); [2007] 1 W.L.R. 495 14–031
Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249;
[2002] 1 W.L.R. 218; [2002] 3 All E.R. 78 2–045, 16–015, 16–016
Vernon v Bosley (No.1) [1997] 1 All E.R. 577; [1997] R.T.R. 1 CA (Civ
Div) 4–002, 4–008
Verrall v Great Yarmouth BC [1981] Q.B. 202; [1980] 3 W.L.R. 258 CA
(Civ Div) 11–038
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005]
EWCA Civ 1151; [2006] Q.B. 510; [2006] 2 W.L.R. 428 7–032
Victorian Railway Commissioners v Coultas (1888) L.R. 13 App. Cas. 222
PC (Aus) 1–012, 4–004, 4–005
Vidal-Hall v Google Inc; sub nom. Google Inc v Vidal-Hall [2015] EWCA
Civ 311; [2016] Q.B. 1003; [2015] 3 W.L.R. 409 15–005
Videan v British Transport Commission [1963] 2 Q.B. 650; [1963] 3
W.L.R. 374 CA 4–035
Vizetelly v Mudie’s Select Library Ltd [1900] 2 Q.B. 170 CA 14–032
Vodden v Gayton [2001] P.I.Q.R. P4 QBD 8–012
Von Hannover v Germany (40660/08 and 60641/08) [2012] E.M.L.R. 16;
(2012) 55 E.H.R.R. 15 15–009
Von Hannover v Germany (59320/00) [2004] E.M.L.R. 21; (2005) 40
E.H.R.R. 1 ECHR 15–003, 15–007, 15–008, 15–009
Vowles v Evans [2003] EWCA Civ 318; [2003] 1 W.L.R. 1607; [2003]
E.C.C. 24 2–058, 5–019
Vukelic v Hammersmith and Fulham LBC [2003] EWHC 188 QBD (TCC)
10–068
W (A Child) v Northern General Hospital NHS Trust (Structured
Settlements) [2000] 1 W.L.R. 1404; [2000] P.I.Q.R. Q284 CA (Civ Div)
17–022
W (A Minor) (Medical Treatment: Court’s Jurisdiction), Re; sub nom. J (A
Minor) (Consent to Medical Treatment), Re [1993] Fam. 64; [1992] 3
W.L.R. 758 11–020
W (Adult: Refusal of Medical Treatment), Re [2002] EWHC 901 (Fam);
[2002] M.H.L.R. 411; [2002] Prison L.R. 286 11–020
W v Essex CC [2001] 2 A.C. 592; [2000] 2 W.L.R. 601; [2000] 2 All E.R.
237 HL 24–002, 4–002, 4–008, 4–030, 4–033
W v SanofiPasteur MSD SNC (C-621/15); sub nom. NW v SanofiPasteur
MSD SNC (C-621/15) EU:C:2017:484; [2017] 4 W.L.R. 171; [2018] 1
C.M.L.R. 16 9–036
Wagner v International Railway Co, 232 N.Y. Rep. 176 (1921) 4–035
Wagon Mound (No.1), The. See Overseas
 Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon
Mound) (No.1)
Wagon Mound (No.2), The. See Overseas Tankship (UK) Ltd v Miller
Steamship Co Pty Ltd (The Wagon Mound) (No.2)
Wainwright v Home Office; sub nom. Secretary of State for the Home
Department v Wainwright; Wainwright v Secretary of State for the
Home Department [2003] UKHL 53; [2004] 2 A.C. 406; [2003] 3
W.L.R. 1137 7–015, 11–017, 15–004, 15–005, 15–006
Wainwright v United Kingdom (12350/04) (2007) 44 E.H.R.R. 40; 22
B.H.R.C. 287 ECHR 15–004
Wakley v Cooke (1849) 4 Exch. 511; 154 E.R. 1316 14–002
Walker v Commissioner of Police of the Metropolis [2014] EWCA Civ
897; [2015] 1 W.L.R. 312; [2015] 1 Cr. App. R. 22 11–013
Walker v Geo H Medlicott & Son [1999] 1 W.L.R. 727; [1999] 1 All E.R.
685, CA (Civ Div) 3–042
Walker v Northumberland CC [1995] 1 All E.R. 737; [1995] I.C.R. 702
QBD 4–002, 5–008, 7–009
Wallett v Vickers [2018] EWHC 3088 (QB); [2019] Lloyd’s Rep. I.R. 205;
[2019] P.I.Q.R. P6 16–013
Walter v Selfe, 64 E.R. 849; (1851) 4 De G. & Sm. 315; (1851) 20L.J. Ch.
433 QB 10–003
Walters v North Glamorgan NHS Trust; sub nom. North Glamorgan NHS
Trust v Walters [2002] EWCA Civ 1792; [2003] P.I.Q.R. P16; [2003]
Lloyd’s Rep. Med. 49 4–030
Wan v Fung [2003] 7 C.L. 113, QBD 17–044
Wandsworth LBC v A [2000] 1 W.L.R. 1246; (2001) 3 L.G.L.R. 3 CA (Civ
Div) 11–038 TABLE OF CASES xci
Wandsworth LBC v Railtrack Plc; sub nom. Railtrack Plc v Wandsworth
LBC [2001] EWCA Civ 1236; [2002] Q.B. 756; [2002] 2 W.L.R. 512
10–021, 10–047
Waple v Surrey CC [1998] 1 W.L.R. 860; [1998] 1 All E.R. 624 CA (Civ
Div) 14–012
Ward v Coope; sub nom. Coope v Ward [2015] EWCA Civ 30; [2015] 1
W.L.R. 4081 10–023
Ward v Leeds Teaching Hospitals NHS Trust [2004] EWHC 2106 (QB);
[2004] Lloyd’s Rep. Med. 530 4–002
Ward v London CC [1938] 2 All E.R. 341 5–012
Ward v Tesco Stores Ltd; sub nom. Tesco Stores Ltd v Ward [1976] 1
W.L.R. 810; [1976] 1 All E.R. 219 CA (Civ Div) 5–032, 5–035
Warren v Northern General Hospital NHS Trust (Structured Settlements).
See W (A Child) v Northern General Hospital NHS Trust (Structured
Settlements)
Warren v Random House Group Ltd [2008] EWCA Civ 834; [2009] Q.B.
600; [2009] 2 W.L.R. 314 14–031
Wason v Walter (1868-69) L.R. 4 Q.B. 73 QB 14–027
Wasserman v Freilich [2016] EWHC 312 (QB) 14–005
Waters v Commissioner of Police of the Metropolis [2000] 1 W.L.R. 1607;
[2000] 4 All E.R. 934 HL 2–045, 7–004, 7–005
Waterson v Lloyd [2013] EWCA Civ 136; [2013] E.M.L.R. 17 14–005
Watkins v Secretary of State for the Home Department; sub nom. Watkins v
Home Office [2006] UKHL 17; [2006] 2 A.C. 395; [2006] 2 W.L.R.
807 11–033, 17–009
Watson v British Boxing Board of Control Ltd
[2001] Q.B. 1134; [2001] 2 W.L.R. 1256 CA (Civ Div) 2–057, 2–058
Watson v Buckley Osborne Garrett & Co Ltd [1940] 1 All E.R. 174 Assizes
(Manchester) 9–005, 9–009
Watson v Croft Promo-Sport Ltd; sub nom. Watson v Croft Promosport Ltd
[2009] EWCA Civ 15; [2009] 3 All E.R. 249; [2009] 2 E.G.L.R. 57 10–
065
Watson v McEwan; sub nom. McEwan v Watson; Watson v Jones [1905]
A.C. 480; (1905) 13 S.L.T. 340 HL 14–012
Watt v Hertfordshire CC [1954] 1 W.L.R. 835; [1954] 2 All E.R. 368 CA 5–
012
Watt v Longsdon [1930] 1 K.B. 130; 69 A.L.R. 1005 CA 14–019
Wattleworth v Goodwood Road Racing Co Ltd [2004] EWHC 140 (QB);
[2004] P.I.Q.R. P25 8–020
Wauchope v Mordecai [1970] 1 W.L.R. 317; [1970] 1 All E.R. 417 CA (Civ
Div) 5–029
Weaver v Ward, 80 E.R. 284; (1616) Hob. 134 KB 11–001
Webb v Barclays Bank Plc; Webb v Portsmouth Hospitals NHS Trust
[2001] EWCA Civ 1141; [2002] P.I.Q.R. P8; [2001] Lloyd’s Rep. Med.
500 6–024
Webb v Beavan (1882-83) L.R. 11 Q.B.D. 609 QBD 13–004
Webb v Times Publishing Co [1960] 2 Q.B. 535; [1960] 3 W.L.R. 352 QBD
14–028
Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62;
[2017] Med. L.R. 113; (2017) 154 B.M.L.R. 129 5–026
Weir v Bettison (Sued as Chief Constable of Merseyside); sub nom. Weir v
Chief Constable of Merseyside [2003] EWCA Civ 111; [2003] I.C.R.
708; [2003] Po. L.R. 32 7–028
Weld-Blundell v Stephens [1920] A.C. 956 HL 13–018
Weldon v GRE Linked Life Assurance Ltd [2000] 2 All E.R. (Comm) 914
QBD 3–043
Weller & Co v Foot & Mouth Disease Research Institute [1966] 1 Q.B. 569;
[1965] 3 W.L.R. 1082 QBD 3–010, 10–056
Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176; [2016] 1
W.L.R. 1541; [2016] 3 All E.R. 357 15–008, 15–009
Wellesley Partners LLP v Withers LLP [2015] EWCA Civ 1146; [2016] Ch.
529; [2016] 2 W.L.R. 1351 3–008
Wells v Cooper [1958] 2 Q.B. 265; [1958] 3 W.L.R. 128 CA 5–022
Wells v University Hospital Southampton NHS Foundation Trust [2015]
EWHC 2376 (QB); [2015] Med. L.R. 477 4–030
Wells v Wells; Thomas v Brighton HA; Page v Sheerness Steel Co Plc
[1999] 1 A.C. 345; [1998] 3 W.L.R. 329 HL 17–019, 17–021, 17–022,
17–023, 17–042, 17–046
Welsh Ambulance Services NHS Trust v Williams [2008] EWCA Civ 81;
(2008) 105(9) L.S.G. 30 17–053
Welsh v Chief Constable of Merseyside [1993] 1 All E.R. 692 QBD 2–046
Welsh v Stokes [2007] EWCA Civ 796; [2008] 1 W.L.R. 1224; [2008] 1 All
E.R. 921 9–045, 9–046
Welton v North Cornwall DC [1997] 1 W.L.R. 570; (1997) 161 J.P. 114, CA
(Civ Div) 3–038
Wembridge Claimants v Winter [2013] EWHC 2331 (QB) 2–049
Wennhak v Morgan (1888) L.R. 20 Q.B.D. 635 QBD 13–018
West Bromwich Albion Football Club Ltd v El-Safty [2006] EWCA Civ
1299; [2007] P.I.Q.R. P7; [2007] LS Law Medical 50 3–036
West Sussex CC v Pierce [2013] EWCA Civ 1230; [2014] E.L.R. 62;
[2014] P.I.Q.R. P5 8–020
Whatman v Pearson (1867-68) L.R. 3 C.P. 422 CCP 7–034
Wheat v E Lacon & Co Ltd [1966] A.C. 552; [1966] 2 W.L.R. 581 HL 8–
012
Wheeler v Copas [1981] 3 All E.R. 405 QBD 8–013
Wheeler v JJ Saunders Ltd [1996] Ch. 19; [1995] 3 W.L.R. 466 CA (Civ
Div) 9–042, 10–007
Whippey v Jones [2009] EWCA Civ 452; (2009) 159 N.L.J. 598; (2009)
153(14) S.J.L.B. 27 5–008, 9–042
Whiston v London SHA [2010] EWCA Civ 195; [2010] 1 W.L.R. 1582;
[2010] 3 All E.R. 452 16–031
White v Blackmore [1972] 2 Q.B. 651; [1972] 3 W.L.R. 296; [1972] 3 All
E.R. 158 CA (Civ Div) 8–030, 16–011
White v Chief Constable of South Yorkshire; Frost v Chief Constable of
South Yorkshire; Duncan v British Coal Corp [1999] 2 A.C. 455; [1998]
3 W.L.R. 1509 HL 1–009, 4–001, 4–002, 4–003, 4–004, 4–009, 4–012,
4–013, 4–016, 4–018, 4–019, 4–021, 4–031, 4–032, 4–033, 4–034, 4–
037, 4–038, 4–044, 5–004, 7–009
White v ESAB Group (UK) Ltd [2002] P.I.Q.R. Q6 QBD 17–054
White v John Warwick & Co [1953] 1 W.L.R. 1285; [1953] 2 All E.R. 1021
CA 9–010
White v Jones [1995] 2 A.C. 207; [1995] 2 W.L.R. 187 HL 3–040, 3–041,
3–042, 3–043, 3–046
White v Mellin; sub nom. Mellin v White [1895] A.C. 154 HL 14–043
White v Southampton University Hospitals NHS Trust [2011] EWHC 825
(QB); [2011] Med. L.R. 296; (2011) 120 B.M.L.R. 81 14–012
White v St Albans City and District Council, Times, 12 March, 1990 CA
(Civ Div) 8–037
White v Withers LLP [2009] EWCA Civ 1122; [2010] 1 F.L.R. 859; [2009]
3 F.C.R. 435 11–047
Whitehouse v Jordan [1981] 1 W.L.R. 246; [1981] 1 All E.R. 267 HL 5–
027
Whiten v Pilot Insurance Company (2002) 209 D.L.R. (4th) 257 17–014
Whittington Hospital NHS Trust v XX; sub nom. XX v Whittington
Hospital NHS Trust [2020] UKSC 14; [2020] UKSC 14; [2020] 2
W.L.R. 972; [2020] P.I.Q.R. P12 17–033
Wieland v Cyril Lord Carpets Ltd [1969] 3 All E.R. 1006 QBD 6–026
Wigg v British Railways Board, Times, 4 February 1986, QB 4–032
Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC
4053 (QB); [2016] P.I.Q.R. P3 4–030
Wildtree Hotels Ltd v Harrow LBC [2001] 2 A.C. 1; [2000] 3 W.L.R. 165
HL 10–032
Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB); [2018] Q.B.
627; [2018] 2 W.L.R. 531 9–022, 9–038
Wilkins v Leighton [1932] 2 Ch. 106 Ch D 10–024
Wilkinson v Downton [1897] 2 Q.B. 57 QBD 4–005, 4–006, 11–002, 11–
017, 15–004
Wilks v Cheltenham Homeguard Motor Cycle & Light Car Club [1971] 1
W.L.R. 668; [1971] 2 All E.R. 369 CA (Civ Div) 5–019
Willers v Joyce [2016] UKSC 43; [2018] A.C. 779; [2016] 3 W.L.R. 477
11–032
Williams v Bermuda Hospitals Board [2016] UKPC 4; [2016] A.C. 888;
[2016] 2 W.L.R. 774 6–015
Williams v BOC Gases Ltd [2000] I.C.R. 1181; [2000] P.I.Q.R. Q253 CA
(Civ Div) 17–028
Williams v Cwm Taf Local Health Board [2018] EWCA Civ 1745 5–024
Williams v Fanshaw Porter & Hazelhurst [2004] EWCA Civ 157; [2004] 1
W.L.R. 3185; [2004] 2 All E.R. 616 16–035
Williams v Hawkes [2017] EWCA Civ 1846; [2018] R.T.R. 16 9–046, 9–
051
Williams v Humphrey, Times, 20 February, 1975 11–004
Williams v MGN Ltd [2009] EWHC 3150 (QB) 13–010
Williams v Natural Life Health Foods Ltd [1998] 1 W.L.R. 830; [1998] 2
All E.R. 577 HL 3–034, 3–038, 3–045
Williams v Reason [1988] 1 W.L.R. 96; [1988] 1 All E.R. 262 CA (Civ
Div) 14–003
Williams v Settle [1960] 1 W.L.R. 1072; [1960] 2 All E.R. 806 CA 15–002
Williams v University of Birmingham; sub nom. Williams (Deceased), Re
[2011] EWCA Civ 1242; [2012] E.L.R. 47; [2012] P.I.Q.R. P4 6–020
Willis v Derwentside DC [2013] EWHC 738 (Ch); [2013] Env. L.R. 31 10–
052
Willson v Ministry of Defence; sub nom. Wilson v Ministry of Defence
[1991] 1 All E.R. 638; [1991] I.C.R. 595 QBD 17–044
Willson v Pringle [1987] Q.B. 237; [1986] 3 W.L.R. 1 CA (Civ Div) 11–
006, 11–027
Wilsher v Essex AHA [1988] A.C. 1074; [1988] 2 W.L.R. 557 HL 5–022,
6–007, 6–012, 6–015, 6–017, 6–019, 7–005
Wilson and Clyde Coal Co v English [1938] A.C.57 7–003
Wilson v Lombank [1963] 1 W.L.R. 1294; [1963] 1 All E.R. 740 Assizes
(Somerset) 11–046, 11–049
Winter Garden Theatre (London) Ltd v Millennium Productions Ltd; sub
nom. Millennium Productions Ltd v Winter Garden Theatre (London)
Ltd [1948] A.C. 173; [1947] 2 All E.R. 331 HL 11–038
Winter v Hockley Mint Ltd; sub nom. Hockley Mint Ltd v Ramsden [2018]
EWCA Civ 2480; [2019] 1 W.L.R. 1617; [2019] 2 All E.R. 1054 7–36
Winterbottom v Derby (1866-67) L.R. 2 Ex. 316 Ex Ct 10–047
Winterbottom v Wright (1842) 10 M. & W. 109; 152 E.R. 402 2–007, 2–
008, 9–003
Winward v TVR Engineering [1986] B.T.L.C. 366 9–006
Wise v Kaye [1962] 1 Q.B. 638; [1962] 2 W.L.R. 96 CA 17–037
WM Morrison Supermarkets Plc v Various Claimants [2020] UKSC 12;
[2020] 2 W.L.R. 941; [2020] I.C.R. 874 7–025, 7–033, 7–037, 7–038,
7–040
Wolff v Trinity Logistics USA Inc [2018] EWCA Civ 2765; [2019] 1
W.L.R. 3997; [2019] 1 C.L.C. 116 12–007
Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721; [2003] 3 All
E.R. 932; (2002) 99(2) L.S.G. 28 11–002, 11–017
Woodland v Maxwell [2015] EWHC 273 (QB) 7–039
Woodland v Swimming Teachers Association; sub nom. Woodland v Essex
CC [2013] UKSC 66; [2013] 3 W.L.R. 1227; [2014] 1 All E.R. 482 2–
032, 7–039
Woodward v Mayor of Hastings [1945] K.B. 174 CA 8–024
Wookey v Wookey; S (A Minor) (Injunction to Restrain), Re [1991] Fam.
121; [1991] 3 W.L.R. 135 CA (Civ Div) 10–027
Wooldridge v Sumner [1963] 2 Q.B. 43; [1962] 3 W.L.R. 616 CA 5–019,
16–010
Worsley v Tambrands Ltd [2000] P.I.Q.R. P95 QBD 9–021, 9–023
Wright (A Child) v Cambridge Medical Group (A Partnership) [2011]
EWCA Civ 669; [2013] Q.B. 312; [2012] 3 W.L.R. 1124 6–014, 6–024
Wright v British Railways Board [1983] 2 A.C. 773; [1983] 3 W.L.R. 211,
HL 17–042
Wright v Dunlop Rubber Co; Cassidy v Dunlop Rubber Co (1972) 13
K.I.R. 255 CA (Civ Div) 9–006
Wright v Lodge; Kerek v Lodge; Wright v Shepherd [1993] 4 All E.R. 299;
[1993] R.T.R. 123 CA (Civ Div) 6–008, 6–024
Wringe v Cohen [1940] 1 K.B. 229 CA 10–046
X (Minors) v Bedfordshire CC; M (A Minor) v Newham LBC; E (A Minor)
v Dorset CC (Appeal); Christmas v Hampshire CC (Duty of Care);
Keating v Bromley LBC (No.2) [1995] 2 A.C. 633; [1995] 3 W.L.R.
152 HL 2–032, 2–038, 2–042, 7–013, 7–014, 7–015
Xv Schering Health Care Ltd; sub nom. XYZ v Schering Health Care Ltd
[2002] EWHC 1420; (2003) 70 B.M.L.R. 88 9–036
Yachuk v Oliver Blais Co Ltd [1949] A.C. 386; [1949] 2 All E.R. 150 PC
(Can) 16–021
YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB); [2019]
1 W.L.R. 1413; [2019] P.I.Q.R. Q2 4–017
Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512;
[2015] I.R.L.R. 112; [2015] I.C.R. D13 4–012, 7–009
Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB); [2015] 1 W.L.R.
971; [2014] 5 Costs L.O. 823 13–009
Yewens v Noakes (1880-81) L.R. 6 Q.B.D. 530 CA 7–029
YL v Birmingham City Council. See L v Birmingham City Council [2007]
UKHL 27; [2008] 1 A.C. 95; [2007] 3 W.L.R. 112
Yorkshire Dale Steamship Co Ltd v Minister of War Transport; Coxwold,
The [1942] A.C. 691; [1942] 2 All E.R. 6 HL 6–003
Young & Woods v West [1980] I.R.L.R. 201 CA (Civ Div) 7–028
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 T.L.R. 581;
99 A.L.R. 864 CA 13–002, 13–010
Yuen Kun Yeu v Attorney General of Hong Kong [1988] A.C. 175; [1987]
3 W.L.R. 776 PC (HK) 2–013, 2–022, 2–032, 2–035, 8–019
Z v United Kingdom (29392/95) [2001] 2 F.L.R. 612; [2001] 2 F.C.R. 246;
(2002) 34 E.H.R.R. 3 2–038, 2–046
Ziemniak v ETPM Deep Sea Ltd [2003] EWCA Civ 636; [2003] 2 All E.R.
(Comm) 283; [2003] 2 Lloyd’s Rep. 214 7–015
Zucchi v Waitrose Ltd, 2000 WL CA (Civ Div) 5–008
 Table of Statutes

1540 Act of Limitation 16–029

1840 Parliamentary Papers Act (c.9)
s.1 14–011
s.3 14–027
1843 Libel Act (c.96)
s.2 14–031
1845 Libel Act (c.75) 14–031
1861 Offences against the Person Act (c.100) 11–001
s.20 11–019
s.44 11–002
s.45 11–002
1888 Law of Libel Amendment Act (c.64) 14–030
s.3 14–013
1890 Partnership Act (c.39)
s.10 7–025
1891 Slander of Women Act (c.51) 13–006
s.1 13–006
1897 Workmen’s Compensation Act (c.37) 7–001
1909 Cinematograph Act (c.30) 12–014
1925 Workman’s Compensation Act (c.84) 6–024, 7–001
1930 Road Traffic Act (c.43) 7–016, 16–006
s.35(1) 7–015
1934 Law Reform (Miscellaneous Provisions) Act (c.41) 16–038, 17–049
s.1(1) 13–020, 16–040, 17–049
(2)(a) 17–024, 17–049
(c) 17–049
(4) 16–040
1934 Betting and Lotteries Act (c.58)
s.11(2) 7–013
1936 Public Health Act (c.49) 7–015
1939 Limitation Act (c.58)
s.26 16–035
1943 Workman’s Compensation Act (c.6) 7–001
1945 Law Reform (Contributory Negligence) Act (c.28) 7–002, 7–022, 8–
038, 10–031, 16–019, 17–049
s.1 10–059, 16–020, 17–060
(1) 9–033, 11–025, 16–019, 16–020, 16–023, 16–026
s.4 7–022, 9–033, 11–025, 16–020
1947 Crown Proceedings Act (c.44)
s.10 2–054
1948 Law Reform (Personal Injuries) Act (c.41) 7–002, 17–032
s.2 17–032
(4) 17–033
1949 National Parks and Access to the Countryside Act (c.97) 8–016
1951 Reserve and Auxiliary Forces (Protection of Civil Interests) Act
(c.65)
s.13(2) 17–013
1952 Prison Act (c.52)
s.12(1) 11–026
1952 Defamation Act (c.66) 14–030
s.2 13–005
s.3 14–043, 14–044
(1) 14–043
s.4 14–031
(5) 14–031
s.5 14–003
s.6 14–007
s.9(1) 14–027
1955 Defamation Act (Northern Ireland) (c.11)
s.7 14–030
Sch. para.9 14–030
1956 Copyright Act (c.74)
s.17(3) 17–013
1957 Occupiers’ Liability Act (c.31) 8–001, 8–002, 8–007, 8–008,
8–009, 8–011, 8–012, 8–024, 8–025, 8–027, 8–028, 8–029, 8–
030, 8–031, 8–032, 8–033, 8–034, 8–035, 8–038
s.1(1) 8–011
 (2) 8–011, 8–012, 8–014
(3)(a) 8–013
(b) 8–009
(4) 8–016
s.2(1) 8–008, 8–026
(2) 8–008, 8–018, 8–019, 8–023
(3) 8–020
(a) 8–021
(b) 8–022
(4) 8–023
(a) 8–023
(b) 8–024, 8–025
(5) 8–038
(6) 8–015
s.3 8–029
s.5 8–018
(1) 8–014, 8–028
1961 Suicide Act (c.60) 11–021
s.2 11–021
1965 Compulsory Purchase Act (c.56)
s.10 10–008
1965 Nuclear Installations Act (c.57)
s.7 10–050
1965 Rent Act (c.75)
s.30(2) 7–015
1967 Criminal Law Act (c.58)
s.3 11–023, 11–026
1967 Sexual Offences Act (c.60) 13–010
1968 Theatres Act (c.54)
s.4(1) 13–002
1968 Theft Act (c.60)
s.32(1)(a) 12–031
1968 Civil Evidence Act (c.64) 5–029
s.11 5–029
(1) 5–029
s.13 14–002
1969 Employer’s Liability (Defective Equipment) Act (c.37) 7–006, 9–
006
s.1 7–006
1969 Family Law Reform Act (c.46)
s.8(1) 11–020
1969 Employers Liability (Compulsory Insurance) Act (c.57) 1–004, 7–
001, 7–016
s.1 6–020
1971 Animals Act (c.22) 9–001, 9–042, 9–045, 9–051
s.2 9–049, 9–051
(1) 9–044
(2) 9–045, 9–046, 9–049, 9–050, 9–051
(b) 9–045, 9–046
s.3 9–042
s.4 9–042
s.4A 9–042
s.5 9–047
(1) 9–048, 9–049, 9–050
(2) 9–049, 9–050
(3) 9–050, 11–042
(4) 9–042
(5) 9–042
(5A) 9–042
(6) 9–042
s.6(2) 9–044
(3) 9–043
(4) 9–043
(5) 9–049
s.7 9–042
ss.7A–7C 9–042
s.8 9–042
s.9 9–042
s.10 9–047
s.11 9–044
1971 Law Reform (Miscellaneous Provisions) Act (c.43) 17–053
1972 Defective Premises Act (c.35) 3–018, 3–021, 8–001
s.1 3–021
 (5) 3–021
s.4 10–029
(2) 10–029
(3) 10–029
(4) 10–029
1972 European Communities Act (c.68)
s.2(1) 7–023
1972 Local Government Act (c.70)
s.222 10–047
1974 Health and Safety at Work etc Act (c.37) 7–001, 7–011, 7–016
s.47(1)(a) 7–011
(2) 7–011
(2A) 7–011
1974 Rehabilitation of Offenders Act (c.53)
s.8 14–002, 15–002
(5) 14–002
1975 Guard Dogs Act (c.50)
s.1 9–050, 11–042
s.5 7–011
1976 Congenital Disabilities (Civil Liability) Act (c.28) 2–018, 9–033
s.1 2–018
(3) 2–018
(4) 2–018
(6) 2–018
(7) 2–018
s.2 2–018
1976 Fatal Accidents Act (c.30) 9–033, 16–008, 16–032, 16–033, 16–034,
16–038, 17–024, 17–044, 17–050, 17–052, 17–056, 17–057
s.1 17–051
(1) 17–051
(2) 17–051
(3) 17–051, 17–052, 17–053, 17–057
(aa) 17–052
(b) 17–052
(4) 17–052
(4A) 17–052
(5) 17–052
 (b) 17–052
s.1A 4–002, 17–057
(2)(a) 17–057
(b) 17–057
(4) 17–057
s.2 17–051
(2) 17–051
(3) 17–051
s.3 17–053
(3) 17–053, 17–055
(4) 17–052
s.4 17–055, 17–056
s.5 17–051
1977 Torts (Interference with Goods) Act (c.32) 11–045, 11–050
s.2(1) 11–045
s.3 11–050
s.8 11–050
s.11(1) 11–046, 11–050, 16–019
1977 Rent Act (c.42) Sch.1 para.2 10–032
1977 Protection from Eviction Act (c.43) 11–042
1977 Criminal Law Act (c.45) 11–042
s.6 11–042
s.12(3) 11–042
1977 National Health Service Act (c.49) 2–036
1977 Unfair Contract Terms Act (c.50) 8–026, 8–028, 8–030, 8–031, 8–
032, 9–003, 9–034, 16–011
s.1(1)(c) 8–030
(3) 8–030, 16–011
s.2 3–033, 8–030, 16–011
(1) 4–043, 8–027, 8–030, 8–031, 16–011, 17–051
(2) 8–030, 8–031, 16–011
(3) 16–011
(4) 8–030
s.11 8–030, 16–011
(3) 3–033
s.14 8–030
Sch.2 8–030, 16–011
1978 Consumer Safety Act (c.38) 9–040
1978 Civil Liability (Contribution) Act (c.47) 7–025, 17–059, 17–061
s.1 16–027
(1) 17–059
(2) 17–059
(4) 17–061
s.2 16–027, 17–060
(1) 17–060
(2) 17–060
(3) 17–060
s.6(1) 17–059
s.7(3) 17–060
1979 Vaccine Damage Payments Act (c.17) 1–030
1979 Pneumoconiosis etc (Workers Compensation) Act (c.41) 17–032
1979 Sale of Goods Act (c.54) 1–018
1980 Limitation Act (c.58) 1–025, 9–035, 10–014, 14–036, 16–001, 16–
029, 16–041, 17–032
s.2 16–029
s.4A 14–036
s.9 16–030
s.10 17–059
(3) 17–059
(4) 17–059
s.11 11–027, 16–030, 16–030, 16–034
(1A) 16–030
(4) 16–030
(5) 16–030
s.11A 9–035
(3) 9–035
(4) 9–035
s.12 16–030, 16–032
(1) 16–032
s.13 16–032
s.14 9–035, 16–030, 16–031, 16–032, 16–033, 16–034
(1) 16–031
(2) 16–031
(3) 16–031
 s.28 16–034, 16–036
(1) 16–036
(2) 16–036
(7)(a) 9–035
s.32 16–035
(2) 16–035
(3) 16–035
(4A) 9–035
s.32A 14–036
(1) 14–036
(4A) 9–035
s.33 16–030, 16–031, 16–033, 16–034, 16–036
(1A) 9–035
(3) 16–033
(a) 16–031
s.35 9–035
s.38 16–030
(2) 16–033, 16–036
1980 Highways Act (c.66) 10–045
s.130 10–047
s.155 9–042
1981 Senior Courts Act (c.54)
s.32 17–005, 17–045
s.32A 17–005, 17–044
s.35A 17–040
s.50 10–065, 17–063
s.51 17–006
s.69 1–007, 13–009
(1) 13–009
1982 Civil Aviation Act (c.16)
s.76(1) 11–035
(2) 11–035
1982 Forfeiture Act (c.34) 16–018
1982 Administration of Justice Act (c.53) 17–052
s.1(1)(a) 17–024, 17–036
(b) 17–036
s.3 4–002, 17–057
 (1) 17–055
s.4 17–024
s.5 17–033
s.6 17–044
s.20 3–042
1983 Mental Health Act (c.20) 11–020, 11–022
1984 Occupiers’ Liability Act (c.3) 8–001, 8–007, 8–012, 8–016, 8–017,
8–032, 8–033, 8–034, 8–034, 8–035, 8–036, 8–037, 8–038, 16–014
s.1(1)(a) 8–037
(3) 8–035, 8–037
(b) 8–037
(4) 8–035
(5) 8–035
(6) 8–038
(6A) 8–016
(6AA) 8–016
(8) 8–035
s.1A 8–016, 8–033
s.2 8–030
1984 County Courts Act (c.28)
s.69 17–040
1984 Police and Criminal Evidence Act (c.60) 11–026, 11–050
ss.8–22 11–050
ss.16–18 11–040
s.24 11–026
(5) 11–026
s.24A 11–026
(1) 11–026
(2) 11–026
(3) 11–026
(4) 11–026
s.28 11–026
1985 Landlord and Tenant Act (c.70)
s.11 10–029
s.12 10–029
1986 Latent Damage Act (c.37) 3–021
1986 Public Order Act (c.64) 11–026, 11–035
1987 Consumer Protection Act (c.43) 9–001, 9–002, 9–039, 9–047, 16–
038
Pt I 1–020, 9–002, 9–013, 9–013, 9–035, 9–037
s.1 9–042
(1) 9–012, 9–031
(2) 9–015, 9–016, 9–020
(a) 9–016
(b) 9–016
(c) 9–016
(3) 9–019
s.2 9–015
(1) 9–014
(2) 9–028, 9–029
(a) 9–016
(b) 9–017
(c) 9–018
(3) 9–015, 9–017, 9–019
(5) 9–016, 9–032
s.3 9–021
(1) 9–021
(2) 9–021, 9–022, 9–023, 9–033, 9–038
(b) 9–033
(c) 9–023
s.4 9–025
(1)(e) 9–025, 9–030, 9–031
(2) 9–029
s.5(1) 9–014, 9–024
(2) 9–024
(3) 9–024
(4) 9–024
s.6 9–033
(3) 2–018
(4) 9–033
s.7 9–021, 9–034
Pt II 9–040
s.11(7) 9–040
s.41 7–011, 9–040
 s.45(1) 9–020, 9–024
s.46 9–027
1988 Merchant Shipping Act (c.12) 7–024
1988 Criminal Justice Act (c.33)
s.39 11–002
1988 Copyright, Designs and Patents Act (c.48)
s.85 15–002
s.97(2) 17–013
1988 Road Traffic Act (c.52) 1–004
s.14 16–024
(2)(b) 16–024
(4) 16–024
s.15 16–024
s.16 16–025
(2) 16–025
s.143 1–004, 2–018, 7–015
s.145 1–004
s.149 16–006
1989 Social Security Act (c.24) 17–032
1989 Children Act (c.41) 2–036
1990 Human Fertilisation and Embryology Act (c.37) 2–018
1990 Courts and Legal Services Act (c.41) 14–038
s.8 14–038
s.58 1–024, 17–039
s.58AA 1–024
s.58A 1–024, 17–039
s.58C 1–024, 17–039
s.62(1) 2–060
1990 Broadcasting Act (c.42) 13–002
1990 Environmental Protection Act (c.43)
s.73(6) 10–050
Pt III 10–002, 10–004
ss.79–80 10–004
1991 Water Industry Act (c.56) 10–072
s.209 10–050
1992 Social Security Administration Act (c.5) 17–032
1992 Access to Neighbouring Land Act (c.23) 11–040
 s.1(5) 11–040
1992 Carriage of Goods by Sea Act (c.50) 2–013
1992 Trade Union and Labour Relations (Consolidation) Act (c.52) 12–
012
s.219 12–012
1993 Criminal Justice Act (c.36)
s.52 16–018
1994 Criminal Justice and Public Order Act (c.33) 11–026, 11–040, 11–
042
s.68 11–034
1995 Finance Act (c.4) 17–046
1995 Merchant Shipping Act (c.21) 7–015
1995 Civil Evidence Act (c.38)
s.10 17–021
1995 Criminal Injuries Compensation Act (c.53) 1–022, 11–002
1996 Police Act (c.16)
s.88(1) 7–028
1996 Defamation Act (c.31) 13–001, 14–001, 14–008, 14–015, 14–026,
14–027, 14–030, 14–031
s.1 13–019, 14–032, 14–033, 14–035
(2) 14–032
(3)(a) 14–032
(a)–(e) 14–032
(c) 14–033
(d) 14–032
(e) 14–033
(5) 14–032
s.2 14–031
(5) 14–031
ss.2–4 14–031
s.3(5) 14–031
s.4(3) 14–031
(4) 14–031
(5) 14–031
s.5 14–036
s.6 14–036
s.8 14–041
 (2) 14–041
(3) 14–041
(4) 14–041
s.9(1) 14–041
(2) 14–041
s.12(1) 14–002
s.13 14–010
s.14 14–013, 14–028
(2) 14–013
s.15 14–026
(1) 14–026
(2) 14–030
(3) 14–030
(4)(a) 14–030
Sch.1 14–026, 14–030
Sch.1 Pt I 14–030
para.1 14–027
para.2 14–028
para.5 14–029
para.7 14–027
Sch.1 Pt II 14–030
para.10 14–030
para.12 14–030
para.13 14–030
1996 Noise Act (c.37) 10–004
1996 Party Wall etc. Act (c.40) 11–040
1996 Damages Act (c.48) 17–046
s.A1(3) 17–023
(4) 17–023
s.1 17–022, 17–023
s.1A 17–022, 17–023
s.2 17–046
(1) 17–046
(2) 17–046
(3) 17–046
(4)–(5) 17–046
(8) 17–047
 (9) 17–047
s.2B 17–047
s.3 17–044
s.4 17–046
s.5 17–046
Sch.A1 17–023
1997 Social Security (Recovery of Benefits) Act (c.27) 17–032
s.1(3) 17–032
s.3 17–032
s.4 17–032
s.6 17–032
(1) 17–032
s.8(2) 17–032
Sch.1 Pt I 17–032
Sch.2 17–032
1997 Protection from Harassment Act (c.40)1–012, 10–014, 10–068, 11–
017, 11–027, 11–028, 15–002
s.1(1) 11–029
(1A) 11–029, 11–030
(2) 11–029
(3) 11–029
(a) 11–029
s.2 11–028
s.2A 11–028
s.2B 11–028
s.3 11–028, 11–030, 16–030
(2) 11–030
(3) 11–030
s.3A 11–030
s.4 11–028
s.7 11–029
(2) 11–029
(3)(a) 11–029
(b) 11–029
(3A) 11–029
(4) 11–029
1998 Data Protection Act (c.29) 15–002, 15–006
1998 Competition Act (c.41) 1–015
1998 Human Rights Act (c.42) 1–012, 1–020, 1–033, 2–024, 2–032, 2–
037, 2–038, 2–039, 2–040, 2–042, 2–046, 2–047, 2–052, 2–066, 7–015,
10–017, 10–032, 10–064, 10–072, 11–013, 11–026, 11–032, 13–001,
13–022, 14–001, 14–020, 15–001, 15–002, 15–003, 15–004, 15–005,
15–014, 16–013, 16–029, 17–002, 17–003, 17–017, 17–057
s.2 1–020, 10–017
s.3 1–020
(1) 1–020, 10–032
(2) 1–020
s.4 1–020, 10–032
(2) 1–020
s.6 10–017, 10–072, 13–001, 15–003
(1) 2–038
(3) 1–020
(6) 2–038
s.7 1–020, 2–039, 15–006
(1) 17–017
(a) 17–018
(5) 2–047, 16–029, 17–018
(7) 17–018
s.8 1–020, 2–039, 15–006
(1) 17–017
(2) 17–017
(3) 10–072, 17–017
(4) 17–017
s.12 13–001, 15–006
(1) 13–001, 14–020
(3) 15–013, 17–065
(4) 13–001, 14–001, 14–020, 15–003
(a) 15–013
(5) 14–020
Sch.1 Pt 1 10–017
1999 Youth Justice and Criminal Evidence Act (c.23)
s.41(3) 10–032
1999 Contracts (Rights of Third Parties) Act (c.31) 3–015, 9–003
s.1 3–015
2000 Powers of Criminal Courts (Sentencing) Act (c.6)
s.130 1–022
ss.130–134 11–002
2000 Countryside and Rights of Way Act (c.37) 8–016, 8–033
s.2 11–040
s.13 8–016
2002 Enterprise Act (c.40) 1–015
2003 Courts Act (c.39)
s.1 17–043
ss.100–101 17–046
2003 Sexual Offences Act (c.42)
s.76 11–019
2003 Criminal Justice Act (c.44)
s.329 11–026
(2) 11–026
(3) 11–026
(5) 11–026
2004 Civil Partnership Act (c.33) 17–052, 17–057, 17–067
2005 Mental Capacity Act (c.9) 11–022, 16–033, 16–036
s.1(2) 11–022
ss.1–3 11–022
s.4 11–022
ss.4–6 11–022
2005 Railways Act (c.14) s.44 7–011
2005 Serious Organised Crime and Police Act (c.15) 11–026, 11–029, 11–
042
s.110(1) 11–026
(4) 11–026
s.125(5) 11–030
2006 Compensation Act (c.29) 1–028, 5–013, 6–007, 6–018
s.1 1–028, 5–013, 8–035
s.2 1–028
s.3 6–018, 6–019
Pt 2 1–028
2006 NHS Redress Act (c.44) 1–031
2007 Mental Health Act (c.12) 11–020, 11–022
2008 Criminal Justice and Immigration Act (c.4)
 s.76 11–023, 11–026
2008 Human Fertilisation and Embryology Act (c.22) 2–018
2009 Corporation Tax Act (c.4)
Pt 12 14–030
2009 Marine and Coastal Access Act (c.23) 8–016
2009 Damages (Asbestos-related Conditions) (Scotland) Act (asp 4) 4–
015
2012 Legal Aid, Sentencing and Punishment of Offenders Act (c.10)
s.9 1–024
Pt 2 1–024, 17–039
s.44 1–024, 17–039
(6) 17–039
s.45 1–024
s.46 1–024, 17–039
ss.56–60 1–024
Sch.1 1–024
Sch.1 Pt 1 1–024
2013 Enterprise and Regulatory Reform Act (c.24) 7–011
s.69 7–011
2013 Defamation Act (c.26) 13–001, 13–007, 13–018, 13–024, 14–001,
14–004, 14–008, 14–015, 14–023, 14–040, 14–045
s.1 13–002, 13–003, 13–010, 13–011
(1) 13–011, 13–012
(2) 13–021, 14–044
s.2 14–001, 14–002, 15–002
(1) 14–002
(2)–(4) 14–003
(3) 14–003
(4) 14–002, 14–003
s.3 14–001, 14–004, 14–007
(2) 14–005
(3) 14–006
(4) 14–007
(a) 14–007
(5) 14–007,
(6) 14–007
(7) 14–007
 (8) 14–004, 14–007
s.4 14–001, 14–008, 14–015, 14–024, 14–025
(2) 14–024
(3) 14–024
(4) 14–024
(5) 14–024
(6) 14–023
s.5 14–035
(3) 14–035
(4) 14–035
(11) 14–035
(12) 14–035
s.6 13–001,14–008, 14–015, 14–025, 14–030
(4) 14–025
(5) 14–025
(6) 14–025
(7)(b) 14–030
(8) 14–025
s.7 14–008, 14–026
(1) 14–013
(2) 14–030
(4) 14–030
(6) 14–030
(7) 14–030
s.8 14–035, 14–036
(1) 14–035
(2) 14–035
(3) 14–035
(4) 14–035
(5) 14–035
(6) 14–036
s.10 14–035
(2) 14–035
s.11 13–009, 14–037, 14–040
s.13 14–035
s.14 13–003, 14–013
(1) 13–006
 (2) 13–007
s.15 13–018
(2) 14–030
(4)(a) 14–030
s.16(3) 14–002
s.32A(2)(a) 14–036
(b) 14–036
(c) 14–036
2015 Social Action, Responsibility and Heroism Act (c.3) 1–028. 5–013,
5–018
s.2 1–028, 5–013
ss.2–4 1–028, 5–013
s.3 5–013
s.4 1–028, 5–013
s.5(1) 5–013
2015 Consumer Rights Act (c.15) 1-018, 3–033, 8–026, 8–028, 8–030, 8–
031, 8–032, 9–003, 16–011
s.1(1) 9–003
(3) 9–003
s.2 8–031
(2) 16–011
(3) 16–011
s.9 9–003
s.10 9–003
Pt 2 9–034
s.61(4) 8–030, 8–031
s.62 16–011
(6) 8–031
(7) 8–031
s.65 4–043, 8–031, 16–011
(1) 16–011, 17–051
(2) 16–011
2018 Civil Liability Act (c.29) 1–028, 17–023
Pt 1 1–028
s.10 17–023
 Table of Statutory Instruments

1964 Prison Rules (SI 1964/388) 7–013

1986 Insolvency Rules (SI 1986/1925) r.6.13 7–013
1992 Management of Health and Safety at Work Regulations (SI
1992/2051) 7–001
1993 Motor Vehicles (Wearing of Seat Belts) Regulations (SI 1993/176)
reg.5 16–024
reg.6 16–024
Sch.1 16–024
1997 Social Security (Recovery of Benefits) Regulations (SI 1997/2205)
reg.2(2)(a) 17–032, 17–055
1998 Provision and Use of Work Equipment Regulations (SI 1998/2306)
7–001
1998 Employers’ Liability (Compulsory Insurance) Regulations (SI
1998/2573)
reg.3 7–001
1998 Civil Procedure Rules (SI 1998/3132) 1–024, 2–062
r.3.4(2) 16–037
Pt 16 PD para.13.1 16–037
Pt 19 17–060
r.19.5A 11–050
Pt 24 14–041
r.24.2 2–062
Pt 25 17–065
r.25.6(7) 17–045
r.25.6–25.9 17–045
r.41 17–044
r.41.7 17–046
r.41PDB(1) 17–046
Pt 53 13–013
Pt 53 PD53B para.4.2 13–013
 para.4.3 14–003
para.4.4 14–003
Pt 55 11–043
1999 Health and Safety at Work Regulations (SI 1999/3242) 7–001
2000 Consumer Protection Act 1987 (Product Liability) (Modification)
Order (SI 2000/2771) 9–020
2001 Damages (Personal Injury) Order (SI 2001/2301)
art.2 17–022
2002 Electronic Commerce (EC Directive) Regulations (SI 2002/2013)
14–033
reg.18 14–033
reg.19 14–033
2005 Damages (Variation of Periodical Payments) Order (SI 2005/841)
art.2 17–047
art.7 17–047
2006 Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations
(SI 2006/1892) 16–024
2007 Vaccine Damage Payments Act 1979 Statutory Sum Order (SI
2007/1931)
art.2 1–030
2011 National Health Service (Concerns, Complaints and Redress
Arrangements) (Wales) Regulations (SI 2011/704) 1–031
2013 Damages for Bereavement (Variation of Sum) (England and Wales)
Order (SI 2013/510)
art.2 17–057
2013 Damages-Based Agreements Regulations (SI 2013/609) 1–024
2013 Enterprise and Regulatory Reform Act 2013 (Commencement No.3,
Transitional Provisions and Savings) Order (SI 2013/2227)
art.2(f) 7–011
2013 Defamation Act 2013 (Commencement) (England and Wales) Order
(SI 2013/3027)
art.2 13–001, 14–001
2013 Defamation (Operators of Websites) Regulations (SI 2013/3028)
14–035
2014 Marriage (Same Sex Couples) Act 2013 (Consequential and
Contrary Provisions and Scotland) Order (SI 2014/560) 17–052
2015 Personal Injuries (NHS Charges) (Amounts) Regulations (SI
2015/295) 17–032
2017 Damages (Personal Injury) Order (SI 2017/206)
art.2 17–023
2019 Product Safety and Metrology etc. (Amendment etc.) (EU Exit)
Regulations (SI 2019/696) 9–002, 9–012
reg.6 9–002, 9–012, 9–018
2019 Damages (Personal Injury) Order (SI 2019/1126) 17–023
art.2 17–023
2020 Damages for Bereavement (Variation of Sum) (England and Wales)
Order (SI 2020/316)
art.2 17–057
 Table of European and
International Legislation

International Legislation
1950 European Convention on Human Rights 1–020, 2–037, 2–038, 2–040,
11–021, 13–022, 14–010, 14–041, 14–042, 15–003, 16–013, 17–065
art.2 2–024, 2–039, 2–040, 2–047, 2–048, 2–054, 11–021, 11–022, 16–
008, 17–018, 17–057
art.3 1–020, 2–038, 2–039, 2–040, 11–021, 11–022, 17–018
art.5 11–026
(1) 11–013, 11–022, 11–026
(4) 17–017
art.6 1–020, 1–024, 10–032, 14–002, 14–041
(1) 2–040, 2–046, 2–054
art.8 2–053, 10–017, 10–032, 10–072, 11–020, 11–021, 11–022, 11–032,
15–001, 15–002, 15–003, 15–004, 15–005, 15–006, 15–007, 15–008,
15–009, 15–012, 15–013, 17–052
(1) 10–017, 11–029
(2) 10–017, 10–072, 11–021
art.10 1–020, 1–024, 11–029, 11–030, 13–001, 13–013, 13–016, 13–018,
13–021, 13–022, 14–001, 14–002, 14–021, 14–034, 14–035,14–042,
15–001, 15–003, 15–005, 15–006, 15–007, 15–009, 15–013, 17–065
(2) 11–030, 13–001, 13–011, 13–016
art.11 11–030
(2) 11–030
art.13 2–038
art.14 10–017, 17–052, 17–057
art.34 17–018
art.41 17–017
First Protocol art.1 1–024, 2–040, 10–072
EC Legislation
Conventions
2008 Treaty on the Functioning of the European Union
art.288(3) 1–020

Directives
1973 Dir.73/239 on co-ordination of laws, etc relating to direct insurance
other than life insurance [1973] OJ L228/3 7–023
1985 Dir.85/374 on liability for defective products [1985] OJ L210/29 1–
020, 9–002, 9–012, 9–013, 9–025, 9–035, 9–039, 9–041
Recital 6 9–021
art.1 9–035
art.3 9–035
art.7(e) 9–030
art.15(1)(a) 9–020
(b) 9–030
(3) 9–041
art.16(1) 9–024
(2) 9–041
art.19 9–012, 9–030
art.21 9–041
1999 Dir.1999/34 amending Council Directive 85/374 on the approximation
of laws, etc.
concerning liability for defective products [1999] OJ L141/20 9–020
Recital 5 9–020
2000 Dir.2000/31 on certain legal aspects of information society services, in
particular electronic commerce [2000] OJ L178/1 14–033
 1

The Nature of Tortious

Liability

1–001 Liability in tort can be imposed for a diverse range of conduct,

extending from negligent behaviour to attacking a person’s
reputation or limiting a person’s freedom of movement. This
book aims to provide an understanding of the nature of tortious
liability by explaining how and why a defendant can be liable in
these and other situations. This chapter provides a starting point.
Here, we shall examine what is meant by “tort”, the aims and
objectives of the current system of tort law, and the factors that
seem to influence tortious liability. We shall also consider how
tort law fits in with other forms of civil liability, namely contract
and restitution. The second part of this chapter addresses some
different questions: How well does tort law fulfil its role in
English law? Are there any alternatives to tort law which could
or should be adopted? By gaining a basic understanding of the
scope and nature of tort, the reader will be better able to
understand the law in following chapters.

What is tort?

1–002 Tort takes many forms. It includes, for example, negligence,

nuisance, libel, slander, trespass, assault and battery. It is
therefore more accurate to speak of a “Law of Torts”, rather than
 a “Law of Tort”. To provide a definition which encompasses the
whole of this area of law is impossible. Each tort has its own
particular characteristics. Some torts, such as negligence, require
proof of damage, whilst others, such as trespass and libel, are
actionable without proof of damage. Whilst the tort of
negligence obviously requires “negligent” behaviour, other torts,
such as trespass, require intentional behaviour or at least
recklessness. It is best, therefore, to confine ourselves to a
statement that the law of tort is the law of civil wrongs1 that is to
say, it is concerned with behaviour which is legally classified as
“wrong” or “tortious”, so as to entitle the claimant to a remedy.
It must be conceded that this definition is somewhat circular,
but it is the only one that will suffice. More precise definitions,
such as that of the great tort lawyer Professor Winfield, have
been widely criticised. Winfield defined tort as arising “from the
breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redressible by an action for
unliquidated damages”.2 This definition has been criticised
because it ignores the fact that some tortious duties arise by
consent,3 some are owed only to specific individuals,4 and a
breach of duty does not automatically make the defendant liable.
Whilst it may not be possible to provide a precise definition
of “tort”, it is certainly possible to identify a number of
principles that determine when liability in tort will arise. It is to
these that we now turn.

Principles of Liability

1–003 Tort law determines who bears the loss that results from the
defendant’s actions. For example, driver A knocks down
pedestrian B in the street. B suffers personal injury. Tort law will
 determine who bears the loss suffered by B. If A is not liable, B
bears the loss. If A is liable, A (or rather his or her insurance
company) will bear the loss. The aim of shifting loss does not
tell us, however, what makes a court choose between A and B. A
number of principles seem to underlie the decision whether or
not to impose liability on A, and it is important to note that no
one principle predominates. These principles may be broadly
summarised as:
▮ compensation;
▮ fault;
▮ retributive justice (punishment);
▮ deterrence;
▮ economic efficiency (market deterrence); and
▮ loss distribution (spreading losses in a socially fair
way).

We examine each principle below.

(1) Compensation

1–004 Perhaps the most obvious objective of tort law is to award

compensation for loss. In doing so, the courts are guided by the
principle known as restitutio in integrum. Lord Blackburn, in
Livingstone v Rawyards Coal Co,5 explained the meaning of this
principle when he said that compensation in tort should take the
form of:

“the sum of money which will put the party

who has been injured, or who has suffered,
in the same position as he would have been
 in if he had not sustained the wrong for
which he is now getting his compensation or
reparation.”

The goal of compensation, of course, is subject to practical

constraints. For example, where the claimant has lost an arm, the
best tort law can do is to provide a sum of money which
represents that loss. Tort law has also recognised that liability
must be subject to certain rules that limit the availability of
compensation. Fears of indeterminate liability (the so-called
“flood-gates of litigation”) and of disproportionate liability (or
“crushing liability”) have dictated that tort law must set limits to
the types of loss it will compensate. Thus, for example,
compensation for mental distress is rarely awarded, and a
restrictive approach is adopted towards liability for “pure
economic loss” and psychiatric illness. The idea of full
compensation, therefore, translates into “compensation within
reason”.
Tort law has been supported in its compensatory goal by the
growth of the insurance industry.6 Statistically, most tort claims
for personal injury arise from road traffic accidents or accidents
in the workplace. In both cases, it is compulsory for the
defendant to insure against liability.7 The Road Traffic Act 1988
makes liability insurance compulsory for motorists8 and its
objectives are underpinned by the existence of the Motor
Insurers’ Bureau, which administers schemes to compensate
victims of uninsured drivers and hit-and-run incidents where the
driver is untraceable.9 Similarly, the Employers’ Liability
(Compulsory Insurance) Act 1969 provides that employers must
be insured against accidents in the workplace. In these areas,
then, legislation and the law of tort work in tandem. The
legislation ensures that deserving claimants
are guaranteed compensation (rather than being at the mercy of
the defendant’s resources), whilst the law of tort provides the
mechanism through which they can obtain it.
 Of course, compensating misfortune is not an objective peculiar
to the law of tort. Tort operates in the context of a wider regime
which includes statutory compensation schemes such as the
Criminal Injuries Compensation Scheme and, ultimately, the
cushion of social security payments. The law’s efforts to
reconcile the relationship between these different ways of
providing compensation are examined in Ch.17. What should be
noted here, however, is that the existence of tort law means that
society applies the principle of full compensation selectively. In
the absence of a universal system of compensation for all
accident injuries, successful tort claimants are likely to receive
substantial compensation, whilst victims of naturally occurring
accidents (unless they are privately insured) receive no
compensation, except possibly low-level social security
payments.

(2) Fault

1–005 Fault is the idea most commonly used to justify an award of

compensation. Fault-based liability embodies the idea of taking
personal responsibility for one’s own conduct. It may also serve
as a deterrent or even satisfy a retributive purpose in that a
claimant’s anger at being the victim of a wrong is more likely to
be placated if he or she receives compensation from the person
who has been at fault. Here liability can be justified as a form of
inter-personal justice seeking to reverse a wrong committeed
against the innocent victim by requiring the person who has
acted without justification to compensate the other (sometimes
known as corrective justice).
Liability for fault has become particularly significant
because of the growth of the tort of negligence. As we shall see
in Ch.2, liability for negligence was opposed by most of the
judges in the nineteenth century, because it ran contrary to the
ideas of individualism and laissez-faire that dominated the
political philosophy of the age. But this philosophy gradually
changed, so that in 1932, Lord Atkin in Donoghue v Stevenson10
 was able to justify fault-based liability by saying that members
of society ought to take reasonable care to avoid harming their
“neighbours”. The idea of fault nowadays pervades many areas
of tort law, but it is not to be thought that all torts are fault-
based. In libel, for example, a defendant who writes a
defamatory article in a newspaper may be liable even if he or
she has taken all due care in researching the article.
It should be noted that the context in which tort law operates
in modern society means that, whilst the notion of “fault” is used
to justify imposing liability, often, legal “fault” does not equate
with moral blame. In relation to driving accidents, for example,
the administrative advantages for the law in being able to settle
claims easily have triumphed over moral considerations. Thus,
as we shall see in Ch.5, a driver can be held legally at “fault” for
a mistake that by the standards of society is morally excusable.
Moreover, in many areas of tort law, the wide-
spread practice of insuring against liability means that, in reality,
it is an insurer rather than a morally guilty defendant who foots
the bill for compensation. The fault principle is similarly
undermined by the doctrine of vicarious liability.11 Vicarious
liability renders one person responsible for the torts committed
by another. The most common example is that of employer and
employee. If an employee commits a tort in the course of
employment, the claimant is perfectly entitled to sue the
employer for damages in tort. In these circumstances, then, the
burden of the wrong done may be shouldered by the innocent
employer, rather than by the employee who is to blame.
Insurance and vicarious liability subordinate the fault principle
to the overriding need to compensate victims of accidents. In the
light of this, fault can be only one possible explanation of how
the tort system works.12

(3) Retributive justice

1–006 Vengeance or retribution is the most ancient justification for

imposing liability on a defendant who has committed a wrong. It
 was to fulfil the objective of preventing “blood feuds” that the
law developed an action for compensating harm, which
eventually became the law of torts. In modern times, perhaps,
this objective is less relevant. Even today, though, it should be
recognised, for example, that a person is less likely to commit an
act of “road rage” against a driver who has dented his or her
bumper if a tort claim (settled by insurers) will pay for a new
one.
Nowadays, the idea of retribution as an objective of tort sits
very uneasily with the existence of the criminal law. It is the
function of the criminal law to punish the wrongdoer and see
that he gets his “just deserts”. It is hard to justify importing the
concept of punishment into civil proceedings for two reasons.
First, in a civil trial, the punishment may be meted out in the
absence of the evidential and procedural safeguards to which a
defendant is entitled in criminal proceedings. Secondly, because
tort law and criminal law operate concurrently, the defendant
may receive “double punishment” for a single wrong.
Nevertheless, in the modern law of tort there are certain
circumstances where the courts may punish a defendant by an
award of “punitive” damages. Such damages are justified on the
basis of their deterrent effect. This is discussed below.

(4) Deterrence

1–007 In its basic form, the concept of tort liability acting as a deterrent
is a simple one: if I cause harm through my actions or inaction
and have to pay compensation, I will try to behave differently
next time. We can see the deterrence principle at work in various
contexts. Publishers, for
example, aware of the high cost of compensation if they publish
defamatory material, often employ lawyers to screen
publications so as to avoid liability. Equally, professionals such
as doctors and lawyers may be encouraged to take care in their
work because they fear the consequences of liability—not just in
terms of financial cost, but in terms of the harm litigation may
cause to their professional reputations.
The objective of deterrence is supported by the courts’
power to award “exemplary” or “punitive” damages in tort.13
These are damages which seek not to compensate the claimant,
but to punish a defendant for acting deliberately with a view to
profiting from his or her tort, or to punish the executive arm of
government for acting in an arbitrary, oppressive or
unconstitutional manner.14 Their goal is to show that tort does
not pay and thereby deter the defendant from contemplating
such conduct in future.15 A good example is the classic US case
of Grimshaw v Ford Motor Co16 concerning the Ford Pinto.
Here, Ford was alleged to have discovered a defect in the car
which rendered it susceptible to explosion when struck from the
rear. Nevertheless, it continued to market the car on the basis
that it would be cheaper to pay compensation to victims of the
defect than to redesign the car. Such cynical disregard for human
safety led a jury17 to award exemplary damages of $125 million,
reduced to $3.5 million on appeal.
In the tort of negligence, however, deterrence theory has
limited application. This is because, in a case where A has
injured B by simple inadvertence (which the law may call
“negligence”), it is difficult to see how making A liable can alter
the behaviour of a person in A’s position. A is liable because he
or she has failed to meet the standard of behaviour expected of
the “reasonable person”. As we shall see in Ch.5, this is an
objective standard—which means that in applying it the court
takes little account of the personal characteristics of the
defendant. What this means is that a defendant can be held liable
even though he or she is already taking all the care which he or
she could possibly take in pursuing a particular activity. The
point is well illustrated by the decision of the Court of Appeal in
Nettleship v Weston18 (discussed further in Ch.5). Here, a learner
driver on her third lesson was held liable in negligence for
driving below the standard of the “reasonable driver”—which
was set at the standard of an ordinary, competent, qualified
driver. No concession was made to the fact that she was a learner
(or even that she was being sued by her instructor—arguably the
very person whose skill was supposed to prevent the accident!).
There are further objections to regarding deterrence as an
important aim of tort law—a deterrent can only work if the
people whose actions or inaction cause damage are the same
people who have to pay for that damage. We have seen that the
doctrine of vicarious liability
means that the employer pays for the damage, rather than the
negligent employee. In such circumstances, it cannot be said that
the prospect of having to pay compensation has an effect on the
amount of care taken by the employee in his or her work.
Similarly, the existence of liability insurance removes the sting
of arguments based on deterrence. When a motorist gets in a car,
it is rather far-fetched to say that his or her mind is concentrated
by the prospect of civil liability for careless driving, because that
is a prospect against which he or she is insured. To the careless
motorist, the cost of a car crash is likely to be no more than the
loss of a “no-claims bonus”, entailing a small increase in
premiums (against which, nowadays, it is even possible to
insure). In the context of employers’ liability to their employees,
whilst it is true that the threat of liability may provide an
incentive for employers to adopt safer working practices, in a
commercial world, these will only be adopted where they are
cost effective. Moreover, because of the way the insurance
industry works—spreading the cost of accidents amongst all
policyholders—the full force of the incentive is seldom brought
to bear on employers.19
All of the problems with deterrence theory we have
examined, then, are really part of the same problem: the
objective of deterrence is accorded less importance in tort law
than the objective of compensation. This is so for two reasons.
First, by social consensus, vicarious liability and insurance make
compensation available at the expense of deterrence. Secondly,
there are limits to the extent to which deterrence arguments can
be considered in the context of a tort trial. If a court seeks to
deter a whole class of potential defendants from wrongful
 conduct by imposing liability on the particular defendant in the
case (or by awarding punitive damages), then the result of the
case may be unjust—the particular defendant is singled out to
pay the price for wrongful conduct that may be the common
practice of his or her peers, and (in the case of punitive
damages) the particular claimant receives a windfall in addition
to compensation.20 Similarly, effective deterrence requires that
potential defendants be given guidance about how to avoid
liability. Whilst the courts occasionally provide such guidance,
constraints of time and resources prevent them from going into
details. Moreover, because the guidance is given in the context
of a particular case, it may be difficult to interpret in terms of
general application. In the light of these factors, such guidance is
better provided by statute (for example, health and safety
legislation) than by ad hoc decisions in tort.

(5) Economic efficiency (market

deterrence)

1–008 If, through the operation of law, a manufacturer of products (for

example) is forced to bear the cost of harm caused by those
products, and to pass that cost on to consumers, he or she will
seek to maximise the safety of the products in order to obtain the
best price in the marketplace. Logically, therefore, as a result of
this process the safest products will become
the cheapest, and market competition should operate to reduce
the total amount of harm caused in society by all products on the
market. This idea is known as the principle of “market
deterrence”.
Once we start to explore such arguments, we venture into the
difficult realm of economic analysis of law. To use the language
of economists, every product (or activity) has the potential to
produce “externalities” (“extra costs” not reflected in the price)
when either it causes harm, or necessitates precautions to
prevent harm from arising. Economic analysis of law seeks to
discover how these “externalities” are paid for. Economists
argue that the framework of any legal system should be such as
to ensure that externalities are paid for in a way that maximises
“efficiency”. In economic language, the most “efficient” way of
doing things is the way that produces the least cost to society as
a whole. What all this means for the law of tort is that the courts
should seek to develop rules under which the risk of harm in any
given situation is borne by the person who will expend the least
amount of society’s resources in taking precautions against it.
This person is sometimes known as the “best cost-avoider”.
We can see that this principle already operates in the law to
some extent by considering a simple example. Suppose that a
number of televisions are sold with wrongly wired mains plugs,
presenting risks of fire and electric shock. It is likely that tort
law will make the manufacturer of the televisions liable if these
risks materialise. Whilst this result will accord with the
principles of compensation and fault, it will also fulfil the
objective of efficiency. This is because, whilst it will be
relatively inexpensive for the manufacturer to change his or her
production methods so that the wires are put in the plug the right
way round, it would be relatively expensive (in terms of missed
opportunities to create wealth) if all of the individuals affected
by the problem had to rewire a plug themselves.
Whilst it is clear that tort law can be analysed in terms of
economics, economic concepts are seldom referred to by English
judges.21 This might be explained by the fact that the
“economics and law” debate is largely a US one,22 and reflects
the political trends of that country, namely right-of-centre
market economics. It is sometimes also suggested that much of
the academic commentary on the subject may be rather
impenetrable to non-economist judges— yet it should be
remembered that the Supreme Court includes judges with a
commercial law background who are undoubtedly familiar with
economic concepts. Perhaps the true explanation for the lack of
judicial enthusiasm in this area is that economic analysis of tort
law cannot in many cases be reconciled with more pressing
objectives of the tort system. Economic analysis takes as its
starting point the assumption that in most, if not all cases, the
 potential human cost of the defendant’s actions can be given a
monetary value. Whilst, arguably, this is just a cold fact of life, it
is one which society and the judiciary are understandably
reluctant to face. Society may not be prepared to quantify in
monetary terms the cost of a young child being
hideously disfigured, so as to weigh it against the purely
financial cost of preventing such an occurrence. Equally, whilst
an economic perspective can be instructive in explaining
decisions in negligence and nuisance23 cases, it is less helpful in
explaining torts like trespass and defamation, whose primary
aim is to protect the integrity of the individual.

(6) Loss distribution

1–009 As stated earlier, tort law shifts loss from the victim to the
tortfeasor by imposing liability. In a broader context, however, it
can be seen that tort law operates to shift losses so that they are
borne by the whole (or large sections) of society. This function
of tort law is known as “loss spreading” or simply “loss
distribution”. It is fulfilled mainly through vicarious liability—
part of tort law itself—and through liability insurance—part of
the context in which it operates.
Vicarious liability makes employers liable for accidents
caused by their employees, but employers cover themselves by
insurance and pass the cost of the premiums on to consumers in
the prices of their goods and services. In this way, the cost of
compensating accident victims is spread throughout the
community, in much the same way that social security payments,
funded by taxation, spread the cost of compensating social need.
Similarly, because the legislature has imposed compulsory
liability insurance for road traffic accidents, the cost of accidents
will be met first by insurance companies, who will then pass on
this cost in the form of premiums paid by their clients. The cost
of accidents is thereby spread amongst the (insured) driving
community.
 Clearly, “loss distribution” can be criticised for a number of
reasons. It can be criticised for ignoring the importance of fault
and undermining the objective of deterrence. It can also be
criticised as unjust: why should a careful driver or employer
subsidise the cost of accidents caused by the tortious activities of
others? It can only be justified by acceptance of its underlying
rationale—that a certain amount of “distributive justice” is
desirable in a civilised society.24

Conclusions

1–010 Tort law is an amalgam of all six of the concepts considered

above.25 Its mixed aims are the inevitable result of the common
law system of justice where law is developed on a case-by-case
basis. Lord Steyn in McFarlane v Tayside Health Board
commented on the tension which exists between the principles
of compensation, fault and loss distribution:

“It is possible to view the case simply from

the perspective of corrective justice [which]
requires somebody who has harmed
another without justification to indemnify
the other . . . But one may also approach the
case from the vantage point of distributive
justice. It requires a focus on the just
distribution of burdens and losses among
members of a society.’”26

Although compensation is the most common reason for bringing

a tort action, claimants may have a number of other reasons,
including deterrence and retribution. In Hill v Chief Constable of
West Yorkshire,27 for example, the mother of the last victim of
 Peter Sutcliffe (a serial killer known as the “Yorkshire Ripper”)
sued the police for negligence, mainly in order to criticise their
carelessness in failing to apprehend the murderer soon enough,
and to make the point that police practices should be improved.
In Lord Templeman’s view, the action was misconceived. His
Lordship pointed out that:

“an action for damages for alleged acts of

negligence by individual police officers in
1980 could not determine whether and in
what respects the West Yorkshire police
force can be improved in 1988.”

Lord Templeman’s remarks emphasise that an adversarial

system is ill-suited to a proper consideration of broad questions
of social and economic policy. The focus of the courts’ attention
is whether compensation should be awarded to do justice in the
particular cases before them. This does not prevent courts using
their skill and experience to address broader concerns, but it is
important to recognise that there are constraints on their ability
to do so.

The Interests Protected by Tort

1–011 Tort law aims to protect the individual from actual or threatened
harm to certain specific interests. In this section, we examine the
degree of protection afforded to each interest. Tort law does not
protect all interests from harm, and certain interests, such as
personal safety, receive
 better protection than others. As tort law has developed, the
nature of protection offered to each interest has reflected the
importance of that interest to society at the relevant period in
history. Thus, whilst in feudal times trespass to land was the
most sophisticated and important tort, in the modern industrial
age protection against personal injury has dominated the agenda.

(1) Personal harm

1–012 The industrial revolution brought with it new threats to the

safety of individuals with the introduction of heavy machinery,
motor vehicles and railways. Tort law responded by developing
the tort of negligence. This supplemented the existing protection
provided by trespass to the person, where the torts of assault,
battery and false imprisonment serve to protect individuals from
intentional interference with their personal freedom and bodily
integrity.28 Yet, whilst tort law has clearly offered protection
against physical injury, the judiciary has been reluctant to offer
protection against other forms of personal harm, such as
psychiatric illness and distress. Considerable scepticism was
expressed in the nineteenth century towards claims for “nervous
shock”, on the basis that they would leave “a wide field open for
imaginary claims”.29 Although claims for psychiatric illness
may now be brought, the law still adopts a restrictive regime of
recovery, as will be seen in Ch.4. Claims for mental distress still
cannot be brought in their own right,30 although this is a
developing area of the law. The problem of harassment has
become more significant in recent times and developments in
tort law have now been replaced by a statutory tort under the
Protection from Harassment Act 1997. We shall see in Ch.2 also
the debate whether the Human Rights Act 1998 has had any
effect on the scope of negligence liability. In Ch.15, we consider
the extent to which the law now provides a remedy for invasion
of privacy.
 (2) Harm to property
1–013 Protection against harm to property remains important, but no
longer has the primacy accorded to it during feudal times.
“Property” here is used to signify both personal property and
land (real property). Personal property is protected by the torts
of trespass to goods and conversion (civil theft). Real property is
protected by a number of torts, including trespass to land,
nuisance, and the rule in Rylands v Fletcher, which are discussed
in Chs 10 and 11. Property loss is also recoverable in other torts
such as negligence.

(3) Harm to reputation

1–014 Reputation is protected by the tort of defamation, which creates
liability for untrue statements which diminish the claimant’s
reputation in the eyes of right-thinking members of society.
Defamation is examined in Chs 13 and 14 of this book. It should
be noted that defamation protects the claimant’s reputation and
not his or her feelings, so that there will be no action for
defamation if the claimant is insulted in private or if the
statement fails to diminish his or her reputation. As will be
discussed, protection of reputation must be weighed against the
public interest in free speech and a free press. In practice, this
balance is far from easy to achieve.

(4) Harm to financial interests

1–015 Tort law gives limited protection to financial interests. Such

interests are usually protected outside tort law, for example by
contract law or by legislation such as the Competition Act 1998
and the Enterprise Act 2002. In this area, tort law is particularly
conscious of the potential number of claims and the threat of
“liability in an indeterminate amount for an indeterminate time
 to an indeterminate class”.31 Whereas the cost of compensating
physical injury tends to be limited, the potential for “crushing
liability”, resulting from a flood of claims for financial loss,
presents a problem for the law. Courts are therefore reluctant to
impose liability for negligent infliction of financial loss, save in
the specific situations where the defendant has voluntarily
assumed responsibility for the claimant’s interests, or where the
loss is consequential on physical damage.32
However, tort law does offer some protection where the
defendant has intentionally interfered with the claimant’s
economic and trading interests. The tort of deceit (fraud)
imposes liability where the defendant has made a false
statement33 to the claimant in the knowledge that it is false, or
reckless as to its truth, with the intention that the claimant will
act on it.34 The claimant may recover damages for economic
loss suffered by acting on the statement.35 Likewise, the
“economic torts”, which we examine in Ch.12, impose liability
in a limited number of situations for intentional interference with
business interests.

(5) Harm to the due process of law

1–016 This will be dealt with briefly. Certain torts seek to protect the
claimant against misuse of the legal system. In this book, we
refer specifically to one such tort: malicious prosecution.36 In a
system where the criminal law permits individuals to instigate
prosecutions, this tort affords the claimant valuable protection
against prosecutions which are brought maliciously without
reasonable and probable cause. In the leading case of Martin v
Watson37 the tort was used to protect the plaintiff where the
defendant had maliciously made a groundless accusation of
indecent exposure against the plaintiff, leading to his
prosecution. Although it is a difficult tort to prove, it
demonstrates the willingness of the English legal system to
intervene to prevent abuse of the law.
 The Role of Tort in the Law of
Obligations

1–017 In this section, we compare the role of tort with two other
aspects of civil law, namely the law of contract and the law of
restitution (or unjust enrichment). Together with tort, these heads
of liability are sometimes referred to as the “Law of
Obligations”. In English law, the same defendant may be liable
under more than one of these heads of liability. This is known as
“concurrent liability”. A claimant is not obliged to choose
between bringing an action in contract, tort or restitution38 and
may plead all three. Nevertheless, the three causes of action
perform different roles in English law, which are examined
below.

The distinction between tort and contract

1–018 The role of contract law is, put simply, the enforcement of
promises.39 Liability is therefore centred around the contract
itself: Has it been formed? What are its terms? Have they been
breached? Contractual remedies seek to place the claimant in the
position, so far as money can do it, that he or she would have
been in had the contract been performed.40 By contrast, tort
is concerned with compensating the victim who has suffered
injury as a result of conduct clas-sified as a civil wrong by law.
The aim here is not to enforce a bargain, but to compensate the
victim for his or her out-of-pocket expenses, thereby placing the
victim in the same position as he or she would have been in had
the victim not sustained the wrong for which compensation is
being awarded.41
Readers should be wary of attempts to distinguish contract
and tort on the basis that contract consists of obligations
 imposed by consent and tort consists of obligations imposed by
law. Contract law is subject to considerable legislative and
judicial intervention and terms may be imposed by statute42 or
by the courts. Equally, the defendant in tort law may, in a sense,
agree to undertake certain tortious responsibilities, for example
by inviting a guest into his or her household43 or by undertaking
to advise the claimant on the merits of a particular business
transaction.44 Such a theory, therefore, is really too general to be
of much use. In practice, the distinction between contract and
tort is determined simply by asking the question: “Have the rules
of contract law been complied with?” If the answer is “no”, the
obligation or wrong in question cannot be classified as
contractual, but may be classified as tortious.

The distinction between tort and

restitution

1–019 Restitution is a growing area of civil liability, the proper scope

of which remains unclear. The law of restitution intervenes
where the defendant has been unjustly enriched at the expense of
the claimant. Rather than compensating the claimant, it seeks to
restore to the claimant the amount by which the defendant has
been wrongfully enriched. Whilst its goal is therefore distinct
from that of tort, it is clear that restitutionary damages may be
awarded as an alternative to tort in certain limited
circumstances. These are discussed in Ch.17.45

The Impact of European and

Human Rights Law
1–020 In examining the English law of torts, it is worth recognising
that, regardless of the UK leaving the EU (“Brexit”), European
law and policy has had some impact on tort law over the years.
For example, in Ch.9, we examine liability for defective
products, which is now largely dealt with under the Consumer
Protection Act 1987 Pt 1. This was introduced to comply with
EU Directive 85/374 on liability for defective products (the
Product Liability directive).46 As we will see in Ch.9, the UK
Government’s introduction of the Product Liability directive into
UK law led not only to a legal action against the UK by the
European Commission, but ongoing controversy as to how the
relevant law should be interpreted and applied in UK law.47 The
government intends to retain the provisions of the Consumer
Protection Act 1987 Pt 1, after Brexit, although the Court of
Justice of the European Union (CJEU) will no longer have
authority over UK law. In future, also, legislative changes to EU
law after Brexit will no longer be binding. It remains to be seen
precisely what will be the new relationship between the EU and
the UK after Brexit.
One casualty of Brexit, however, will be State liability for
breach of EU law. Following the European Court’s decision in
Francovich v Italy,48 liability would arise in tort where a
Member State was found to have breached EU law, for example,
by failing to implement a directive within the stipulated time
period. This was actionable in the national court. The English
courts classified such claims as a type of breach of statutory
duty, but, as will be discussed in Ch.7, this cause of action
proved to be distinct from the tort of breach of statutory duty in
a number of ways.49 Francovich liability does not survive the
UK leaving the EU.
However, Brexit should not distract us from the fact that
human rights remain relevant to the law of tort and can also raise
matters of political controversy. In October 2000, the Human
Rights Act 1998 (the HRA 1998) came into force in the UK. The
HRA 1998 permits claimants to bring claims against public
authorities acting in breach of the rights protected by the
European Convention on Human Rights (ECHR). Litigants are
no longer required to pursue their case before the European
Court of Human Rights in Strasbourg. Section 7 of the Act
permits claims against public authorities which act (or propose
to act) in a way which is incompatible with a Convention right.
Section 6(3) of the Act provides that the term “public authority”
includes the courts,50 and this means that the courts must also
take account of the rights established in
the Convention and the case law of the Strasbourg court when
relevant.51 Section 8 of the Act allows the court to grant such
relief or remedy as it considers just and appropriate, which may,
at the court’s discretion, include an award of damages.
The 1998 Act also introduced changes where legislation is
concerned. Section 3(1) of the Act provides that, “so far as it is
possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with
the Convention rights”. While the Act does not affect the
validity of any incompatible primary legislation,52 a court may
make a declaration of incompatibility.53 In practice, the courts
have generally sought under s.3(1) to interpret legislation in a
Convention-compliant manner and avoid any confrontation with
the legislator under s.4.54
The question for us to consider in this book is the impact of
the Human Rights Act 1998 on the law of torts. The Act remains
in force, despite its lack of popularity with the Conservative
party. The s.3 interpretative duty will have a potential impact on
statutory defences in tort. We shall see also in Ch.2 how far arts
2 and 3 (right to life and right not to be subject to inhuman or
degrading treatment) have influenced negligence claims by
victims against public authorities. We also discuss the effect of
the 1998 Act on other torts, for example nuisance (in Ch.10). In
Ch.14 we specifically consider the effect art.10 (the right to
freedom of expression) on the tort of defamation and in Ch.15
whether the 1998 Act has triggered the introduction of a right to
privacy into English law. While the impact of the 1998 Act has
not been as significant as many predicted, it continues to be used
to challenge restrictions on the claimant’s right to sue.55
 Tort in Modern Society

1–021 Detailed study of tort law sometimes tends to obscure the fact
that, especially in personal injury cases, there are often other
means by which a claimant may be compensated for his or her
loss. It is appropriate, therefore, to say something about tort law
in its wider social context, to give the reader a clearer view of
where it fits in modern society. In this section, we explore the
role of tort in providing compensation and consider proposals
for its reform, focusing particularly
on the New Zealand experience of replacing tort with a no-fault
system of accident compensation.

Tort and other compensation systems

1–022 It is important to realise that in practice tort law plays a minor
role in compensating accident victims. The Pearson
Commission,56 which undertook a survey of accident
compensation in England and Wales in the 1970s, reported that
only 6.5% of accident victims received any form of tort
damages.57 This means that the bulk of compensation comes
from sources outside the tort system. These include payments
from employers, from insurance, from schemes such as the
Criminal Injuries Compensation Scheme and the Industrial
Injuries Scheme, and social security payments. Whilst the level
of such payments is usually well below that of tort damages,
which are unique in seeking to provide full compensation for the
victim, in practice they provide financial assistance for the
majority of accident victims. This assistance is supplemented by
the provision of publicly funded health care under the National
Health Service. As we shall see in Ch.17, there are sometimes
problems involving “double-counting” where a claimant has
received tort damages and also benefits from insurance, or
 perhaps a charitable donation. The courts (with the help of
legislation) have evolved a number of complicated rules which
govern the relationship between different sources of
compensation.
The importance of these alternative sources of compensation
varies. Social security payments are obviously significant,
particularly for those on low incomes. However, the amounts are
relatively small. As at April 2020, income support for a single
person over 25 was set at £74.35 per week.58 Insurance is also
important, particularly in respect of property damage, where tort
actions are rarely brought.59 Health insurance, critical or
terminal illness cover, and unemployment insurance are also
significant, as are payments from the accident victim’s
employer, such as occupational sick pay and pensions. The
Criminal Injuries Compensation Scheme makes provision for
victims of crimes of violence and those sustaining injuries in the
course of apprehending an offender, although a tariff system is
adopted and compensation in respect of a single injury is capped
at £500,000.60 Criminal courts also have the power to make
compensation
orders when sentencing in a criminal court,61 but the amounts
awarded tend to be low and the awards have limited impact if
the convicted defendant does not have the means to pay.

Why not tort?

1–023 Given that tort compensation tends to be paid at a higher level

than the other forms of compensation, why is it that the majority
of claimants do not bring an action in tort? One reason is that, in
many circumstances, the rules of tort are well established. This
means that whilst a tort claim may be made (perhaps on a very
informal basis) and quickly settled, it is unnecessary to bring a
tort action. The Pearson Commission found that 86% of tort
claims were disposed of without the issue of writ or summons,
and that, of the total number of claims made (including those
where no legal proceedings were commenced) only 1% actually
 reached the courts. There are, however, a number of additional
reasons why tort litigation is seldom used.

◗ Cost
1–024 Litigation is extremely expensive. A claimant must be able to
fund litigation and take the risk that if he or she loses, the court
is likely to order the claimant to pay not only his or her own
costs, but also those of the defendant. Publicly funded legal aid
is generally unavailable for personal injury claims. The burden
of cost has to some extent been alleviated by the introduction of
conditional fees. Under the original form of conditional fee
agreements (CFAs), a solicitor agreed to take on a client’s case
on the basis that no fee would be charged if the client lost, but a
larger fee (the “success fee”) would be charged if the client
succeeded in his or her action which would normally be
recoverable in whole or part from the losing party.62 Such
agreements are commonly known as “no win no fee”
agreements. Conditional fee agreements mark an attempt to
increase access to justice but cannot be considered a universal
panacea in that a solicitor is only likely to take on cases with
reasonable prospects of success, and may be reluctant to take on
complicated and time-consuming cases. Further, the original
idea that the losing party would now be forced to pay the
success fee agreed by the claimant to fund the action (which
could amount to a doubling of the fee in question) was
challenged in the House of Lords’ case of Campbell v Mirror
Group Newspapers Ltd (Costs).63 Here, the Mirror newspaper
argued that it should not be liable to pay the success fee of the
successful claimant, here supermodel Naomi Campbell, on the
basis that the amount payable was disproportionate and
infringed its rights under ECHR art.10 (freedom
of expression). Campbell had brought a claim against the Mirror
for breach of her right to privacy and had funded her action at
the highest level with the assistance of a CFA. Her CFA had
provided that if she won the case, solicitors and counsel would
be entitled to success fees of 95% and 100% respectively. The
threat of having to pay out such a large amount of money would,
the newspaper argued, discourage defendants from publishing in
future for fear of defamation or privacy actions. In the privacy
case, Ms Campbell had been awarded damages of just £3,500,
but, as the losing party, the Mirror Group had been found liable
for its own costs and the claimant’s bill of costs which amounted
to over £1 million. The House of Lords rejected the claim.
Nevertheless, it did express some reservations as to the wisdom
or justice of the CFA system as it was then constituted. The
European Court of Human Rights in January 201164 found
unanimously that the success fees in Campbell had been
disproportionate and violated the art.10 right to freedom of
expression. The Strasbourg court noted, however, that the
question of success fees was being reviewed at governmental
level.
In 2008, the Government set up an inquiry in response to
concerns about the rising costs of civil justice. This led to a
report, in 2010, by Jackson LJ.65 In the forward to the report, his
Lordship states:

“In some areas of civil litigation costs are

disproportionate and impede access to
justice. I therefore propose a coherent
package of interlocking reforms, designed
to control costs and promote access to
justice.”

The Government introduced reforms under the Legal Aid,

Sentencing and Punishment of Offenders Act 2012 (the LASPO
Act) Pt 2. This came into effect on 1 April 2013 and via
secondary legislation including the Civil Procedure Rules.66 The
Government recognised that the reforms would have the most
impact on personal injury cases, where “no win no fee”
conditional fee agreements (CFAs) are used significantly. While
CFAs will remain available to cover the costs of litigation,
additional costs involved (success fees and insurance premiums)
are no longer payable by the losing side (thereby resolving the
situation in Campbell above).67 The Act also introduced for the
first time contingency fees which it terms “damages-based
agreements” (DBAs). Under a DBA, no fee is paid if the case is
lost, but if successful the lawyers may take a percentage of the
damages recovered as their fee.68 Equally, in an attempt to curb
the
“compensation culture”, referral fees (that is fees payable for
introducing potential clients to solicitors) are now banned in
personal injury cases.69 The Government has reassured litigants
that the claimants’ damages will be protected. Although the
claimant will now have to pay the “success fee”, it will be
capped at 25% of the damages awarded in personal injury cases
as general damages and for past losses (and will not apply to
damages for future care and loss), and up to 50% of damages in
other cases.70 General damages have also been increased by
10% from 1 April 2013 in order to compensate successful
claimants as a class for being deprived of the right enjoyed since
2000 to recover success fees from defendants.71 The hope is that
claimants will appreciate that they now have a financial stake in
keeping their lawyers’ costs down. The Act also further restricts
legal aid, which is now effectively replaced by CFAs and DBAs
in most civil litigation.72 The Law Society (which represents
solicitors in England and Wales) has been less than enthusiastic
about the reforms:

“Government reforms to civil litigation

costs and funding will reduce access to
justice, increase costs to business and result
in a windfall for insurers. Many claimants
will lose a substantial proportion of their
 damages under the reforms and solicitors
may not be in a position to take on higher-
risk or lower-value claims.”73

A 2019 Ministry of Justice review found that on balance the Pt 2

reforms had met their objectives and that costs had been
reduced, fewer unmeritorious cases had been taken forward and
that access to justice at a proportionate cost was generally being
achieved.74 Lord Jackson, writing in 2018,75 agreed that the
abolition of recoverable success fees has substantially reduced
litigation costs and that the ban on referral fees has (despite
some circumventions) significantly reduced the cost of PI
litigation. He accepted that DBAs had been a failure as few
people used them. Nevertheless, he concluded that: “Despite all
the criticisms which I have received over the last 10 years, the
blunt and inescapable fact is that the Jackson reforms have
achieved significant reductions in the costs of litigation.”

◗ Time
1–025 Litigation moves very slowly (which of course adds to its cost).
Despite the attempts of the Woolf reforms to speed up
litigation76 and despite time limits (set under the Limitation Act
1980) within which actions must be brought, it remains the fact
that many cases take years to get to court, during which the
claimant will generally have to wait to receive any
compensation.

◗ Risk
1–026 The adversarial system makes litigation a risky option. Indeed,
the risk of litigation is often used by defendants to force the
claimant to settle, rather than face the possibility of losing
everything in a court of law. Lewis commented recently that the
outcome of a personal injury action is not simply a matter of the
 rules of tort law, but that, in reality, factors such as the skills of
the lawyers, the resources available to establish evidence and the
ability of the parties to bear the threat of legal costs make a
difference. In his view, bearing in mind that the majority of
claims are settled, one should not underestimate also how far the
strategies and tactics adopted by lawyers make a difference.77

◗ Difficulty
1–027 Despite the intervention of Lord Woolf, going to law is often a
complicated process. The workings of the law seem
impenetrable to many lay people. Few would attempt a claim in
tort without the assistance of qualified lawyers, and getting this
assistance may be expensive, time-consuming and often
alienating to an individual who simply wishes to be
compensated for his or her injury.

◗ Absence of litigation consciousness

1–028 Traditionally, there has been a lack of litigation awareness in
England and Wales. Accident victims have been far more likely
to contact their insurers, or blame bad luck, than seek a possible
defendant on whom to transfer their loss.78 This, however,
seems to have changed in recent years with the introduction of
conditional fees. Few can have missed the aggressive advertising
of numerous firms offering to take on personal injury claims.
Such advertising has raised litigation awareness, but its effect
must, of course, be balanced against the other
problems with litigation which we have considered.
Datamonitor, an organisation which tracks personal injury
litigation, found only a gradual increase in the number of
personal injury claims in recent years, with claims rising by
8.3% in 2006–07 and 10.9% in 2008–09. Although it estimated
that the personal injury market increased by 17.1% between
2010 and 2011, Global Data in 2016 noted a small decline in
litigation following the government reforms discussed in para.1–
024.79 Lewis and Morris argue that, in fact, the majority of
injured people still do not go on to claim compensation despite
being encouraged to do so through widespread “no-win no-fee”
advertising. An exception arises in the context of road traffic
accidents where there is a strong culture of claiming and it is
these figures which serve to inflate the relevant statistics.80 For
example, there was a rise in motor claims of 1.6% between
2017/18 and 2018/19, while clinical negligence claims dropped
by 3.4% during this period.81
Whilst the statistical reality, therefore, is that there is no
alarming growth of a “compensation culture” in the UK,82 the
Government has felt the need to address a perception to the
contrary—this perception was apparently held by some local
authorities, who had acted defensively to protect themselves
from the prospect of litigation, in one case, for example, by
closing down a popular public beach to avoid any risk of
drowning.83 The Compensation Act 2006 puts on a statutory
footing what has always been the position at common law,
namely that the courts, in deciding whether to impose liability in
negligence, can take into account the question of whether such
liability might be adverse to the public interest by preventing
“desirable activities” from taking place.84 The Act also provides
that “an apology, an offer of treatment or other redress, shall not
of itself amount to an admission of negligence”85 and makes
provision for the regulation of the claims management
industry.86 The Social Action, Responsibility and Heroism Act
2015 (SARAH) further states that a court, which is determining
whether a defendant has met the standard of care in a specific
case, should have regard to the matters mentioned in ss.2 to 4 of
the Act, namely87:
▮ whether the alleged negligence or breach of statutory
duty occurred when the person was acting for the
benefit of society or any of its members (s.2);
▮ whether the person, in carrying out the activity giving
rise to the claim, demonstrated a predominantly
 responsible approach towards protecting the safety or
other interests of others (s.3);
▮ whether the alleged negligence or breach of statutory
duty occurred when the person was acting heroically by
intervening in an emergency to assist an individual in
danger (s.4).

Again, the aim is not to change the law but to emphasise to

judges that it is necessary to consider all relevant circumstances
in the case.88 The underlying message, however, is to reassure
defendants that they should not desist from acts of heroism for
fear of being sued.

Proposals for reform

1–029 It is clear that tort law is far from perfect. A number of

suggestions for reform have been made, which we consider
below. These suggestions are not without problems and all
require the legislature to take tough political decisions about the
aims of any reformed compensation system. On current
thinking, the possibilities for reform are threefold:

◗ (1) A mixed system

1–030 The Pearson Commission made a number of recommendations
about reforming the system of compensation in England and
Wales.89 Its main proposal was that a mixed system of tort law
and social security should be retained, but with greater emphasis
on the role of social security payments.90 Greater attention
would also be paid to how tort and social security worked
together. For certain accidents, such as road traffic accidents91
(which represent a large proportion of total accident claims)
special provision would be made. The Commission proposed a
no-fault system for road traffic accidents funded by a 1p tariff
per gallon of petrol.92 This would spread the cost of such
 accidents, whilst placing the greatest burden on those who
consume the most petrol. This was justified on the basis that
drivers who use the most petrol–either by driving long distances
or by driving vehicles with high petrol consumption–are those
most likely to cause an accident.
The proposals were criticised for singling out road traffic
accident victims and giving them preferential treatment over
victims of other types of accident.93 They can also be criticised,
of course, for ignoring the functions of tort law in terms of
deterrence and retribution (although the Commission felt that
these ends could be adequately served if tort law were retained
concurrently with a no-fault scheme). Delivered in 1978,
immediately prior to the election of the new Thatcher
Conservative Government, a plan of reform based on increasing
state involvement in individual welfare stood little chance of
success. In the event, of the Commission’s 188
recommendations, only a handful have been implemented.94 It is
most unlikely that this situation will change.

◗ (2) No-fault liability

1–031 This is a more radical proposal. It is based on the proposition
that if tort law primarily aims to compensate victims, it achieves
this in an inefficient and often arbitrary way. Tort law is
inefficient because of the sheer costs of administering the
system. The Pearson Commission reported that the operating
costs of the tort system amounted to a figure representing about
85% of the money paid out in compensation. In other words, for
every £100 paid out, it costs about £85 (in insurers’ handling
fees, lawyers’ fees etc) just to make the payment. Clearly this
can be seen as a waste of society’s resources. The costs of
running a no-fault scheme may be much lower.
Tort is arbitrary in the sense that only those victims who can
point to a tortfeasor can recover full compensation. All other
accident victims must fall back on other forms of compensation
which are likely to be paid at a lower level. By contrast, no-fault
liability seeks to compensate all accident victims on the basis of
need.
Although the Pearson Commission felt that the adoption of a
comprehensive no-fault scheme to the exclusion of tort was
beyond their terms of reference,95 a different view was taken by
the Woodhouse Commission in New Zealand, which in 1967
recommended that such
a scheme should be adopted in that country.96 A comprehensive
system of state-run compensation for all “accidents” causing
personal injury and death was brought in by the New Zealand
Labour Government in 1974 and tort actions for personal injury
were abolished. The term “accident” has been extended to cover
medical misadventure and intentional acts such as battery and
rape. With its five aims of community responsibility,
comprehensive entitlement, real compensation, complete
rehabilitation and administrative efficiency, the system provides
a dramatic contrast to our own system of tort law. Under the
scheme, everyone in New Zealand is eligible for comprehensive
injury cover no matter whether the victim is driving, playing
sport, at home, at work, no matter how the injury happened,
even if the victim was contributory negligent, and no matter
whether the victim is retired, a child, on benefit or studying. The
scheme is funded by citizens paying premiums into relevant
funds. Accordingly, employers and the self-employed pay to
cover work-related injuries, and drivers to cover road traffic
accidents.97 Accidents which occur outside of these contexts are
funded by general taxation.
The New Zealand scheme has run for over 40 years, and the
New Zealand experience is useful in evaluating our own
system.98 A number of conclusions can be drawn. First, a
comprehensive system which seeks to replace tort law damages
in every respect is inevitably expensive. The escalating cost of
the New Zealand scheme led to the passing of legislation to
curtail the scheme and reduce the level of benefits available to
accident victims. Generally speaking, the scheme now
compensates only lost earnings, although additional lump-sum
payments for victims with permanent disability have been re-
introduced, in response to criticism from claimants that the
scheme was unfair by comparison to a tort action. Compensation
for non-financial loss (such as pain and suffering), however, is
not available. The scheme is administered by the Accident
Compensation Corporation, whose tasks now include the
promotion of accident-prevention measures (such as speed
limits) and the promotion of rehabilitation of accident victims.99
Secondly, it is clear that the success of a no-fault scheme
depends on the political mood of the country. This, of course,
may change over time. In the early 1970s, many contemplated
that the New Zealand scheme would expand, but in fact it has
contracted. In the UK, the political mood is not in favour of the
no-fault option, which requires a dominant philosophy of state
intervention and responsibility. Thirdly, deterrence theorists have
questioned
whether no-fault liability removes incentives to avoid
accidents100 and current statistics from New Zealand indicate
ongoing concern at the level of accidents in this country.101
In 2003, the Chief Medical Officer, Sir Liam Donaldson,
rejected the option of a comprehensive no-fault compensation
scheme for treatment under the NHS, when faced with an
estimated cost of £4 billion a year.102 Instead, a fault-based
scheme was proposed under the NHS Redress Act 2006. This
scheme (which would permit claims only where there is
“qualifying liability in tort”) aimed to supplement tort law by
providing victims of medical negligence with up to £20,000 in
compensation, together with an apology or remedial care, as
appropriate. Patients would have been able to withdraw from the
scheme if they decided that they would rather take their claim to
court. The idea behind the scheme was to settle claims in a non-
adversarial way. This is in the interests of patient welfare, since
it avoids the stress and delay associated with litigation. It is also
in the interests of the medical profession—it was hoped that,
free from the prospect of court action, medical professionals
might be more willing to admit their mistakes and treat them as
opportunities for learning. The scheme was not without its
critics, however, who feared that it would deprive claimants of
 their right to have claims decided by a judge, that it was too
narrow in scope and that, by permitting both fact- and fault-
finding to be managed and controlled by the NHS, it would
enable the NHS to act as judge and jury of its own (negligent)
mistakes.103 As Quick noted in 2012, such criticisms now seem
redundant given that the scheme has yet to be implemented in
England (and this remains the case in 2020),104 although the
Welsh Government has taken forward the reforms in the NHS
Redress Act 2006 by passing regulations as part of its “Putting
Things Right” project.105 It remains to be seen whether, if the
scheme in Wales proves effective,106 the Government will look
again at introducing a no-fault scheme for clinical negligence.

◗ (3) Insurance
1–032 This proposal is perhaps more consistent with current political
views on free market economics. It is primarily advanced by
Professor Atiyah, who explains it in his book The Damages
Lottery.107 Insurance, as we have seen, is an important adjunct to
the law of tort, yet the influ-ence of insurance on the law of tort
is a matter of some dispute.108 Whilst the orthodox position is
that the courts should ignore the presence of insurance cover,109
judges such as Lord Denning have used the presence of
insurance cover to justify developments in the law aimed at
achieving the principle of loss distribution.110 Professor Atiyah’s
approach is more radical. Put simply, he argues that the tort
system should be replaced by a system of first party insurance.
By purchasing “first party” insurance, a person insures himself
or herself against suffering harm. (It should be distinguished
from “third party” insurance, where a person insures against
liability for harm suffered by others.) The argument runs that, if
everyone were covered by first party insurance, there would be
no need for an inefficient system of tort law. Accident
compensation and prevention could be dealt with through the
more efficient medium of the market. There are a number of
objections to this suggestion,111 the strongest of which is that not
 everyone in society has the means to pay for first party
insurance. One must also have doubts about the morality and the
wisdom of placing all accident compensation in the hands of
insurers. At present, tort law provides the benchmark against
which the appropriate levels of compensation for personal
injuries are assessed. It is questionable whether justice would be
seen to be done if this function were removed from the judiciary
and placed in the hands of insurance companies.

Tortious liability: conclusion

1–033 Tort law is a stimulating, if sometimes complicated and often

frustrating subject to study. It faces a number of challenges,
some of which are of quite recent origin. The effects of the
Human Rights Act 1998, and the Woolf reforms on civil
litigation continue to shape the contours of tortious liability.
Despite its failings, tort law continues to offer a humane and
pragmatic response to the problems of Twenty-first century life.

1 The word “tort” is in fact Norman-French for “harm” or “wrong”. It dates

from the times when Norman-French was used within the English judicial
system.

2 P.H. Winfield, The Province of the Law of Tort (1931), p.32.

3 e.g. if you invite someone into your home (see Occupiers’ Liability,
discussed in Ch.8).

4 e.g. duties owed to employees (see Employers’ Liability, discussed in

Ch.7).

5 (1880) 5 App. Cas. 25 at 39 per Lord Blackburn.

6 See M. Davies, “The End of the Affair: Duty of Care and Liability
Insurance” (1989) 9 L.S. 67 and R. Merkin and J. Steele, Insurance and the
Law of Obligations (OUP, 2013) who argue that tort law and insurance are
symbiotic, both playing vital roles in allocating risks of harm.

7 See R. Lewis and A. Morris, “Challenging views of tort” [2013] J.P.I.

Law 69, who note that insurers are the paymasters of the tort system and are
responsible for 94% of tort compensation for personal injury. See also R.
Lewis, “Insurers and Personal Injury Litigation: Acknowledging ‘The
Elephant in the Living Room’” [2005] J.P.I. Law 1. A YouGov report on
Personal Injuries in 2015 reported that personal injury and accident legal
work primarily comes from claims for injuries sustained at work, in public
places and on someone else’s property. The largest number of claims come
from road traffic accidents.

8 See Road Traffic Act 1988 ss.143 and 145.

9 See https://www.mib.org.uk/making-a-claim/ [Accessed 1 August 2020].

10 [1932] A.C. 562 at 580. See also Sedleigh-Denfield v O’Callaghan

[1940] A.C. 880 (expanding the tort of nuisance on the basis of fault).

11 See Ch.7.

12 For a more detailed critique of the fault principle, see P. Cane and J.
Goudkamp, Atiyah’s Accidents, Compensation and the Law, 9th edn (2018),
Ch.7.

13 Discussed more fully in Ch.17.

14 See Rookes v Barnard (No.1) [1964] A.C. 1129.

15 [1964] A.C. 1129 at 1228 per Lord Devlin.

16 119 Cal. App. 3d 757 (1981).

17 Juries are still used in tort cases in the US, but are rarely used in English
courts, save for torts such as fraud and false imprisonment: see Senior
Courts Act 1981 s.69.

18 [1971] 2 Q.B. 691.

19 For a defence of the deterrence argument even in the face of liability
insurance and vicarious liability, see J. Morgan, “Abolishing personal
injuries law?” (2018) 34 P.N. 122, 127–133.

20 But note that the Law Commission in its report No.247 “Aggravated,
Exemplary and Restitutionary Damages” (1997) recommended a more
generous approach to punitive damages, which will be discussed in Ch.17.

21 But see, e.g. the analysis of Lord Hoffmann in Stovin v Wise [1996] 1
A.C. 923 at 944 in the context of liability for omissions.

22 Most of the relevant academic commentary is American. See, e.g. R.A.

Posner, Economic Analysis of Law, 9th edn (Wolters Kluwer, 2014); R.B.
Cooter Jr and T. Ulen, Law and Economics, 6th edn (Pearson, 2014) Chs 5
and 6.

23 The role of economic deterrence in the tort of nuisance is discussed in

the influential article of A. Ogus and G. Richardson, “Economics and the
Environment: A Study of Private Nuisance” [1977] C.L.J. 284.

24 The concept of “distributive justice” is referred to in a number of

negligence cases, most notably McFarlane v Tayside Health Board [2000] 2
A.C. 59 (discussed in Ch.2) and White v Chief Constable of South Yorkshire
[1999] 2 A.C. 455 (discussed in Ch.4).

25 Glanville Williams has commented that “Where possible the law seems
to like to ride two or three horses at once”: G. Williams, “The aims of the
law of tort” [1951] C.L.P. 137. See also recently J. Morgan, “Abolishing
personal injuries law?” (2018) 34 P.N. 122 on the different functions of tort
law.

26 [2000] 2 A.C. 59 at 82. See also Lord Steyn, “Perspectives of corrective

and distributive justice in tort law” (2002) 37 Irish Jurist 1. The division
between corrective and distributive justice comes from Aristotle: see The
Nichomachaean Ethics, revised edn (Penguin Classics, 2004).

27 [1989] A.C. 53.

28 See Ch.11.

29 See Victorian Railway Commissioners v Coultas (1888) 13 App. Cas.

222 at 226.

30 On claims for mental distress in tort generally, see P. Giliker, “A ‘new’

head of damages: damages for mental distress in the English law of torts”
(2000) 20 L.S. 19; E. Descheemaeker, “Rationalising Recovery for
Emotional Harm in Tort Law” (2018) 134 L.Q.R. 602.

31 See Cardozo CJ in Ultramares Corp v Touche 255 N.Y. Rep. 170 at 179
(1931); 174 N.E. Rep. 441 at 444 (1931).

32 See Ch.3.

33 Which must be of an existing fact: Edgington v Fitzmaurice (1885) 29

Ch. D. 459.

34 See Derry v Peek (1889) 14 App. Cas. 337.

35 The claimant can recover for all the losses directly flowing from the
fraudulent misstatement: Doyle v Olby (Ironmongers) Ltd [1969] 2 Q.B.
158. Deceit or fraud generally appears in the context of contract law and
reference should be made to works on contract law.

36 See Ch.11.

37 [1996] 1 A.C. 74.

38 See Henderson v Merrett Syndicates Ltd (No.1) [1995] 2 A.C. 145,

overturning the doubts experienced following Lord Scarman’s equivocal
judgment in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986]
A.C. 80 at 107. This is not the case in all jurisdictions. The position is
different, e.g. in France where there is a rule against accumulation of
actions (non-cumul).

39 Although it has been argued that its real role is in the protection of
detrimental reliance: see, e.g. P.S. Atiyah, “Contract, Promises and the Law
of Obligations” (1978) 94 L.Q.R 193 and in P.S. Atiyah, Essays on
Contract (OUP, 1990).

40 Robinson v Harman (1848) 1 Ex. 850 at 855 per Parke B.

41 Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App. Cas.

25 at 39.

42 e.g. under the Sale of Goods Act 1979 or Consumer Rights Act 2015.

43 See Ch.8.

44 See Ch.3.

45 For a more detailed discussion, see leading texts on the law of

restitution. Helpful academic discussion may be found in I.M. Jackman,
“Restitution for wrongs” [1989] C.L.J. 302; C. Rotherham, “The conceptual
structure of restitution for wrongs” [2007] C.L.J. 172 and J. Edelman, who
controversially argues that restitutionary damages should be available for
all wrongs: Gain-based damages (Hart, 2002), 81.

46 Directive 85/374 on the approximation of the laws, regulations and

administrative provisions of the Member States concerning liability for
defective products [1985] OJ L210/29.

47 Treaty of the Functioning of the European Union (TFEU) art.288(3)

provides that directives are binding on all European Member States, but
leaves it to each State to determine how they are introduced into national
law.

48 (C6/9) [1991] E.C.R. I-5357.

49 In Brasserie du Pêcheur v Germany; R. v Secretary of State for

Transport Ex p. Factortame (No.4) (C46/93 and C48/93) [1996] Q.B. 404,
the CJEU established the conditions for Francovich liability (see Ch.7).

50 On the definition of “public authority”, see Aston Cantlow v Wallbank

[2003] UKHL 37; [2004] 1 A.C. 546 and YL v Birmingham City Council
[2007] UKHL 27; [2008] 1 A.C. 95. See D. Oliver [2004] P.L. 329 and J.
Landau [2007] P.L. 630.

51 See HRA 1998 s.2.

52 HRA 1998 s.3(2). It also does not affect the validity, continuing
operation or enforcement of any incompatible subordinate legislation if
(disregarding any possibility of revocation) primary legislation prevents
removal of the incompatibility.

53 HRA 1998 s.4(2). See, e.g. Smith v Lancashire Teaching Hospitals NHS
Trust [2017] EWCA Civ 1916; [2018] Q.B. 804.

54 See, e.g. Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 A.C.

557.

55 See, e.g. Smith v Ministry of Defence [2013] UKSC 41; [2014] A.C. 52
on combat immunity and J. Wright, Tort Law and Human Rights, 2nd edn
(Hart, 2017).

56 Royal Commission on Civil Liability and Compensation for Personal

Injury (Cmnd.7054 1978).

57 Royal Commission on Civil Liability and Compensation for Personal

Injury (Cmnd.7054), Vol.1 Table 5(i).

58 See https://www.gov.uk/income-support/what-youll-get [Accessed 1

August 2020].

59 See P. Cane and J. Goudkamp, Atiyah’s Accidents, Compensation and

the Law, 9th edn (2018), 18.5.

60 See Criminal Injuries Compensation Act 1995. See generally P. Cane

and J. Goudkamp, Atiyah’s Accidents, Compensation and the Law, 9th edn
(2018), Ch.12 and S. Macleod, “Criminal Injuries Compensation Scheme”
in S. Macleod and C. Hodges, Redress Schemes for Personal Injuries (Hart,
2017). For a critical perspective, see D. Miers, “Compensating deserving
victims of violent crime: the Criminal Injuries Compensation Scheme
2012” (2014) 34 L.S. 242.

61 Powers of Criminal Courts (Sentencing) Act 2000 s.130.

62 Courts and Legal Services Act 1990 s.58.

63 [2005] UKHL 61; [2005] 1 W.L.R. 3394. Comment: R. Caddell [2006]

C.L.J. 45. See also Coventry v Lawrence [2015] UKSC 50; [2015] 1 W.L.R.
3485 (regime compatible with ECHR art.6 and Protocol 1 art.1) and Times
Newspapers Ltd v Flood [2017] UKSC 33; [2017] 1 W.L.R. 1415.

64 MGN Ltd v United Kingdom (39401/04) (2011) 53 E.H.R.R. 5.

Comment: D. Howarth, “The cost of libel actions: a sceptical note” [2011]
C.L.J. 397.

65 Review of Civil Litigation Costs Final Report (HMSO, 2010), also

known as the Jackson Review.

66 See, generally, https://www.gov.uk/government/policies/civil-justice-

reform [Accessed 1 August 2020]. See, generally, S. Sime (2012) 31(4)
C.J.Q. 413. For a critical response, see J. Ayling [2013] J.P.I. Law 127.

67 LASPO Act 2012 ss.44 and 46, which amend the Courts and Legal
Services Act 1990 (see ss.58 58A and 58C) in line with recommendations
made by the Jackson Review.

68 LASPO Act 2012 s.45 (see now Courts and Legal Services Act 1990
s.58AA), Damages-Based Agreements Regulations 2013/609. See J.
Peysner, “Tail wags dog: contingency fees (and Pt 36 and third party
funding)” (2013) 32 C.J.Q. 231. DBAs have been used very sparingly by
the legal profession since the Jackson reforms took effect in 2013: note the
2015 report of the Civil Justice Council (CJC), The Damages-Based
Agreements Reform Project: Drafting and Policy Issues.

69 LASPO Act 2012 ss.56–60. Enforcement is through the relevant

regulator.
70 A recent case has condemned the practice of automatically setting the
success fee at 25% of the damages without first carrying out an assessment
of the risk: Herbert v HH Law Ltd [2018] EWHC 580 (QB), affirmed on
appeal [2019] EWCA Civ 527; [2019] 1 W.L.R. 4253.

71 Simmons v Castle [2012] EWCA Civ 1288; [2013] 1 W.L.R. 1239,

amending earlier judgment: [2012] EWCA Civ 1039.

72 See LASPO Act 2012 s.9 and Sch.1. Part 1 of Sch.1 describes the civil
legal services that can generally be made available under the arrangements
for civil legal aid.

73 For its current view, see https://www.lawsociety.org.uk/topics/civil-

litigation/ [Accessed 1 August 2020].

74 See https://www.gov.uk/government/publications/post-implementation-
review-of-part-2-of-laspo (Published February 2019) [Accessed 1 August
2020].

75 R. Jackson, “Was it worth it?” (2018) 34 P.N. 61.

76 See the final report of Lord Woolf, Access to Justice (1996).

77 R. Lewis, “Strategies and tactics in litigating personal injury claims: Tort

law in action” [2018] J.P.I. Law 113.

78 A survey conducted by researchers at the Centre for Socio-Legal Studies

in Oxford in 1976 found that only 14% of personal injury victims consulted
a lawyer: D. Harris, Compensation and Support for Illness and Injury
(Clarendon Press, 1984).

79 UK Personal Injury Litigation 2016 (Global Data, 2016)

80 R. Lewis and A. Morris, “Challenging views of tort” [2013] J.P.I. Law

69. See also R. Lewis, “Compensation culture reviewed: incentives to claim
and damages levels” [2014] J.P.I. Law 209. Note also the introduction of
Part 1 of the Civil Liability Act 2018 which seeks to reduce the number of
whiplash personal injury claims in road traffic accidents and thereby lead to
a reduction in motor insurance premiums (not yet in force).

81 Employer claims do also seem to be on the rise with a further increase of

29% between 2017/18 and 2018/19. See statistics from the government’s
Compensation Recovery Unit, available at
https://www.gov.uk/government/publications/compensation-recovery-unit-
performance-data/compensation-recovery-unit-performance-data
[Accessed 1 August 2020].

82 See, e.g. A. Morris, “Spiralling or stabilising? The compensation culture

and our propensity to claim damages for personal injury” (2007) 70 M.L.R.
349 and “‘Common sense common safety’: the compensation culture
perspective” (2011) 27 P.N. 82. Note also E. Quill and R.J. Friel (eds),
Damages and Compensation Culture: Comparative Perspectives (Hart,
2016).

83 Tomlinson v Congleton BC [2004] 1 A.C. 46, discussed in Ch.8.

84 See Compensation Act 2006 s.1.

85 Compensation Act 2006 s.2.

86 Compensation Act 2006 Pt II. For further discussion, see R. Herbert,

“The Compensation Act 2006” [2006] 4 J.P.I. Law 337.

87 See Partington, who comments on the ambiguous and opaque meaning

of the terms “for the benefit of society” and “a predominantly responsible
approach” in the Act: N. Partington, “‘It’s just not cricket’. Or is it?” (2016)
32 P.N. 77. For further criticism, see R. Mulheron, “Legislating
dangerously: Bad samaritans, good society and the Heroism Act 2015”
(2017) 80 M.L.R. 88.

88 The Act applies to England and Wales only and came into force on 13
April 2015.

89 See J. Fleming, “The Pearson report: its ‘strategy’” (1979) 42 M.L.R.

249.
90 Vol.1 para.275, on the basis that social security payments were quick,
certain and inexpensive to administer and already covered the majority of
accident victims.

91 Specific proposals were also suggested for airline and vaccination

accidents, defective products and extraordinary risks.

92 Vol.1 Ch.18.

93 See, e.g. A. L. Ogus, P. Corfield and D. R. Harris, “Pearson: Principled

Reform or Political Compromise?” (1978) 7 I.L.J. 143.

94 e.g. special treatment for vaccine-damaged children was implemented in

the Vaccine Damage Payments Act 1979, which provides for a tax-free
lump-sum payment of £120,000 where serious mental or physical damage
has been caused by the administration of specified vaccines: Vaccine
Damage Payments Act 1979 Statutory Sum Order 2007 (SI 2007/1931)
art.2.

95 Vol.1 para.274, although it may be questioned whether this was an

excuse to avoid discussion due to the obvious disagreement within the
Commission as to the relationship between tort and no-fault liability.

96 See Report of the Royal Commission of Inquiry on Compensation for

Personal Injury in New Zealand (1967).

97 By means of part of the motor vehicle licensing fee and a percentage of

petrol sales.

98 Information can be gathered from the website of the Accident

Compensation Corporation which administers the scheme at
http://www.acc.co.nz [Accessed 1 August 2020]. See, further, K. Oliphant,
“Beyond misadventure: compensation for medical injuries in New Zealand”
(2007) 15 Med. L. Rev. 357, P. Blake; “Medical mishap: no fault
compensation as an alternative to civil litigation—a review of 30 years’
experience with the New Zealand Accident Compensation Corporation
system” (2010) 78 Med. Leg. J. 126, J.M. Manning, “Plus ca change, plus
c’est la meme chose: Negligence and treatment injury in New Zealand’s
accident compensation scheme” (2014) 14 Med. L. Int. 22 and C. Hodges
and S. Macleod, “New Zealand: The Accident Compensation Scheme” in S.
Macleod and C. Hodges, Redress Schemes for Personal Injuries (Hart,
2017).

99 For the history of the New Zealand scheme, see

https://www.acc.co.nz/about-us/who-we-are/our-history/ [Accessed 1
August 2020].

100 See J.H. Arlen, “Compensation systems and efficient deterrence”

(1993) 52 Md. L. Rev. 1093; R. Posner, “A theory of negligence” (1972) 1
J. Legal Stud. 29.

101 Statistics, for example, on New Zealand motor vehicle accident claims
may be found at https://catalogue.data.govt.nz/dataset/motor-vehicle-
accident-claims [Accessed 1 August 2020]. An Independent Taskforce on
Workplace Health and Safety in 2013 found that New Zealand’s health and
safety system was not fit for purpose and commented on a lack of adequate
‘motivation’ for employers.

102 See Chief Medical Officer, Making Amends: A consultation paper

setting out proposals for reforming the approach to clinical negligence in
the NHS (Department of Health, 2003).

103 See P. Gooderham, “Special Treatment?” (2007) 157 N.L.J. 694. See,
generally, E. Cave, “Redress in the NHS” (2011) 27 P.N. 138.

104 O. Quick, “Patient safety and the problem and potential of law” (2012)
28 P.N. 78, 87.

105 The National Health Service (Concerns, Complaints and Redress

Arrangements) (Wales) Regulations 2011 (SI 2011/704). See A.L. Ferguson
and E. Braithwaite, “Putting Things Right in Wales” (2012) 18 Clinical
Risk 6–8. See, generally at http://www.wales.nhs.uk/governance-
emanual/putting-things-right [Accessed 1 August 2020].

106 See A. L. Ferguson, G. Cooper and G. Rees, “Putting things right in

NHS Wales” [2018] J.P.I. Law 182 which concludes that it promotes a
welcome culture of transparency, efficiency and learning. Others are,
however, more critical: S. Davies and H. James, “Are the Welsh NHS
redress arrangements ‘putting things right’ for patients in Wales” [2018]
J.P.I. Law 190.

107 P.S. Atiyah, The Damages Lottery (Hart, 1997).

108 See J. Stapleton, “Tort, Insurance and Liability” (1995) 58 M.L.R. 820;
criticised by J. Morgan, “Tort, insurance and incoherence” (2004) 67
M.L.R. 384 and, more recently, R. Merkin, “Tort, insurance and ideology:
Further thoughts” (2012) 75 M.L.R. 301, who argues that Stapleton’s
argument that neither insurance nor insurability are relevant to the
construction of tort liability underplays the role of insurance in the law of
obligations, particularly when legislation requires compulsory insurance.

109 See Lord Bridge in Hunt v Severs [1994] 2 A.C. 350 at 363 who held
that at common law the fact that the defendant is insured can have no
relevance in assessing damages. See also Viscount Simonds in Lister v
Romford Ice and Cold Storage Co Ltd [1957] A.C. 555 at 576–577.

110 See, e.g. Nettleship v Weston [1971] 2 Q.B. 691 at 700.

111 See the excellent review of Professor Atiyah’s book by J. Conaghan

and W. Mansell, “From the Permissive to the Dismissive Society” (1998)
25 J.L.S. 284.
 2

Negligence: The Duty of care

Introduction
2–001 The tort of negligence is the most frequently used of all the torts
and is therefore perhaps the most important. It flourished in the
latter part of the Twentieth century, rising to a dominant position
because of the flexible nature of its rules, which have allowed
the judges to expand the tort to protect many claimants who
would otherwise have been left unprotected by the law.
Unfortunately for the law student, however, this broadness of
judicial approach can make the principles of the tort seem
frustratingly vague.
This book explores negligence over five chapters, taking
each ingredient of the tort in turn. This chapter introduces these
ingredients and then, from a general perspective, discusses the
first of them, namely the duty of care. The next two chapters
explore some of the special difficulties the courts have
encountered in deciding whether a duty of care should exist in
relation to economic loss and psychiatric illness. The last two
chapters on negligence deal with the remaining ingredients of
the tort, namely breach of duty and causation.
This chapter begins with a basic definition. There then
follows a short section describing the correct approach to be
taken when studying negligence and a section giving a brief
overview of the tort. These sections introduce certain important
 ideas which, once grasped, will help dispel some of the
frustration often experienced by those who approach the subject
for the first time.

Definition of “Negligence”

2–002 The tort of negligence has been usefully defined as:

“. . .a breach of a legal duty to take care

which results in damage to the claimant.”1

The tort is not usually concerned with harm inflicted

intentionally. Rather, it is concerned with harm inflicted
“accidentally” or through want of care. We shall see, however,
that establishing negligence involves much more than simply
showing that the defendant behaved “care-lessly”—careless
behaviour is only one ingredient of the tort.
To establish the tort of negligence, the claimant must prove
three things:
▮ the defendant owes the claimant a duty of care;
▮ the defendant has acted in breach of that duty, and
▮ as a result, the claimant has suffered damage which is
not too remote a consequence of the defendant’s breach.

For the purpose of learning the law, it is convenient to consider

each element of the tort in turn. Rarely in practice, however, will
disputes ever involve all three elements. Moreover, the courts
 have a tendency to blur the distinctions between each of the
separate elements of negligence. Quite often, therefore, a
judgment may indicate that the defendant is not liable but may
not make it clear which of the three separate requirements of the
tort has not been fulfilled.2 This difficulty stems from the fact
that, as we shall see, the concept of “reasonable foreseeability”
is used by the courts in establishing all three elements of the tort.

Studying Negligence

2–003 The tort of negligence covers such a wide range of factual

situations that the search for a single “set of rules”, applicable to
all types of negligence case, will be fruitless. The correct
approach, then, is to focus on the type of interest which the
claimant is trying to use the tort to protect (physical safety, the
safety of property, financial well-being, or psychological well-
being), and
then to think about why the courts have felt either able or unable
to extend the scope of negligence to protect that interest in
particular situations. The language of the judges, and the pattern
of their decision-making, will only begin to make real sense
when considered alongside the political and economic forces
which motivate decisions in negligence cases.
When one looks at what negligence is trying to achieve
within society—the redistribution of certain risks associated
with day-to-day activities—it becomes clear why the judges
have had such difficulty in formulating workable rules for the
tort. The point to grasp is that negligence is essentially
concerned with a conflict of values within society. The driver of
a car, for example, wishes to go fast to reach his destination, but
the pedestrian crossing the road wishes the driver were going
more slowly so as to lessen the likelihood of being knocked
down. In essence, therefore, in order to decide the question of
negligence, the judge must make a political and moral value-
judgment as to the relative merits of fast driving and road safety
in society. Making this sort of judgment, however, is not a task
with which judges feel very comfortable, because it is one for
which the British Constitution does not equip them. As Lord
Scarman put it in McLoughlin v O’Brian3:

“. . . the policy issue where to draw the line

is not justiciable. The problem is one of
social, economic and financial policy. The
considerations relevant to a decision are not
such as to be capable of being handled
within the limits of the forensic process.”

Clearly, his Lordship is referring to the fact that, in

constitutional theory, the role of the judge is not to make law, but
only to interpret it. Much of the interest in studying negligence,
however, comes from exploring the way in which the judges
have managed to make new law, usually without explicitly
stating that they have done so. For constitutional reasons, the
judges are not able to use the explicit language of politicians or
economists in their judgments. This means that where the
relevant political and economic reasoning is present in cases, it
is often encoded in “judicial”, rather than “political” language. A
proper understanding of the tort of negligence, then, requires a
good deal of “reading between the lines”.

An Overview of Negligence
2–004 In 1932, Lord Atkin, in the landmark case of Donoghue v
Stevenson,4 formulated a general principle (known as the
“neighbour principle”) by which the existence of a legal duty to
take care could be determined, thus effectively inventing the
modern tort of negligence. The problem
with Lord Atkin’s general principle, however, was that it
contained too little by which, on the basis of logic, the limits of
the tort could ever be confined.
As the tort of negligence developed, the courts sought to
qualify Lord Atkin’s general principle with a number of
complex, inherently vague and sometimes rather arbitrary rules.
These rules were necessary in order to keep the scope of
negligence within acceptable bounds. In particular, the courts
felt it important to avoid being overrun with a multiplicity of
negligence claims (they were afraid to open the so-called
“floodgates of litigation”) because, as was noted in Ch.1, the tort
system is very costly to administer. The courts were also afraid
of allowing what is sometimes called “crushing liability”.
Crushing liability would occur if one particular defendant were
made liable for a very large amount of loss, of which the
defendant’s actions were the logical cause, but for which it
would be unfair or economically inefficient to make the
defendant responsible in law.
In studying negligence, we shall see how, during the period
from 1963 until the mid–1980s, the House of Lords was willing
to apply Lord Atkin’s “neighbour principle” fairly broadly, so
that it came to be applied to factual situations which were far
removed from the facts of Donoghue v Stevenson. During this
period, the tort of negligence grew from a tort protecting only
property and physical well-being into one which, to a limited
extent, now protects the financial and psychological well-being
of claimants. We shall then see how, in recent years, faced with
the problems of indeterminate and crushing liability, their
Lordships have retraced their steps, diminishing the scope of the
tort.
To some extent, it can be seen that the expansion of
negligence, and its subsequent contraction, have mirrored certain
 changes in political thought. This period saw a gradual change
away from a philosophy of welfarism and state control towards a
philosophy of individualism and contraction of state
responsibility. The long rule of a Conservative Government,
from 1979 to 1997, brought arguments about economic
efficiency into tighter focus than ever before. Subsequent
governments have done little to change this focus. It is likely
that these arguments have influenced the courts, resulting in
their reluctance to make people responsible for certain types of
loss particularly when, under a contract, the risk of that loss (and
the reward for taking that risk) has been allocated to someone
else. This point is further explored in Ch.3.

The Duty of Care

An overview
2–005 As the courts have struggled to determine the proper scope of
negligence, they have used each of its three ingredients—duty,
breach and causation—as a control mechanism to set limits to
the tort. This multi-faceted approach can sometimes be rather
confusing. What is clear, however, is that in recent times there
has been a marked tendency to deal with the question of
liability by reference to the scope of the duty of care. Logically,
establishing the existence of a duty of care is the first hurdle a
claimant must overcome. It therefore makes sense for a court to
deal with this first, because it simplifies the decision-making
process.
In many situations, it will be obvious from established case
law that the defendant owes the claimant a duty of care. The real
problem for the courts has been to decide whether a duty of care
should be owed in novel factual situations which are not covered
by authority. This point was made clearly by the UK Supreme
 Court in its recent decision in Robinson v Chief Constable of
West Yorkshire Police.5 Robinson stated that English law adopts
an approach based on precedent, developing the law
incrementally and by analogy with established authorities. In
many situations it will be clearly established by case-law that a
duty of care is owed e.g. that motorists owe a duty of care to
other road users, manufacturers to consumers, employers to their
employees, doctors to their patients, and so on. Only where this
case-law does not exist and established principles do not provide
an answer—that is, in novel cases—will the courts need to go
beyond those principles to decide whether a duty of care should
be recognised However, formulating a test for novel cases has
not proven to be straightforward exercise. In Caparo v
Dickman,6 Lord Roskill concluded:

“It has now to be accepted that there is no

simple formula or touchstone to which
recourse can be had in order to provide in
every case a ready answer.”

With this in mind, we can now examine more closely the

historical development of the duty of care, and the modern
approach to deciding whether it exists.

The historical background

2–006 Until the late Nineteenth century, negligence was not regarded
as a tort in its own right. The traditional system of writs, under
which claims would not be recognised unless they had been
made in the prescribed form, did not include a specific writ for
negligence. Early case law, however, did suggest that in certain
situations liability based on carelessness could arise. For
example, it was established from early times that innkeepers and
 common carriers could be liable for the careless performance of
a specific task. Later, in the seventeenth century, it became
established that a surgeon or an attorney would be liable if his
conduct was less than that expected of a reasonably skilled
professional. Although, at the time, such cases were not
considered in terms of a separate tort of negligence, with
hindsight they show us how the courts came gradually to accept
that liability could arise where a defendant had merely been
careless, as opposed to having committed an intentional act of
wrongdoing.
In the Nineteenth century, the technology of the industrial
revolution brought with it great potential for personal injury. In
addition, as urban areas became more densely populated,
congestion on city streets led to an increase in the number of
“running down” cases. These factors brought about a change in
judicial attitudes. As Professor Winfield observes:

“Early railway trains, in particular, were

notable neither for speed nor for safety.
They killed any object from a Minister of
State to a wandering cow, and this naturally
reacted on the law.”7

The stage was set for the emergence of a new tort which could
meet the needs of claimants in an increasingly dangerous age.

The first step: identifying a general

principle
2–007 Whilst, in the nineteenth century, the courts came to recognise
that liability could be based on careless conduct, there was no
general principle of law applicable to these situations. Instead, a
body of case law emerged consisting of a collection of isolated
instances where such liability had been imposed. The major
obstacle to the development of a general principle seems to have
been the Victorian belief that individuals should bear all
responsibility for their own welfare and that they could not be
expected to look out for the welfare of others unless they were
being paid to do so. The concept of “collectivism”—the idea that
every member of society can benefit if each member takes some
responsibility for the well-being of others—whilst central to our
modern way of thinking, was alien to Victorian political culture.
Thus, whilst the courts were happy to make defendants liable
where they had assumed responsibility for the care of another by
entering into a contract with that other for reward, they were less
happy about imposing on defendants a gratuitous duty to look
after others.
This attitude was apparent in the decision in Winterbottom v
Wright.8 The plaintiff was a coach driver, employed by the
Postmaster-General, who suffered serious injuries when he fell
from a coach that had been defectively built by the defendants. It
was held that the driver could not recover compensation from
the builders of the coach because he was not a party to the
contract with the Postmaster-General, under which the
defendants had supplied the coach. It was decided that while the
defendants had assumed responsibility under a contract for the
quality of a thing supplied, they would not also be liable for
damage suffered by a third party who was not privy to the
contract. This idea later became known as the “privity of
contract fallacy”. It persisted in the law until it was overturned
by the decision in Donoghue v Stevenson9 in 1932.
The first real suggestion that there could be a general
principle of law governing the existence of the duty of care came
in 1883. Brett MR, in Heaven v Pender,10 observed that the
following proposition appeared to cover all of the recognised
cases of liability for careless conduct:
 “. . . whenever one person is by
circumstances placed in such a position
with regard to another that everyone of
ordinary sense who did think would at once
recognise that if he did not use ordinary
care and skill in his own conduct with
regard to those circumstances he would
cause danger of injury to the person or
property of the other, a duty arises to use
ordinary care and skill to avoid such
danger.”

The majority of the Court of Appeal, however, were unwilling to

adopt such a broad principle of liability,11 and in his later
decision in Le Lievre v Gould,12 Brett MR (now Lord Esher
MR), declined to apply the principle to a case involving purely
financial loss. In a sense, Brett MR’s formulation of a general
principle came before its time. It was not until 1932 that a
change in judicial attitudes, which mirrored the political and
economic changes that had taken place in society, allowed for a
unified approach to cases of careless conduct.
A further problem with Brett MR’s formulation of the
principle was that, although it referred to the “position” of one
person “with regard to another” as giving rise to a duty of care,
it did not go very far in describing the nature of the relationship
which had to exist between the claimant and the defendant. This
meant that, on the face of it, Brett MR’s general principle would
have given rise to liability in any case where a person should
have foreseen that his conduct might cause harm to another. We
shall see that Lord Atkin’s reformulation of the principle in
Donoghue v Stevenson13 makes it much clearer that
 foreseeability of harm alone should not be sufficient to establish
the existence of a duty of care.

◗ Lord Atkin’s “neighbour principle”

2–008 In 1932, the House of Lords decided the famous case of
Donoghue v Stevenson.14 The facts of the case have become
legendary,15 although it should be noted that, because the case
was decided by the House of Lords on a point of law and was
then settled before going to trial,
these facts were never actually proved. It was alleged that Mrs
Donoghue and her friend visited Minchella’s Wellmeadow Café,
in Paisley.16 At the café, the friend bought for Mrs Donoghue a
“ginger beer float”, consisting of ginger beer, supplied in an
opaque bottle, and ice-cream. Mrs Donoghue drank some of the
mixture, and when her friend topped up the drink, out of the
ginger beer bottle floated the decomposed remains of a snail.
Mrs Donoghue claimed that the sight of the snail, together with
the ginger beer she had already drunk, made her ill.
Mrs Donoghue had no claim in contract law because the
contract for the ginger beer had been made between the retailer
and her friend. She therefore brought an action in tort against the
manufacturer of the ginger beer (the retailer had not been at
fault in that the ginger beer had been supplied to him in a sealed
opaque bottle, so that he could not have looked inside the bottle
to check that its contents were wholesome). There was no
possibility that the snail could have entered the bottle at any
stage after it had been supplied by the manufacturer.
Mrs Donoghue’s position, however, was very similar to that
of the coach driver in Winterbottom v Wright. She had been the
victim of a defective product that had been supplied to another
person under a contract to which she was not a party. According
to Winterbottom v Wright, it appeared that the manufacturer
would only be liable under his contract with the retailer. Yet Mrs
Donoghue succeeded in her claim. A majority of the House of
Lords distinguished Winterbottom v Wright, holding that a
manufacturer of products, which he sells in such a form as to
show that he intends them to reach the ultimate consumer in the
form in which they left him, with no reasonable possibility of
intermediate examination before the products are consumed,
would be liable to the consumer in tort if he failed to take
reasonable care to ensure that the products were safe. Their
Lordships rejected the so-called “privity of contract fallacy” of
Winterbottom—privity of contract did not prevent a third party
bringing an action in tort.
At first sight, it seemed that the decision in Donoghue v
Stevenson had simply added yet another category to the separate
instances of negligence recognised by the law. What has become
significant about the case, however, is Lord Atkin’s analysis of
the law and his subsequent formulation of a general principle for
determining the existence of a duty of care. This is what Lord
Atkin said17:

“. . . 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 . . . 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.”

Lord Atkin’s general principle contained two elements. First,

there was the element of “reasonable foreseeability”. Thus, a
duty of care would be owed where the defendant ought
reasonably to foresee that his failure to take care may cause
injury to another. (This, of course, is consistent with Brett MR in
Heaven v Pender.) The second element was the test of
“neighbourhood”—a duty of care would be owed only where the
claimant was “closely and directly” affected by the defendant’s
conduct. Brett MR’s simple test of foreseeability of harm,
therefore, became qualified by the additional need to show, as
Lord Atkin put it, a degree of “proximity”18 between the
claimant and the defendant, not in the sense of physical
proximity, but in the sense of “close and direct relations”.
Lord Atkin’s general test of foreseeability plus “proximity”,
then, gave the courts a basis on which the existence of a duty of
care could be decided in all cases. It allowed them to view
negligence as a tort in its own right, capable of being developed
to meet any new factual situation which arose.
It is important, however, not to overestimate the significance
of Lord Atkin’s general principle which has a number of flaws.
First, although Lord Atkin speaks of “acts or omissions”, we
shall see that the law treats liability for acts very differently from
liability for omissions. Secondly, as the law has developed, it has
become clear that, besides identifying the defendant’s
“neighbour”, it is also necessary to identify the type of loss
which the “neighbour” is likely to suffer (or, in other words, the
type of interest which the claimant is seeking to use the law to
protect) before any decision can be made about whether to
impose a duty of care. Lord Atkin’s words, spoken in the context
 of personal injury caused by a defective product, gave little
indication of the degree of “proximity” which would be required
in other factual situations. We shall see that, especially where
other types of harm are in issue, the courts, for policy reasons,
have had to say that a far greater degree of “proximity” is
required in some situations than in others. In Donoghue v
Stevenson, Lord Atkin observed:

“There will no doubt arise cases where it

will be difficult to determine whether the
contemplated relationship is so close that
the duty arises.”19

Such prescience, it will be seen, was all too accurate.

The second step: applying the neighbour

principle
2–009 Without Lord Atkin’s “neighbour principle”, the decision in
Donoghue v Stevenson would simply have been another isolated
example of negligence liability. (The case did indeed establish
liability in English law for defective products, which is
discussed in Ch.9.) It should be noted that Lord Atkin’s principle
did not form part of the ratio of the case, because the two other
majority judges in the case refrained from adopting it. As might
be expected, then, the first response of the courts was to treat the
case as a narrow example of liability. The judges were
particularly reluctant to apply the principle in situations where
there was clear authority which excluded liability in negligence,
such as where the claimant suffered financial loss because of a
carelessly made statement. And so things might have remained,
but for a number of radical decisions in the 1960s and 1970s, in
 which the House of Lords was prepared to overturn previous
authority to extend the scope of the duty of care.

◗ The decision in Hedley Byrne

2–010 The first of these cases came in 1963. The decision in Hedley
Byrne v Heller and Partners20 established, contrary to previous
authority, that there could be liability in English law in respect
of financial loss caused by negligent misstatement. The case is
examined more fully in Ch.3, but it will be convenient to state
the facts here.
Hedley Byrne, who were advertising agents, were about to
enter into certain contracts on behalf of one of their clients—a
company called Easipower—on terms which meant that, if
Easipower failed to honour its obligations under the contracts,
Hedley Byrne would become liable to pay Easipower’s debts.
Hedley Byrne therefore wished to find out whether Easipower
was creditworthy, so, through their own bankers, they sought a
reference from Easipower’s bankers, Heller and Partners. Heller
and Partners wrote saying that although the amounts in question
were larger than they were accustomed to see, they considered
Easipower to be good for the ordinary course of business. But
they made it clear that they were providing this advice “without
responsibility” on their part. In other words, they included a
disclaimer of liability.21
On the basis of the favourable credit reference, Hedley
Byrne went ahead with the advertising contracts. It turned out,
however, that Heller and Partners had carelessly failed to realise
that, at the time they gave the reference, Easipower was in a
very bad way financially. Easipower went into liquidation
shortly after the contracts had been made, so that Hedley Byrne
became liable to pay Easipower’s debts. Hedley Byrne therefore
brought an action against Heller and Partners for the negligently
given advice.
Two major problems faced Hedley Byrne. First, their action
concerned a statement which had been made carelessly, but
previous authority had decided that there could only be liability
 where a statement had been made fraudulently.22 Secondly, their
action was for financial loss, rather than for personal injury or
damage to property—the areas where the courts had so far been
willing to impose negligence liability.
Nevertheless, the House of Lords was prepared to hold that,
but for the disclaimer of liability, Heller and Partners would
have been liable for their negligent statement. Whilst their
Lordships were prepared to use Lord Atkin’s “neighbour
principle” as a starting point in establishing liability, they were
not prepared to decide the case purely by analogy to the facts of
Donoghue v Stevenson. Their Lordships made it clear that there
were important differences between negligently made statements
causing financial loss and negligently manufactured products
causing personal injury. These differences meant that Lord
Atkin’s principle could not be applied without qualification in
negligent misstatement cases. The reasoning in Hedley Byrne v
Heller and Partners is considered more fully in Ch.3. For
present purposes, however, it is sufficient to note that, in order to
avoid the problems of indeterminate and “crushing” liability,
their Lordships held that in negligent misstatement cases a high
degree of “proximity”, or closeness of relationship, would be
required. It was held that for liability to arise, a “special
relationship” had to be shown between the maker of the
statement and the person who subsequently relied on it.

◗ The decision in Dorset Yacht

2–011 The next landmark case was Home Office v Dorset Yacht.23 This
case was important because it imposed a duty of care on the
defendant to prevent damage being caused by the actions of
others. Liability for the acts of third parties has proved to be a
difficult area for the courts and is further discussed later in this
chapter.
In Home Office v Dorset Yacht, the Home Office had
established a Borstal (a prison training camp for young male
offenders) on an island off the Dorset coast. One night, because
of the carelessness of the guards, a number of the prisoners
 escaped and caused damage to some yachts moored in the
harbour. The House of Lords was prepared to impose liability
for the damage on the guards (for whom the Home Office was
responsible in law), holding that there were “special relations”
between the Home Office and Borstal boys, so that the Home
Office could be liable for its failure to prevent the boys from
causing damage. This, together with a high degree of
foreseeability—escaping and causing the damage was the “very
kind of thing” the boys were likely to do—made the Home
Office liable.
Lord Reid made the following observation:

“Donoghue v Stevenson may be regarded as

a milestone, and the well-known passage in
Lord Atkin’s speech should, I think, be
regarded as a statement of principle. It is
not to be treated as if it

were a statutory definition. It will require

qualification in new circumstances. But I
think the time has come when we can and
should say that it ought to apply unless
there is some justification or valid
explanation for its exclusion.”24

◗ Lord Wilberforce’s “two stage test”

2–012 This positive affirmation of Lord Atkin’s principle was approved
by the House of Lords in the next important case—the now
discredited case of Anns v Merton LBC.25 Here, a local authority
had failed to notice that the foundations of a new block of
maisonettes had not been dug to an adequate depth. The
plaintiffs, who had taken long leases of the maisonettes, found
that cracks appeared in the walls. They sued the local authority
for the cost of rebuilding. (Nowadays, this case is regarded as
one of pure economic loss. It was overruled in 1990 by the
decision in Murphy v Brentwood DC,26 discussed in Ch.3.)
In Anns,27 Lord Wilberforce reformulated the test for
determining the existence of a duty of care. According to his
Lordship, the judges should ask themselves two questions, one
after the other. This became known as Lord Wilberforce’s “two
stage test” and can be summarised as follows:

”Stage one: is there, between the claimant

and defendant, a suf-ficient relationship of
‘proximity or neighbourhood’ such that the
defendant can reasonably foresee that
carelessness on his or her part would be
likely to cause damage to the claimant? If
the answer to this question is ‘yes’, then a
prima facie duty of care arises. Stage two:
are there any considerations which should
nevertheless lead the court to deny a duty of
care, or to limit its scope, in these particular
circumstances?”

This straightforward test had the appeal of simplicity, but

unfortunately was flawed. Essentially, the problem was that it
was unclear what Lord Wilberforce meant by the word
“proximity” in stage one of the test. We have seen that Lord
Atkin thought that “foreseeability” and “proximity” were two
separate things. Foreseeability of harm alone would not give rise
to a duty of care—there had also to be “close and direct
relations” between the claimant and the defendant. Lord
Wilberforce, on the other hand, now appeared to say that
foreseeability was the test for proximity. This meant that, in
applying the two stage test, if a judge felt that,
although harm was foreseeable, liability should not be imposed
because the relationship between the claimant and the defendant
was not sufficiently close, the judge would have to find some
way of expressing this idea by answering Lord Wilberforce’s
second question, i.e. by explicitly stating a policy reason for
denying the existence of a duty of care.
Lord Wilberforce’s approach proved difficult, and was
eventually abandoned, because, on this interpretation, it did not
truly reflect the way the courts decide the existence of the duty
of care. The courts do not assume a duty of care and then
consider, as a matter of policy, whether in the circumstances the
type of damage in question should be compensated. Rather, the
policy question of whether certain types of damage should be
recoverable in certain circumstances goes to the central question
of whether, in each case, a duty should exist in the first place.
Reading between the lines, we might observe that the problem
with Lord Wilberforce’s formulation was that it made it difficult
for judges to avoid explicit reference to political and economic
considerations when answering the second question in the two
stage test.
Lord Wilberforce’s two stage test, then, embodied a more
generous approach to the duty of care issue—a presumption that
a duty of care would exist unless clear policy objections could
be found. This approach was adopted in Junior Books Ltd v
Veitchi & Co Ltd28 (discussed in Ch.3), where the majority of
the House of Lords supported a claim brought by factory-owners
against specialist sub-contractors who had negligently installed a
floor in their factory.
After Junior Books, however, the courts began to express
concern about the way in which the duty of care was expanding.
Insufficient attention seemed to be given to the problems of
indeterminate and crushing liability. Moreover, if tort were
prepared to intervene and upset the delicate contractual
allocation of risk between a main contractor and a sub-
 contractor, this would have implications for the prices charged
by sub-contractors.
In Donoghue v Stevenson, Lord Atkin had recognised these
problems when he said:

“. . . it is of particular importance to guard

against the danger of stating propositions of
law in wider terms than is necessary, lest
essential factors be omitted in the wider
survey.”29

From the mid-1980s, then, the courts began to examine these

“essential factors” more closely and to stress their importance in
limiting the scope of the duty of care.

The third step: the retreat from Anns

2–013 In a series of decisions, from 1985 onwards, the House of Lords
began to reject Lord Wilberforce’s broad approach to the duty of
care. Lord Keith in Governors of the Peabody Donation Fund v
Sir Lindsay Parkinson & Co Ltd30 criticised the tendency to treat
Lord Wilberforce’s simple two stage test as a definitive formula,
saying that the temptation to do so should be resisted. In Leigh
& Sillivan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon),31
Lord Brandon stated that Lord Wilberforce’s two stage test
should only be applied in novel factual situations where the
courts had not previously ruled on the existence of a duty of
care. Where a precedent existed (either directly or by analogy),
the court should follow it, rather than apply the test. In The
Aliakmon, this approach allowed the House of Lords to reject a
claim by a buyer for damage caused by the negligent stowage of
goods on board a ship. Whilst the claim may well have satisfied
Lord Wilberforce’s criteria, their Lordships preferred to follow
 previous authority which excluded such claims where the buyer
had not yet acquired a proprietary interest in the goods.32
In 1988, the Privy Council, deciding Yuen Kun Yeu v Att-Gen
of Hong Kong,33 was openly critical of the approach adopted in
Anns. Lord Keith commented that the two stage test appeared to
have been elevated to a degree of importance that it did not
deserve and that it should not in all circumstances be regarded as
a suitable guide to determining the existence of a duty of care. In
particular, his Lordship highlighted the danger of misinterpreting
stage one of the Wilberforce test as a simple test of
foreseeability.
In the light of their Lordships’ growing reservations about
Lord Wilberforce’s approach, it was perhaps unsurprising that in
1990, a seven-member House of Lords took the unusual step of
using the 1966 Practice Statement34 to overturn its own decision
in Anns. In Murphy v Brentwood DC,35 their Lordships
expressed their concerns about the potentially extensive liability
permitted under the two stage test, and asserted that Anns should
no longer be regarded as good law.36 Instead, the courts should
favour the approach suggested by Brennan J, an Australian
judge, in Sutherland Shire Council v Heyman,37 that is to say,
novel categories of negligence should be developed
incrementally and by analogy with established categories, rather
than under a general principle which permits a massive
extension of a prima facie duty of care, restrained only by
indefinable policy considerations. This “incremental” approach
is now the accepted means of finding a duty of care in English
law.

The modern approach: Robinson and

Caparo

2–014 In Robinson v Chief Constable of West Yorkshire Police,38 the

claimant (aged 76) had been knocked over by two police officers
who were attempting to arrest a drug dealer in a shopping street.
The officers had not noticed that she was nearby. The Court of
Appeal treated the question as a novel case and applied the
Caparo test (outlined below) finding that it would not be fair,
just and reasonable to impose a duty of care on the police when
apprehending offenders. This approach was rejected by the
Supreme Court at [29]:

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, . . . all that is
required is the application to particular
circumstances of established principles
governing liability for personal injuries.

Where, therefore, previous case-law indicated that a duty of

care to avoid causing reasonably foreseeable injury to persons
and property existed when police were engaged in their core
operational activities,39 the question for the Supreme Court was
 simply whether to follow the precedent or overturn previous
authority. It chose the former.
Equally in Darnley v Croydon Health Services NHS Trust,40
the Supreme Court regarded the question whether the Accident
& Emergency hospital receptionist owed a duty of care to the
defendant who had wrongly been told there was a four to five
hour wait before seeing a doctor as covered by pre-existing
authority. This was a recognised situation where a duty of care
existed between patient and health provider; it was long
established that a duty of care is owed by those who provide and
run a casualty department to persons presenting themselves
complaining of illness or injury before they are treated or
received into care in the hospital’s wards.41
In contrast, in James-Bowen v Commissioner of Police of the
Metropolis42 police officers sought to establish their employer
owed them a duty of care to protect them from economic
and reputational harm in the conduct of proceedings against the
Commissioner based on their alleged misconduct. There was no
decided case-law on this point. It was very clearly one in which
the claimant sought to extend a duty of care to a new situation.
Here, in determining whether a duty should be recognised, the
law proceeds incrementally and by analogy with previous
decisions. The task for the court is to test the proposed duty
against considerations of legal policy and judgement to achieve
both justice in the particular case and the coherent development
of the law. Here, the Supreme Court took the view that the
underlying policy considerations precluded the imposition of a
duty of care.

The Caparo criteria for novel cases

2–015 In the absence of case-law authority, then, we need to go back to

core principle. In Caparo v Dickman,43 the House of Lords gave
guidance as to how to decide whether a duty of care should
exist. Rejecting as impractical the task of articulating a single
general principle for the existence of a duty of care, the Court
concluded that where the claimant cannot point to a direct or
closely analogous precedent, the court should apply three criteria
to determine whether there is a duty of care. All of the following
three criteria must be satisfied before a court should be willing
to impose a duty of care:
▮ the damage must be foreseeable;
▮ there must be a sufficiently proximate relationship
between the parties; and
▮ it must be “fair, just and reasonable” for the court to
impose a duty of care in the light of policy
considerations with which the court is concerned.

The application of the three Caparo criteria is sometimes

referred to as a “threefold test”. It should be noted that, unlike
the “two stage test” put forward by Lord Wilberforce in Anns,
the Caparo criteria are designed to be considered all at once, not
one after the other. This follows from the fact that the criteria
cannot be precisely defined or evaluated in isolation from one
another. As Lord Oliver noted in Caparo itself, the three criteria
are, in most cases, “facets of the same thing”.44 On this basis,
then, it might be said that the more foreseeable the harm suffered
by the claimant, the closer the proximity of the parties, and vice
versa. Equally, the closer the proximity, or the more foreseeable
the damage, the more likely it is that the third criterion will be
satisfied.
In Customs & Excise Commissioners v Barclays Bank45
(discussed in more detail in Ch.3), the House of Lords
concluded that the Caparo criteria provide (in the words of Lord
Mance)
“a convenient general framework”46 for determining the
existence of a duty of care. However, they can only give the
courts limited help. It is therefore necessary for the courts to
consider the detailed factual circumstances of each particular
case, and especially the nature of the relationship between the
parties. As Lord Walker put it, the courts, since Caparo, have
shown an:

“increasingly clear recognition that the

threefold test . . . does not provide an easy
answer to all our problems, but only a set of
fairly blunt tools.”47

It will be appreciated, then, that the Caparo criteria are

somewhat vague.48 On one view, though, it is this very
vagueness which makes them so useful. We have seen that the
problem with the approach in Anns was that it required the
judges openly to refer to policy considerations in their
judgments. Their reluctance to rule on policy meant that the
expansion of the duty of care was inevitable. Under the modern
approach, however, judges are no longer forced to confront
policy issues so directly. Of course, they continue to make
decisions based on policy, but they are now able to frame those
decisions in appropriate judicial language by finding that there is
insufficient proximity between the parties, or by declaring that
the imposition of a duty would not be “fair, just and reasonable”.
The problem with an approach considering what is “fair, just
and reasonable” is that it can lead to uncertainty in the law—in
the Barclays Bank case, for example, different weight placed on
various different policy factors meant that a unanimous Court of
Appeal decision ended up being overruled by a unanimous
House of Lords. In these circumstances, it is very difficult for
potential litigants to know whether their cases stand any chance
of success.49 The Supreme Court in Robinson sought to reduce
this uncertainty by emphasising that the Caparo test would only
apply to novel cases, and that, in most cases, guidance could be
obtained from existing case-law.
Although each of the Caparo criteria is a “facet of the same
thing”, it is nevertheless possible to say something about each
 criterion in turn.

◗ (1) Foreseeability
2–016 It should be remembered that the relevant question is not what
the defendant actually did foresee, but what a “reasonable
person” in the circumstances of the defendant ought to have
foreseen. The duty of care can only be owed in respect of
preventing loss if the type of loss in
question is “reasonably foreseeable”. Implicit in this idea is that
it must be reasonably foreseeable that the conduct of the
defendant will affect the particular claimant in the case. This
point is examined below:

◗ The foreseeable claimant

2–017 In English law, it is said that negligence cannot exist “in the air”.
This is simply another way of saying that the particular claimant
in the case must be, as Lord Atkin put it, someone who is
“closely and directly affected” by the defendant’s conduct. Thus,
it is not sufficient to say that the defendant breached a duty of
care owed to person A and the claimant (person B) was affected
because he or she happened to be in the general area of the
negligence.
This principle is illustrated by the House of Lords’ decision
in Bourhill v Young.50 A heavily pregnant woman was
descending from a tram when she heard a road traffic accident
some 50 feet away from her, caused by the defendant’s
negligence. She arrived at the scene of the accident and saw
blood on the road where a motorist had been killed (although his
body had been removed) and subsequently suffered a
miscarriage and psychiatric illness. Their Lordships were
unsympathetic. Whilst the defendant would be liable for damage
suffered by other road-users, the claimant was too far removed
from the scene of the accident to be a reasonably foreseeable
victim.
 A more graphic illustration is the well-known US case of
Palsgraf v Long Island Railroad,51 where the negligence of
railway employees caused a passenger to drop a box of
fireworks as he was boarding a moving train. The fireworks
exploded and knocked over some heavy metal scales several feet
away, which struck the plaintiff. The New York Court of
Appeals rejected her claim for damages, holding that if any
wrong had been committed, it had not been committed against
her, because she was not a foreseeable victim of the railway
company’s negligence.

◗ Is an unborn child a “foreseeable claimant”?

2–018 Obviously, the “no negligence in the air” principle serves to
prevent indeterminate liability by restricting the range of claims
that can result from a single negligent act. Its distinguishing
feature is that it will not allow a claimant to base his or her claim
on a wrong done to someone else. A difficult question of policy
has arisen, however, in determining how far this principle should
be applied in respect of children who are born disabled because
of a wrong done to one of their parents before they are born.
For people born on or after 22 July 1976, the sort of claim
that can be made is determined by the provisions of the
Congenital Disabilities (Civil Liability) Act 1976.52 In summary,
this
states that if a child is born disabled as a result of an injury to
either parent which affects that parent’s ability to have a normal
child, or which affects the mother during pregnancy, or affects
the mother or child during birth, the child may sue for his or her
resulting disability.53 It is not necessary to show that the parent
has suffered personal injury of a type which would enable the
parent to maintain an action in his or her own right.54 However,
any defences which would apply if the parent were suing for
injuries to himself or herself will be available to the defendant in
fighting the child’s claim.55 Equally it must be established that
the negligence caused the child’s injury on the balance of
probabilities, which will not always be easy.56 It should be
remembered that the Act not only covers injury to the foetus, it
extends to cover situations where, before a child is conceived, a
wrong is done to either of the parents which prevents them from
conceiving a normal baby.
For policy reasons, the Act does not allow children to bring
claims against their mothers, except in one particular situation,
namely where the mother injures the child by negligently driving
a motor vehicle when she knows (or ought to know) that she is
pregnant.57 The moral objections against children suing their
mothers are overcome in this situation because the mother is, by
law, obliged to be insured.58 In such cases, the insurance
company will meet or defend the child’s claim. It should be
noted that the general immunity granted to mothers does not
extend to fathers.59
Moral objections have prevented the courts from holding
that an unborn child is a foreseeable claimant in so-called
“wrongful life” cases. These are cases in which disabled
claimants argue, in effect, that they should never have been
born, and were only born because of the defendant’s negligence.
The defendant may, for example, have failed to recommend an
abortion to the mother, in circumstances where it was likely that
the claimant would be born disabled. In McKay v Essex AHA,60
the court struck out such a claim as contrary to public policy.
It was not prepared to state that in law a disabled life was to be
regarded as less valuable than that of an able-bodied person.
Equally, the court was reluctant to set a precedent under which
an action might be maintained by a child against a mother who,
knowing of the risk of the child’s disability, refused to have an
abortion.61
Although children themselves have not been allowed to sue
for “wrongful life”, the courts have in the past been prepared to
allow parents to sue for the cost of bringing up “unintended
children” where the negligence of the defendant has prevented
them from choosing not to conceive, or choosing to terminate
the pregnancy. In recent times, however, the House of Lords has
declined, for public policy reasons, to allow such claims to
 succeed. The relevant cases are considered later in this chapter,
in the context of the liability of the NHS.

◗ (2) Proximity
2–019 It is impossible to define the concept of “proximity” in concrete
terms. What can be said, however, is that it refers to the
closeness of the relationship between the defendant and the
claimant. The degree of closeness which the law will require
before imposing a duty of care differs according to the type of
damage for which the claimant is seeking redress. Therefore, as
we shall see, in cases of economic loss and psychiatric illness,
the courts require a very close relationship between the parties,
whilst in cases of physical injury, the requirement of proximity
is more easily satisfied.62 Thus, if I negligently make a statement
causing you financial loss, I must (generally speaking) know
who you are and that you are likely to rely on that statement
before I can be made liable, but if I negligently drive my car,
causing you personal injury, I will be liable to you without
knowing who you are or that you, in particular, were relying on
me to drive carefully.
The fact that the courts’ insistence on “proximity” appears to
be confined to certain types of situation, then, indicates that
questions of policy are relevant to the question of whether or
not, in a given situation, the required degree of proximity exists.
As Lord Oliver put it, in Alcock v Chief Constable of South
Yorkshire63:

“. . .no doubt ‘policy’, if that is the right

word, or perhaps more properly, the
impracticability or unreasonableness of
entertaining claims to the ultimate limits of
the consequences of human activity,
necessarily plays a part in the court’s
perception of what is sufficiently proximate
 . . . in the end, it has to be accepted that the
concept of

‘proximity’ is an artificial one which

depends more upon the court’s perception
of what is the reasonable area for the
imposition of liability than upon any logical
process of analogical deduction.”

In determining “what is the reasonable area for the imposition of

liability”, the courts will often have to ask themselves how the
relationship between the parties (i.e. what actually happened in
their dealings with one another) should define the scope of the
defendant’s duty of care. Thus, in some cases, although a certain
duty is owed, the relationship (degree of proximity) between the
parties may indicate that the defendant has not assumed
responsibility for safeguarding the claimant against the actual
loss suffered. So, for example, in Calvert v William Hill,64 the
bookmakers, William Hill, which operated a telephone betting
service, had entered into a “self-exclusion” arrangement with Mr
Calvert for problem gamblers whereby they would refuse his
telephone bets for six months. Unfortunately, through
carelessness on their part, this arrangement was never
implemented and Mr Calvert continued placing telephone bets,
ultimately losing £1.8 million. The Court of Appeal held that
William Hill had not assumed a responsibility to enable Mr
Calvert to gamble free from all risk. The scope of their duty of
care to Mr Calvert was limited to the arrangement between them
and, as a matter of causation, even if the “self-exclusion”
arrangement had been implemented, other forms of gambling
would have brought about his financial ruin (Mr Calvert was a
compulsive gambler). The court cited with approval the
observations of Lord Oliver in Murphy v Brentwood DC65:
 “The essential question which has to be
asked in every case, given that damage
which is the essential ingredient of the
action has occurred, is whether the
relationship between the plaintiff and the
defendant is such . . . that it imposes upon
the latter a duty to take care to avoid or
prevent that loss which has in fact been
sustained.”

◗ (3) “Fair, just and reasonable”

2–020 Because, as shown above, policy concerns are relevant to the
degree of proximity required, it is often unclear how to divide
the questions of proximity and whether a duty of care would be
fair, just and reasonable in the circumstances. Commentators
have asked what useful purpose is served by an additional
consideration of whether the imposition of a duty of care is “fair,
just and reasonable” or, alternatively, whether the fair, just and
reasonable test renders the test of proximity unnecessary. Does
proximity simply obscure the real reasons for a decision, reasons
the court should have had the courage to explain openly and at
length?66 Or is, as Lord Kerr suggested in Michael v Chief
Constable of South Wales,67 the question of whether it is fair,
just and reasonable better considered against the background of
whether a sufficiently proximity relationship exists? In Marc
Rich & Co AG v Bishop Rock Marine Company (The Nicholas
H),68 Balcombe LJ doubted whether the criterion added
anything to the requirement of proximity. There may be
exceptional cases, however (such as the old cases of advocates’
immunity, discussed elsewhere in this chapter) where the courts
wish to deny the existence of a duty of care, but where it will be
 a nonsense for them to speak in terms of an insufficiently close
relationship between the parties. In such cases, the “fair, just and
reasonable” criterion provides a “long stop”, enabling the courts
to determine liability on the basis of policy.

Further factors relevant to the imposition

of a duty of care

2–021 To understand when a duty of care arises in English law, three

factors should be borne in mind. First, as already noted, the type
of harm the claimant has suffered (physical, financial, or
psychiatric) has a profound effect on whether a duty of care will
be owed. This factor is further considered in Chs 3 and 4. In the
following sections of this chapter, we examine two further
factors which have influenced the courts in deciding whether a
duty of care should be owed:
▮ whether the damage in question is caused by a positive
act, or by an omission (non-feasance);
▮ the type of defendant who is being sued.

Liability for omissions?

2–022 Lord Atkin, in Donoghue v Stevenson, spoke of a duty of care

arising in respect of “acts or omissions”, yet, as Lord Goff notes
in Smith v Littlewoods Organisation Ltd69:
 “. . .the common law does not impose
liability for what are called pure
omissions.”

The law draws a distinction between a positive act which causes

harm (misfeasance) and a mere failure to prevent harm from
arising (non-feasance), there being no liability for the latter.
Lord Keith in Yuen Kun Yeu v Att-Gen of Hong Kong70 gave a
classic example of this—there is, he stated, no liability “on the
part of one who sees another about to walk over a cliff with his
head in the air, and forbears to shout a warning”.71 In the
absence, then, of a special relationship e.g. the defendant was
the carer of the person walking over the cliff, there is no duty to
go to the rescue of another.
The distinction between acts and omissions is sometimes
very difficult to draw and has given rise to problems. A motorist
who causes an accident by failing to stop at a red light is
technically guilty of an omission, but the law says that he or she
is liable because this omission cannot be considered in isolation
from the positive act of driving. The key question, therefore, is
whether the “omission” in question can be seen as having been
made in the course of doing some positive act. If so, it will be
treated as misfeasance and not treated as a pure omission. In
contrast, in Sutradhar v Natural Environment Research
Council,72 the House of Lords denied the existence of a duty of
care on the part of a scientific advisory body which had reported
on the quality of water in Bangladesh. The defendants’ failure to
test the water for arsenic was regarded as a case of mere non-
feasance, because they had not assumed any positive obligation
to do so.73
In Stovin v Wise,74 Lord Hoffmann made the following
important observations about liability for omissions75:
“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 . . .
One can put the matter in political, moral
or economic terms. In political terms it is
less of an invasion of 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 all or 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.”

It can be seen from the reasoning in these cases that whether a

case is one of misfeasance or a pure omission depends
essentially on the nature of the relationship between the
claimant and the defendant. The issue therefore overlaps with
the idea of “proximity”. This is illustrated by the decision in
Michael v Chief Constable of South Wales.76 In this case
(discussed in more detail later), a young woman had been
murdered by her ex-boyfriend after the police had failed to
respond promptly to an urgent 999 call. The Supreme Court
found that the police did not owe her a duty of care. The
common law does not generally impose liability for pure
omissions. Here the police had failed to act promptly, but while
the law might require a person who embarks upon conduct
which may harm others to exercise care, it was another matter to
impose a duty of care on the police to prevent harm caused by
someone else. It was not a case where the police could be said to
have undertaken responsibilities giving rise to a duty of care
towards an individual member of the public.
The rule against liability for pure omissions, then, gives rise
to two important propositions:

▮ in English law, in contrast to civil law jurisdictions,77

there is no general duty to rescue another;
 ▮ there is no general duty to prevent other people from
causing damage.

These matters are considered below.

No duty to rescue

2–023 In Smith v Littlewoods Organisation Ltd,78 Lord Goff stated that

the refusal of English law to impose liability for mere omissions
might one day need to be reconsidered, in the light of the
“affirmative duties of good neighbourliness” imposed in other
countries.79 It seems, however, that that day is still some way
off. In order for a duty to rescue to arise in English law, a prior
relationship of care must exist between the defendant and the
person who needs rescuing. Thus, whilst parents (who have a
duty to care for their children) may be liable in negligence if
they stand by and let their children drown in shallow water, the
same cannot be said of a mere bystander at a swimming pool.80
There is a related point that should be noted here in terms of the
potential liability of rescuers for flawed rescue attempts: because
there is no duty to rescue, it follows that in cases where a rescuer
chooses to intervene, he or she cannot be liable in negligence
unless it can be said that the intervention has made the
claimant’s position worse than if it had not taken place.81

No general duty to prevent others from

causing damage
2–024 In the same way that there is no duty to save others from natural
perils, there is, generally speaking, no duty to save them from
perils arising from the actions of others. This was affirmed by
Lord Goff in Smith v Littlewoods Organisation Ltd. The
defendants had acquired a disused cinema, intending to develop
the land where it stood. Shortly after they had taken possession
of the cinema, vagrants occupied the building. On two
occasions, small fires had been started using rubbish that had
been left lying outside the cinema, but these fires had not been
reported to the defendants or to the police. Then, one evening,
the cinema was set on fire, damaging the plaintiffs’
neighbouring property. The plaintiffs argued that the defendants
ought to have prevented the vagrants from starting the fire. It
was held that whilst the defendants were under a duty to prevent
their property from becoming a source of danger to
neighbouring property, on the facts, this duty did not extend to
controlling the activities of the vagrants. Because the defendants
had not known about the previous fires, it was not reasonably
foreseeable that a fire would be started that would damage
neighbour-ing property.
The decision in Smith v Littlewoods represented the
culmination of a number of judicial attempts to identify the legal
basis on which a defendant should be absolved from liability for
the consequences of a wrong committed by a third party.
Previously, there had been three Court of Appeal decisions on
similar facts to Smith v Littlewoods, each of which had used a
different
element of the tort of negligence to deny liability. In Lamb v
Camden LBC82 it had been held that the third party’s actions
were too remote a consequence of the defendant’s breach, whilst
in P.Perl (Exporters) Ltd v Camden LBC83 it had been held that,
because the defendant could not be expected to control the third
party, no duty of care was owed. In King v Liverpool CC,84 it
had been held that although a duty was owed, the defendants
were not in breach of their duty because there was nothing they
could reasonably have done to prevent the third parties from
causing the damage.
Lord Goff’s approach in Smith v Littlewoods, however,
centred firmly on the absence of a duty of care as the appropriate
legal mechanism for confining liability for wrongs committed by
other people. Although this approach was not adopted by the
other Law Lords in the case (who spoke in terms of breach of
duty) it has met with subsequent approval by the House of Lords
 in the case of Mitchell v Glasgow City Council85 and by the
Supreme Court in Michael v Chief Constable of South Wales.86
In both cases, the complaint had been raised that the public
authority in question had failed to protect the lives of, in
Mitchell, one of its council tenants when it took no steps to give
a warning about the possible actions of a violent neighbour who
was facing eviction following a complaint by Mitchell and, in
Michael, a young mother when the police had failed to respond
promptly to an urgent 999 call in which Ms Michael had
expressed her fear that her ex-partner was coming back to kill
her.87
2–025 In the first case, Mitchell, a council tenant aged 72, had
informed the council about the violent and abusive behaviour of
his next-door neighbour, Drummond. The council summoned
Drummond to a meeting, where he was told that he might be
evicted if his behaviour did not improve. Shortly after the
meeting, Drummond assaulted Mitchell with a stick or an iron
bar, which led to Mitchell’s death. Mitchell’s widow and
daughter brought an action claiming that the council had owed a
duty to warn Mitchell that the meeting was taking place, so that
he could take steps to avoid the danger posed by Drummond.
The House of Lords rejected the claim. Whilst landlords
owed some duties to their tenants, these did not extend to
warning tenants of steps taken to evict other tenants. Nor could
the council be liable for a wrong committed by a third party
(Drummond) unless the case had some extraordinary “feature”
going beyond mere foreseeability of harm (such as clear
evidence that they had assumed responsibility for Mitchell’s
safety).
In Michael, the majority of the Supreme Court stated that
imposing a duty of care to individual members of the public who
made 999 calls would be contrary to the ordinary principle
of common law that the law does not generally impose liability
for pure omissions. There was no reason why this rule should
not apply equally to private litigants and public bodies.88 While
exceptions existed to this rule: (see exceptions below), none
applied on the facts of the case. The 999 call operator had not
 assumed any responsibility to safeguard Ms Michael and the
police did not control her attacker. While the police owed a duty
to the public at large, Lord Toulson (speaking for the majority)
took the view that:

“If it is thought that there should be public

compensation for victims . . . in cases of
pure omission by the police to perform their
duty for the prevention of violence, it
should be for Parliament to determine
whether there should be such a scheme and,
if so, what should be its scope as to the
types of crime, types of loss and any
financial limits.”89

The liability of the police to members of the public in negligence

will be examined in more detail later in this chapter. In both
cases, the courts endorsed the approach taken by Lord Goff in
Smith v Littlewoods. This approach takes as a starting point the
proposition that, as a general rule, there is no duty of care owed
to prevent third parties from causing damage, but acknowledges
that there appear to be certain exceptions to this rule in cases
which have extraordinary features. There are four particular
situations where liability for the acts of third parties can arise.
These can be summarised as follows:

◗ (1) Special relationship between the defendant

and the claimant
2–026 The first situation is where the defendant has assumed
responsibility to look after the claimant’s property. In Stansbie v
Troman,90 the plaintiff had employed a decorator who went out
and left the premises unsecured. The decorator was held liable
 for losses caused by a thief who entered the premises and stole
some of the plaintiff’s property. The contractual relationship
between the plaintiff and the decorator justified the imposition
of liability—the decorator had agreed to look after the premises.
In contrast, in Michael,91 the 999 call handler did not assume
responsibility to Ms Michael, but simply told her that she would
pass on the call to the South Wales police.

◗ (2) Special relationship between the defendant

and the third party
2–027 In Home Office v Dorset Yacht (discussed above), the defendants
were liable because they had a relationship of control over the
third parties (the young male offenders) who had caused the
damage.

◗ (3) Creating a source of danger which is “sparked off” by a

third party
2–028 The defendant may be liable for creating a dangerous situation
which is subsequently “sparked off” by the foreseeable actions
of third parties. This principle may apply, for example, to a
defendant who keeps an unsecured shed full of fireworks that
are subsequently ignited by mischievous children.92 The
principle was applied in Haynes v Harwood,93 where the
defendants left their horses unattended in the street and a boy
threw a stone at them and caused them to bolt. The defendants
were liable when the plaintiff was injured trying to save people
from being injured by the horses.

◗ (4) Failing to take reasonable steps to abate a

danger created by a third party
2–029 Where the defendant knows, or reasonably ought to know, that
third parties are creating a danger on his or her premises, the
defendant is under a duty to take reasonable steps to abate that
danger. Thus, in Clark Fixing Ltd v Dudley MBC,94 where
 known trespassers on a vacant development site started a fire
which burned down neighbouring property, the Court of Appeal,
distinguishing Smith v Littlewoods, held the defendant council
liable for failing to remove combustible material from the site,
so as to prevent the spread of fire. If, in Smith v Littlewoods, the
previous fires had been reported to the defendants, they too may
have been held liable on this principle.

The Type of Defendant

2–030 In novel cases, before imposing liability on a particular

defendant, the court will consider both the individual case and,
more broadly, the consequences of creating a precedent which
establishes
that a duty of care is owed by this type of defendant. If the
defendant is a member of a particular profession or group, any
precedent will have the effect of fixing all members of that
profession or group with the duty in question. Decisions on
liability can have far-reaching implications about the allocation
of financial resources by potential defendants. This is of
particular concern where the defendant in question is providing a
public service. For example, if Doctor X is held liable to Patient
Y in undertaking a certain procedure, then in future, all doctors
will be liable in similar circumstances. This may increase the
insurance costs of the hospitals employing the doctors and may
even lead to doctors becoming reluctant to undertake the
procedure in question, or to their insisting that excessive
safeguards be taken. The cost of the precautions will increase the
cost of the procedure and may reduce its availability in a
financially constrained health service.
The problem of increasing the scope of negligence liability
affects a number of different professions and groups. In relation
 to each of these, the courts have adopted a slightly different
approach. In relation to NHS medical services, for example, the
usual mechanism for limiting negligence liability is not to
restrict the scope of the duty of care. Rather, it is to hold that a
doctor (or other medical professional) will not be in breach of
the duty of care if his or her behaviour lives up to the standard of
other responsible medical professionals.95 In relation to some
other public services, however, the courts are at times prepared
to hold that, for policy reasons, no duty of care is owed. This
discrepancy in approach between different types of defendant
has attracted judicial comment,96 but it remains the case that
certain types of defendant may escape negligence liability
because they owe no duty, whilst others are judged by the
standard of their profession.
For the sake of convenience, we deal with different types of
defendant under four headings:
▮ local authorities;
▮ other public servants;
▮ regulators and advisory bodies; and
▮ lawyers.

(1) Local authorities

2–031 Actions against local authorities are common. Often, a claimant

will seek to show that he or she is owed a duty of care by a local
authority, even though its contribution to the damage has been
minor, because the authority has the funds to pay compensation.
To succeed, however, a claimant must overcome a number of
hurdles. In exploring these hurdles, it is helpful to appreciate
that, in essence, the courts are here faced with the difficult task
of determining the terms
of the “social contract” under which taxpayers pay for the
services the authorities provide. The fundamental question in
 most local authority cases is simply this: how far is it
appropriate to provide a remedy in negligence where the state
fails to confer a benefit on an individual?

◗ Policy arguments
2–032 There are a number of policy objections that have been
traditionally raised to the imposition of a duty of care on local
authorities.97 A common objection is that the threat of liability
may lead to the local authority adopting overly cautious
practices at the public expense. Another objection is that
allowing liability in tort will undermine or distort the framework
of public protection provided by statute98 or available in another
area of the common law. In many cases, the claimant will have
an alternative means of redress. He or she may be able to seek
judicial review, for example, or take advantage of a remedy
provided by the statute under which the local authority has
acted. Moreover, it is argued that making a local authority pay
compensation is contrary to the general public interest, because
it forces the authority to divert scarce financial resources away
from general public welfare, reallocating them to a small
number of litigants.
In recent years, the courts have placed more emphasis on the
fact that tort law should not be used to impose a duty to confer a
benefit on others, as opposed to a duty to refrain from causing
harm.99 These reasons were cogently enunciated by Lord
Hoffmann in Stovin v Wise (the relevant passage is set out earlier
in this chapter). The question arises, however, whether it is
appropriate to maintain this sharp distinction in the context of
the welfare state, when to do so may create an unacceptable
social divide between those who rely on the state for their
welfare and those who look after themselves privately. In the
context of the NHS (discussed later), the courts have clearly
found such a divide unacceptable—therefore an NHS patient has
substantially the same remedy in tort as a private patient would
have for breach of contract.
 Similarly, in the context of state education, the House of
Lords has held in Phelps v Hillingdon LBC100 that a local
authority can owe a duty of care when providing educational
services. This mirrors the legal position which would arise if the
pupil (or his or her parents) had contracted privately for
educational services. In relation to other state services, however,
such as the provision of safe roads (Stovin v Wise), the courts
have been reluctant to hold that a local authority owes a duty of
care. Arguably, the courts have only been able to deny a duty of
care in these cases because this does not create an obvious
contrast with services provided in the private sector.
With this in mind, we can now examine some of the
reasoning the courts have employed to determine liability.
Following the introduction of the Human Rights Act 1998, some
difficult cases have arisen where claimants have argued that the
exercise of (or failure to exercise) a statutory function has
resulted in a violation of their human rights. These cases have
forced the courts to re-evaluate their traditional approach to
public authority negligence liability and address a difficult
question: should the scope of the duty of care be widened to
accommodate the demands of human rights law, or should a
restrictive approach remain? As this issue has unfolded, some
early cases suggested that negligence liability should expand to
encompass human rights law. Later cases, however, have made it
clear that negligence liability and liability under the 1998 Act
should be treated separately. It is therefore possible to find cases
where a duty of care is denied but a human rights claim based on
the same facts might succeed.

◗ Statutory functions and the intention of

Parliament
2–033 One important question in all of these cases is whether, on a
proper construction of the statute, Parliament intended that a
failure to carry out the statutory function in question should give
rise to claims for compensation from individuals affected by that
failure. Where this is the case (and provided the statute imposes
 a duty rather than grants a mere power to act), there may be a
claim for breach of statutory duty (a separate tort, considered in
Ch.7), but the courts may disallow negligence liability, so as not
to create an overlap with another cause of action. Where
Parliament did not intend to create a right to compensation, there
can be no claim under the tort of breach of statutory duty. In
these circumstances the courts will not normally disturb the
intention of Parliament by imposing liability in negligence. As
Lord Hoffmann put it, in Stovin v Wise:

“Whether a statutory duty gives rise to a

private cause of action is a question of
construction . . . if the policy of the Act is
not to create a statutory liability to pay
compensation, the same policy should
ordinarily exclude the existence of a
common law duty of care.”101

◗ “Policy matters” and “operational matters”

2–034 Further, where the public authority has exercised its discretion
under a statutory power or duty, the courts have drawn a
distinction between activities involving matters of “pure policy”
(which are not justiciable) and activities which can be regarded
as “operational” (i.e. activities which implement policy). This
was explored at some length in Anns v Merton LBC. On the
basis of the policy/
operational distinction, so the argument ran, it could be said that
the way in which buildings were inspected was an “operational”
activity, to which negligence liability might attach, whilst a
decision to allocate financial resources which resulted in too few
building inspectors being appointed would be immune from a
negligence suit, because such policy decisions are not
justiciable.
 The problem with the policy/operational distinction,
however, is that it is difficult logically to identify “operational”
activities which do not involve any element of “policy”. This is
because, whenever a person exercises discretion in the
performance of a task, some element of “policy” will be
involved. Is this task to be done quickly or slowly? How much
money will be spent in performing this task? Logically, these
matters are just as much matters of “policy” as resolutions
passed in committee meetings. As Lord Slynn noted in Barrett v
Enfield LBC,102 “even knocking a nail into a piece of wood
involves the exercise of some choice or discretion”.
The attempt in Anns v Merton LBC103 to assert the relevance
of a policy/operational distinction met with considerable
criticism. In Rowling v Takaro Properties,104 Lord Keith
observed:

“. . . this distinction does not provide a

touchstone of liability, but rather is
expressive of the need to exclude altogether
those cases in which the decision under
attack is of such a kind that a question
whether it has been made negligently is
unsuitable for judicial resolution, of which
notable examples are discretionary
decisions on the allocation of scarce
resources or the distribution of risks.”

Lord Hoffmann in Stovin v Wise concluded that it had become

clear that “the distinction between policy and operations is an
inadequate tool with which to discover whether it is appropriate
to impose a duty of care or not”.105 On this basis whilst the
distinction is attractive, because it enables the court to wash its
hands of political matters by declaring them not justiciable, the
 distinction provides only guidance. We can say nevertheless that
the courts will be reluctant to find a duty of care in relation to
matters of “high policy”, while more likely to find liability in
relation to “operational” matters.

◗ When does a local authority “assume

responsibility” for a claimant’s welfare?
2–035 In most cases against local authorities, the claimant will allege
that he or she has been harmed due to the way in which a local
authority has exercised (or failed to exercise) a statutory
function. In deciding the question of liability, the court will
examine the wording of the statute
under which the local authority has acted and determine whether
the function in question has been given for the benefit of
individuals, or whether it serves only a general governmental
purpose.106 In the latter case, there may be no liability, because
it cannot be said that the authority has assumed responsibility to
the aggrieved individual.
Whether or not the statute in question confers on the local
authority a power or a duty, the key issue is whether, in the light
of the statutory framework and other relevant policy concerns,
the local authority can be said to have assumed responsibility for
preventing specific losses to individual claimants. In the classic
case of Gorringe v Calderdale MBC,107 the claimant, Mrs
Gorringe had been severely injured when she had driven her car
head-on into a bus. The bus had been concealed from view on
the other side of a steep hill. She argued that the council had
caused the accident by failing to give her proper warning of the
danger of driving fast over the hill when she could not see what
was coming. In particular, she argued that the council should
have painted “SLOW” on the road. Their Lordships were
unsympathetic, and Mrs Gorringe lost her case. They pointed out
that drivers were expected to look after themselves by driving at
an appropriate speed, and that the law did not impose a duty to
give warnings about obvious dangers.108 Moreover, Parliament,
 in giving local authorities statutory obligations in respect of
signs and road markings, had not intended compensation to be
payable to individuals injured by a breach of those obligations.
Such a breach, therefore, could not give rise to a duty of care.
Similar reasoning was employed by the Court of Appeal in
Sandhar v Department of Transport, Environment and the
Regions109 to deny liability when a driver was injured after a
failure to salt a road so as to prevent the formation of ice.
It is clear that an omission to exercise a power will render
liability less likely. In Stovin v Wise,110 the plaintiff had been
involved in a road traffic accident at a dangerous junction. The
question arose whether the local authority, which had resolved to
carry out improvements to the junction, could be liable for its
failure to do so. By a 3:2 majority, the House of Lords held that
the local authority was not liable for its omission to act. The
local authority had a statutory power to improve the junction,
but not a duty to do so. Thus, its omission to improve the
junction could not be seen as having occurred in the context of
any positive obligation to protect the plaintiff from harm.111 In
Sumner v Colborne,112 the Court of Appeal re-iterated that a
failure by the local authority to cut back the vegetation at a road
junction
to prevent it from obstructing visibility did not give rise to
liability in the absence of a positive act.
2–036 Despite the courts’ reluctance to find a duty of care where
local authorities have failed to exercise statutory functions, there
remains the possibility of liability in exceptional circumstances.
This question was examined recently by the Supreme Court in
Poole BC v GN.113 The local authority in this case had housed a
family which, included a disabled child, next door to a family
known for anti-social behaviour. The family were harassed by
their neighbours, and measures by the local authority to halt this
were unsuccessful. One of the children became suicidal and ran
away from home. In an action against the local authority, the
children (assessed as children in need under the Children Act
1989) claimed that in failing to rehouse them, the local authority
had been negligent in the exercise of its functions under the
1989 Act. The Supreme Court disagreed. Local authorities do
not owe a duty of care at common law merely because they have
statutory powers or duties, even if, by exercising their statutory
functions, they can prevent a person from suffering harm. The
principles applicable to private individuals or bodies would
apply in the same way to local authorities. On that basis, unless
the local authority had created the source of danger or had
assumed a responsibility to protect the claimant from harm, a
duty of care would not arise.
Here, the local authority had not created the danger in that
the claim did not relate to the exercise of the council’s function
under housing legislation. In any event, it was already
established in Mitchell v Glasgow City Council114 that the
council would not owe a duty to protect its tenants from violent
assaults by their neighbours. Nor had it assumed responsibility
to protect them from third parties by undertaking to monitor
their welfare under the Act. Only if it had taken the children into
care, would such an assumption arise.
Any assumption of responsibility for the claimants’ welfare
must therefore arise independently of the mere exercise of
statutory functions. Thus (as Lord Hoffmann had explained in
Gorringe) an NHS doctor might provide care to patients
pursuant to statutory duties in the National Health Service Act
1977, but it is not the exercise of this public law function which
creates a duty of care towards the patient. Rather, the duty of
care arises from an independent assumption of responsibility,
namely the acceptance by the doctor of a professional
relationship with the patient no different from that which would
be accepted by a doctor in private practice.115
The Supreme Court also added another qualification. A duty
of care would, in any event, not arise against a local authority if
it was inconsistent with the relevant legislation.116 The
employers’ liability case of Connor v Surrey CC117 provides a
good example of this. Here, the claimant was a headteacher who
suffered psychiatric illness after she had been subjected to
 criticism and inappropriate behaviour by school governors. She
argued that her illness had been caused by the local authority’s
failure to intervene and replace the board of governors with an
interim executive board. The Court of Appeal held that the local
authority owed the claimant a duty of care. This did not arise
because of its statutory functions in managing schools, but
because the claimant was the authority’s employee (and so there
was a preexisting duty of care). In the circumstances, its duty of
care as employer had been breached by its failure to exercise a
statutory discretion to intervene. The court made it clear,
however, that the local authority would only be liable for its
failure to provide appropriate protection for its employee if it
would be consistent with the statutory powers in question.

◗ Human rights issues

2–037 There are certain cases where, although the claimant is denied a
remedy in negligence for poor performance of statutory
functions, he or she might instead have a remedy for breach of
human rights.118 Below, we consider the question of whether or
not human rights law should be accommodated within
negligence by expanding the duty of care. The most recent court
decisions indicate that negligence will not generally be modified
to accommodate human rights law. The current view, therefore,
is that claims in tort law and for breach of human rights under
the ECHR may arise on the same facts, but, following the
introduction of the Human Rights Act 1998, have, as du Bois put
it, “separate spheres of operation”.119

◗ The decision in Z v United Kingdom

2–038 Z v United Kingdom120 was an appeal to the European Court of
Human Rights (the Human Rights Act 1998 not being in force at
the time) which alleged breach of art.3 (inhuman and degrading
treatment) when the House of Lords had in X v Bedfordshire
CC121 rejected claims:
 • (in the first group of cases), that a local authority had
owed a duty of care to children it had negligently failed
to take into care and, conversely, to those it had wrongly
decided to take into care; and
• (in the second group of cases), that a local authority
owed a duty of care to provide adequate education for
children with special needs.

For example, the claimants in Z had suffered terrible abuse at

the hands of their mother— they had, for example, been locked
in filthy unlit bedrooms, which they had been forced to use as
toilets, and had been left so hungry that they had had to
scavenge for food in dustbins. The local authority had repeatedly
decided not to appoint a social worker for the children and had
declined to place them on the Child Protection Register.
The ECtHR was prepared to award the claimants
compensation, to be paid by the UK Government, on the basis
that the UK had breached two of its obligations under the
Convention—it had allowed the claimants to be subjected to
“inhuman and degrading treatment” (contrary to art.3) when it
failed to act to ensure their welfare, and it had denied them a
right to an effective remedy in respect of that treatment (contrary
to art.13). The ECtHR made it clear, however, that the “effective
remedy” which must be provided for breach of Convention
rights did not necessarily have to be a remedy in the tort of
negligence—another form of remedy would suffice. This left
open the possibility that, in future cases, where claimants could
show a breach of the Human Rights Act 1998,122 UK courts
might decide to grant a remedy under the Act, despite a finding
that no duty of care was owed in the tort of negligence. The Act
creates statutory rights that individuals can enforce directly
against local authorities, without needing to invoke the tort of
negligence. Under the Act, it is “unlawful for a public authority
[e.g. a local authority] to act in a way which is incompatible
with a Convention right”: s.6(1). An “act” includes a “failure to
act”: s.6(6).
 ◗ The Impact of the Human Rights Act 1998
2–039 The Human Rights Act 1998 came into force in October
2000. For injuries after that date, claimants could sue local
authorities both in the tort of negligence and under s.7 of the Act
for damages. Initially there was some support for changes to the
tort of negligence. Lord Bingham in his dissenting speech in D v
East Berkshire NHS Trust123 observed that:

“. . . the question does arise whether the law

of tort should evolve, analogically and
incrementally, so as to fashion appropriate
remedies to contemporary problems or
whether it should remain essentially static,
making only such changes as are forced
upon it, leaving difficult and, in human
terms, very important problems to be swept
up by the Convention. I prefer evolution.”

However other judges, including Lord Brown in Van Colle v

Chief Constable of Hertfordshire,124 pointed out that there were
good reasons for maintaining the separation: negligence claims
and human rights claims serve different purposes. The main
purpose of negligence claims is to compensate losses, whilst the
purpose of human rights claims is to uphold standards of
behaviour and vindicate rights.
Lord Bingham’s view, if it had been followed, would have
required a wholesale re-evaluation of public bodies’ negligence
liability.125 Recent case law suggests that this is not something
the courts are prepared to entertain.
 ◗ Jain, Rabone and DSD: Keeping negligence and
human rights separate126
2–040 The current approach of the courts is to view negligence and
human rights liability as separate entities, each requiring
separate consideration. This approach is exemplified by
reasoning of the House of Lords in Jain v Trent Strategic Health
Authority127 and the Supreme Court in Rabone v Pennine Care
NHS Foundation Trust128 and DSD v Commissioner of Police of
the Metropolis.129
Jain was a case in which Mr and Mrs Jain had their nursing
home business destroyed by executive action taken against them
by a regulatory authority. The home had been closed down
following an application to magistrates made by the Health
Authority that the registration needed to operate the nursing
home should be cancelled. This application was made without
notice and ex parte (that is, without allowing the Jains to be
present in court). As a result, the residents, most of them elderly,
were moved out. The Jains successfully appealed against the
decision (which had been made in the absence of sufficient
evidence, and on the basis of irrelevant and prejudicial
information) but the four-month delay in hearing the appeal was
suf-ficient to cause them financial ruin. Their Lordships declined
to impose liability in negligence. Despite sympathy for the
Jains’ plight, they were not prepared to hold that a local
authority should owe a duty of care to nursing homeowners
when exercising its statutory power to regulate homes. The
purpose of the power was to protect vulnerable residents. The
potential for conflict—between a duty to protect the vulnerable
and a duty to others affected by actions designed to do so—
dictated that a duty of care would be inappropriate.
What is interesting, for present purposes, is that their
Lordships went on to consider whether the Jains might have had
an alternative claim under the Human Rights Act 1998. The
issue was academic, because the Act had not been in force when
the order to close the home had been made. Nevertheless, Lord
Scott justified considering the issue as having a bearing on
whether the courts should, in light of the Act, now develop the
common law so as to provide a remedy in cases such as this. On
the facts, had the Act been in place, the Court found it dif-ficult
to see how the Health Authority could avoid being found in
breach of the right to enjoy possessions (art.1 of the First
Protocol to the Convention)130 and the right to a fair and public
hearing (art.6.1). The draconian approach of ruining the Jains’
business by means of an application made ex parte and without
notice amounted to breach of these rights.131 It was made clear,
however, that the fact that the Jains might have a good case for
violation of their human rights did not necessarily mean that a
duty of care should be imposed. Lord Scott endorsed the view
that Lord Brown had expressed in Van Colle v Chief Constable
of Hertfordshire, namely, that when the Human Rights Act 1998
is in force, “it is quite simply unnecessary now to develop the
common law to provide a parallel cause of action”.132
This position was followed by the Supreme Court in Rabone
v Pennine Care NHS Foundation Trust.133 Against the wishes of
her parents, the hospital had allowed a 24-year-old patient, who
had been admitted to the hospital following a suicide attempt,
two days’ home leave during which she committed suicide. A
negligence claim had been settled, but the parents brought a
claim under the Human Rights Act 1998, claiming that the
hospital had breached ECHR art.2 (right to life) by failing to
take reasonable steps to protect their mentally ill daughter from
the risk of suicide. Despite the fact that the parents’ claim was
one of bereavement, which, as discussed in Ch.17, is not
available to parents of an adult child, the Supreme Court saw no
reason for this to obstruct a claim for damages for distress under
the Act. As Baroness Hale commented, “We are here because
the ordinary law of tort does not recognise or compensate the
anguish suffered by parents who are deprived of the life of their
adult child”.134 Here, the division operated for the benefit of the
claimants, who were able to outflank the limitations of
negligence law, but reflects the same position: the decision by
 the courts not to amend tort law, but to apply tort and human
rights law side-by-side.
A similar position was reached in DSD v Commissioner of
Police of the Metropolis.135 Here it was argued that where the
claimants could not establish that they were owed a duty of care
in negligence, it would be inappropriate to award damages under
the Human Rights Act 1998 for failings in the course of a police
investigation. The Supreme Court disagreed. It took the view
that English law now makes a clear distinction between tort law
and Convention claims. A Convention-based duty is not aimed
at compensation,
but at upholding and vindicating minimum human rights
standards. On that basis, the position under the tort of negligence
should not prevent the court finding liability under art.3.

◗ Any remaining influence: D v East Berkshire NHS

Trust?
2–041 Nevertheless, some earlier cases had made a partial
accommodation of human rights law within negligence. This
was apparent from the decision of the House of Lords in D v
East Berkshire NHS Trust.136 The claimants in D were a mixture
of children and parents who alleged that they had suffered
psychiatric harm because various health authorities (and in one
case a local authority) had wrongly diagnosed that the children
had been suffering from abuse at the hands of the parents. As a
result, the claimants’ family life had been disrupted in various
ways—either the child had been removed from the parents, or
the child had been placed on an “at risk” register with the
parents under a cloud of suspicion, or limitations had been
placed on the parents’ contact with the child.
The House of Lords held that in relation to the wrongly
suspected parents, there were cogent reasons for denying a duty
of care, namely that to allow such a duty would conflict with the
duty owed to the child, and would constrain the public body’s
ability to discharge its statutory duties properly. The welfare of
the child was paramount, and to impose on health professionals
 a duty towards parents would compromise their ability to
investigate suspicions of child abuse effectively. However, no
issue was taken with the view of the Court of Appeal that a duty
of care was owed to children by public bodies when exercising
their child welfare functions.
This position was, however, reviewed by the Supreme Court
in Poole BC v GN.137 While it agreed that a duty of care could
be owed to children by public bodies, it sought to apply the same
rules of tort law that would apply to any private individual. A
duty of care would arise, then, not for reasons of public policy
(or human rights), but because either the doctors or the social
workers had harmed the child, or they had created a source of
danger or assumed responsibility towards the minor. On this
basis, the division between negligence and human rights law
could be maintained.

◗ The education cases

2–042 The Supreme Court in Poole also re-examined the decision of
the House of Lords in Phelps v Hillingdon LBC.138 This held
that, in certain circumstances, a local authority could owe a duty
of care in respect of the provision of educational services.
In Phelps, the claimant had suffered from dyslexia as a child,
causing her severe learning
difficulties when she was at school. She had been referred to an
educational psychologist when she was 11, but the psychologist
failed to notice her dyslexia. She subsequently left school with
no qualifications, and later sued the local authority for
negligence in having failed to provide her with an appropriate
education. The appeal in Phelps was consolidated with three
other cases in which it was alleged that local authorities had
been negligent in their provision of education for children with
special needs. The House of Lords found in favour of all the
claimants. While again Phelps was decided in the shadow of the
Human Rights Act 1998, the Supreme Court explained that, in
modern law, it should be viewed as an assumption of
responsibility case—the psychologist advising in relation to a
 specific child, knowing that the child, through her parents,
would rely on the advice in question. Liability therefore arose
because the educational psychologist assumed responsibility for
the professional advice that he provided about a child in
circumstances where it was reasonably foreseeable that the
child’s parents would rely on that advice.

(2) Other public servants

2–043 In this section, we consider the duty of care in relation to the

following types of defendant:
▮ the police;
▮ the fire brigade;
▮ the coastguard;
▮ the ambulance service;
▮ the NHS; and
▮ the armed forces.

◗ The police
2–044 To understand the courts’ approach to police liability, it is
necessary to distinguish two different types of case. In the first
type of case, the courts have little problem in holding that the
police owe a duty of care. In the second type of case, however,
the courts deny that the police are liable in respect of their
general public functions of investigating and suppressing crime.
We consider each type of case below.

1. CASES WHERE THE POLICE OWE A DUTY OF

CARE
2–045 Some of these cases are examples of so-called “operational
negligence”, where the police cause damage by negligent
performance of their day-to-day activities, in much the same
way
that any other defendant might do. A good example would be
where a pedestrian is hit by a negligently driven police car.
These cases are treated in the same way as any other negligence
claim. Thus, in Rigby v Chief Constable of Northamptonshire,139
the plaintiff’s gun shop had been under siege and the police had
negligently fired a canister of CS gas into the shop without
taking adequate precautions against the high risk of fire. When a
fire occurred, the plaintiff was successful in his negligence
claim. In Robinson v Chief Constable of West Yorkshire
Police,140 police were equally under a duty of care towards
pedestrians in a busy shopping centre when seeking to arrest a
suspect. The reasonably foreseeable risk of injury in attempting
an arrest when members of the public were close-by was enough
to create a duty of care.
Also in this category are cases where the police assume a
very specific responsibility to safeguard particular individuals
against harm. This might be because the individuals in question
are police employees, suspects in custody, or police informants.
In Mullaney v Chief Constable of West Midlands,141 for
example, the police authority was liable when a probationary
constable suffered serious injury whilst attempting an arrest, in
circumstances where fellow officers had failed to respond to his
calls for assistance. In Reeves v Metropolitan Police
Commissioner,142 the police were liable for failing to safeguard
the welfare of a suspect, a known suicide risk, who hanged
himself in his cell, and in Swinney v Chief Constable of
Northumbria Police,143 a duty of care was owed to an informant
who had received threats from a violent suspect after her contact
details had been stolen from an unattended police car. The facts
of the case suggested that the police had assumed responsibility
for the informant’s safety.144 In contrast, in Michael v Chief
Constable of South Wales Police,145 the emergency services,
which had taken a call from a woman stating that her former
partner had attacked her and was returning to hit kill her, were
 not found liable in negligence when she was later found stabbed
to death. The Supreme Court held that they had not assumed
responsibility for her welfare when the operator had reassured
her that the South Wales police would call her and that she
should keep her phone free. In the
words of Lord Toulson, “the only assurance which the call
handler gave to Ms Michael was that she would pass on the call
to the South Wales Police. She gave no promise how quickly
they would respond”.146

2. CASES WHERE THE POLICE DO NOT OWE A DUTY

OF CARE
2–046 The courts have persistently refused to allow negligence liability
where the claimant has suffered loss because the police made an
error in the course of fulfilling their general public functions of
investigating and preventing crime. As we shall see, the position
is complicated by the fact that, although no common law duty of
care is owed, in many cases claimants may have a parallel claim
under the Human Rights Act 1998.
The “core principle” of no liability was established in Hill v
Chief Constable of West Yorkshire.147 The mother of the last
victim killed by Peter Sutcliffe (a serial killer known as the
“Yorkshire Ripper”) sued the police authority for negligence,
alleging that it had failed to use reasonable care in apprehending
him. Sutcliffe had been interviewed by the police and
subsequently released. It was argued that the police had
carelessly failed to realise, at an earlier stage in their
investigations, that Sutcliffe was the murderer. Had they done
so, his last victim, Jacqueline Hill, would not have been killed.
The House of Lords refused to impose a duty of care. Lord
Keith held that, since it could not be shown that there was any
exceptional risk to Jacqueline Hill personally, there was insuf-
ficient proximity between her, as the potential victim of a crime,
and the police.148 His Lordship also objected to liability on
policy grounds, identifying some important reasons why the
police should owe no duty of care in this type of case. The two
 reasons149 which have proved most enduring in the light of later
cases might be summarised as follows:

The prospect of liability would lead to

defensive practices e.g. excessive record-
keeping or a preoccupation with “closing
the loop” by following up all lines of
enquiry, however apparently unhelpful.
These practices would be likely to impede
the progress of investigations.150

▮ Defending this type of claim would involve much

time, trouble and expense. It would involve police
officers in (amongst other things) preparing
documents and attending court as witnesses. This
would cause the police to divert considerable time
and resources from their most important function—
the suppression of crime.
The reasoning in Hill has been applied in subsequent cases, in a
variety of different factual contexts.151

2–047 The conjoined appeals in Van Colle v Chief Constable of

Hertfordshire and Smith v Chief Constable of Sussex152 have
proven particularly instructive in that they confirm the
application of the Hill principle, but also throw light on the
relationship between the tort of negligence and the Human
Rights Act 1998 in claims against the police (the police being a
public authority that could be sued under the 1998 Act). The
cases were heard together because they concerned, as Lord
Bingham put it, a common underlying problem: if the police are
alerted to a threat that D may kill or inflict violence on V, and
the police take no action to prevent that occurrence, and D does
kill or inflict violence on V, may V or his relatives obtain civil
redress against the police, and if so, how and in what
circumstances?153
In the Van Colle case, Van Colle was shot dead by Brougham
shortly before he was due to give evidence for the prosecution at
Brougham’s trial on charges of theft. In the weeks preceding the
trial Brougham had approached witnesses, including Van Colle,
and attempted to dissuade them from giving evidence. Despite
all this, the police officer dealing with the matter had taken no
action to protect Van Colle, and a police disciplinary tribunal
subsequently found him guilty of failing to perform his duties
properly.
The claimants, Van Colle’s parents, brought an action under
the Human Rights Act 1998, alleging a breach of art.2 (the right
to life) by the police. A concurrent claim in common law
negligence was considered by the High Court, but rejected in the
Court of Appeal, who were content to assume that the Hill
principle would preclude the existence of a duty of care.154 The
Court of Appeal’s finding of liability under the Human Rights
Act 1998 was challenged in the House of Lords.
In dismissing the appeal, their Lordships applied Osman v
United Kingdom,155 in which the European Court of Human
Rights had held that the duty of a state to protect the lives of
its citizens under art.2 involved not only putting in place
effective criminal law provisions, but, in appropriate cases,
taking positive steps to protect individuals whose lives were at
risk from criminal actions. According to Osman, however, the
threshold of state liability was a high one. Liability could only
arise where:

“. . .the authorities knew or ought to have

known at the time of the existence of a real
and immediate risk to the life of an
identified individual or individuals from the
criminal acts of a third party and . . . failed
to take measures within the scope of their
 powers which, judged reasonably, might
have been expected to avoid that risk.”156

Their Lordships held unanimously that, on the facts of Van

Colle, this threshold had not been met. Brougham’s criminal
record was that of a petty offender not given to extreme
violence, and the phone calls he had made were unpleasant, but
did not contain explicit death threats. In these circumstances, it
would have been unrealistic for the police to conclude that there
was a real and immediate risk to Van Colle’s life.
The appeal in Smith v Chief Constable of Sussex concerned a
claim for common law negligence. No human rights claim was
brought.157 The claimant, Smith, reported to the police that he
had received persistent and threatening telephone, text and
internet messages from his former partner, Gareth Jeffrey,
following the break-up of their relationship. The messages were
extremely abusive and contained explicit death threats. The
police, however, declined to look at or record the messages, took
no statement from Smith and completed no crime form. Shortly
thereafter, Jeffrey attacked Smith with a claw-hammer in such a
way that, had Smith been killed, it would have been a clear case
of murder. Unsurprisingly, perhaps, Smith brought an action in
negligence.
The House of Lords (Lord Bingham dissenting) refused to
impose liability. The “core principle” of no liability established
in Hill operated in the interests of the whole community, by
ensuring that police resources were well-used. It should not,
therefore, be abandoned, even in extreme cases such as this,
where it might produce injustice for the individual claimant. As
Lord Hope put it, “We must be careful not to allow ourselves to
be persuaded by the shortcomings of the police in individual
cases to undermine that principle”.158
Their Lordships were not, of course, directly concerned with
whether a human rights claim for breach of art.2 might have
 succeeded, had one been brought by Smith. Nevertheless, Lord
Brown commented that:

“. . .the apparent strength of this case might

well have brought it within the Osman
principle so as to make a Human Rights Act
claim here irresistible.”

His Lordship was clear, however, that this did not mean that it
was desirable to enlarge the scope of the duty of care in
negligence so as to accommodate human rights concerns. On the
contrary, the very existence of the Act made it “. . . quite simply
unnecessary now to develop the common law to provide a
parallel cause of action”. His Lordship saw no great difficulty in
allowing the principle to co-exist with the state’s duty to protect
human rights. As stated earlier in this chapter, negligence claims
and human rights claims serve different purposes—the main
purpose of negligence claims is to compensate losses, whilst the
purpose of human rights claims is to uphold standards of
behaviour and vindicate rights.159
Lord Bingham dissented in the Smith appeal, proposing that
a common law duty of care should be found in cases where the
police were aware of apparently credible evidence that an
identified individual was presenting a specific and imminent
threat to life or safety. The adoption of this narrow “liability
principle” would not, in his Lordship’s view, distract the police
from their primary function of suppressing crime and catching
criminals—it would simply require reasonable performance of
that function. This approach, however, was rejected by the
majority, who thought that it would prove unworkable in
practice. (When is evidence “credible”? When is a threat
“imminent”?)160
2–048 In Michael v Chief Constable of South Wales,161 Lord
Toulson (for the majority) affirmed the ruling in Van Colle/Smith
and rejected the arguments that the police would owe a duty of
care in negligence where (i) they are aware or ought reasonably
to be aware of a threat to the life or physical safety of an
identifiable person, or member of an identifiable small group
(the argument of the Interveners) or (ii) a member of the public
gives the police apparently credible evidence that a third party,
whose identity and whereabouts are known, presents a specific
and imminent threat to his life or physical safety (Lord
Bingham’s Liability Principle stated above). The majority also
rejected the test based on proximity proposed by the dissenting
judge, Lord Kerr.162
The majority’s argument was simple: according to the rules
relating to omissions (discussed at para.2–024), there is no
general duty on the police to prevent others from causing harm
in the absence of any assumption of responsibility or control
over the offender. It allowed, however, the claim based on art.2
ECHR to proceed. Lord Reed in Robinson clarified that the
decision in Hill now has to be understood in the light of later
case-law.163 We should therefore treat the Hill, Smith and
Michael cases as concerned with omissions—in each case the
claimant
sought to have the police held liable for failing to prevent death
or personal injury caused by a third party. While Lord Keith in
Hill was happy to rely on policy reasons, the courts would now
rely on the law relating to omissions to justify not imposing a
duty of care.
The combined result of the Van Colle, Smith, Michael and
Robinson appeals, then, is:
▮ The police continue to be protected from negligence
claims arising from poor performance of their general
public functions of investigating and preventing crime.
This is because, generally, the police are not liable for
failing to prevent a third party committing a crime.
Liability will only arise if they assume responsibility to
an individual or create a danger.
 ▮ In appropriate cases, art.2 human rights claims may be
brought instead, but these will only succeed if the
claimant can satisfy the stringent test for liability set out
in Osman v United Kingdom.164

◗ The fire brigade

2–049 In Capital & Counties Plc v Hampshire CC,165 the liability of
the fire brigade was examined by the Court of Appeal. The case
was consolidated with three other appeals in which it was
alleged that the fire brigade had been negligent in tackling fires.
In the first two cases (Capital & Counties and Digital
Equipment), the alleged negligence consisted of ordering that a
sprinkler system, which had been operating at the location of the
fire, be turned off. In the third case (John Munroe), it was
alleged that, after fighting a fire on adjacent premises, the fire
brigade left the scene without ensuring that the fire was properly
extinguished, with the result that it re-ignited, damaging the
plaintiff’s premises. In the fourth case (Church of Jesus Christ of
Latter-Day Saints), it was alleged that the fire brigade had
negligently failed to take proper steps to ensure that an adequate
supply of water was available at the scene of the fire.
The plaintiffs faced objections that were similar to those
advanced in the police cases—the fire brigade undertakes a duty
to the public and the complaints related to what it failed to do
(the omissions argument). Stuart-Smith LJ, giving the judgment
of the Court of Appeal, held that the fire brigade’s attendance at
the scene of a fire did not, of itself, give rise to the requisite
degree of proximity. In the court’s view, this followed from the
fact that the fire brigade was under no duty to attend the fire in
the first place. As Stuart-Smith LJ put it:

“. . . the fire brigade are not under a

common law duty to answer thecall for
help, and are not under a duty to take care
 to do so. If, therefore, they fail to turn up,
or fail to turn up in time, because they have
carelessly misunderstood the message, get
lost on the way or run into a tree, they are
not liable.”166

The fire brigade’s statutory powers to act, then, would not be

converted into a common law duty and a brigade was not under
a duty to answer a call for assistance nor to take care to do so.
However, consistent with the law relating to omissions discussed
above, where the fire brigade, by its own negligence, created the
danger which caused the claimant’s injury, he or she could
recover damages for negligence. Accordingly, the plaintiffs in
John Munroe and Church of Jesus Christ of Latter Day Saints
could not succeed because, although the fire brigade had
intervened, its actions had not caused any damage that would not
have occurred had it failed to attend the fire. In the first two
cases, however, the position was different. Here, it could be said
that the incompetence of the fire brigade in ordering the
sprinklers to be turned off had created a fresh source of danger,
making the plaintiffs’ position worse. So, their claims
succeeded.

◗ The coastguard
2–050 The coastguard, a non-statutory public authority, has equally
been held not to owe a duty of care in respect of its watching,
search and rescue functions. In OLL v Secretary of State for the
Home Department,167 it was alleged that the coastguard, by
misdirecting a rescue operation, had substantially increased the
risk of injury to those in peril and that it should therefore be
liable on the same basis that the fire brigade had been liable in
Capital & Counties. It was held, somewhat questionably
perhaps, that on the facts this had not been the case. The
coastguard had not directly inflicted physical injury on those
 who were lost at sea, and May J declined to draw an arbitrary
distinction between situations where the coastguard had
misdirected itself (for which, in the light of Capital & Counties,
it would not be liable) and situations where it had misdirected
other organisations such as the Royal Navy. Clearly, though, his
Lordship’s decision reflected sympathy for a publicly funded
service partly staffed by volunteers.168

◗ The ambulance service

2–051 In Kent v Griffiths,169 the Court of Appeal held that the
arguments applicable to the police, fire brigade and coastguard
had no general application to the ambulance service. The
ambulance service was to be regarded as part of the health
service rather than as a “rescue” service (see below). The
claimant suffered an asthma attack, and her doctor called an
ambulance which took 40 minutes to arrive. Whilst waiting for
the ambulance, she suffered a respiratory arrest, which would
probably have been prevented if the ambulance had arrived
within a reasonable time. Lord Woolf MR, giving the judgment
of the court, stated that the acceptance of the 999 call established
a duty of care. Although cases might arise where policy
considerations could exclude a duty of care—such as where the
ambulance service had properly exercised its discretion to deal
with a more pressing emergency before attending the claimant,
or where it had made a choice about the allocation of resources
—this was not such a case.
The decision in Kent v Griffiths, then, illustrates the idea that
the courts are unwilling to deny a duty of care where this would
create a divide between the standards to be expected from public
and private sector service providers. Had Mrs Kent contracted
privately for health care services including emergency
ambulance provision, she would have been able to claim for
breach of contract. It would be socially unacceptable if she were
placed in a worse position because of her reliance on the
National Health Service. In relation to firefighting and the
suppression of crime, however, such arguments do not arise,
 because people do not commonly contract privately for those
services.

◗ The National Health Service

2–052 The normal way for a claimant to proceed in a medical
negligence case is to allege that a medical professional has been
negligent and that an NHS provider (e.g. an NHS Foundation
Trust) is vicariously liable.170 In most cases, the duty of care
owed by such professionals is well established, although, as seen
in Rabone above, there may be situations where a claim under
the Human Rights Act 1998 has practical advantages, for
example, in permitting parents to claim for distress damages not
usually available in the law of tort.171 Generally, however, the
courts confine the scope of negligence liability by reference to
the concept of breach of duty. This was seen recently in the
Supreme Court decision in Darnley v Croydon Health Services
NHS Trust.172 The Court held the Trust vicariously liable for the
negligence of a receptionist who had wrongly told a man
attending Accident & Emergency with a head injury that there
was a four to five hour wait before seeing a doctor. This had led
him to go home where his condition deteriorated. In fact, he
could have been seen by a triage nurse within 30 minutes.
Bearing in
mind that there is a well established duty of care owed by those
who provide and run a casualty department to persons presenting
themselves complaining of illness or injury before they are
treated or received into care in the hospital’s wards, the question
for the court was one of breach.173 Breach of duty will be
discussed in Ch.5.
There is one group of cases, however, in which the courts
have been willing to limit NHS negligence liability by using the
scope of the duty of care as a control mechanism—the
“unintended children” cases.

2–053 The “unintended children” cases. Until 1999, the courts had
been prepared to entertain claims against the NHS for the cost of
bringing up children born as a result of negligent advice or
treatment having been given to the parents.174 Then, in
McFarlane v Tayside Health Board,175 the House of Lords
decided that, in the case of healthy, able-bodied children, the law
would no longer entertain such claims. In rejecting a claim in
respect of a healthy baby girl, who was conceived as a result of
wrong advice that a vasectomy had been successful, Lord Millett
said that “the law must take the birth of a normal, healthy baby
to be a blessing, not a detriment”.176 Their Lordships declined to
compensate the claimant for the cost of bringing up the child—
damages were to be confined to compensating the pain and
suffering endured as a result of the pregnancy. Various reasons
were advanced by their Lordships for reaching this conclusion.
In particular, their Lordships were unwilling to accept that the
law might regard a baby as being “more trouble than it was
worth”177—parenthood had its burdens but also its rewards, and
since the rewards of parenthood were incalculable, they could
not sensibly be weighed up against the burdens, so it was
impossible to quantify what the parents had lost by having a
child. Their Lordships were also conscious of the fact that
awarding compensation to the parents of a healthy child, at the
expense of a financially constrained NHS, might offend against
ordinary people’s views of how public money should be spent.
More recently the Court of Appeal has clarified that at the core
of the legal policy denying recovery in McFarlane was the
impossibility of calculating the loss, given the benefits and
burdens of bringing up a healthy child.178
The decision in McFarlane did not resolve the question of
whether compensation should be available for the costs of
bringing up a disabled child. In Parkinson v St James NHS
Trust179 the claimant, who already had four children, underwent
a sterilisation operation. The operation was carelessly performed
and she subsequently became pregnant. She eventually gave
birth to a child with significant disabilities. The Court of Appeal,
mindful of McFarlane, could not award the claimant the normal
costs associated with bringing up a child. Nevertheless, it felt
able to award damages in respect of the additional costs
associated with providing for a disabled child’s special needs.
This was so, even though the negligence of the doctors in
performing the sterilisation operation had not been the cause of
the child’s disabilities.
Hale LJ justified a departure from the approach taken in
McFarlane by saying that, whatever ordinary people might think
about the NHS having to pay the costs of bringing up a normal,
able-bodied child, they would not regard it as unfair that where
the NHS had undertaken to prevent the birth of further children,
and had negligently failed to do so, it should meet the additional
costs of bringing up a disabled child.180 A departure from the
McFarlane principle in such circumstances did not entail a
suggestion that a disabled child was any less valued by its
parents than an able-bodied one. It simply reflected the reality of
the situation, which was that significant extra expenses were
incurred by parents of disabled children in seeking to provide
them with an upbringing comparable with that of an able-bodied
child.181
In Rees v Darlington Memorial Hospital NHS Trust,182 the
House of Lords was faced with a new factual variation. Here, a
healthy, able-bodied child was born to a blind mother, as a result
of a negligently performed sterilisation. The mother claimed the
additional costs of bringing up the child that would be
attributable to her disability. By a 4:3 majority, a seven-member
House of Lords held that no exception to the principle in
McFarlane was justified in such circumstances—the task of
bringing up a normal, healthy baby could not be regarded as a
loss that deserved compensation. In reaffirming this principle,
however, their Lordships held that the law set out in McFarlane
should be changed to a limited extent—there should be an award
of a modest sum in all cases where negligence had caused an
unintended pregnancy. The purpose of this award—which their
Lordships called a “conventional award”—was to mark the
courts’ recognition of the fact that a legal wrong had been done,
and to compensate the parents for having lost their right to limit
 the size of their family. The level of the award was fixed at
£15,000.
In the light of Rees, the status of the decision in Parkinson is
uncertain. Three of their Lordships broadly endorsed the
decision,183 whilst three doubted its correctness.184 The
remaining Law Lord, Lord Millett, expressly stated that the
question whether Parkinson was correct
should be left open. Thus, the decision in Rees did not overrule
Parkinson, so future claims for the additional costs of bringing
up a disabled child remain a possibility.

◗ The armed forces

2–054 The armed forces have never been treated as ordinary
employers. Thus, in Mulcahy v Ministry of Defence,185 the Court
of Appeal held that, in battle conditions, common sense and
sound policy dictated that the army could not owe a duty of care
to its members. The plaintiff had been injured during the Gulf
War, his injury being due to the negligence of his sergeant in
causing a gun to fire whilst he was in front of it fetching water,
rather than to active enemy involvement. The court accepted the
argument that a duty of care would lead to defensive practices
and undue caution, which would be wholly inappropriate to
battle conditions. Whilst the immunity is likely to apply to all
war-time activities, it is unlikely to apply to activities in peace-
time. Thus, in Jebson v Ministry of Defence,186 where the
claimant was injured as a result of drunken horseplay in the back
of an army truck, on the way back from an organised social
event, the Court of Appeal held that the defendants were in
breach of their duty to provide suitable transport and supervision
for soldiers in high spirits.
Some cases, however, will be less clear-cut. The Supreme
Court in 2013 in Smith v Ministry of Defence187 considered
again the scope of “combat immunity”, this time in relation to
injuries sustained by soldiers in Iraq. The claimants alleged that
the MoD had breached its duty of care in failing properly to
equip and train soldiers which led to an incident in which
soldiers had been killed and injured by so-called “friendly fire”
between two British Challenger tanks. The majority of the
court188 took the view that the scope of the immunity should be
construed narrowly. Lord Hope, giving the majority judgment,
argued that the extension of combat immunity to the planning of
and preparation for operations in which the injury was sustained
would be too generous and would involve an unjustifiable
extension to include steps taken far away in place and time from
the actual combat operations.189 In this case, the complaints had
related to failures in training and the provision of technology
and equipment, that is, matters which should have been dealt
with long before the commencement of hostilities. The question,
therefore, was not whether there was a duty of care, but whether,
bearing in mind the nature and circumstances of the activities in
question, this duty had been breached. The majority thus
adopted a narrow definition of combat immunity, confining it to
operations or acts of war where the parties are subject to the
pressures and risks of an active operation. The ruling predictably
received considerable criticism from the Ministry of Defence.
Some other commentators have been more positive:

“With goodwill on all sides—and adequate

resources—it should surely be possible to
reach a compromise that allows troops to
do their duty without exposing them to
avoidable risks. That must be good for
morale. This judgment requires troops to
be properly equipped for combat. It does
not require commanders to go to war with
one hand behind their backs.”190
 (3) Advisory bodies and regulators
2–055 In this section, we consider the liability of a number of advisory
and regulatory bodies. Although in some cases these bodies
receive government funding, they cannot be regarded as “public
authorities” (like local authorities or NHS Trusts) because they
do not act on behalf of the state. They are essentially “clubs”
formed for the promotion or protection of certain interests. In
some cases, however, they perform a public service role that
would otherwise have to be performed by a government
organisation.

◗ Ship classification societies

2–056 A ship classification society is an independent and non-profit-
making entity, created and operating for the sole purpose of
promoting the safety of lives and ships at sea. In this way, it
fulfils a role akin to a public service which would otherwise
have to be fulfilled by individual states. In this light, the
question arises whether such societies should be treated in the
same manner as the coastguard or the fire brigade (see
above).191 In Marc Rich & Co v Bishop Rock Marine Co Ltd
(The Nicholas H),192 a classification society had issued a
certificate which indicated the seaworthiness of a ship. The ship
subsequently sank. The House of Lords asserted that despite the
presence of physical loss resulting from the carelessly made
report of the society’s surveyor, and despite the fact that the loss
was clearly foreseeable, no duty of care was owed to the owner
of the cargo that was lost.
There are suggestions, however, that the courts may be
willing to overcome traditional
objections to liability where a classification society inflicts
physical loss in a more direct way. Lord Steyn commented in
The Nicholas H193 that if the surveyor had caused an explosion
by carelessly dropping a lighted cigarette into a hold known to
contain combustible cargo, he would have been more willing to
 find that the society owed a duty of care. This approach was
followed by the Court of Appeal in Perrett v Collins194 where an
inspector’s role in certifying the airworthiness of light aircraft
was critical, and, as a direct result of his negligence, the plaintiff
suffered personal injury. The court saw no reason why the
inspector should not owe the plaintiff a duty of care. Although
the inspector worked for the Popular Flying Association, whose
aim was to facilitate the construction and flying of light aircraft
by amateurs, the imposition of a duty of care was not
inconsistent with this aim.

◗ Scientific advisory bodies

2–057 Similar arguments arise in relation to scientific advisory bodies.
In Sutradhar v Natural Environment Research Council195 the
defendants were a UK government-funded agency, established
under Royal Charter, whose purpose was to undertake research,
disseminate knowledge, and provide advice relating to the earth
sciences and ecology. As part of a project to assist development
in Bangladesh, they undertook a hydrological survey in that
country which aimed to provide an understanding of how water
might be used for irrigation and fish farming. They therefore
conducted a number of tests on samples of groundwater to
identify the presence of harmful chemicals. Unfortunately, they
did not test the water for the presence of arsenic, having no
reason to believe that arsenic was likely to be present.
The claimant was one of 700 Bangladeshi residents who had
suffered from arsenical poisoning by drinking contaminated
water from the sources which had been tested. He argued that
the defendants were negligent in having issued a report which
gave the impression that the water was safe to drink. In
dismissing his claim, the House of Lords pointed to the lack of
proximity between the claimant and the defendants and noted
that the purpose of the report had not been to protect the
claimant from harm. The decisions in Perrett v Collins (above)
and Watson v British Boxing Board of Control (below) were
distinguished because, in those cases, the defendants had had
 complete control of the danger in question—in Perrett, for
example, the inspector had had the power to ground the aircraft
if he thought it was not safe to fly. Here, by contrast, the
defendants had had no control whatsoever over whether and how
water was supplied in Bangladesh.

◗ Sports regulators
2–058 In Watson v British Boxing Board of Control,196 the Court of
Appeal was prepared to hold that the BBBC, a private
organisation formed for the regulation of boxing, owed a duty of
care to ensure an adequate standard of ringside medical
treatment for an injured boxer. The case was novel because the
claimant’s allegation was that the defendant had been negligent
in failing to formulate satisfactory rules for the conduct of the
sport. Watson had been examined by a doctor at the ringside,
and subsequently taken to hospital where he was given
resuscitation treatment, but by this time he had already suffered
permanent brain damage leading to disability. Watson claimed
that immediate resuscitation treatment should have been
available at the ringside, and that the BBBC was in breach of its
duty of care by not providing for this in its rules.
Lord Phillips MR, giving the judgment of the court,
dismissed the BBBC’s argument that Watson, knowing of the
rules, had been the author of his own misfortune by consenting
to box in accordance with them. His Lordship also regarded the
fact that the BBBC was a non-profit-making organisation,
without insurance, as irrelevant to its liability. Finding that there
was a sufficient degree of proximity between Watson and the
BBBC, his Lordship pointed out that Watson was one of only a
limited class of individuals affected by the rules, so there could
be no question of indeterminate liability.197 Moreover, the
BBBC had exclusive control over the provision of ringside
medical assistance. Accordingly, it was fair just and reasonable
for Watson to rely on the BBBC to look after his safety.
In Vowles v Evans,198 the issue was not whether the rules of
the game were adequate to protect the claimant, but whether
 they had been properly applied by the referee. The claimant was
injured during an amateur game of rugby when the referee
decided to allow the game to continue with “contestable
scrummages” (in which the players are allowed to push against
one another to gain possession of the ball) even though the
substitution of an inexperienced player by one of the teams
meant that this could not be done safely. The Court of Appeal
saw no reason why the referee should not owe a duty of care.
Even though the referee was acting in an amateur capacity, the
second defendants (Welsh Rugby Union Ltd) who had appointed
him could be expected to take out insurance against the
negligence of their referees. The fact that serious injuries of this
kind were comparatively rare meant that this would not create an
unfair financial burden nor discourage amateurs from
volunteering to act as referees.

(4) The legal profession

2–059 Generally, judges199 and arbitrators200 cannot be sued in respect

of their activities during a case. Prior to the decision of the
House of Lords in Hall v Simons,201 barristers and solicitor
advocates enjoyed a similar immunity—they could not be sued
for negligently conducting a case in court, or for matters
intimately connected with the conduct of the case in court.202 In
Hall v Simons, however, their Lordships abolished advocates’
immunity, stating that the traditional arguments used to support
it could no longer be sustained. By analogy, the Supreme Court
later removed the immunity of expert witnesses instructed by
parties to litigation in 2011.203
Although the immunity has been abolished, it remains
difficult for a claimant who feels he or she has been the victim
of incompetent advocacy to succeed in negligence against an
advocate. For reasons we explore below, this is especially true in
criminal cases where the claimant has been convicted. In all
cases, of course, the claimant must show that the advocate is in
breach of the duty of care, and that his or her negligence caused
 the loss suffered.204 As we shall see in Chs 5 and 6, this can be
difficult to establish.

◗ The old law

2–060 Under the old law, the immunity enjoyed by barristers and
solicitor advocates205 applied only in the context of litigation.
Where non-litigious work was concerned, a duty of care was
owed. The immunity granted to lawyers was nevertheless
questioned by academics and practitioners alike.206 Moreover,
the distinction between “litigious” and “non-litigious” work
proved very difficult to draw in practice and led to a lack of
clarity in the law. In order to appreciate the modern law, it is
convenient to set out briefly the arguments that were formerly
used to
support advocates’ immunity207 and to explore how each was
addressed by their Lordships in Hall v Simons.

◗ Arguments for advocates’ immunity

2–061 (1) Divided loyalty. This argument rests on the fact that the
integrity of our legal system relies on advocates adhering to their
overriding duty to the court whilst representing their clients’
interests e.g. not to mislead the court, cast aspersions on the
other party or its witnesses for which there is insufficient
evidence, or withhold authorities or documents relevant to the
case. The immunity, it was argued, helped to ensure that
advocates did not succumb, through fear of being sued, to
pressure from their clients to breach their duties as officers of
the court. In Hall v Simons, their Lordships dismissed this
“divided loyalty” argument.208 Lord Steyn pointed out that it
was difficult to see how the argument could justify the immunity
of advocates when doctors, for example, enjoyed no such
immunity, even though they too could be faced with questions of
“divided loyalty”, as where a patient with AIDS asks his doctor
not to disclose this fact to his wife. Moreover, their Lordships
 noted that there was no evidence to suggest that in jurisdictions
where advocates had no immunity (Canada, for example) their
overriding duty to the court was compromised.

2–062 (2) The “cab-rank” rule. Barristers (but not solicitor advocates)
are obliged to act for any client who requests their services,
provided that the client’s claim is within their field of expertise
and a proper fee is offered. This is known as the “cab-rank” rule.
It was traditionally thought that the operation of this rule
justified advocates’ immunity because, if a barrister could not
stop representing a client, even when that client threatened to
sue the barrister for refusing to behave unethically, it was only
fair that the barrister should be immune from suit. It was argued
that were matters otherwise, barristers might be beset with
unmeritorious negligence claims from “vexatious” clients whose
cases they had no choice but to take. This argument, too, was
dismissed in Hall v Simons. Lord Hope said of the cab-rank rule
that “its significance in daily practice is not great”.209 Lord
Steyn went so far, perhaps, as to hint that the rule is more often
honoured in its breach than its observance when he noted that
“in real life” barristers’ clerks were free, within limits, to raise
the fees for unwanted briefs (i.e. so as to discourage clients from
briefing the barrister of their choice).210 In any event, the Civil
Procedure Rules, which allow for “summary disposal” of claims
where “the claimant has no real prospect of succeeding”211
would ensure that barristers were not subject to a flood of
unmeritorious claims following the abolition of advocates’
immunity.

2–063 (3) The collateral challenge rule. To sue successfully for

compensation resulting from an advocate’s negligence, the
claimant must show that the advocate’s negligence has caused
him or her to lose the case. To assess whether the unfavourable
outcome of the trial was in fact the consequence of the
advocate’s negligence (or whether the client would have lost in
any event), a court would effectively have to re-hear the case,
 evaluating the effect of the advocate’s contribution to its
outcome in the light of all the evidence.
In fact, the “no re-trial” objective had already been met in
the law by different means. The House of Lords’ decision in
Hunter v Chief Constable of the West Midlands Police212
confirmed that, at least in criminal cases, a collateral attack on
the correctness of the final decision of a court would be struck
out as an abuse of process where the claimant had had the
opportunity of appealing against that decision. Hunter was a
case in which six convicted IRA terrorists (the “Birmingham
Six”) had alleged at their trial that the police had beaten them to
extract confessions. The trial judge had found that this had not
been the case, and they were convicted. They applied for leave
to appeal (on other grounds) and this was refused. Whilst in
prison, they brought proceedings for assault against the police,
alleging the same beatings that had been alleged at the criminal
trial. The House of Lords struck out their claim as an abuse of
process, because the men were attempting to relitigate issues
which had already been decided at their trial.
The rule in Hunter reflects considerations of public policy,
namely the importance of finality in administering justice, the
affront to a coherent system of justice which would arise if there
subsisted two inconsistent decisions of the courts, and the virtual
impossibility of fairly re-trying, at a later date, issues of fact a
court had decided on an earlier occasion.213 Their Lordships in
Hall v Simons stressed the importance of maintaining the
prohibition on collateral attacks on judicial decisions in criminal
cases, but felt that this concern was relatively unimportant in
relation to civil cases.

2–064 (4) Other grounds: the length of trials and witness immunity.
It was also argued that advocates’ immunity ensured that trials
were not unnecessarily prolonged by defensive conduct by the
advocate, such as over-cautious questioning and that the
immunity was consistent with the general immunity from civil
liability that attaches to all persons participating in court
proceedings, such as the judge, court officials, witnesses and
 parties. Both of these arguments were rejected in Hall v Simons.
Lord Hoffmann noted that lengthy submissions by advocates
were a problem even with the immunity in place. The
disapproval of the court, together with the possibility of the
judge making a wasted costs order against the advocate in
question, would be sufficient to contain the length of trials in the
absence of advocates’ immunity. Equally, the rationale for
witness immunity was that, without it, witnesses might be less
willing to assist the court. The same could not be said for
advocates.

◗ The decision in Hall v Simons

2–065 In Hall v Simons, the seven-member House of Lords ruled
unanimously that the immunity could no longer stand in civil
cases, dismissing the traditional arguments, for the reasons we
have examined above. By a majority, their Lordships also held
that the immunity should be abolished in criminal cases,
although a minority of three214 thought that it should be
preserved in such cases, because the conduct of criminal trials
made advocates particularly vulnerable to unmeritorious
complaints and the risk of “divided loyalties”.
The majority thought that the rule against collateral attack,
established in Hunter, would be sufficient to prevent the
administration of justice being brought into disrepute by
negligence claims against advocates. They noted that the rule in
Hunter will operate differently in relation to criminal and civil
cases. In relation to civil cases, it will seldom be possible to say
that an action for negligence against a legal representative will
bring the administration of justice into disrepute. This is because
the correctness of the decision in a civil trial is a matter of
concern only to the parties. Unlike a decision in a criminal court,
it serves no wider purpose. Therefore, according to Lord
Hoffmann, the rule in Hunter is unlikely to be used in a civil
context, except in rare cases where allowing an action to proceed
against an advocate would be unfair to a third party, for
 example, where a defence of truth215 has been rejected in a
defamation action.
In relation to criminal cases, a distinction was to be drawn
between, on the one hand, cases where the accused has been
convicted—either after a trial or a guilty plea—and, on the other
hand, cases where the accused has had the conviction set aside
after a successful appeal. Where the accused still stands
convicted of the offence, any attempt to challenge the
competence of his or her advocate will generally fall foul of
Hunter and will be struck out as a collateral attack on the
correctness of the conviction. The appropriate way for the
accused to challenge a conviction is by an appeal rather than a
negligence action against an advocate. On the other hand, if the
accused has had his or her conviction set aside on appeal, there
can be no such objection to a negligence action.

Duty of care: conclusion

2–066 The Supreme Court in Robinson has clarified when a duty of

care will arise in the tort of negligence and, in particular, the
importance of looking to precedents to determine whether a duty
of care exists. The aim is to give greater certainty to the law and
limit the number of so-called novel cases when the court must
determine whether it would be “fair, just and reasonable” to
impose a duty of care. It has also made clear in cases such as
Michael and Van Colle/Smith that the duty of care question is
distinct from that of the application of the Human Rights Act
1998. Whether you think this latter position is a lost opportunity
—the view of the late Lord Bingham—
or a logical recognition of the different roles of tort and human
rights law depends on the degree to which you think negligence
law should change and respond to new influences in the law.
Recent case-law indicates that the Supreme Court favours a
more traditional approach and that change based on public
policy concerns has to be justified rather than accepted as part of
the judicial role.
 To conclude, the (denial of a) duty of care remains one of the
most important mechanisms available to the courts in
determining the scope of the modern tort of negligence. We have
seen that the question of whether a duty should exist in a given
situation is answered by reference to a number of considerations,
in particular the ideas of ensuring that liability remains
proportionate to the defendant’s fault, yet consistent with the
structure and general objectives of the law. In the chapters which
follow, we shall explore the way the courts have incorporated
these considerations into their decisions in cases of economic
loss and psychiatric illness.

1 W.H.V. Rogers, Winfield and Jolowicz on Tort, 18th edn (Sweet &
Maxwell, 2010), p.150.

2 This is not necessarily to be regarded as a failing. See Sam (aka Al-Sam) v

Atkins [2005] EWCA Civ 1452, Calvert v William Hill [2008] EWCA Civ
1427; [2009] Ch.330.

3 [1983] 1 A.C. 410 at 431.

4 [1932] A.C. 562.

5 [2018] UKSC 4; [2018] A.C. 736 at [21] and [27] per Lord Reed. See also
Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015]
A.C. 1732 at [106].

6 [1990] 2 A.C. 605 at 628.

7 P.H. Winfield, “The history of negligence in the law of torts” (1926) 42

L.Q.R. 184, 195.

8 (1842) 10 M. & W. 109.

9 [1932] A.C. 562.

10 (1883) 11 Q.B.D. 503 at 509.

11 (1883) 11 Q.B.D. 503 at 516 per Cotton and Bowen LJJ.

12 [1893] 1 Q.B. 491 at 497.

13 [1932] A.C. 562.

14 [1932] A.C. 562.

15 For an entertaining review of the case, see A. Rodger QC (who became a

Supreme Court justice), “Mrs Donoghue and Alfenus Varus” (1988) 41
C.L.P. 1.

16 Paisley is in Scotland and the case was therefore brought in Scots law.
The House of Lords (now Supreme Court) is the highest appeal court in
private law matters for England and Wales, Scotland and Northern Ireland.
The House of Lords in this case accepted that no difference existed between
English and Scots law in this instance.

17 [1932] A.C. 562 at 580.

18 Interestingly, the term “proximity” was first used by Brett MR in

Thomas v Quartermaine (1887) 18 Q.B.D. 685 at 688.

19 [1932] A.C. 562 at 582.

20 [1964] A.C. 465. For an insightful review of Hedley Byrne v Heller and
its law-making effect, see R. Buxton, “How the Common Law Gets Made:
Hedley Byrne and other cautionary tales” (2009) 125 L.Q.R. 60.

21 The validity (or otherwise) of disclaimers of tort liability will be

examined at para.16–011.

22 See Derry v Peek (1889) 14 App. Cas. 337 and Candler v Crane
Christmas & Co [1951] K.B. 164 (discussed in Ch.3).

23 [1970] A.C. 1004.

24 [1970] A.C. 1004 at 1027. Contrast the more reserved approach of Lord
Diplock at 1060.
25 [1978] A.C. 728.

26 [1991] A.C. 398.

27 [1978] A.C. 728 at 751.

28 [1983] 1 A.C. 520.

29 [1932] A.C. 562 at 583.

30 [1985] A.C. 210 at 240. See also Lord Bridge in Curran v Northern
Ireland Co-ownership Housing Assoc Ltd [1987] A.C. 718.

31 [1986] A.C. 785 at 815.

32 Note that the Carriage of Goods by Sea Act 1992 introduced certain
amendments to the law which would nowadays enable the claimants to
recover.

33 [1988] A.C. 175. Applied in Davis v Radcliffe [1990] 1 W.L.R. 821 at

826.

34 Practice Statement (HL: Judicial Precedent) [1966] 1 W.L.R. 1234.

35 [1991] 1 A.C. 398.

36 Contrast the position in Canada, where the Supreme Court retained the
Anns test and declined to follow Murphy, although its reformulation of the
Anns test in Cooper v Hobart (2002) 206 D.L.R. (4th) 193 has brought it
closer to the position in English law. See L.N.Klar, “Is Lord Atkin’s
neighbour principle still relevant to Canadian negligence law?” [2013] Jur.
Rev 357.

37 (1985) 60 A.L.R. 1 at 43; (1985) 157 C.L.R. 424 at 480.

38 [2018] UKSC 4; [2018] A.C. 736 at [21] and [27] per Lord Reed. See
also Michael v Chief Constable of South Wales Police [2015] UKSC 2;
[2015] A.C. 1732 at [106].
39 See para.2–045.

40 [2018] UKSC 50; [2019] A.C. 831.

41 Barnett v Chelsea and Kensington Hospital Management Committee

[1969] 1 Q.B. 428, per Nield J at 435–436.

42 [2018] UKSC 40; [2018] 1 W.L.R. 4021.

43 [1990] 2 A.C. 605.

44 [1990] 2 A.C. 605 at 633.

45 [2006] UKHL 28; [2007] 1 A.C. 181.

46 Customs & Excise Commissioners v Barclays Bank [2006] UKHL 28 at

[93].

47 Customs & Excise Commissioners v Barclays Bank [2006] UKHL 28 at

[71].

48 The Caparo test has been rejected by the High Court of Australia in
favour of a multi-faceted approach which addresses the policy issues arising
in the case itself: see Perre v Apand Pty Ltd (1999) 198 C.L.R. 108, and
Sullivan v Moody (2001) 207 C.L.R. 562.

49 See J. Morgan, “The rise and fall of the general duty of care” (2006) 22
P.N. 206.

50 [1943] A.C. 92.

51 248 N.Y. 339 (1928); 162 N.E. 99.

52 As amended by the Human Fertilisation and Embryology Act 1990 and

the Human Fertilisation and Embryology Act 2008. Note that in 1992,
Burton v Islington Health Authority [1993] Q.B. 204 finally established that
a duty of care could be owed at common law to an unborn child, even
though a foetus has no independent legal personality. It was held that the
wrong done to the parent would “crystallise” into a cause of action,
maintainable at the suit of the child, once the child was born.

53 Congenital Disabilities (Civil Liability) Act 1976 s.1. See also

Consumer Protection Act 1987 s.6(3) (specific application of the 1976 Act
to situations where the parent is affected by a defect in a product, e.g. a
drug).

54 Congenital Disabilities (Civil Liability) Act s.1(3).

55 Congenital Disabilities (Civil Liability) Act ss.1(4), 1(6), and 1(7). Note,
however, that contractual exclusions or limitations cannot be relied on
where the case concerns the supply of a defective product: Consumer
Protection Act 1987 s.6(3).

56 McCoy v East Midlands SHA [2011] EWHC 38 (QB); [2011] Med. L.R.
103 (insufficient evidence to show that a negligently performed
cardiotocograph scan, and the failure to perform a second or continued
scan, caused the claimant to be born suffering from diplegic cerebral palsy).

57 Congenital Disabilities (Civil Liability) Act s.2.

58 Road Traffic Act 1988 s.143.

59 Although the Pearson Commission thought that it should (see

Cmnd.7034, Vol.1 para.1471).

60 [1982] Q.B. 1166 at 1180. The court, obiter, also ruled out any claim
under the 1976 Act. See also C. R. Symmons, “Policy factors in actions for
wrongful birth” (1987) 50 M.L.R. 269 and R. Scott, “Reconsidering
‘wrongful life’ in England after thirty years: Legislative mistakes and
unjustifiable anomalies” [2013] C.L.J. 115.

61 The difficulty of assessing the level of damages also concerned the

court.

62 See Lord Oliver in Murphy v Brentwood DC [1991] 1 A.C. 398 at 487;

Perrett v Collins [1998] 2 Lloyd’s Rep. 255. Note, however, that in
Sutradhar v Natural Environment Research Council [2006] UKHL 33;
[2006] 4 All E.R. 490 the HL also stressed the necessity of showing
proximity in claims for personal injury caused by negligent statements.

63 [1992] 1 A.C. 310 at 410.

64 [2008] EWCA Civ 1427; [2009] Ch.330. Comment: J. Morgan [2009]

C.L.J. 268.

65 [1991] 1 A.C. 398 at 486, cited by Sir Anthony May P in Calvert v

William Hill [2008] EWCA Civ 1427 at [45].

66 See Howarth commenting on the decision in Sutradhar v Natural

Environmental Research Council: D. Howarth [2005] C.L.J. 23, 26.

67 [2015] UKSC 2 at [156]. He argued that what is “fair, just and

reasonable” tends to blend with the concept of “proximity”: see [158].

68 [1994] 1 W.L.R. 1071.

69 [1987] A.C. 241 at 271.

70 [1988] A.C. 175.

71 [1988] A.C. 175 at 192.

72 [2006] UKHL 33; [2006] 4 All E.R. 490.

73 See Lord Hoffmann in Sutradhar v Natural Environment Research

Council [2006] UKHL 33 at [27].

74 [1996] A.C. 923.

75 [1996] A.C. 923 at 943.

76 [2015] UKSC 2; [2015] A.C. 1732.

77 See, e.g. French Criminal Code art.223–6, which punishes (with

corresponding tortious liability) anyone who wilfully refrains from assisting
a person in danger, when he or she could have done so without risk to
himself or herself or to third parties. Equally, German Criminal Code
para.323c provides that “Whosoever does not render assistance during
accidents or a common danger or emergency although it is necessary and
can be expected of him under the circumstances, particularly if it is possible
without substantial danger to himself and without violation of other
important duties shall be liable to imprisonment not exceeding one year or a
fine”.

78 [1987] A.C. 241 at 271.

79 Citing J. Fleming, The Law of Torts, 6th edn (1983), 138.

80 per Lord Nicholls in Stovin v Wise [1996] A.C. 923 at 931.

81 Horsley v MacLaren (The Ogopogo) [1971] 2 Lloyd’s Rep. 410, applied

in Capital & Counties v Hampshire CC [1997] Q.B. 1004.

82 [1981] Q.B. 625.

83 [1984] Q.B. 342.

84 [1986] 3 All E.R. 544.

85 [2009] UKHL 11; [2009] 2 W.L.R. 481. Comment: J. O’Sullivan,

“Liability for criminal acts of third parties” [2009] C.L.J. 270. See also
Poole BC v GN [2019] UKSC 25; [2019] 2 W.L.R. 1478.

86 [2015] UKSC 2; [2015] A.C. 1732.

87 In both cases, claims were brought in negligence and also under the
Human Rights Act 1998, for breach of art.2 (right to life). In Mitchell
[2009] UKHL 11, the HRA claim failed because it did not satisfy the “real
and immediate risk” test for art.2 liability. The Supreme Court in Michael
[2015] UKSC 2, however, allowed the art.2 claim to proceed. This aspect of
the cases will be discussed later in this chapter.

88 For criticism of this view, see S. Tofaris and S. Steel, “Negligence

liability for omissions and the police” [2016] C.LJ. 128.
89 [2015] UKSC 2 at [130].

90 [1948] 2 K.B. 48.

91 [2015] UKSC 2 at [138].

92 per Lord Goff in Smith v Littlewoods [1987] A.C. 241 at 273.

93 [1935] 1 K.B. 146.

94 [2001] EWCA Civ 1898.

95 Bolam v Friern Barnet Hospital Management Committee [1957] 1

W.L.R. 582 (discussed in Ch.5).

96 See Capital and Counties Plc v Hampshire CC [1997] Q.B. 1004 per
Stuart-Smith LJ at 1040.

97 In line with the courts’ general opposition to claims for pure economic
loss, such claims against local authorities will normally be disallowed: see
Murphy v Brentwood DC [1991] 1 A.C. 398. The policy reasons preventing
economic loss claims are considered in Ch.3.

98 See Xv Bedfordshire CC [1995] 2 A.C. 633 at 750; Yuen Kun-Yeu v Att-

Gen of Hong Kong [1988] A.C. 175 at 198.

99 For a critical appraisal, see D. Nolan, “The liability of public authorities

for failing to confer benefits” (2011) 127 L.Q.R. 260.

100 [2001] 2 A.C. 619. See also, in the context of non-delegable duties
discussed in Ch.7, Woodland v Essex CC [2013] UKSC 66; [2014] A.C. 537
at [30]–[32] per Baroness Hale.

101 [1996] A.C. 923 at 952. The same view is expressed in Gorringe v
Calderdale MBC [2004] 1 W.L.R. 1057 by Lord Hoffmann (at [23]) and
Lord Scott (at [71]).

102 [2001] 2 A.C. 550 at 571.

103 [1978] A.C. 728 at 754.

104 [1988] A.C. 473 at 501.

105 [1996] A.C. 923, 951. But contrast the view of Laws LJ in Connor v
Surrey CC [2010] EWCA Civ 286; [2011] Q.B. 429.

106 See, e.g. Governors of the Peabody Donation Fund v Sir Lindsay
Parkinson & Co Ltd [1985] A.C. 210, Yuen Kun-Yeu v Attorney General of
Hong Kong [1988] A.C. 175.

107 [2004] UKHL 15; [2004] 1 W.L.R. 1057. Comment: D. Howarth,

“Public authority non-liability: spinning out of control?” [2004] C.L.J. 546.

108 Their Lordships cited Tomlinson v Congleton BC [2003] UKHL 47;

[2004] 1 A.C. 46 (discussed in Ch.8).

109 [2004] EWCA Civ 1440; [2005] 1 W.L.R. 1632.

110 [1996] A.C. 923.

111 Contrast Kane v New Forest DC [2001] EWCA Civ 878; [2002] 1
W.L.R. 312. It has been pointed out that this decision places a very onerous
burden on planning authorities to monitor and enforce planning conditions
where a source of danger may have been created.

112 [2018] EWCA Civ 1006; [2019] Q.B. 430.

113 [2019] UKSC 25; [2019] 2 W.L.R. 1478.

114 [2009] UKHL 11; [2009] 2 W.L.R. 481 (statutory functions in

managing social housing).

115 per Lord Hoffmann in Gorringe v Calderdale MBC [2004] 1 W.L.R.

1057 at [38].

116 Poole BC v GN [2019] UKSC 25; [2019] 2 W.L.R. 1478 at [65] per
Lord Reed.
117 [2010] EWCA Civ 286; [2011] Q.B. 429. Comment: S. Tofaris,
“Negligence liability of public bodies: Locating the interface between
public and private law” [2011] C.L.J. 294.

118 See M. Arden, “Human rights and civil wrongs: Tort law in the
spotlight” [2010] P.L. 140, now republished in M. Arden, Human Rights
and European Law: Building New Legal Orders (OUP, 2015), Ch.14.

119 F. du Bois, “Human rights and the tort liability of public authorities”
(2011) 127 L.Q.R. 589, 598.

120 (2002) 34 E.H.R.R. 3.

121 [1995] 2 A.C. 633. This decision must now be read subject to the ruling
of the Supreme Court that the extent to which the Court had ruled out the
possibility that a duty of care might be owed by local authorities or their
staff towards children with whom they came into contact on the grounds of
public policy is no longer good law: Poole BC v GN [2019] UKSC 25;
[2019] 2 W.L.R. 1478 at [74].

122 Damages under the Act are discussed in Ch.17.

123 [2005] UKHL 23; [2005] 2 A.C. 373 at [50].

124 [2008] UKHL 50 at [138]. See also DSD v Commissioner of Police of

the Metropolis [2015] EWCA Civ 646; [2016] Q.B. 161 at [64]–[67] per
Laws LJ who commented at [67]: “the focus of the human rights claim is
not on loss to the individual, but on the maintenance of a proper standard of
protection”. Van Colle is discussed later in this chapter.

125 See D. Nolan, “Negligence and human rights law: the case for separate
development” (2013) 76 M.L.R. 286.

126 See, generally, J. Wright, Tort and Human Rights, 2nd edn (Hart,
2017).

127 Jain v Trent Strategic Health Authority [2009] UKHL 4; [2009] 1 A.C.
853.
128 [2012] UKSC 2; [2012] 2 A.C. 72.

129 [2018] UKSC 11; [2019] A.C. 196.

130 The legal right to run a nursing home would qualify as a “possession”:
see Van Marle v Netherlands (1986) 8 E.H.R.R. 483.

131 The Jains appealed to the European Court of Human Rights and the
case was ultimately settled for £733,500: Jain v United Kingdom
(39598/09) [2010] E.C.H.R. 411.

132 Van Colle v Chief Constable of Hertfordshire Police [2009] 1 A.C. 225
at [136].

133 [2012] UKSC 2; [2012] 2 A.C. 72.

134 [2012] UKSC 2; [2012] 2 A.C. 72 at [92]. For criticism that this, in
fact, undermines the law of tort, see A. Tettenborn, “Wrongful death,
human rights, and the Fatal Accidents Act” (2012) 128 L.Q.R. 327.

135 [2018] UKSC 11; [2019] A.C. 196. For criticism of the majority
decision, see J. Morgan [2018] C.L.J. 244.

136 [2005] UKHL 23; [2005] 2 A.C. 373.

137 [2019] UKSC 25; [2019] 2 W.L.R. 1478.

138 [2001] 2 A.C. 619. Phelps was applied in Carty v Croydon LBC [2005]
EWCA Civ 19; [2005] 1 W.L.R. 2312.

139 [1985] 1 W.L.R. 1242. See also Knightley v Johns [1982] 1 W.L.R. 349
(negligent traffic management decision).

140 [2018] UKSC 4; [2018] A.C. 736.

141 [2001] EWCA Civ 700. See also Costello v Chief Constable of
Northumbria Police [1999] 1 All E.R. 550; Waters v Commissioner of
Police of the Metropolis [2000] 1 W.L.R. 1607 HL. Compare Leach v Chief
Constable of Gloucestershire Constabulary [1999] 1 All E.R. 215 where,
by a majority, the Court of Appeal struck out a claim by the appropriate
adult who had sat with Frederick West (a serial killer) in police interviews.
The police had not assumed responsibility for her psychological well-being.
Their only obligation was to provide counselling during or within a short
time of the interviews.

142 [2000] 1 A.C. 360. Compare Orange v Chief Constable of West

Yorkshire [2002] Q.B. 347 and Vellino v Chief Constable of Greater
Manchester [2002] 1 W.L.R. 218.

143 [1997] Q.B. 464. The court was conscious of the strong public policy
argument in favour of allowing liability in such cases, so that informants
would be encouraged to give information vital to the suppression of crime.
At the full hearing, however, it was held that the police had not been in
breach of their duty of care. See Swinney v Chief Constable of Northumbria
Police (No.2) (1999) 11 Admin. L.R. 811.

144 Per Lord Brown in Van Colle v Chief Constable of Hertfordshire [2008]
UKHL 50; [2009] 1 A.C. 255 at [120]. See also An Informer v Chief
Constable [2012] EWCA Civ 197; [2013] Q.B. 579 (police under duty of
care for safety and well-being of informer but this did not extend to a duty
to protect the informer against pure economic loss).

145 [2015] UKSC 2; [2015] A.C. 1732. Comment: J. Goudkamp (2015)

131 L.Q.R. 131.

146 [2015] UKSC 2; [2015] A.C. 1732 at [138]. See also Alexandrou v
Oxford [1993] 4 All E.R. 328 CA (police owed no duty to owners of
business premises who had a burglar alarm connected to a police station).

147 [1989] A.C. 53. The application of the Hill principle was subsequently
challenged before the ECtHR in Osman v United Kingdom (1998) 29
E.H.R.R. 245 as being contrary to the European Convention on Human
Rights art.6.1 (right of access to a court). The ECtHR later retreated from
this position in Z v United Kingdom (2002) 34 E.H.R.R. 3.

148 Hill v Chief Constable of West Yorkshire [1989] A.C. 53 at 62.

149 Lord Keith also opined (at 63) that: (1) the police did not need the
threat of liability as an incentive for maintaining high standards. (This is no
longer accepted as a justification for the Hill principle—see the reasoning
of the House of Lords in Brooks v Commissioner of Police [2005] UKHL
24); and (2) it would be undesirable to conduct the “elaborate investigation
of the facts” needed in many cases to determine whether discretionary and
policy decisions were such as could be called into question by the courts.

150 For criticism, see C. McIvor, “Getting defensive about police

negligence: The Hill principle, the Human Rights Act 1998 and the House
of Lords” [2010] C.L.J. 133.

151 See Brooks v Commissioner of Police [2005] UKHL 24; [2005] 1

W.L.R. 1495. Applied by analogy to the Crown Prosecution Service in
Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] Q.B. 335
(but compare Welsh v Chief Constable of the Merseyside Police [1993] 1
All E.R. 692).

152 [2008] UKHL 50; [2009] 1 A.C. 225. A subsequent challenge by Van
Colle’s parents to the European Court of Human Rights was rejected: Van
Colle v United Kingdom (7678/09) (2013) 56 E.H.R.R. 23.

153 Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50 per

Lord Bingham at [1].

154 Van Colle v Chief Constable of Hertfordshire [2007] 1 W.L.R. 1821 CA

per Sir Anthony Clarke MR at [95].

155 (1998) 29 E.H.R.R. 245.

156 Osman v United Kingdom (1998) 29 E.H.R.R. 245 at [116]. Emphasis

added.

157 Mr Smith had failed to meet the one year limitation period under the
Human Rights Act 1998 s.7(5).

158 Van Colle v Chief Constable of Hertfordshire and Smith v Chief

Constable of Sussex [2008] UKHL 50 at [75].
159 Van Colle v Chief Constable of Hertfordshire and Smith v Chief
Constable of Sussex [2008] UKHL 50 at [138]. Lord Brown also pointed
out that, in human rights cases, the courts appear to adopt a looser approach
to causation—claimants need only establish some lost chance of (e.g.)
being kept safe by the police. They do not need to prove that police action
would probably have kept them safe.

160 Van Colle v Chief Constable of Hertfordshire and Smith v Chief

Constable of Sussex [2008] UKHL 50. See Lords Hope, Carwell and Brown
at [77], [109] and [129].

161 [2015] UKSC 2; [2015] A.C. 1732.

162 [2015] UKSC 2 at [144].

163 [2018] UKSC 4 at [54]. He explained that the policy reasoning of Lord
Keith reflects the period during which the case was decided when the two-
stage Anns case continued to be influential and so his Lordship was
applying the second policy limb.

164 See, generally, J. Wright, “The operational obligation under article 2 of

the European Convention on Human Rights and challenges for coherence—
Views from the English Supreme Court and Strasbourg” (2016) 7 J.E.T.L.
58.

165 [1997] Q.B. 1004. Consolidated with Digital Equipment Co Ltd v

Hampshire CC, John Munroe (Acrylics) Ltd v London Fire and Civil
Defence Authority and Church of Jesus Christ of Latter-Day Saints (Great
Britain) v West Yorkshire Fire and Civil Defence Authority. For the limits of
this immunity, see Wembridge Claimants v Winter [2013] EWHC 2331
(QB), which applied the guidance of the Supreme Court in Smith v Ministry
of Defence [2013] UKSC 41 (discussed below) that any immunity should be
narrowly construed and based on specific findings of fact.

166 Capital and Counties Plc v Hampshire CC [1997] Q.B. 1004 at 1030.
See also Alexandrou v Oxford [1993] 4 All E.R. 328 (police).
167 [1997] 3 All E.R. 897. See also Skinner v Secretary of State for
Transport, The Times 3 January 1995.

168 OLL v Secretary of State for the Home Department [1997] 3 All E.R.
897 at 907.

169 [2001] Q.B. 36. Compare King v Sussex Ambulance NHS Trust [2002]
EWCA Civ 953; [2002] I.C.R. 1413.

170 Vicarious liability is discussed in Ch.7.

171 See also Reynolds v United Kingdom (2694/08) (2012) 55 E.H.R.R. 35.

172 [2018] UKSC 50; [2019] A.C. 831.

173 Darnley is notable in refusing to distinguish between medical and non-

medical staff in imposing a duty of care in relation to the provision of
misleading information as to the time within which medical attention might
be available, although the Court conceded that this distinction might be
relevant in determining whether there was a negligent breach of duty (at
[17]).

174 See, e.g. Emeh v Kensington & Chelsea AHA [1985] Q.B. 1012; Thake
v Maurice [1986] Q.B. 644.

175 [2000] 2 A.C. 59. Compare the approach of the High Court of Australia
in Cattanach v Melchior [2003] HCA 38. The legal policy behind the
decision is equally applicable to breach of contract claims, e.g. where an
IVF clinic had implanted an embryo into the claimant’s former partner
without his consent: ARB v IVF Hammersmith [2018] EWCA Civ 2803;
[2018] 2 W.L.R. 1094.

176 [2000] 2 A.C. 59 at 113–114.

177 [2000] 2 A.C. 59 at 82 (per Lord Steyn) and 114 (per Lord Millett).

178 ARB v IVF Hammersmith [2018] EWCA Civ 2803; [2020] Q.B. 93 at
[33]. For the view that this is a red herring and that the real policy
underlying McFarlane/Rees is the moralistic idea that a healthy child
should always be viewed as a blessing, see K. Amirthalingam (2019) 35
P.N. 112.

179 [2002] Q.B. 266.

180 Parkinson v St James NHS Trust [2002] Q.B. 266 at 295.

181 [2002] Q.B. 266 at 293.

182 [2004] 1 A.C. 309. Comment: P. Cane, “Another failed sterilisation”

(2004) 120 L.Q.R. 189 and A. Pedain, “Unconventional justice in the
House of Lords” [2004] C.L.J. 19.

183 Lords Steyn, Hope and Hutton.

184 Lords Bingham and Nicholls were in favour of a conventional award in

all cases, whilst Lord Scott thought that the additional costs of bringing up a
disabled child might be recoverable where the reason for seeking the advice
or treatment was precisely to avoid having a disabled child (e.g. where there
was a likelihood of congenital abnormalities).

185 [1996] Q.B. 732. The idea of granting the armed forces “combat
immunity” may be traced back to Shaw Savill & Albion Co Ltd v
Commonwealth (1940) 66 C.L.R. 344.

186 [2000] 1 W.L.R. 2055. See also Barrett v Ministry of Defence [1995] 1
W.L.R. 1217 and Bici v Ministry of Defence [2004] EWHC 786 (QB)
(peacekeeping and policing functions in Kosovo). Note that in respect of
incidents occurring before 1987, Crown Proceedings Act 1947 s.10 confers
immunity.

187 [2013] UKSC 41; [2014] 1 A.C. 52. The majority also refused to strike
out a claim based on breach of ECHR art.2.

188 Lords Mance, Wilson and Carnwath JJSC dissenting.

189 [2013] UKSC 41 at [89].

190 J. Rozenberg, “The Supreme Court’s ruling will be greeted with dismay
at the MoD” The Guardian 19 June 2013.

191 See, generally, J. de Bruyne, “Tort law and the regulation of

classification societies” (2019) 27 E.R.P.L. 429.

192 [1996] A.C. 211. See also Reeman v Department of Transport [1997] 2
Lloyd’s Rep. 648 (Department of Transport surveyor causing economic
loss).

193 [1996] A.C. 211 at 237.

194 [1998] 2 Lloyd’s Rep 255.

195 [2006] UKHL 33; [2006] 4 All E.R. 490. Comment: D. Howarth,
“Poisoned wells: ‘proximity’ and ‘assumption of responsibility’ in
negligence” [2005] C.L.J. 23.

196 [2000] EWCA Civ 2116; [2001] Q.B. 1134.

197 The High Court of Australia found this a bar to liability in Agar v Hyde
[2000] HCA 41, where the allegation was that inadequate rules governing
rugby scrums had exposed the claimants to injury.

198 [2003] EWCA Civ 318; [2003] 1 W.L.R. 1607. See also Bartlett v
English Cricket Board Association of Cricket Officials unreported 27
August 2015 CC Wolverhampton: cricket umpire at amateur match owes
duty of care to cricket teams but on facts no breach. See N. Partington
(2016) 32 P.N. 77.

199 Sirros v Moore [1975] Q.B. 118.

200 Arenson v Arenson [1977] A.C. 405 (provided they are acting in an
arbitral capacity. The immunity does not extend to mutual valuers.)

201 [2002] 1 A.C. 615. Hall v Simons has been held to apply
retrospectively: Awoyomi v Radford [2007] EWHC 1671 (QB); [2008] Q.B.
793. Note, however, that other common law countries such as Australia still
maintain a defence of advocates’ immunity: see Giannarelli v Wraith
(1988) 165 C.L.R. 543; Attwells v Jackson Lalic Lawyers Pty Ltd (2016)
259 C.L.R. 1, discussed in D. Capper, “Advocates’ immunity and the
jagged edge” (2016) 32 P.N. 212. The Australian immunity is now confined
to conduct of the advocate which contributes to a judicial determination.

202 Saif Ali v Sydney Mitchell & Co (a Firm) [1980] A.C. 198.

203 Jones v Kaney [2011] UKSC 13; [2011] 2 A.C. 398. For a critical
appraisal, see D. Capper, “Professional liability in the trial process” (2013)
29 P.N. 7.

204 See Moy v Pettman Smith (A Firm) [2005] UKHL 7; [2005] 1 W.L.R.
581 HL. Comment: C. McIvor, “Advocates’ liability for professional
negligence” (2005) 21 P.N. 131.

205 See Courts and Legal Services Act 1990 s.62(1).

206 See J. Hill, “Litigation and negligence: a comparative study” (1986) 6

O.J.L.S. 183 and D. Pannick, Advocates (OUP, 1992).

207 The leading case was Rondel v Worsley [1969] 1 A.C. 191, in which the
relevant arguments were set out by Lord Reid.

208 A minority of judges believed, however, that it still had force in relation
to criminal cases.

209 [2002] 1 A.C. 615 at 714.

210 [2002] 1 A.C. 615 at 678.

211 Civil Procedure Rules r.24.2.

212 [1982] A.C. 529. For an explanation of the Hunter principle, see R. v
Belmarsh Magistrates’ Court Ex p. Watts [1999] 2 Cr. App. R. 188.

213 Smith v Linskills [1996] 1 W.L.R. 763.

214 Lords Hope, Hutton and Hobhouse.

215 See Ch.14.
 3

Negligence: Economic Loss

Introduction
3–001 Chapter 2 has highlighted that it is generally much more difficult
to establish a duty of care in respect of “economic loss” than in
respect of damage to property or personal injury. This chapter
examines the reasons why this is so. We shall see that, broadly
speaking, no duty of care is owed to avoid causing pure
economic loss by careless activities, but that very different rules
apply to careless statements, making it easier for a claimant to
recover. The division between the two situations is largely a
matter of historical accident in the way the law has developed,
but it also has to do with the fact that, in the “activity” cases, the
courts have been more heavily influenced by public policy
arguments, in particular the need to limit the liability of local
authorities. Different rules again apply to intentionally inflicted
economic loss, which will be examined separately in Ch.12.

Definition of “pure economic loss”

3–002 Tort lawyers will often use the term “economic loss” as
shorthand for “pure economic loss”, but it should be recognised
that this is a specific legal term. “Pure economic loss” may be
defined as loss that is purely financial, in the sense that it does
 not result from damage to the claimant’s property or injury to
the claimant’s person.
Pure economic loss will result where, for example, a person
buys a product which is defective. The person is said to have
suffered “pure economic loss” because the only loss in question
is the cost of repairing or replacing the product.

“Pure” and “consequential” economic loss

3–003 The courts draw a distinction between “pure” economic loss and
“consequential” economic loss. The term “consequential
economic loss” simply means financial loss that is consequent
upon damage to the claimant’s person or property. Examples
include loss of earnings suffered by a claimant who has been
seriously injured, and loss of profits resulting from damage to
commercial machinery. Where financial loss is consequential on
injury to the person or property, the ordinary test for duty of care
(stated in Ch.2) applies. The UK Supreme Court in Dryden v
Johnson Mat they Plc1 adopted a generous approach in relation
to financial losses suffered by employees who had been
negligently exposed to platinum salts in a chemical plant and
were unable as a result to work in future in any industry where
further exposure might take place. Such losses were regarded as
consequential on personal injury. Although the claimants were
not otherwise ill and could indeed avoid illness by not working
with platinum salts, the court found that there had been a
physical change which made them appreciably worse off in their
health and capacity to enjoy life. In the words of Lady Black,
“The physiological changes to the claimants’ bodies may not be
as obviously harmful as, say, the loss of a limb, or asthma or
dermatitis, but harmful they undoubtedly are.”2

An illustration: Spartan Steel

3–004
The distinctions between “(pure) economic loss”, “consequential
economic loss” and “damage to property” are neatly illustrated
by the decision in Spartan Steel & Alloys Ltd v Martin & Co
(Contractors) Ltd.3 The defendants, who were construction
workers, negligently cut through a cable which supplied power
to the plaintiffs’ factory, causing a power cut which lasted for
14½ hours. Without electricity, the plaintiffs’ furnace could not
operate and they had to close their factory. The metal that was in
the furnace at the time the power went off (the “melt”) began to
solidify, and to save damaging the furnace the plaintiffs had to
throw it away. The plaintiffs brought an action for three types of
loss:
▮ damage to the melt that was in the furnace at the time of
the power cut (physical damage to property);
▮ loss of the profit which would have been made on the
sale of that melt (consequential economic loss resulting
from property damage);
▮ loss of profits on four further melts which would have
been processed during the 14½ hours the factory was
closed because of the power cut (pure economic loss).

A majority of the Court of Appeal held that the first two claims
were recoverable, but the third claim was not. The defendants
owed the plaintiffs a duty not to damage their property, and
therefore had to pay for the damaged metal and the loss of profit
resulting directly from that damage, but they did not owe a duty
of care in respect of the further lost profits, because these did not
result from the fact that the plaintiffs’ property had been
damaged.
Lord Denning MR was unsure whether to approach the
question from the point of view of duty of care or remoteness of
damage. His Lordship observed:
 “At bottom I think the question of
recovering economic loss is one of policy.
Whenever the courts draw a line to mark
out the boundsof duty, they do it as matter
of policy so as to limit the responsibility of
the defendant. Whenever the courts set
bounds to the damages recoverable—saying
that they are, or are not, too remote—they
do it as matter of policy so as to limit the
liability of the defendant.”4

His Lordship then referred to the policy considerations which

precluded liability for the further loss of profits. Observing that
power cuts are a fact of life and that they can often cause
economic loss, his Lordship stated that people should bear that
loss themselves, either by taking out insurance or by installing
emergency generators, concluding: “. . . the risk of economic
loss should be suffered by the whole community . . . rather than
be placed on one pair of shoulders”. His Lordship also noted that
if claims for pure economic loss due to power cuts were
allowed, it would be very easy to make inflated claims—
claimants could assert that they had intended to use their
machinery for the duration of a power cut, but it would be
impossible to prove whether, in fact, they really would have
done so. If the courts simply took the claimants’ word for it,
exaggerated damages awards would result.
3–005 Much, then, depends on how the loss is classified. This
question arose again in the more recent case of Network Rail
Infrastructure Ltd v Conarken Group Ltd.5 Here the defendants
had damaged Network Rail’s track which had led to interruption
in rail services. Following priva-tisation, the actual train services
were run by train operating companies (TOCs), which had track
access agreements with Network Rail. These agreements
 provided for Network Rail to pay compensation to the TOCs
when access to the track was interrupted and compensation was
calculated on the basis of the potential losses suffered by the
TOCs resulting from a public loss of confidence in the service
together with penalties they would have to pay for delays. In a
test case, Network Rail sought to recover compensation from the
defendants for damage to
the track (property damage), but also for compensation paid out
to the various TOCs during the period the lines were closed as
consequential economic loss. The Court of Appeal was prepared
to allow Network Rail’s claim on the basis they had suffered
property loss and the issue of recovery of compensation
payments was one of scope of duty and remoteness of damage.
It rejected the argument that the Court should take into account
that if the TOCs had brought a claim in their own right for this
loss it would have been classified as pure economic loss and so
irrecoverable. The contractual agreements between Network
Rail and the TOCs permitted them to circumvent this rule.

Policy considerations

3–006 The reasoning of the majority in Spartan Steel reflects the three
overlapping policy considerations that have traditionally made
pure economic loss non-recoverable in tort:

◗ (1) Tort law should not impose “crushing

liability” on defendants for financial losses
3–007 Whilst a single negligent act is likely to cause personal injury or
property damage only to a limited number of people, the same
act may cause an enormous number of people to suffer pure
economic loss. The classic illustration of the point is that of a
defendant who crashes his car, blocking a busy tunnel. This may
cause a plumber on his way to work to be late and lose pay. In
turn, the plumber’s lateness may cause financial loss to others—
a builder, for example, who is waiting for the plumber to
 complete his tasks before starting his own—and then to a
property developer who misses a market opportunity by waiting
for the completion of the building works. People’s financial
interests are so closely interrelated that causing economic loss to
one person usually produces a “domino effect”. The law’s way
of dealing with this phenomenon is to allow people, through the
mechanism of contract law, to fix the extent of their economic
liabilities to others—they will only be liable to others with
whom they have contracted. This also prevents one defendant
from being liable for an indeterminate amount of loss to multiple
claimants (also known as the “floodgates” argument).

◗ (2) Tort law should not undermine the contractual

allocation of risk
3–008 Parties by contract, then, are able to allocate the risk of financial
losses. Allowing the parties, through contracts, to determine
where liability will fall if things go wrong is, it can be argued,
economically efficient in that freedom of contract exists
precisely to allow the parties to trade off quality against price. If
tort law begins to impose obligations to supply goods of a
certain quality, it interferes with this process of bargaining,
rendering the rules of contract law redundant. If, therefore, the
argument runs, the courts awarded damages for pure economic
loss,
it would interfere with the contractual allocation of risk between
the parties and discourage parties from taking out contractual
protection via guarantees or insurance policies. This was,
indeed, the view of Lord Denning in Spartan Steel discussed
above. As O’Sullivan has commented, “the courts do not permit
claimants to use tort in order to evade a fundamental rule of the
law of contract that goes to its essence as a voluntary, objective,
commercial institution, or, to ‘get round’ the contractual
structure or terms of the parties’ particular transaction.”6

◗ (3) Financial loss is not considered as important

as physical harm
3–009 While it might be questioned why a defendant who has caused
foreseeable loss is allowed to escape liability, we saw in Ch.2
that there may be countervailing considerations which indicate
that a defendant should not be liable in tort without having
accepted responsibility for the welfare of others. People are
generally more willing to assume a duty to look after the
physical safety and property of others than to look after the
financial wellbeing of others. In denying recovery for pure
economic loss, then, it may be argued that tort law simply
reflects the feelings of society.
This argument does, however, raise the question of why
financial loss resulting from damage to the claimant’s own
property (“consequential economic loss”) is recoverable. In
Spartan Steel, Edmund-Davies LJ, dissenting, objected to this
distinction which he described as “arbitrary”. We can see this by
a simple example—in the case, the factory-owners did not own
the cable that had been cut. They could only recover for
financial losses resulting from damage to their property—here
the melt in the furnace. If, however, the defendants had owned
the cable then, subject to the rules of remoteness, they could
have claimed for financial losses resulting from the damage to
their cable. In his Lordship’s view, the law would be clearer if it
stated that all foreseeable economic loss was recoverable. His
Lordship could not see why the recovery of economic loss
should depend on the purely fortuitous circumstance of who
happened to own the piece of property that was damaged.7
Edmund-Davies LJ’s view has not, however, found favour with
the courts.
With the law’s policy objectives in mind, it is now
appropriate to examine the relevant case law in more detail. We
shall begin with the cases where the pure economic loss has
been caused by negligent activities. Here recovery is generally
denied. Later in the chapter we consider cases where the courts
have been more generous where the pure economic loss has
been caused by a negligent misstatement or the negligent
provision of services.
 Pure Economic Loss Caused by
Negligent Activities
The traditional approach
3–010 A convenient place to start is Cattle v Stockton Waterworks.8
Here, the defendants, who had laid a pipe under land belonging
to Mr Knight, were under a statutory duty to keep the pipe in
good repair. Mr Knight contracted with the plaintiff, Mr Cattle,
to do some building work. Mr Cattle agreed to do this for a fixed
price, but after he had started work, he noticed that the land was
becoming hard to excavate because it was waterlogged. He
realised that the defendants’ pipe was leaking and contacted
them about this, but they negligently failed to repair it. The
result of this negligence was that Mr Cattle lost profit on his
contract, so he sought to recover this from the defendants.
Blackburn J held that Mr Cattle could not sue in his own
name for damage that had been done to land belonging to Mr
Knight. In other words, he was not owed a duty of care because
he had no proprietary interest in the damaged land. In modern
terms, we should say that Mr Cattle’s loss was purely economic.
Blackburn J justified his decision with reference to the “crushing
liability” argument: here liability would place the defendants
under a financial liability disproportionate to their fault. This
policy of avoiding wide and disproportionate liability was
subsequently confirmed in Spartan Steel, which we have already
examined.
The Stockton Waterworks case, then, established that a
claimant could not recover economic loss resulting from damage
to property in which he or she had only a contractual interest.
This is sometimes called “relational loss”—the loss relates to the
property of another.9 This is not recoverable. The case, however,
indicates more broadly that allowing recovery for pure economic
 loss is problematic, notably in relation to the risk of crushing
liability.

A brief period of expansion: Anns and

Junior Books

3–011 The same reasoning has led the courts to deny the existence of a
duty of care where the defendant’s negligent activities have
created a defect in property owned by the claimant. By
defective, we mean a fault affecting the quality of property, such
as cracks, such that the claimant will have to spend money
fixing it. Defective property is seen as a classic example of pure
economic loss. Any defect in quality is seen not as property
damage but as the financial cost of repairing the property and so
not normally recoverable in tort.
In the late 1970s and early 1980s, however, the House of
Lords chose to depart from this long-standing rule in two
important cases: Anns v Merton LBC10 (which has now been
overruled) and Junior Books v Veitchi11 (which is nowadays
unlikely to be followed). These cases were part of the general
expansion of negligence liability during that period, discussed in
Ch.2.

◗ The decision in Anns

3–012 Anns involved a claim against a local authority which, it was
alleged, had failed properly to supervise the construction of a
building, so that cracks appeared in its walls. Lord Wilberforce
took the unusual step of categorising these cracks as “damage to
property”,12 apparently ignoring (or intending to displace) the
traditional position that the loss caused by a defective building is
the cost of repair (that is, pure economic loss). Lord Wilberforce,
however, appeared to use the word “damaged” in a much looser
sense (i.e. in the sense that a lay person might complain that he
or she has been supplied with “damaged goods”). On that basis,
 he found a duty of care was owed. As we shall see, in Murphy v
Brentwood DC,13 the House of Lords rejected this broad
analysis, stating that the loss in Anns had been wrongly
categorised, and restored the traditional distinction between
defects in quality and “damage to property”.

◗ The decision in Junior Books

3–013 Anns influenced, however, the later decision of Junior Books v
Veitchi.14 This case marked the high point of the expansion of
the duty to avoid causing pure economic loss by supplying a
defective product. The plaintiffs had entered into a contract with
a firm of contractors (“the main contractors”) for the
construction of a factory. The factory needed a special floor to
support heavy machinery, so the plaintiffs instructed the main
contractors to sub-contract the flooring work to the defendants,
who were flooring specialists. There was, therefore, a contract
between the plaintiffs and the main contractors, and a contract
between the main contractors and the defendants, but there was
no direct contractual relationship between the plaintiffs and the
defendants. The floor turned out to be defective and had to be
rebuilt, necessitating a temporary closure of the plaintiffs’
factory. For reasons which are unknown, the plaintiffs did not
pursue their contractual remedy against the main contractors
(who were perhaps insolvent),
but instead brought a claim against the defendant sub-
contractors, claiming the cost of relaying the floor and lost
profits while this was done.
In the House of Lords, it was observed (apparently without
noticing any inconsistency with the way the loss had been
categorised in Anns) that the claim in Junior Books was a claim
for pure economic loss caused by the supply of a defective
product. It was not a “damage to property” claim. Nor, indeed,
was there any suggestion that the floor presented a danger to
other property or a risk of personal injury (which might have
made the plaintiffs’ task a little easier). Regarding the case
squarely as one of pure economic loss, their Lordships
recognised that the question for the House was whether to
extend the scope of the duty of care beyond a duty to prevent
harm being done by faulty work, to a duty to avoid defects being
present in the work itself. Normally, such a duty would only be
owed in contract. By a 4:1 majority, the House of Lords held
that the special circumstances of the case meant that the
defendants owed such a duty in tort. Their Lordships gave a
number of reasons why this should be so. The gist of their
Lordships’ argument was that Veitchi had “assumed
responsibility” towards the plaintiffs for the quality of the floor,
that the plaintiffs had “reasonably relied” on Veitchi’s special
skill, and that, because Veitchi were nominated sub-contractors,
the relationship between the parties was “almost as close a
commercial relationship . . . as it is possible to envisage short of
privity of contract”.15
Lord Roskill gave eight specific reasons why the plaintiffs
should succeed:

“(1) The appellants were nominated sub-

contractors. (2) The appellants were
specialists in flooring. (3) The appellants
knew what products were required by the
respondents and their main contractors and
specialised in the production of those
products. (4) The appellants alone were
responsible for the composition and
construction of the flooring. (5) The
respondents relied upon the appellants’
skill and experience. (6) The appellants as
nominated sub-contractors must have
known that the respondents relied upon
their skill and experience. (7) The
relationship between the parties was as
 close as it could be short of actual privity of
contract. (8) The appellants must be taken
to have known that if they did the work
negligently . . . the respondents would suffer
financial or economic loss.”16

Lord Brandon dissented, arguing that the majority’s decision

created, between parties who were not in a contractual
relationship, the sort of liability that should only arise in the law
of contract. It has proved very difficult to extract the ratio of
Junior Books, and the case has met with considerable judicial
criticism. In D & F Estates Ltd v Church Commissioners,17 for
example,
Lord Bridge gave his support to Lord Brandon’s dissenting view,
stating that his Lordship had enunciated principles of
“fundamental importance” and that the decision in Junior Books
could not be regarded as laying down any principle of general
application.18 Although Junior Books has never been overruled,
it is nowadays regarded as having turned on its own special
facts, and is unlikely to be followed.
The liberal approach to economic loss, then, exemplified by
Junior Books and Anns, was short-lived. The courts quickly
came to see that those decisions threatened to undermine the
principles of contract law. Moreover, they were concerned that
the prospect of widespread local authority liability raised by
Anns might lead to an unacceptable drain on the public purse.
These matters are considered below.

◗ The retreat from Junior Books

3–014 Decisions such as Muirhead v Industrial Tank Specialities19 in
1986 reflected a policy shift towards reaffirming the sharp
distinction between contractual and tortious obligations—only
contract law would provide a remedy for “defective product
economic loss”. Here, a fish-monger contracted with a company
(which went into liquation) to build him a tank to store lobsters.
The pumps for the tank were supplied by a third party, but failed
as they were not suitable for use in the UK, causing the death of
the lobsters. Muirhead’s claim against the manufacturer of the
defective pumps was unsuccessful except for the claim for
property damage (loss of lobsters) and loss of consequential
profit. Muirhead could not recover for the cost of the pumps nor
for the expenditure wasted in trying to fix them. Junior Books
was distinguished on the basis that it was not possible to say that
Muirhead had relied on the manufacturer of the pumps in the
same way that Junior Books had relied on Veitchi—he had not
nominated the manufacturer to supply the pumps nor knew their
identity. Junior Books was confined to its own facts.
Muirhead was followed by the Court of Appeal in Greater
Nottingham Co-operative Society v Cementation Piling Ltd.20
Here, the plaintiffs had employed contractors to build an
extension to one of their buildings and the defendants were
nominated sub-contractors, responsible for pile driving. They
did this negligently so that completion of the building was
delayed, causing the plaintiffs economic loss. Although there
was a collateral contract between the plaintiffs and the
defendants, the Court of Appeal was not prepared to find
liability under Junior Books. Woolf LJ stated:

“Where, as here, the sub-contractor has

entered into a direct contract and expressly
undertaken a direct but limited contractual
responsibility to the building owner, I
regard the direct contract as

being inconsistent with any assumption of

responsibility beyond that which has been
expressly undertaken.”21
 The contract, in setting out which materials were to be used and
the design of the piles, therefore set out the sum total of the
obligations which the defendants intended to assume towards the
plaintiffs. Similar restrictive approaches were adopted by the
Court of Appeal in Simaan v Pilkington Glass Ltd (No.2)22 and
Pacific Associates v Baxter.23 In both these cases, the courts
held that in view of the way in which the parties had structured
their contractual relationships, liability in tort would be
inappropriate. Dillon LJ, dismissing the argument that the
principles of Junior Books should apply in Simaan to allow the
plaintiffs to sue a sub-contractor for supplying a defective
product, held that: “I find it difficult to see that future citation
from the Junior Books case can ever serve any useful
purpose”.24
All of these decisions, then, show that under the modern law
the courts are unwilling to allow pure economic loss claims
where to do so would interfere with expressed contractual
intentions.25

◗ Junior Books and the Contract (Rights of Third

Parties) Act 1999
3–015 Before examining the current approach to pure economic loss
claims in activity cases, it is worth noting briefly the impact of
the Contracts (Rights of Third Parties) Act 1999 on future
Junior Books situations. The Act reforms the law of privity of
contract which states that only those who are party to a contract
can sue or be sued. Where, as in Junior Books, the claim is
against a non-contracting party, the Act provides that where a
third party is expressly identified in a contract (either by name or
as a member of a class) and that contract either:
▮ expressly states that its terms are enforceable by the
third party; or
 ▮ purports to confer a benefit on the third party, and, on a
proper construction of the contract, it appears that the
parties intend the contract to be enforceable by the third
party,

the third party may sue on the contract as if he had been a party
to it.26
It seems probable that Junior Books would have been
identified in the contract between the main contractor and
Veitchi (the flooring company). It is uncertain, however, whether
on a proper construction of that contract, a court would feel able
to say that the parties to the contract intended that it should be
enforceable by Junior Books. It is important to note that the
provisions of the Act place the emphasis firmly on the intentions
of the contracting parties. The Act does not allow the courts to
impose obligations on contracting parties in spite of their
intentions. Arguably, this was what happened in Junior Books. It
seems the Act, therefore, will not assist future Junior Books
claimants.

The “Activity” Cases: the modern rule

against recovery

3–016 The courts now adopt a more restrictive approach towards

claims for pure economic loss. Put simply, “defective
building/product economic loss” is not generally recoverable. As
we saw above in Muirhead the cost of replacing the pumps was
not recoverable in tort. This was a claim for “defective product
economic loss”—whilst the pumps had caused damage to other
property (the lobsters), they were not themselves “damaged” in
the tort lawyers’ sense of the word; they were simply defective.
It is, however, in relation to defective buildings where the most
significant claims have arisen. We have seen that in the 1970s,
the House of Lords was prepared to allow such a claim in Anns.
In subsequent cases, however, their Lordships were reluctant to
apply the principles in Anns with a broad brush, eventually
 overruling their decision in that case. The House of Lords
decision in D & F Estates Ltd v Church Commissioners27
encapsulated the courts’ concerns. Here a claim was made
against sub-contractors for negligent plastering of the walls of a
flat where the plaintiffs sought compensation for the cost of
renewing the plaster and for the consequent disruption and loss
of rent while the work took place. This was clearly a claim for
pure economic loss and was rejected by the House of Lords on
this basis. The cost of remedying a defect—even where this is
necessary in order to avoid an immediate threat of personal
injury or damage to other property—was regarded by the Court
as non-recoverable pure economic loss.28 A clear difference was
found between, on the one hand, situations where a latent
(undiscovered) defect materialised, causing damage to other
property or personal injury, and, on the other hand, situations
where a dangerous defect is discovered by the building owner
before any such damage has occurred. Dealing with Anns, Lord
Oliver commented that the “underlying logical basis” of the case
was “not entirely clear”.29
3–017 In Murphy v Brentwood DC,30 the House of Lords finally
overturned Anns and sought to bring greater clarity to the law.
Here, Brentwood Council, relying on the negligent advice of its
consulting engineers, had approved the building plans for a
house. There were certain errors in the design of the foundations
which made them defective. Mr Murphy subsequently bought
the house, and, while he was in occupation, the foundations
cracked, causing extensive damage. The gas, water and sewage
pipes underneath the house began to rupture, posing a danger to
Mr Murphy and his family and forcing them to move out.
Instead of repairing the house, Mr Murphy sold it to a builder for
considerably less than he had paid for it. He then sued the
council for his financial loss.
The claim failed. The House of Lords held that Mr Murphy
could not recover his pure economic loss. On the question of
whether the law would allow claims for damage to “other
property” caused by a defective building, their Lordships held
that, whilst a local authority (or a builder) might be liable in tort
 if a latent (undiscovered) defect suddenly materialised, causing
personal injury, or damage to property other than the building
itself, no duty of care was owed in respect of damage caused by
a defect that had become apparent. “Apparent”, in this context,
meant that the defect had already been discovered by the
claimant, or that he or she ought reasonably to have discovered
it. The cost of replacing “other property” damaged by an
apparent defect was, like the defect itself, to be regarded as pure
economic loss. Murphy then marks the end of the brief period of
expansion and affirms the general rule that claims for pure
economic loss for negligence causing a building or product to be
defective are not recoverable. There can be no liability in tort for
damage caused by a defect in a building once that defect has
been discovered.

Exceptions to the rule against recovery

3–018 Murphy gives us what economists would call a “bright line” rule
—no recovery for pure economic loss resulting from negligent
activities. There are, however, four exceptions where the courts
or Parliament have allowed recovery. All are limited in scope. In
particular, the complex structure exception (ii) is merely a theory
which has not been explored by the courts. Murphy therefore
will generally apply to defective premises, although the
Defective Premises Act 1972 (exception iii) amounts to an
important exception to the rule against liability.

◗ (i) A claimant may recover where the defect is a

potential source of liability to neighbouring
landowners to neighbouring landowners
3–019 In Murphy, Lord Bridge suggested that:
 “. . . if a building 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, the building owner ought, in
principle, to be entitled to recover in tort
from the negligent builder the cost of
obviating the danger . . . so far as that cost
is necessarily incurred in order to protect
himself from potential liability to third
parties.”31

His Lordship did not explain the reasoning behind this exception
to the general rule, but it has been suggested that it might be
explained on the basis that such a building would also constitute
a nuisance, entitling the neighbouring land-owner to an
injunction ordering that it be demolished or made safe.32 It is
possible, of course, that his Lordship’s intention was to create a
general exception, going beyond the case of neighbouring land-
owners, to the effect that any expenditure in repairing a
defective building might be recoverable where it was necessary
to avoid liability to a third party. This is unlikely, however,
because the implications of such a rule would be, for example,
that Mr Murphy could have recovered the cost of repairing his
house by arguing that this was necessary to protect himself from
a lawsuit by his family or his visitors.

◗ (ii) The “complex structure theory”

3–020 In D & F Estates, Lords Bridge and Oliver, seeking to
distinguish Anns, appeared to suggest that the decision might be
explained on the basis of the “complex structure theory”.
According to this theory, it might be possible to regard the
constituent parts of a building as separate items of property,
instead of regarding the whole building as a distinct and
indivisible entity. On this basis, their Lordships in D & F Estates
thought it might be possible to say that the defective foundations
in Anns were separate from the rest of the building, and that they
had caused damage to “other property”, namely the walls. It
followed that there would be no objection to liability for the cost
of repairing the walls, and, of course, to repair the cracked walls
properly it would be necessary to rebuild the building, replacing
the defective foundations themselves.
In Murphy, however, the House of Lords rejected the
“complex structure theory” as an explanation for Anns—it was
wholly unrealistic to view a building as distinct from its
foundations. Lords Keith, Bridge and Jauncey did not, however,
rule out the application of a limited version of the theory in
appropriate cases. Thus, in a case where a defective central
heating boiler (unexpectedly) exploded and damaged a house, or
where a defective electrical installation set a house on fire, Lord
Bridge thought that the owner of the house could recover
damages against a builder on the basis that damage had been
caused by one piece of property (for example, the boiler) to
“other property” (the house).33 Lord Jauncey, whilst agreeing
that the theory could apply to the examples given by Lord
Bridge, went further, stating that the theory might operate where:

“. . .one integral component of the

structure was built by a separate
contractor and where a defect in such a
component had caused damage to other
parts of the structure, e.g. a steel frame
erected by a specialist contractor which
 failed to give adequate support to floors
and walls.”34

In Lord Jauncey’s example, then, the presence of a separate

contractor is the crucial feature which brings the theory into
play. The limits of the theory, however, remain unexplored.35

◗ (iii) The Defective Premises Act 1972

3–021 At the same time that the judges had been considering liability
for defective premises at common law, the matter was being
considered by the Law Commission, whose conclusions led to
the passing of the 1972 Act. The Act provides for the liability of
builders and other professionals involved in the construction of a
dwelling-house36 (it does not cover commercial buildings). The
extent of their liability, however, is much more restricted than
that which had been envisaged in Anns. For a time, the decision
in Anns had the effect of making the Act something of a dead
letter, but the decision in Murphy restored its importance.
Under the Act, persons who undertake work for, or in
connection with, the provision of a dwelling house have a
statutory duty to see that the work is done in a workmanlike or
professional manner and with proper materials so that, as
regards that work, the dwelling will be fit for habitation when
completed.37 The duty is imposed not only on the builders of
dwellings, but also, for example, on the architects, surveyors,
engineers and sub-contractors involved.38 Moreover, the duty is
owed not only to a person commissioning the work, but also to
every person who later acquires an interest (whether legal or
equitable) in the dwelling.
The Act then provides a remedy for mere defects in quality
(provided they make the house
unfit for habitation) without the claimant having to show an
imminent danger of personal injury or damage to other property.
 There is, however, a further restriction under s.1(5) of the Act
which sets a limitation period of six years for claims from the
time the dwelling is completed. With older properties, this
renders the Act of little use. In contrast, under Anns, the
claimant could have taken advantage of a limitation period that
started to run only when symptoms of the defect became
reasonably discoverable.39

◗ (iv) A landlord may owe a common law duty of

care to his tenant for for personal injury caused by
an apparent defect
3–022 In Targett v Torfaen BC,40 a council tenant was injured when he
fell down some steps that had been poorly designed and were
not adequately lit. When he sued the council, the defence was
raised that because the defect in the steps was apparent, it was a
matter of pure economic loss—the tenancy was simply less
valuable than it might have been. The Court of Appeal rejected
the council’s argument, holding that Murphy did not lay down
any absolute rule to the effect that a claimant who suffered
personal injury because of a defect was automatically barred
from recovery because of his or her knowledge of the defect.41
In the case of many tenants, it would be quite unrealistic to
expect them to vacate their homes for fear of being injured by a
relatively small defect. Therefore, liability should be decided by
reference to whether, in the circumstances, it was reasonable to
expect the tenant to remain in the building. This rule does
appear, however, to be confined to its particular context of
landlord and tenant.
Different rules apply, however, when the pure economic loss
is a result of a negligent statement or negligent provision of a
service. These cases will be examined next.
 Pure Economic Loss Caused by
Negligent Statements and
Services

3–023 The law on negligent misstatement has developed differently

from the law relating to negligent activities. This divergence in
the law produces a somewhat uneasy result. For example, a
surveyor who negligently advises on the purchase of a defective
house may, as we shall
see, be liable for pure economic loss caused as a result of his
advice, whilst a builder who causes pure economic loss by
constructing a house negligently may escape liability.42 It must
be admitted that it is almost impossible to reconcile the two
branches of the law, more especially because, as we point out in
the conclusion to this chapter, the distinction between “activity”
and “statement” cases is often extremely fine. The lack of clarity
in the law is compounded by the fact that, as we shall see, the
courts have been prepared to extend the principle developed in
negligent misstatement cases to cases involving the negligent
provision of services.

The old law

3–024 In 1951, the Court of Appeal decided Candler v Crane
Christmas & Co.43 Here, the defendants, a firm of accountants,
had prepared the accounts of a company knowing that the
figures they produced would be relied on by the plaintiff in
deciding whether to invest in the company. The accounts were
prepared negligently, causing the plaintiff financial loss. The
majority of the Court of Appeal reaffirmed existing precedent,
holding that liability for a careless (as opposed to fraudulent)
 statement could only arise where the maker of the statement had
a contractual or fiduciary relationship with the plaintiff. Denning
LJ dissented. In his Lordship’s view, existing precedent was
inapplicable, because it was based on the idea that the existence
of a contractual relationship would prevent a duty of care from
being owed to third parties—and this was a myth that had been
exploded by the decision in Donoghue v Stevenson. Denning
LJ’s dissenting view, then, paved the way for the change in the
law that was to take place in Hedley Byrne & Co v Heller &
Partners.44

The “Hedley Byrne principle”

3–025 The facts of Hedley Byrne were set out in Ch.2. The claim was
in respect of a negligently given banking reference
(accompanied by a disclaimer) on which the plaintiffs relied,
suffering financial loss. The House of Lords held that, in view of
the disclaimer, the defendants had not accepted any legal
responsibility towards the plaintiffs, so the claim failed. What is
important, however, is that their Lordships went on to consider
what the position would have been in the absence of the
disclaimer, holding that there was no reason in principle why a
duty of care should not be owed in respect of careless
statements. Their Lordships held that the
majority in Candler had wrongly decided that case, and that the
view of Denning LJ was to be preferred.
The decision in Hedley Byrne represented a radical change in
the law, because it was the first time that the duty of care had
been extended to cover pure economic loss.45 The House of
Lords was not, however, prepared to decide the case simply by
extending the principle of Donoghue v Stevenson. Their
Lordships noted that because statements may be repeated, and
then relied on by an unlimited number of people, the effects of
negligent statements have a much greater propensity to spread
throughout society than do the effects of negligently
manufactured products. In the case of statements, therefore, the
 law had to impose tighter controls on the scope of liability.
Accordingly, their Lordships laid down two requirements which
a claimant will need to satisfy to establish a duty of care in
respect of a statement. These may be summarised as follows:
▮ the existence of a “special relationship” between the
claimant and the defendant, involving an “assumption
of responsibility” by the defendant; and
▮ “reasonable reliance” by the claimant.

Taken together, these factors may be referred to as the “Hedley

Byrne principle”. We have seen that the factors in question were
used to establish liability in Junior Books. We have also seen
that in Muirhead, and in subsequent “careless activity” cases, the
courts were critical of the way they had been applied in Junior
Books, pointing out that where contracts exist, setting out the
nature of the relationships between parties, it is inappropriate to
talk about “special relationships” existing independently of those
contracts. In negligent misstatement cases, however, the “Hedley
Byrne principle” has continued to be regarded as important,
although it is noteworthy that it has not escaped academic
criticism. In particular, Tony Weir has pointed out that in Hedley
Byrne, the plaintiffs, in effect, were given the benefit of a
contractual warranty for which they had not paid—there was
nothing to stop the plaintiffs from protecting themselves in law
by entering into a contract with the defendant bank for the
supply of the advice, but instead they sought to “freeload” on the
bank’s advice, and then to impose a contractual type of liability
when the advice proved wrong.46 Below, we explore each
element of the “Hedley Byrne principle” in turn.

(1) “Special relationship” and

“assumption of responsibility”

3–026
 The ideas of “special relationship” and “assumption of
responsibility” cannot really be examined in isolation from one
another, because both phrases are ways of saying the same thing,
namely that there is a sufficient degree of “proximity” between
the claimant and the defendant. This is a rather complex area of
the law, but it can be broken down into a number of discrete
issues, which are considered below.

◗ When will a “special relationship” or

“assumption of responsibility” normally arise?
3–027 In Hedley Byrne, Lord Reid thought that a “special relationship”
would arise where:

“it is plain that the party seeking

information or advice was trusting the
other to exercise such a degree of care as
the circumstances required, where it was
reasonable for him to do that, and where
the other gave the information or advice
when he knew or ought to have known that
the inquirer was relying on him.”47

His Lordship went on to say that a reasonable man, when asked

for advice, and realising that his skill and judgment might be
relied on, would have three options open to him: he could keep
silent; he could give an answer with a clear qualification that he
accepted no responsibility for it (a disclaimer); or he could
simply answer without any such qualification. A person who
chose the last option would be held to have assumed
responsibility for his or her answer being given carefully, and
therefore would owe a duty of care to the recipient of the advice.
 Whether a special relationship exists in any given
circumstance is essentially decided by an evaluation of the
particular facts of a case. Thus, for example, in Patchett v
Swimming Pool & Allied Trades Association Ltd,48 where a
trade association had made a statement on its web site, the Court
of Appeal decided that it could not fairly be said that the
association had “assumed responsibility” for the accuracy of that
statement, given that the web site itself urged browsers to make
further enquiries. In contrast, in Sebry v Companies House,49 the
Registrar of Companies was found to have assumed
responsibility to a company, when
entering a winding-up order on the companies register, to take
reasonable care to ensure that the order was not registered
against the wrong company. More recently in Playboy Club
London Ltd v Banca Nazionale del Lavoro SpA,50 a bank was
found not to owe a duty of care to a casino despite the fact that it
had provided a negligent bank reference which the casino had
relied upon in accepting the gambler’s cheques (later proved to
be counterfeit). The facts resemble those of Hedley Byrne but
with a critical difference. Here, to protect the gambler’s privacy,
the casino had acted through an agent (Burlington) and this had
not been disclosed to the bank. The bank then thought it was
providing a reference for Burlington. The Supreme Court
distinguished Hedley Byrne on the facts. Liability would only
arise when the person making the statement knew or should
have known that it would be likely to be communicated to the
defendant herself. Here, the bank had provided a reference
having no idea that it was dealing with an agent for a casino, nor
indeed the purpose for the reference. It was clear therefore that
in such circumstances the bank had not voluntarily assumed any
responsibility to the club.
3–028 Caparo v Dickman,51 examined in Ch.2 as setting the
general test for the duty of care in negligence in novel cases, was
in fact a claim for pure economic loss for negligent
misstatement. Here, the plaintiffs had taken over a company
called Fidelity and had relied on figures contained in an audit
which had been prepared by the defendants, a firm of
 accountants. The plaintiffs alleged that the audit had been
prepared negligently, causing them financial loss. The House of
Lords held that the accountants owed them no duty of care. Lord
Bridge made it clear that in deciding whether a sufficient
relationship of proximity existed between the plaintiffs and the
defendants, it was important to consider the size of the class to
which the plaintiffs belonged. Here, although the plaintiffs were
existing shareholders, for the purposes of the decision, they
should be regarded as being in the same position as any other
person who might wish to buy shares in Fidelity. In other words,
they belonged to a class of persons the size of which could not
be ascertained and which was potentially very large.52 We might
also suspect fears influencing the courts that liability would give
rise to a dramatic rise in accountants’ insurance premums which
might lead to a rise in the cost of accounting.53
3–029 The Court in Caparo also found it to be important that,
whilst the audit had been prepared for one purpose, it had been
relied on by the plaintiffs for another purpose. Where the
primary purpose in making a statement is to advise the
“advisee”, it may be easy to conclude that he or she is owed a
duty of care. However, in cases where a statement is made
primarily for a different
purpose, it becomes necessary to look carefully at the purpose
for which the statement was communicated to the advisee and
the purpose for which it was used. Thus, in Caparo, it was
important that, whilst the accounts had been prepared for the
purpose of fulfilling certain statutory duties placed on auditors
for the benefit of shareholders (including the plaintiffs), the
plaintiffs had relied on the accounts as a general guide to the
performance of investments—a purpose for which they had not
been designed. It followed that in the circumstances the
plaintiffs’ reliance on the accounts had been unreasonable.
In the words of Lord Bridge, there should not be liability
where, as in Caparo:
 “. . .a statement is put into more or less
general circulation and may foreseeably be
relied on by strangers to the maker of the
statement for any one of a variety of
different purposes which the maker of the
statement has no specific reason to
anticipate.”54

3–030 In James McNaughton Paper Group v Hicks, Anderson & Co,55

Neill LJ, in the Court of Appeal summed up the law as follows:
it was possible to identify certain matters that, in most cases,
were likely to be of importance in deciding whether to impose a
duty of care56:
(i) What was the purpose of the statement? What was the
purpose for which it was communicated?
(ii) In three party situations, what is the relationship
between the defendant and any relevant third party?
(iii) What is the size of any class to which the claimant
belongs?
(iv) What was the state of knowledge of the defendant at the
time?
(v) Did the claimant rely on the defendant?

◗ Can a “special relationship” arise in a purely

social context?
3–031 Lord Reid, in Hedley Byrne, made it clear that a “special
relationship” could only arise where the statement was made in a
“business connection”. There would be no liability for
statements made on purely social occasions. This was because,
as his Lordship observed:
 “Quite careful people often express definite
opinions on social or informal occasions
even when they see that others are likely to
be influenced by them; and they often do
that without taking that care

which they would take if asked for their

opinion professionally or in a business
connection.”57

However, the Court of Appeal departed from this fundamental

principle in Chaudhry v Prabhakar.58 Here, a family friend had
agreed to help the plaintiff find a second-hand car, telling her
that she could rely on him and that she need not have the car
inspected by a mechanic. The defendant, through his negligence,
advised the plaintiff to buy a car which, it turned out, was
unroadworthy and practically worthless. Before the trial, the
defendant conceded that he owed a duty of care to the plaintiff.
A majority of the court held that this concession had been rightly
made, and that the plaintiff was able to recover her financial
loss. May LJ, however, dissented. His Lordship doubted that any
duty of care was owed. In May LJ’s view, to impose liability in
such a situation was undesirable, because it would make social
relations between friends unnecessarily hazardous.
What makes the decision in Chaudhry v Prabhakar unusual
is that there was no suggestion that the defendant, Mr Prabhakar,
was securing any benefit to himself by offering the free advice—
he offered his services on a purely gratuitous basis. Thus, the
situation is to be contrasted with Hedley Byrne, where the bank,
although not of course paid for the advice, nevertheless supplied
it to further their general business interests. As Lord Devlin
observed, in Hedley Byrne:
 “It may often be material to consider
whether the adviser is acting purely out of
good nature or whether he is getting his
reward in some indirect form. The service
that a bank performs in giving a reference
is not done simply out of a desire to assist
commerce. It would discourage the
customers of the bank if their deals fell
through because the bank had refused to
testify to their credit when it was good.”59

More recently, in Burgess v Lejonvarn60 the Court of Appeal

found that an architect who had supplied her professional
services to friends free of charge in relation to a landscaping
project for their garden owed them a duty of care. Here, her self-
interest was self-evident —while not under contract, she
possessed a special skill and had assumed responsibility towards
her friends with a view to receiving a fee for phase two of the
project. In light of the decision in Burgess, the finding of a duty
of care in Chaudhry v Prabhakar seems generous to say the
least.61

◗ Must the defendant be “in the business of giving

advice”?
3–032 The Privy Council, in Mutual Life and Citizens’ Assurance Co v
Evatt,62 took a somewhat narrow view of the circumstances in
which a “special relationship” could arise. Here, the plaintiff had
sought advice from his insurance company about the wisdom of
investing in a company with which it was associated. He was
given certain information that turned out to be false, and sought
to recover the money he lost on his investment. The majority
 held that the Hedley Byrne principle should be confined to cases
involving defendants whose profession includes the giving of
advice, such as accountants, surveyors and lawyers. Since the
defendants were in the business of providing insurance cover,
not investment advice, they could not be liable. Lords Reid and
Morris, however, dissented, holding that it was sufficient for the
Hedley Byrne principle to apply if the advice was sought from a
business person in the course of business. It is this minority view
in Mutual Life which has found favour with the courts. Thus, in
Esso v Mardon63 (discussed below), Ormrod LJ remarked that if
the majority opinion were accepted, “the effect of Hedley Byrne
would be so radically curtailed as to be virtually eliminated”,64
and in Howard Marine and Dredging Co Ltd v Ogden & Sons
Ltd,65 both Lord Denning MR and Shaw LJ made it clear that
they preferred the minority view.
In Esso v Mardon, the plaintiff leased a filling station on the
strength of Esso’s advice that he could expect to sell at least
200,000 gallons of petrol a year. This forecast had been based on
an assumption that the petrol pumps would be located at the
front of the filling station on the main road. It then transpired
that the local planning authority in fact required the pumps to be
at the back of the filling station, where they would attract much
less passing trade. Esso failed to revise its forecast in the light of
that fact. The plaintiff sold only 78,000 gallons in 15 months,
and sued Esso for his financial loss. Here, clearly Esso were not
in the business of giving advice. Nevertheless, in allowing the
claim, the Court of Appeal held that Esso had assumed
responsibility for the accuracy of its forecast and that it had been
reasonable for Mr Mardon to rely on Esso’s skill in predicting
likely petrol sales.

◗ Assumption of responsibility: an objective test

3–033 Whilst the question of “assumption of responsibility” is decided
by reference to things said or done by the defendant, it is clear
that the term does not imply that the defendant has expressly
indicated acceptance of legal responsibility. Liability is imposed
on the basis of an objective test, to which the expressed
intentions of the defendant are only partly relevant. It follows
that although a disclaimer will normally work to absolve the
defendant from liability (as in Hedley Byrne), there may be
exceptional circumstances in which liability will be imposed in
spite of an
assertion that the defendant accepts no legal responsibility for
the advice in question. Such was the case in Smith v Eric Bush.66
Here, the House of Lords decided two appeals in which the
plaintiffs had suffered pure economic loss as a result of
negligent surveys. In the first appeal (which serves to illustrate
the decision), the plaintiff, Mrs Smith, wished to buy a house,
and approached a building society for a mortgage. The building
society instructed the defendants, a firm of surveyors, to carry
out a visual inspection of the house in order to confirm that it
was worth at least the money which they were proposing to lend.
The defendants’ valuer noticed that two chimney breasts had
been removed, but he failed to check whether the chimneys had
been left adequately supported. His report stated that no
essential repairs were necessary.
The mortgage application form and the valuation report
contained a disclaimer of liability. Mrs Smith was also informed
that the report was not a structural survey and she was advised to
obtain independent professional advice. The building society,
pursuant to an agreement with Mrs Smith, who had paid an
inspection fee, supplied her with a copy of the report. She, like
many purchasers of modest houses, relied on it and purchased
the house without any further survey. The chimneys were not
adequately supported and one of them subsequently collapsed.
When Mrs Smith sought to recover her financial loss, the
defendants argued that the disclaimer exempted them from
liability. The House of Lords, however, held that the disclaimer
was invalid under the Unfair Contract Terms Act 1977 (UCTA)
s.2. (At this time, the UCTA applied to all contracts, both
consumer and business. Business to consumer contracts are now
covered by the Consumer Rights Act 201567). It did not satisfy
the requirement of reasonableness set out in s.11(3) of that Act.
 Since the valuer was a professional, whose services were paid
for (albeit indirectly) by Mrs Smith, and since he was aware that
Mrs Smith would probably purchase the house in reliance on his
valuation without an independent survey, it would not be
reasonable to allow the valuer to rely on the disclaimer.
Accordingly, the valuer had at law assumed responsibility to
Mrs Smith and was liable in negligence. Lord Griffiths
observed:

“. . . the phrase ‘assumption of

responsibility’ can only have any real
meaning if it is understood as referring to
the circumstances in which the law will
deem the maker of the statement to have
assumed responsibility. . .”68

Faced with the familiar “floodgates” argument that

indeterminate liability would be created, their Lordships chose
to confine the ratio of their decision to situations where a private
purchaser was buying a modest house. Commercial purchasers,
or purchasers of more expensive houses, could be expected to
instruct their own independent surveyors. As Lord Neuberger
MR later commented in Scullion v Bank of Scotland,
“commercial purchasers of low to middle value residential
properties, such as those buying to let, can properly be regarded
as less deserving of protection by the common law against the
risk of negligence than those buying to occupy as their
residence”.69 In this way, the decision would not expose
surveyors to liability for very large losses, and would have only
a small effect on their insurance premiums and the cost of
surveys.
3–034 The decision in Smith v Eric Bush was subsequently applied
in Merrett v Babb.70 Here, the claimant applied to a building
society for a mortgage, and the building society commissioned a
survey from a firm of which the defendant was an employee. By
the time the claimant discovered that the survey had been
conducted negligently, causing her economic loss, the firm had
gone into liquidation. However, by a majority, the Court of
Appeal held that the negligent surveyor, by signing the mortgage
valuation report for the building society, had assumed a personal
responsibility to the claimant for its accuracy. A majority of the
court was prepared to hold that the claimant had reasonably
relied on the surveyor’s professional skill, even though the
claimant was unaware of who had conducted the survey. This
decision seemed to produce a rather harsh result for the
surveyor, and should be contrasted with the decision of the
House of Lords in Williams and Reid v Natural Life Health
Foods Ltd and Mistlin.71 Here, the plaintiffs had obtained a
franchise from a company (the first defendant) to run a health
food shop. They had relied on representations made in the
company’s literature about the likelihood of their shop being
successful. In the event, the turnover of the shop proved to be
substantially less than the company had predicted—in fact it
traded at a loss for 18 months. The plaintiffs sought to recover
their financial losses from the company, but the company went
into liquidation, so they pursued their action against its
managing director, Mr Mistlin. The plaintiffs argued that he had
assumed personal responsibility towards them, because the
company literature had made it plain that the predictions about
profit were based on Mr Mistlin’s personal expertise and
experience in the health food trade. The House of Lords held,
however, that nothing that had been said or done by Mr Mistlin
showed that he had assumed responsibility towards the plaintiffs
in a personal capacity. The representations on which they had
relied had been made by the company. It was particularly
important, in the context of small businesses, that the court
should not be too ready to “lift the corporate veil” and
undermine the protection of limited liability conferred by
establishing a company.
 (2) “Reasonable reliance”
3–035 Hedley Byrne v Heller requires that the claimant prove that he or
she did in fact rely on the statement, as opposed to acting on his
or her own judgement. Such reliance must also be reasonable in
the circumstances.
There are two issues to consider here:
▮ Was reliance reasonable in the circumstances?
▮ Did reliance actually take place?

◗ Reliance must be reasonable

3–036 The question of whether a claimant’s reliance on advice is
“reasonable” is an objective one, which will be decided on the
facts of each case. It is not, however, always a straightforward
issue and has led to judicial disagreement, as seen in the Court
of Appeal decision of Howard Marine and Dredging Co Ltd v
Ogden & Sons Ltd.72 In this case, Ogdens had put in a tender
relying on the defendants’ advice, but the Court was divided
whether it was reasonable for Ogdens to rely on the quotation
without clearly indicating to the defendants how important this
information was to them. In Reeman v Department of
Transport,73 the court was asked to determine whether it had
been reasonable for the purchaser of a boat to rely on an annual
certificate of seaworthiness from the Department of Transport.
The boat had been covered by a certificate, but was later
discovered to be unseaworthy and worthless. When Mr Reeman
sued for his financial loss, the Court of Appeal held that it had
not been reasonable for him to rely on the certificate as a means
of establishing the boat’s commercial value. The certificate had
not been provided for this purpose. It had been issued to
promote safety at sea.
The Supreme Court re-examined the requirement of
reasonable reliance recently in Steel v NRAM Ltd.74 Here a
 solicitor had carelessly misrepresented to her client’s lender that
the whole of the loan had been paid off. Relying on this, the
lender discharged its security, suffering a loss of almost
£370,000 when this was found to be incorrect. The Supreme
Court held that knowledge of the loan had been wholly within
the knowledge of the lender. It was therefore not reasonable for
the lender to rely on the statement of the borrower’s solicitor
rather than checking its own records. Equally, the solicitor in
such circumstances would not reasonably foresee that the lender
would so rely. A commercial lender about to implement
an agreement with its borrower referable to its security does not
therefore act reasonably if he or she simply proceeds upon a
description of the terms put forward on behalf of the borrower.

◗ Reliance must, in fact, take place

3–037 Generally, a successful claimant must show that he or she has, in
fact, relied on the defendant’s advice or services (rather than
acting in reliance on his or her own views or the views of
another)—otherwise the advice or services cannot be said to be
the cause of the claimant’s loss.75 The decision in Abbott v
Strong76 illustrates the idea that a claimant cannot be said to
have placed reliance on a defendant unless the claimant knows
(or acts reasonably in assuming) that the statement in question
has been made by the defendant.77 Here, the plaintiffs had been
encouraged to invest in a company by a circular that had been
sent to them by the company’s directors. The circular contained
inaccurate profit forecasts, and the company subsequently went
into receivership. When the plaintiffs sued the accountants who
had prepared the profit forecasts, it was held that the plaintiffs
had not relied on the accountants, because, at the time they had
acted on the information in the circular, they had thought that it
had come solely from the directors of the company.
The question of reliance was also addressed by the House of
Lords in Customs & Excise Commissioners v Barclays Bank.
Lord Bingham noted that the Customs officials could not “in any
meaningful sense” be said to have relied on the bank. This was
 because, as his Lordship put it, the concept of “reliance” in law
“is usually taken to mean that if A had not relied on B he would
have acted differently”.78 Here, nothing done (or not done) by
the bank had had any effect on the commissioners’ actions.

Provision of services (the “extended Hedley

Byrne principle”) 79

3–038 In Spring v Guardian Assurance Plc, Lord Goff, with whom

Lord Lowry agreed, stated that, in appropriate cases, the Hedley
Byrne principle should not be limited to the provision of advice,
but could be applied more generally to situations involving the
provision of services. The proper interpretation of Hedley Byrne,
according to Lord Goff, was that:

“where the plaintiff entrusts the defendant

with the conduct of his affairs, in general or
in particular, the defendant may be held to
have assumed responsibility to the plaintiff .
. .”80

His Lordship approved Lord Morris’s assertion in Hedley Byrne

that: “The fact that the service is to be given by means of or by
the instrumentality of words can make no difference”.81 This is
an important development in that it indicates that where the
defendant has undertaken the performance of some task or
service for the claimant and expressly or impliedly undertakes
that reasonable care will be taken, then a duty of care can arise.
As Lord Reed commented in GN v Poole Plc,82 what is
significant here is that the courts are prepared to imply such an
undertaking, usually by reason of the foreseeability of reliance
by the claimant on the exercise of such care.
 The leading case of Henderson v Merrett Syndicates Ltd83
involved five appeals and arose in the following way: in the
early 1990s, there were a number of unusually large claims
made against the Lloyds insurance organisation. These losses
had to be borne by people known as “Names”, who invest in
Lloyds by underwriting their insurance policies. The Names are
grouped into syndicates. The plaintiffs alleged that the agents
who had organised their syndicates had been negligent in
handling their affairs. Without having to refer to a specific
statement or piece of advice, the House of Lords was able to say
that a duty of care was owed because the agents had assumed
responsibility for the financial welfare of the Names. Their
Lordships also confirmed that the existence of a contractual
relationship between the claimant and the defendant does not
preclude the existence of a “special relationship”, giving rise to
liability in tort. Many of the Names had contracts with the
defendant agents but sought to sue in tort because the limitation
period for actions in contract had expired. Their Lordships held
that they were entitled to take advantage of a longer limitation
period which (for reasons that do not concern us here) was
applicable in tort.

◗ Employment references
3–039 The decision in Spring v Guardian Assurance Plc84 itself
concerned the question whether a “special relationship” would
exist between an employer and an employee who asks for a job
reference. Here, the plaintiff, Mr Spring, had been employed by
the defendants but subsequently dismissed. He sought work with
one of the defendants’ competitors, but received such a bad
reference that he failed to get the job. The statements in the
reference, although made honestly, had given a misleading
impression of the circumstances surrounding Mr Spring’s
dismissal, and had been made without a proper investigation of
the facts. The House of Lords held that the defendants owed a
duty of care in preparing the reference and, accordingly, were
liable. It made no difference that if Mr Spring had sued in
 defamation, the defendants would have had the defence of
qualified privilege.85 The existence of this defence did not
prevent liability in negligence. Nor, apparently, did it matter that
this was a case where, exceptionally, the plaintiff was seeking to
recover in respect of a statement that had not been made to him
but to someone else. The key element was, as Lord Reed
explained in GN v Poole BC,86 that the defendant had
undertaken the performance of the task for the claimant with an
undertaking (express or implied) that reasonable care would be
taken.

◗ Will Drafting
3–040 The question, then, is how far liability can extend for those
providing services to the public. The will drafting cases involve
a solicitor negligently preparing a will for a testator with the
result that the intended beneficiaries of the will suffer financial
loss. In Ross v Caunters,87 the defendant solicitor had failed to
tell a testator that if his will was witnessed by the spouse of a
beneficiary, any gift to that beneficiary would be void. The
plaintiff, whose husband had witnessed the will, sued the
solicitor for the loss of her gift under the will. The court held
that the solicitor did owe the plaintiff a duty of care and was
liable. Sir Robert Megarry VC was prepared to say that liability
in Ross v Caunters should follow, either by an extension of the
“Hedley Byrne principle” or by a direct application of the
principle of Donoghue v Stevenson.88 After the decision in Ross
v Caunters, a number of cases seemed to cast doubt on whether
it had been correctly decided. In White v Jones, however, the
House of Lords (employing different reasoning) upheld the
decision in Ross v Caunters.
3–041 In White v Jones,89 a testator had quarrelled with his two
daughters and had made a will cutting them out of their
inheritance. Subsequently, he became reconciled with them, so
he instructed the defendants to prepare a new will under which
they were to be left £9,000 each. The defendants failed to act
promptly on these instructions. The solicitor dealing with the
matter arranged to meet the testator three times but failed to
keep the appointments. He then went on holiday. When he
returned, he made a further appointment to see the testator, but
unfortunately the testator, who was 78, died three days before
the meeting. The estate was
distributed according to the old will, depriving the daughters of
their intended legacies. They brought an action against the
defendants, claiming £9,000 each in damages.
By a bare majority, the House of Lords upheld the daughters’
claims. Lord Goff was content to decide the case by a very broad
application of the principle laid down in Hedley Byrne v Heller
& Partners, but declined to follow the reasoning in Ross v
Caunters, stating that that case had raised a number of
conceptual difficulties. Lords Browne-Wilkinson and Nolan held
that the defendants had assumed responsibility for the task of
preparing the new will and that, as a matter of law, this meant
that they had assumed responsibility to the plaintiffs. Lord Nolan
also thought that the plaintiffs could be said to have relied on the
defendants, who were acting as family solicitors. Lords Keith
and Mustill dissented. Lord Keith stated that to allow the claim
would, in effect, be to give the plaintiffs the benefit of a contract
(between the testator and the defendants) to which they were not
parties.
The overriding factor that seemed to influence the decisions
in Ross v Caunters and White v Jones was the need to do
practical justice in the circumstances. In such cases, the courts
are faced with an exceptional situation where the only people
who suffer loss (the intended ben-eficiaries) would, on
traditional principles, be denied a remedy, but the only person
who has a traditional remedy (the testator’s estate) suffers no
loss. This situation leaves, as Lord Goff put it in White v Jones,
“a lacuna in the law which needs to be filled”.90 It is interesting
to note, however, that the decisions in these cases produce,
arguably, injustice of a different kind. This is because those
legally entitled to the deceased’s estate receive a windfall, in the
sense that they retain the money which, on the facts, the
 deceased did not intend to go to them, while those to whom the
money should have gone recover from the negligent solicitor. It
may be argued that a truly coherent legal system should find a
way of giving effect to the testator’s intentions without causing
this enrichment of the estate—after all (as we can see from the
early behaviour of the testator in White v Jones) an intention to
deprive may sometimes be just as important as an intention to
bequeath!
3–042 Subsequent cases have made it clear that liability will be
limited in a number of respects. First, it is unlikely that White
will have any application to gifts made between living persons.91
Thus, in Hemmens v Wilson Browne,92 a certain Mr Panter, who
was having an affair with the plaintiff, instructed his solicitors to
draft a document that would entitle her to call upon him for the
sum of £110,000 at any time in the future. The solicitors drafted
a document which had no legal effect—it was not a deed
(because it was not under seal) and it was not a contract
(because there was no consideration). When the plaintiff asked
Mr Panter to fulfil his promise, he refused to pay, having gone
back to his wife. Unable to enforce the terms of the document,
the plaintiff sued the solicitors, arguing that their negligent
drafting had caused her to lose her
gift. It was held that the special policy considerations which had
dictated the outcomes in Ross v Caunters and White v Jones93
did not apply here—Mr Panter, being still alive, would be able
to rectify the situation, if he so wished, by instructing a solicitor
to re-draft the document properly.
Secondly, it has been suggested that a duty of care can only
be invoked in situations where the claimant has exhausted his or
her other remedies. Thus, in Walker v Geo H Medlicott & Son,94
the claimant sued solicitors who had been instructed to include a
gift to him in a client’s will, but had negligently failed to do so.
The circumstances were such that the claimant was entitled to
have the will rectified under the Administration of Justice Act
1982 s.20. The Court of Appeal held that he could not bring an
alternative claim in negligence.95
 ◗ Pensions advice
3–043 In Gorham v British Telecommunications Plc,96 the Court of
Appeal was prepared to hold that the Hedley Byrne principle
could, in appropriate cases, make providers of financial services
liable to the dependants of a deceased person who had been
wrongly advised about how to make provision for them. Mr
Gorham had opted out of his employer’s pension scheme and
had sought the advice of the Standard Life Assurance Co,
making it clear that his first priority was to make provision for
his wife and children in the event of his death. The company
negligently failed to advise him that his employer’s pension
scheme might provide superior cover, and instead sold him one
of its personal pension plans. Some months later, the company
admitted its mistake and correctly advised Mr Gorham that his
employer’s scheme was better. Unfortunately, however, Mr
Gorham did not re-join his employer’s scheme, mistakenly
believing that he was already a member. This meant that his
dependants were not provided for when he died. The court
upheld an action by the wife and children for loss of the pension
rights to which they would have been entitled had Mr Gorham
been correctly advised in the first place and remained a member
of his employer’s scheme. Their Lordships took the view that
the situation was directly analogous to that in White v Jones
(discussed above) and that, just as a solicitor owed a duty to see
that a testator’s intentions were given effect so as to provide for
beneficiaries, a company selling a pension plan had a duty not to
give negligent advice to a customer which adversely affected the
interests of his dependants as he intended them to be.

◗ Do you have to prove reliance in relation to the

provision of services?
3–044 Lord Goff in Henderson v Merrett Syndicates Ltd97 explained
that in the case of the provision of information and advice,
reliance must be proved—without reliance on the statement, the
 claimant will be unable to prove that the defendant’s negligence
caused him or her any loss. However, in relation to services,
where the claimant has requested performance and entrusted the
defendant with the conduct of his or her affairs, the court will
find that the claimant has relied on that defendant to exercise
due skill and care in performance. On this basis, in relation to
the provision of services, the courts do not seek to identify a
specific act of reasonable reliance by the claimant, but will
assume that, in requesting the service in question, the claimant is
relying on the defendant to take reasonable care. This does,
however, become more difficult in relation to the “will drafting”
cases examined above. These render a negligent solicitor liable
to a disappointed beneficiary for failing to take reasonable care
in performing services requested by the testator. Liability may
arise even where the beneficiary is not aware, at the time the
negligence occurs, that but for the negligence he or she would be
entitled to a legacy. In these circumstances, it is hard to say that
the disappointed beneficiary is “relying” on the skill of the
solicitor, except in the very general sense that all members of
society, some of whom may unknowingly be intended
beneficiaries, rely on solicitors to get things right. The anomaly
produced by the “will drafting” cases, however, may be
explained on the basis that these cases fall into a special
category where the aim of the testator is to benefit others and,
for policy reasons, reliance is not regarded as important.

Should the assumption of responsibility

test be the only test for recovery?

3–045 As seen above, the courts have used the concept of “assumption
of responsibility” to justify imposing a duty of care on the
defendant to protect the claimant from pure economic loss
caused by negligent statements and services. This concept lies at
the heart of the decisions in Henderson and Spring (discussed
above). Yet the concept has not escaped criticism. Academics
have suggested that the concept is flawed in that, as an objective
 test, it often rests on a fiction used to justify a conclusion that a
duty of care existed, as seen by its use in White v Jones and
Smith v Eric Bush (discussed above).98 In Smith v Eric Bush,
Lord Griffiths indeed agreed that the idea was “unlikely to be a
helpful or realistic test in most cases”99 and in Caparo v
Dickman, Lord Roskill expressed a similar view.100 It is difficult
to deny that while it makes sense in many
two-party situations, the further the test is removed from the
actual intentions of the defendant, the more artificial it seems.
Lord Steyn in Williams and Reid v Natural Life Health
Foods Ltd and Mistlin101 defended the concept of assumption of
responsibility. Delivering the opinion of the House of Lords, his
Lordship argued that:

“In my view the general criticism is

overstated. Coherence must sometimes
yield to practical justice. In these
circumstances there was, and is, no better
rationalisation for the relevant head of tort
liability than assumption of
responsibility.”102

3–046 In Customs & Excise Commissioners v Barclays Bank,103 the

House of Lords dealt with doubts relating to the assumption of
responsibility test (notably the difficulty of determining
precisely when a defendant can be said to have “assumed
responsibility”) by adopting a three-fold approach: applying this
test and the three-fold Caparo test of foreseeability, proximity
and fair, just and reasonableness and the incremental test. If, in a
novel case, all three indicated the existence of a duty of care,
then the court could be sure that it should exist. Here, Customs
officials, who were seeking to recover outstanding tax payments
from two companies, had obtained “freezing orders” on those
companies’ bank accounts. This meant that the defendant bank
was prohibited by law from allowing any money in the accounts
to be paid out. Through inadvertence, however, the bank allowed
funds to be withdrawn from the accounts. The Customs officials
sought to recover these funds from the bank, arguing that, on
receipt of the freezing order, the bank had “assumed
responsibility” to them for financial losses arising from the
funds being withdrawn. It was also argued that it would be fair,
just and reasonable to impose liability.
In denying the claim, their Lordships stressed that, in
deciding a novel case, it was important to appreciate that there is
no single common denominator by which liability can be
determined. While the concept of “assumption of
responsibility”, like the concepts of “proximity” and “fair, just
and reasonable” to which it is inextricably linked, is useful, such
concepts are inherently imprecise and can only provide limited
assistance. An important cross-check may also be gained from
considering whether it would be appropriate to go beyond
existing case-law (“the incremental approach”).104 Here, the
bank could not in any meaningful sense be said to have assumed
responsibility—it had no choice about complying with the
freezing order. It was equally not fair, just and reasonable to
impose liability in tort where the bank would only have been
found in contempt of court if it had knowingly failed to freeze
its customer’s account and such a duty would conflict with the
bank’s duties to its customers. Equally imposing a duty of care
was not analogous or incremental to any previous decision.
In novel cases, therefore, the courts will determine liability
by reference to all three tests, as explained by Longmore LJ in
the Playboy Club case in the Court of Appeal:

“The law about duty of care has not, of

course, stood still since Hedley Byrne; it is
now recognised that there is no single test
for determining when a duty arises but
 since Caparo it has become customary to
inquire: (1) whether the defendant assumed
responsibility to the claimant; (2) whether
(to adopt what has been called the threefold
test—(a) loss was a foreseeable consequence
of the defendant’s actions or inactions, (b)
the relationship of the parties was
sufficiently proximate and (c) it is fair just
and reasonable to impose a duty of care on
the defendant towards the claimant; and (3)
whether the addition to existing categories
of duty is incremental rather than
indefinable. These inquiries will usually
lead to the same answer and can be used as
cross-checks on one another.”105

Economic loss: conclusion

3–047 We have seen that, over the years, the courts have vacillated on
the question of pure economic loss. This has resulted in a body
of law that lacks coherence.106 It is convenient, for the purpose
of learning the law, to distinguish, as we have done in this
chapter, between the “activity” cases and the “statements and
services” cases. However, the courts’ extension of the “Hedley
Byrne principle” into the realm of services—in cases like Spring
v Guardian Assurance and Henderson v Merrett—makes this
distinction rather artificial. It should be remembered, therefore,
that the outcomes of pure economic loss claims depend, not on
their classification within an appropriate pigeon-hole, but on the
different weight the courts accord to various issues in the unique
factual matrix of each case. Detailed consideration of these
issues leads the courts to form an overview or “impression” of
 whether or not, in the particular circumstances, there can
sensibly be said to have been an “assumption of responsibility”
(with sufficient “proximity” and “reliance”) so that a duty of
care can arise.
It is noteworthy that in Commonwealth jurisdictions,
particularly in Australia, New Zealand and Canada, the UK’s
restrictive approach to economic loss has not been whole-
heartedly embraced. Commonwealth courts have, for example,
been more willing to allow recovery where the claimant has only
a contractual interest in damaged property, and have taken a
more liberal approach to the liability of builders and local
authorities for defective premises.107 Whilst (as we saw in Ch.2)
the UK courts have rejected Lord Wilberforce’s broad “two-
stage test” for finding the duty of care, Commonwealth courts,
in pure economic loss cases, have often chosen to apply it, in
conjunction with a close examination of the economic and
political relationships between the parties.108 Academic
commentators have pointed out that this approach makes much
more sense, and that the incoherence of UK law has resulted
from the courts’ analysis of pure economic loss questions “not
on the basis of common policy concerns but in pockets
according to how the loss [has] been caused”.109 The reasoning
of the House of Lords in Customs & Excise v Barclays Bank110
(in which this commentary was specifically referred to111)
indicates, perhaps, a new-found willingness to adopt a more
flexible approach which brings together alternative tests when
deciding economic loss claims. However, it might still be
questioned how far this approach has succeeded in its goal to
provide clarity and consistency to this complex area of tort law.

1 [2018] UKSC 18; [2019] A.C. 403. For a critical commentary, see J.
Morgan (2018) 77 C.L.J. 461.

2 [2018] UKSC 18 at [40]. Contrast Rothwell v Chemical & Insulating Co

Ltd [2007] UKHL 39; [2008] A.C. 281 where the development of pleural
plaques following exposure to asbestos was merely a marker of exposure
and being symptomless and not giving rise to any condition would not be
treated as personal injury.

3 [1973] Q.B. 27.

4 [1973] Q.B. 27 at 36.

5 [2011] EWCA Civ 644; [2012] 1 All E.R. (Comm) 692. Comment: J.
O’Sullivan, “Negligence, remoteness and economic loss—Staying on track”
[2011] C.L.J. 496, who notes that in many cases the costs of repair will be
dwarfed by the compensation payments to the TOCs involving, in one case,
over £1 million.

6 J. O’Sullivan, “Suing in tort where no contractual claim will lie—a bird’s

eye view” (2007) 23 P.N. 165, 192. See also Wellesley Partners LLP v
Withers LLP [2015] EWCA Civ 1146; [2016] 2 W.L.R. 1351: where there is
concurrent tortious and contractual liability, the contractual rules on
remoteness of damages for economic loss apply and, more recently, M.
Isaacs, “Understanding the relationship between duties in contract and the
tort of negligence” (2019) 35 P.N. 155.

7 [1973] Q.B. 27 at 41.

8 (1875) L.R. 10 Q.B. 453. See also Weller & Co v Foot and Mouth Disease
Research Institute [1966] 1 Q.B. 569 and Leigh and Sillivan Ltd v Aliakmon
Shipping Co Ltd (The Aliakmon) [1986] A.C. 785 (no recovery where coils
damaged at sea were not yet property of plaintiffs who had contracted to
buy them). .

9 Contrast the position in Canada in relation to relational loss: The Norsk

(Canadian National Railway Co v Norsk Pacific Steamship Co) (1992) 91
D.L.R. (4th) 289; Bow Valley Husky (Bermuda) v Saint John Shipbuilding
Ltd (1998) 153 D.L.R. (4th) 385.

10 [1978] A.C. 728.

11 [1983] 1 A.C. 520.

12 Anns v Merton LBC [1978] A.C. 728 at 759.

13 [1991] 1 A.C. 398.

14 [1983] 1 A.C. 520.

15 per Lord Roskill in Junior Books v Veitchi [1983] 1 A.C. 520 at 542.

16 [1983] 1 A.C. 520 at 546.

17 [1989] A.C. 177.

18 [1989] A.C. 177 at 202.

19 [1986] Q.B. 507.

20 [1989] Q.B. 71.

21 [1989] Q.B. 71 at 106.

22 [1988] 2 W.L.R. 761.

23 [1990] 1 Q.B. 993.

24 Simaan v Pilkington Glass Ltd (No.2) [1988] 2 W.L.R. 761 at 778.

25 This is also now the position adopted in Canada: see Design Services Ltd
v Canada [2008] 1 S.C.R. 737; 2008 S.C.C. 22.

26 Contracts (Rights of Third Parties) Act 1999 s.1.

27 [1989] A.C. 177.

28 This observation, although obiter to the decision in D & F Estates, did

much to settle previous debate about whether a duty of care could be owed
in respect of defects that posed an imminent danger, but had not yet caused
any damage.

29 [1989] A.C. 177 at 216.

30 [1991] 1 A.C. 398.

31 Murphy v Brentwood DC [1991] 1 A.C. 398 at 475.

32 W.E. Peel and J. Goudkamp, Winfield & Jolowicz on Tort, 19th edn
(Sweet and Maxwell, 2014), para.10–052.

33 Murphy v Brentwood DC [1991] 1 A.C. 398 at 478.

34 Murphy [1991] 1 A.C. 398 at 497.

35 In Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 All

E.R. 135, defective containers had caused damage to the proofing
compound they contained. Lloyd LJ was of the “provisional view” that the
proofing compound was “other property”, even though it had been bought
in the containers from the same supplier. However, see now Bacardi-
Martini Beverages Ltd v Thomas Hardy Packaging Ltd [2002] EWCA Civ
549, and the judgment of Mance LJ who, at [18], pointed out that this was a
pre-Murphy case and so of limited authority.

36 For meaning of “the provision of a dwelling”’, see Jenson v Faux [2011]

EWCA Civ 423; [2011] 1 W.L.R. 3038.

37 Defective Premises Act 1972 s.1. See also Bole v Huntsbuild Ltd [2009]
EWCA Civ 1146 (comment: J. Murdoch, “How fit is your house?” [2011]
E.G. 1125) and Rendlesham Estates Plc v Barr Ltd [2014] EWHC 3968
(TCC); [2015] 1 W.L.R. 3663 on the meaning of “dwelling”, “in connection
with the provision of a dwelling” and “fit for habitation”.

38 But not a building inspector who had provided services to ensure

compliance with building regulations: see Lessees & Management Co of
Herons Court v Heronslea Ltd [2019] EWCA Civ 1423; [2019] 1 W.L.R.
5849. As the Court of Appeal identified, inclusion would have been
contrary to the natural and ordinary meaning of s.1 and would conflict with
the reasoning in Murphy v Brentwood which indicated that no duty was
owed under s.1 by a local authority inspector.
39 The Latent Damage Act 1986 made the claimant’s position more
favourable in building cases by providing a limitation period of three years
running from the date damage was reasonably discoverable. The Act is now
a dead letter in this regard, however, because, under Murphy, claimants
have no cause of action in the first place.

40 [1992] 3 All E.R. 27.

41 Such a proposition would have been inconsistent with the Court of

Appeal’s decision in Rimmer v Liverpool City Council [1985] Q.B. 1, which
had not been referred to in Murphy.

42 For further discussion of this anomaly, see J. Stapleton, “Duty of care

and economic loss: a wider agenda” (1991) 107 L.Q.R. 249 and B.S.
Markesinis and S. Deakin, “The random element of their Lordships’
infallible judgment” (1992) 55 M.L.R. 619.

43 [1951] 2 K.B. 164.

44 [1964] A.C. 465.

45 This is acknowledged in K. Barker, R. Grantham and W. Swain (eds),

The Law of Misstatements: 50 years on from Hedley Byrne v Heller (Hart,
2015).

46 See, e.g. J.A. Weir, “Liability for syntax” [1963] C.L.J. 216. See also
P.S. Atiyah, “Negligence and economic loss” (1969) 83 L.Q.R. 248.

47 [1964] A.C. 465 at 486.

48 [2009] EWCA Civ 717; [2010] 2 All E.R. (Comm) 138.

49 [2015] EWHC 115 (QB); [2016] 1 W.L.R. 2499. Comment: J.

Hartshorne (2016) 32 P.N. 164. See also Chief Land Registrar v Caffrey &
Co [2016] EWHC 161 (Ch); [2016] P.N.L.R. 23 (solicitors assumed a duty
to the Chief Land Registrar to take reasonable care to ensure that the
representations he had made, to the effect that the mortgagee consented to
the discharge, were true). Contrast, however, Seddon v DVLC [2019]
EWCA Civ 14; [2019] 1 W.L.R. 4593 (no duty owed by DVLC to
purchaser of purported classic car).

50 [2018] UKSC 43; [2018] 1 W.L.R. 4041.

51 [1990] 2 A.C. 605.

52 Contrast Law Society v KPMG Peat Marwick [2000] 1 W.L.R. 1921

where the Court of Appeal upheld a preliminary ruling that accountants, in
auditing solicitors’ firms, owed a duty of care to the Law Society in respect
of compensation payments made by the Society because the accountants
had failed to detect fraud. Here, the scope of potential liability was limited
and could arise only during the year for which the audit had been prepared.

53 Hoffmann J, in Morgan Crucible Co v Hill Samuel & Co [1991] 2

W.L.R. 655 at 662, remarked that “. . . if the decision in Caparo’s case had
gone the other way, firms of accountants below a certain size may have
been deterred by insurance costs from competing for the audit work of
public limited companies potentially liable to take-over bids. This would
have driven such companies into the hands of the largest firms”.

54 [1990] 2 A.C. 605 at 621.

55 [1991] 2 Q.B. 113.

56 [1991] 2 Q.B. 113 at 125–126.

57 [1964] A.C. 465 at 482.

58 [1989] 1 W.L.R. 29.

59 [1964] A.C. 465 at 529.

60 [2017] EWCA Civ 254; [2017] P.N.L.R. 25. However, no breach was
found on the facts in a later decision: [2018] EWHC 3166 (TCC).

61 In Hurst v Hone [2010] EWHC 1159 (QB) at [320], Keith J noted that
all three members of the Court of Appeal in Chaudhry had been concerned
about the concession made by counsel for the plaintiff’s friend that a duty
of care had arisen.

62 [1971] A.C. 793.

63 [1976] Q.B. 801.

64 [1976] Q.B. 801 at 827.

65 [1978] Q.B. 574.

66 [1990] 1 A.C. 831.

67 Changes to the legislative framework regulating exclusion clauses will

be examined in Ch.16.

68 [1990] 1 A.C. 831 at 862. See also Lord Slynn, in Phelps v Hillingdon
LBC [2001] 2 A.C. 619 at 654: “The phrase simply means 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”.

69 Scullion v Bank of Scotland [2011] EWCA Civ 693; [2011] 1 W.L.R.

3212 at [49]: purchase of a buy-to-let property was essentially commercial
in nature and no inherent likelihood that a purchaser, buying property as an
investment, would rely on a valuation provided to the mortgagee rather than
obtaining his own valuation.

70 [2001] EWCA Civ 214; [2001] Q.B. 1174.

71 [1998] 1 W.L.R. 830.

72 [1978] Q.B. 574.

73 [1997] 2 Lloyd’s Rep. 648. Consider also the purpose of the

“statements” in, e.g. Customs & Excise Commissioners v Barclays Bank
[2006] UKHL 28, and West Bromwich Albion FC v El-Safty [2006] EWCA
Civ 1299; [2007] P.I.Q.R. P7.

74 [2018] UKSC 13; [2018] 1 W.L.R. 1190.

75 Bristol & West Building Society v Mothew [1998] Ch. 1.

76 [1998] B.C.L.C. 420.

77 Note, however, that the claimant need not necessarily know the precise
identity of the defendant. It may suffice if, as in Merrett v Babb [2001]
EWCA Civ 214; [2001] Q.B. 1174 (discussed above), the claimant
reasonably assumes that the statement must have been prepared by a
defendant of a particular type.

78 Customs & Excise Commissioners v Barclays Bank [2006] UKHL 28 at

[14]. See also the remarks of Lord Mance at [112].

79 This expression was used by Lord Steyn in Williams and Reid v Natural
Life Health Foods Ltd and Mistlin [1998] 1 W.L.R. 830 at 835.

80 Spring v Guardian Assurance Plc [1995] 2 A.C. 296 at 318.

81 [1964] A.C. 465 at 503.

82 [2019] UKSC 25, at [88].

83 [1995] 2 A.C. 145. See also Welton v North Cornwall DC [1997] 1

W.L.R. 570. The defendants’ environmental health officer had imposed
excessive hygiene requirements on a guest house. The claim was held to be
well within the Hedley Byrne principle, even though it could not be
described as a case involving negligent “advice”.

84 [1995] 2 A.C. 296.

85 See Ch.14.

86 [2019] UKSC 25 at at [68].

87 [1980] Ch.297.

88 [1932] A.C. 562.

89 [1995] 2 A.C. 207.

90 [1995] 2 A.C. 207 at 260. See also Sebry v Companies House [2015]
EWHC 115 (QB); [2016] 1 W.L.R. 2499 at [91] per Edis J.

91 Although both Sir Donald Nicholls VC in the Court of Appeal in White v

Jones [1995] 2 A.C. 207 (at 227) and Sir Robert Megarry VC in Ross v
Caunters [1980] Ch.297 (at 322) thought that the principle could be applied
to inter vivos gifts.

92 [1993] 4 All E.R. 826.

93 White v Jones [1995] 2 A.C. 207 was a Court of Appeal decision at the
time.

94 [1999] 1 W.L.R. 727.

95 Compare Horsefall v Haywards [1999] 1 F.L.R. 1182: there can be no

objection to a negligence action where there is little likelihood that
rectification will succeed.

96 [2000] 1 W.L.R. 2129. See also Weldon v GRE Linked Life Assurance
Ltd [2000] 2 All E.R. (Comm) 914 (life insurance company liable for
presenting a direct debit mandate to the wrong branch of a bank, so that
premiums were not collected and the policy lapsed.)

97 [1995] 2 A.C. 145 at 180.

98 See K. Barker, “Unreliable assumptions in the modern law of

negligence” (1993) 109 L.Q.R. 461; B. Hepple, “Negligence: the search for
coherence” (1997) 50 C. L. P. 69 at 88, and P. Cane, Tort Law and
Economic Interests, 2nd edn (Clarendon Press, 1996), pp.177 and 200.

99 [1990] 1 A.C. 831 at 864–865.

100 [1990] 2 A.C. 605 at 628.

101 [1998] 1 W.L.R. 830.

102 [1998] 1 W.L.R. 830 at 837.

103 [2006] UKHL 28; [2007] 1 A.C. 181.

104 See Lord Mance [2006] UKHL 28 at [93].

105 [2016] EWCA Civ 457 at [17]. See also BCCI v Price Waterhouse (No
2) [1998] P.N.L.R. 564, 586–587; CGL Group Ltd v Royal Bank of Scotland
[2017] EWCA Civ 1073; [2018] 1 W.L.R. 2137 at [59]–[61] per Beatson
LJ.

106 A notable critic is Professor K. Stanton. See, e.g. K. Stanton, “Hedley

Byrne and Heller: The relationship factor” (2007) 23 P.N. 94, who argues
that more than 40 years after the decision in Hedley Byrne the law remains
vague, giving rise to undesirable uncertainty in this area of law.

107 See Kamloops (City) v Nielsen (1984) 10 D.L.R. 641 (Supreme Court
of Canada); Bryan v Maloney (1994–5) 182 C.L.R. 609 (High Court of
Australia); Invercargill v Hamlin [1994] 3 N.Z.L.R. 513 (New Zealand
Court of Appeal, affirmed by Privy Council: [1996] A.C. 624). See R.
Tobin, “Local authority liability in tort to owners of defective buildings: the
New Zealand position” (2013) 42 C.L.W.R. 151 and G. Yihan, “A
Conscious Effort to Develop a ‘Different’ Common Law of Obligations: A
Possible Endeavour?” in A. Robertson and M. Tilbury (eds), The Common
Law of Obligations: Divergence and Unity (Hart, 2016).

108 In Canada, e.g. the Anns test is still applied, although it has been
“revisited”. See Cooper v Hobart (2002) 206 D.L.R. (4th) 193 and Edwards
v Law Society of Upper Canada (2002) 206 D.L.R. (4th) 211, but contrast
the more flexible approach adopted by the High Court of Australia in Perre
v Apand Pty Ltd (1999) 198 C.L.R. 180 and Barclay v Penberthy (2012) 86
A.L.J.R. 1206.

109 See J. Stapleton, “Duty of care and economic loss: a wider agenda”
(1991) 107 L.Q.R. 249, 294, and “Comparative Economic Loss: Lessons
from Case-Law-Focused ‘Middle Theory’” (2002) 50 UCLA L. Rev. 531.

110 [2006] UKHL 28. Comment: J. Morgan, “The rise and fall of the
general duty of care” (2006) 22 P.N. 206.
111 [2006] UKHL 28 per Lord Walker at [69].
 4

Negligence: Psychiatric
Illness

Introduction
4–001 This chapter will examine the circumstances in which a
defendant owes a claimant a duty of care to avoid causing him
or her psychiatric illness. In White v Chief Constable of South
Yorkshire,1 Lord Steyn noted that the law in this area is “a
patchwork quilt of distinctions which are difficult to justify”.2
This case, in common with the leading case of Alcock v Chief
Constable of South Yorkshire,3 arose from events which
happened at the Hillsborough football stadium in April 1989,
when police negligence caused the overcrowding of spectator
stands. As a result, 96 people were crushed to death and
hundreds more injured.
The claims in these cases were brought by people who,
though not physically injured, suffered psychiatric illness as a
result of the tragedy. In Alcock, claims were brought by
relatives who had witnessed or heard about the death or injury
of their loved ones. In White, claims were brought by police
officers who had assisted in the aftermath of the disaster. In
deciding that no duty of care was owed to any of these
claimants, the House of Lords developed and applied a set of
rules that are hard to justify in terms of logic and morality. The
 area has been the subject of a report by the Law Commission,
whose recommendations are considered at the end of this
chapter.

Definition of “psychiatric illness”

4–002 It is important to understand that the courts draw a distinction

between claims in respect of medically recognised psychiatric
illness4 and claims for mere grief, sorrow and distress. The
latter, being unfortunate but commonplace symptoms of the
human condition, are generally afforded no remedy at law.5 In
psychiatric illness cases, successful claimants must establish that
they are suffering from medical conditions such as “post-
traumatic stress disorder (PTSD)”,6 “organic depression and a
change of personality”,7 or “pathological grief disorder”.8 The
law recognises that these conditions can be just as serious and
debilitating as physical injuries. As we shall see, however, for
policy reasons it limits the circumstances in which they can give
rise to claims for compensation.
Until very recently, claims for psychiatric illness were
described as claims for “nervous shock”. This rather quaint
terminology served to emphasise the idea that the law would
only entertain such claims in cases where psychiatric illness
resulted from the “sudden shock” of witnessing or participating
in a specific single event. Although, in the modern law, this
requirement has received criticism,9 it is generally thought that
an element of “sudden shock” remains an ingredient of the cause
of action. Thus, a person whose psychiatric illness is brought on
by the cumulative effect of prolonged exposure to distressing
circumstances (by caring for a brain-damaged accident victim,
for example) will normally have no cause of action.10
Once the claimant has established that he or she is suffering
from a psychiatric condition which the law will recognise as
actionable, there are a number of additional hurdles that must be
overcome in order to succeed. As in cases of pure economic
 loss, the law uses the concept of the duty of care as the
mechanism to control the scope of liability. The nature of the
hurdles which a particular claimant will have to overcome
depends on the type of situation that has
given rise to the psychiatric illness. The law divides claimants
into a number of categories, with very different rules applying to
each category.

Types of claimant

4–003 Broadly speaking, and in the light of the decision in White v

Chief Constable of South Yorkshire, it can be said that there are
nowadays three categories of claimant in psychiatric illness
cases11:
▮ claimants who suffer psychiatric illness as a result of
having been physically injured by the defendant’s
negligence;
▮ claimants who are put in physical danger, but who in
fact suffer only psychiatric illness (these claimants are
known as “primary victims”12); and
▮ claimants who, though not in any physical danger
themselves, suffer psychiatric illness as a result of
witnessing the death, injury or imperilment of another
person (known as the “immediate victim”) with whom
they have a close relationship of love and affection
(these claimants are known as “secondary victims”).

Arguably, there remains an additional category, namely

claimants who suffer psychiatric illness as a result of witnessing
the destruction of their property. Such a claim succeeded in Attia
v British Gas Plc,13 which is discussed later in this chapter. It
should be remembered, however, that this decision was taken in
the 1980s, at a time when the courts were in the last throes of
expanding the duty of care in negligence, and before the modern
 rules relating to psychiatric illness had been clearly defined. It is
therefore uncertain whether it would nowadays be followed.

Historical Development
The old law
4–004 Unsurprisingly, perhaps, the law was slow to recognise claims
for psychiatric illness. The approach of the courts in the
nineteenth century is exemplified by the decision of the Privy
Council in Victorian Railway Commissioners v Coultas.14 Here,
the defendants’ gate-keeper had carelessly allowed the plaintiffs
to drive over a level crossing when a train was about to pass.
Although no physical injury occurred, the plaintiff, who was
being driven by her husband and feared for her life, suffered
severe shock. The Privy Council denied that there could be
liability for psychiatric illness in the absence of physical injury.
As Lord Hoffmann pointed out in White,15 the main reason their
Lordships gave for this restrictive approach was the evidential
difficulty of deciding on the causes of psychiatric illness at a
time when so little was known about the workings of the mind.
The Privy Council thought that opening the doors to psychiatric
illness liability might have led to a large number of “imaginary
claims”.16

The “impact theory”

4–005 In 1901, however, the courts adopted a more liberal approach in
deciding Dulieu v White & Sons.17 Here, the plaintiff, a pregnant
barmaid, was behind the bar in a pub when a negligently driven
carriage came off the road and crashed into the pub, entering the
room where she was standing. She suffered shock and a
subsequent miscarriage. Kennedy J upheld her claim. Dealing
with Victorian Railway Commissioners v Coultas, Kennedy J
thought that the problem of exaggerated or fraudulent claims
was not a good enough reason for simply denying the existence
of a duty of care in respect of psychiatric harm, observing:

“Such a course involves the denial of

redress in meritorious cases, and it
necessarily implies a certain degree of
distrust, which I do not share, in the
capacity of legal tribunals to get at the truth
in this class of claim.”18

In allowing liability for psychiatric illness in negligence,

Kennedy J was influenced by the case of Wilkinson v
Downton,19 which had been decided four years earlier. Here, the
defendant, in the exercise of what he regarded as a practical
joke, had arrived at the plaintiff’s front door
and announced that her husband had been involved in a serious
accident and had broken both his legs. When the plaintiff
suffered shock, accompanied by vomiting and other physical
symptoms, the defendant was held liable for the effect of his
statement, on the basis that he had perpetrated an intentional act
of wrongdoing. (Liability under the “rule in Wilkinson v
Downton”, as it is known, is discussed more fully in Ch.11. It
should not be confused with liability in negligence.)
In Dulieu v White & Sons, then, and in a number of similar
cases, the courts sought to control the scope of liability by using
what became known as the “impact theory”, according to which
a plaintiff would be allowed to recover for psychiatric illness
provided that this was caused by reasonable fear of being
physically injured by the defendant’s negligence.
 The law expands: Hambrook v Stokes
4–006 In later cases, the courts abandoned the “impact theory”,
extending the law to cover claimants who had not been in
danger, but had suffered psychiatric illness as a result of
witnessing a loved one being injured or placed in peril by a
defendant’s negligence. (We now call such claimants “secondary
victims”.)
Such was the case in Hambrook v Stokes.20 Here, a pregnant
mother had accompanied her three children part of the way on
their journey to school and then, as usual, had left them to walk
a short way by themselves along the bend of a road. The
children had passed out of sight when, owing to the defendants’
negligence, an out-of-control lorry came down a hill at speed
and went round the bend. The mother was afraid that her
children would be killed by the lorry (in fact, however, two of
them were unharmed, whilst the third was taken to hospital with
injuries). She suffered shock which led to a miscarriage with
medical complications, causing her death. A majority of the
Court of Appeal held the defendants liable. But in extending the
law to cover this situation, Bankes LJ was careful to point out
that the ratio of the decision was to be confined to situations
where the plaintiff suffered psychiatric illness because of fear for
the safety of her children. The decision was not intended to
overturn previous authority to the effect that a plaintiff could not
recover in respect of psychiatric illness caused by witnessing
physical injury to a person with whom the plaintiff had no
relationship of love and affection.21

No further expansion: Bourhill v Young

4–007 Nearly 20 years later, in Bourhill v Young,22 the question of
psychiatric illness liability came before the House of Lords for
the first time. The facts of this case were noted in Ch.2. It will be
recalled that it concerned a pregnant woman who, while
descending from a tram, heard a road accident occur some
distance away. She later attended the scene of the accident, saw
blood on the road, and subsequently suffered a miscarriage
produced by shock. As was noted in Ch.2, the House of Lords
held, in effect, that the woman was not a “foreseeable claimant”.
In other words, she could not base her action on a wrong done to
someone else.
In arriving at this conclusion, their Lordships considered a
number of points. First, there was the question of whether the
woman might be regarded as being peculiarly susceptible to
psychiatric illness because of her pregnant condition (Lord
Wright appeared to think this was likely). If so, then she could
only recover if it could be said that, in the circumstances,
psychiatric illness was reasonably foreseeable in a person of
ordinary fortitude. On the facts, their Lordships did not think
this was the case—ordinary people could be expected to
withstand the rigours of witnessing injury to a stranger on the
roads without suffering psychiatric illness. Secondly, there was
the question of whether it mattered that the plaintiff had not
feared for her own physical safety. A majority of their Lordships
appeared to answer this question by resurrecting the “impact
theory” and holding that she could not recover because she was
outside the area of foreseeable physical impact. Their Lordships
held that Hambrook v Stokes was to be regarded as a special case
and was of limited application.
Initially, then, the courts took a narrow view of the decision
in Hambrook v Stokes. In King v Phillips,23 for example, the
Court of Appeal denied recovery to a mother who suffered
psychiatric illness when, from an upstairs window some 70
yards away, she saw her son’s tricycle disappear under a
reversing taxi and heard the boy scream. The decision in
Hambrook v Stokes was distinguished on the basis that the
mother in King v Phillips was too far away from the scene of the
accident—like the plaintiff in Bourhill v Young, she was not, in
effect, a “foreseeable claimant”.
 In the 1960s, however, the courts began to take a more
liberal approach, holding in Boardman v Sanderson24 that a
plaintiff who suffered psychiatric illness when his son was
involved in an accident could recover even though he had not
seen the accident but had only heard it from some distance away,
and had come to the scene of the accident shortly after its
occurrence. This approach was developed a stage further by the
House of Lords in 1982, when it decided the landmark case of
McLoughlin v O’Brian.

The emergence of the modern law:

McLoughlin v O’Brian

4–008 In McLoughlin v O’Brian,25 the plaintiff’s husband and three of

her children were involved in a serious road accident, caused by
the defendants’ negligence. The plaintiff did not witness the
accident, being, at the time, at home about two miles away.
About an hour after the accident, it was reported to her by a
family friend that her 17-year-old son, George (who had been
driving the car), was dying. The friend then drove her to a local
hospital where she was told that
her three-year-old daughter had died. She could hear George
shouting and screaming in an adjoining room. She saw her
husband and seven year-old daughter, who were in a distressed
state, covered with oil and mud. She was then taken to see
George, who appeared to recognise her before lapsing into
unconsciousness. These events caused her to suffer psychiatric
illness.
In holding the defendants liable, the House of Lords
extended the law to cover a situation where the plaintiff had not
seen or heard the accident itself, but had come upon its
“immediate aftermath”, although this case was seen as on the
margins of what previous authority would allow. While the
House of Lords declined to say, in precise terms, what could
constitute the “immediate aftermath” of an accident, it was
 clearly significant that the plaintiff in McLoughlin v O’Brian had
seen her family within a fairly short time of the accident, and
that, when she saw them, they had not been “cleaned up” and
remained in more or less the same condition they had been in
immediately after the accident. She had therefore witnessed
scenes which went to “make up the accident as an entire
event”.26 Lord Wilberforce stressed that in terms of proximity of
the victim to the accident, there must be closeness in time and
space, finding that the High Court of Australia’s decision in
Chester v Waverly Municipal Council,27 where a child’s body
was found floating in a trench after a prolonged search, might
“perhaps be placed on the other side of a recognisable line”.28
As we shall see, the question of what can constitute the
“immediate aftermath” remains unclear, even after being
considered again in the leading case of Alcock v Chief Constable
of South Yorkshire.29
The speech of Lord Wilberforce, then, laid the foundation for
the modern approach of the courts in psychiatric illness cases.
Whilst his Lordship thought that extending previous authority to
assist the plaintiff was a “logical progression”, he noted that,
because psychiatric illness was capable of affecting such a large
number of potential plaintiffs, there was “a real need for the law
to place some limitation on the extent of admissible claims”.30

◗ Lord Wilberforce’s “control mechanisms”

4–009 In McLoughlin v O’Brian, Lord Wilberforce identified three
factors that would need to be considered in relation to what we
now call secondary victims:
▮ the class of persons whose claims should be recognised;
▮ the proximity of such persons to the accident; and
▮ the means by which the psychiatric illness was caused.

These three “control mechanisms” suggested by Lord

Wilberforce were subsequently reformulated and applied by a
unanimous House of Lords in Alcock.
In relation to the class of persons who might claim, Lord
Wilberforce recognised that “the possible range is between the
closest of family ties, of parent and child, or husband and wife,
and the ordinary bystander”. He noted that the law, as in
Bourhill v Young, had always denied recovery to mere
“bystanders” who suffered psychiatric illness as a result of
witnessing accidents. According to Lord Wilberforce, the law’s
justification for this approach was either that “such persons must
be assumed to be possessed of fortitude sufficient to enable them
to endure the calamities of modern life”, or that “defendants
cannot be expected to compensate the world at large”.31 His
Lordship thought that cases brought by plaintiffs who did not
have a very close family relationship with the “immediate
victim” of the accident would have to be “very carefully
scrutinised”.
As regards proximity to the accident, this had to be “close in
both time and space”, but it would be impractical and unjust to
insist that plaintiffs must be present at the scene of the accident.
As regards the means by which the psychiatric illness was
caused, his Lordship noted that there had thus far been no
negligence case in which the law had compensated psychiatric
illness brought about by mere communication to the plaintiff of
distressing news. There was no justification for departing from
this position. It followed that the psychiatric illness must arise
through direct perception of the accident, or its immediate
aftermath, by sight or hearing. Lord Wilberforce left open the
question of whether “some equivalent of sight or hearing, e.g.
through simultaneous television”, would suffice. (This point, as
we shall see, was subsequently considered by the House of
Lords in Alcock.)
Although, as has been said, the “control mechanisms”
suggested by Lord Wilberforce in McLoughlin v O’Brian were
subsequently endorsed in Alcock, it was initially unclear whether
they formed part of the ratio of the case. This was because other
members of the House of Lords did not view them in the same
way. Whilst Lord Wilberforce (with whom Lord Edmund-
 Davies agreed) appeared to think that the “control mechanisms”
should be satisfied in addition to a test of reasonable
foreseeability, Lords Bridge and Scarman appeared to think that
liability for psychiatric illness should be decided by applying a
broad test of foreseeability, and that, although the factors
suggested by Lord Wilberforce were to be considered in
applying that test, they did not exclusively define the
circumstances in which psychiatric illness could be recoverable.
(Lord Russell’s opinion on the point was not clear.) This is why
the plaintiffs in Alcock felt able to pursue their claims.
The House of Lords in Alcock, however, unanimously
adopted Lord Wilberforce’s approach. After Alcock came the
important decision in Page v Smith,32 a case involving a
“primary victim” of psychiatric illness. Next came the case of
White v Chief Constable of South Yorkshire.33 The reasoning of
the House of Lords in these three cases forms the core of the
modern law which is considered below.

Modern Law: preliminary

issues

4–010 In this section, we examine certain preliminary issues which will

help us understand the modern law. We begin by dealing with
the position of claimants who suffer psychiatric illness as a
result of suffering physical injury, or through witnessing damage
to their property. The position of such claimants can be shortly
stated and should not be the focus of too much of our attention.
Next, we examine the more important issue of the role of policy
in psychiatric illness cases. Then, we consider the courts’ use of
“reasonable foreseeability” in establishing the duty of care.
 Psychiatric illness resulting from personal
injury
4–011 Where a claimant has suffered bodily injury as a result of the
defendant’s negligence, the courts have no difficulty in allowing
recovery in respect of psychiatric illness resulting from the
injury. It will be treated as an ordinary personal injury claim.
While such claimants are sometimes referred to as “primary
victims”, their position is conceptually distinct from that of the
plaintiff in Page v Smith—discussed later—who did not suffer
physical injury, though he had been placed in physical danger.
The ability of such claimants to recover for psychiatric illness
follows from the fact that the law has traditionally allowed them
to recover damages for pain and suffering consequent upon their
injuries. Such damages were awarded, for example, in Kralj v
McGrath,34 where the negligence of a defendant obstetrician
resulted in the plaintiff suffering psychiatric trauma and losing
her baby shortly after its birth. Damages for pain and suffering,
including psychiatric injury, consequential on personal injury
will be examined in Ch.17.

Psychiatric illness resulting from property

damage
4–012 In Attia v British Gas Plc,35 the Court of Appeal was asked to
decide, as a preliminary issue, whether a duty of care could arise
where the plaintiff had witnessed the destruction of her home, as
opposed to injury to a loved one. Their Lordships held that it
could. The defendants, by negligently installing a central heating
system, had caused a fire which destroyed the plaintiff’s house.
The plaintiff suffered psychiatric illness when she returned home
one day to witness the blaze. Bingham LJ, holding that a duty of
care could exist in such a situation, cited other possible
examples, such as where “a scholar’s life’s work of research or
 composition were destroyed before his eyes as a result of a
defendant’s careless conduct”.36 The decision in Attia, however,
is not considered in any of the three modern leading cases on
psychiatric illness.37
Therefore, as has already been noted, its status remains
uncertain. It has been suggested, however, that it might still be
possible to justify the decision in Attia v British Gas on the basis
that a contractual relationship between the defendant and the
claimant gave rise to an “assumption of responsibility”’ for the
claimant’s psychiatric well-being.38

Policy considerations

4–013 In White v Chief Constable of South Yorkshire, Lord Steyn

provided a useful summary of the main policy considerations
that dictate that claims for psychiatric illness should be treated
differently from claims for physical injury.39 His Lordship
identified four such considerations. First, there is the difficulty
of drawing the line between acute grief and psychiatric illness.40
It is difficult to draw this line because the symptoms of both
conditions are often the same, but it is necessary to differentiate
between them because, as we have noted, the law provides no
compensation for the former. Lord Steyn pointed out that
establishing psychiatric illness by expert evidence was a costly
and time-consuming exercise, so that if claims for psychiatric
illness were to be treated as generally on a par with physical
injury cases there would be adverse economic implications for
the administration of justice. He conceded, however, that this
factor had limited weight on its own.
Secondly, Lord Steyn thought it was important to consider
the effect on people who had witnessed gruesome events of
increasing the availability of compensation. His Lordship did not
have in mind fraudulent or bogus claims, saying that it ought to
be possible for the courts to expose such claims (although the
fear of fraud has clearly affected courts in the past).41 Rather, he
 thought that the prospect of compensation might sometimes be
an unconscious disincentive to rehabilitation. His Lordship
noted that in cases where there was generally no prospect of
compensation for psychiatric illness, such as where injury had
been sustained while playing sport, reports of psychiatric illness
were uncommon. On the other hand, in industrial accident cases,
where there was often a prospect of compensation, psychiatric
illness was repeatedly encountered.
The third policy consideration was that relaxing the special
rules governing compensation for psychiatric harm would
greatly increase the class of persons who could recover damages
in tort. (In other words, it would open the “floodgates of
litigation”.) Fourthly, his Lordship thought that expanding
liability for psychiatric harm might result in liability which was
disproportionate
to the tortious conduct involved—perhaps only a momentary
lapse of concentration, for example in a road traffic accident. (In
other words, it would result in “crushing liability”.)
Bearing these policy considerations in mind, we can now
examine the various rules that the courts apply in order to limit
the scope of the duty of care. The first of these, as may be
expected, is the requirement that some harm (either physical or
psychiatric, depending on the type of claim) must be reasonably
foreseeable.

Foreseeability of psychiatric illness

4–014 As in all negligence actions, reasonable foreseeability of damage

is an essential ingredient of the duty of care in psychiatric illness
cases. In this area of the law, however, the question of
foreseeability can sometimes be a source of confusion. This is
because different rules apply in relation to “primary victims”
and “secondary victims”. In both cases, foreseeability is
integrated into the duty of care test.
For “primary victims”, the leading case of Page v Smith,42
states that provided either physical or psychiatric harm is
 reasonably foreseeable, a duty of care can arise. This, as
discussed below, is an extremely generous test and means that,
as in the case itself, liability for psychiatric injury can arise
where only physical injury, on the facts, was foreseeable.
For “secondary victims”, the test is stricter—the claimant
must show that psychiatric illness is reasonably foreseeable.
This involves showing that a person of ordinary fortitude or
“customary phlegm”43 might reasonably have suffered
psychiatric illness in the circumstances.

4–015 In both cases, no duty of care will be owed to avoid causing

psychiatric harm to people who are “peculiarly susceptible” to
such harm because they have a nervous or emotional disposition.
(This is one of the reasons the plaintiff in Bourhill v Young did
not succeed.) For example, in Grieves v FT Everard & Sons
Ltd.44 Grieves had developed a psychiatric illness as a result of
finding out that he had pleural plaques (changes in his lung
tissue) resulting from the fact that, in the past, he had been
exposed to asbestos by his employer. The pleural plaques were
completely harmless, and could not, therefore, found an action
in negligence for personal injury (the claimant having suffered
no injury).45 However, the presence of the plaques indicated past
exposure to asbestos, and Grieves had developed psychiatric
symptoms through fear that this exposure might cause him to
develop a serious lung disease in the future. Relying on Page v
Smith, he argued that, given that the employer had exposed him
to the risk of such disease
(albeit that, fortuitously, that risk of physical harm had not
materialised) the employer should be liable for the psychiatric
harm that had materialised. The House of Lords rejected the
claim, holding that the principle in Page v Smith could not assist
a claimant where the psychiatric illness had been caused by a
fear of the possibility of an event which had not actually
occurred. On this basis, the claim failed in that it was not
reasonably foreseeable that a person of reasonable fortitude
would suffer psychiatric illness as a result of his employer
creating a risk of a possibility of future injury.
 But once the reasonable foreseeability test is satisfied, and
has been breached, the defendant will be liable for all of the
psychiatric illness that results, even though the precise nature
and the seriousness of the claimant’s particular illness may not
have been foreseen. This means that a defendant who could
reasonably foresee that his or her negligence might cause a
person of ordinary fortitude to suffer from post-traumatic stress
disorder, and require, say, two years off work to recuperate,
cannot argue that his liability is limited to the cost of that period
of recuperation when the claimant, because of his or her special
susceptibility to psychiatric illness, will take ten years to
recover. Thus, in Brice v Brown,46 where it was reasonably
foreseeable that a mother of “customary phlegm” might suffer
some psychiatric illness on witnessing injuries to her daughter,
the plaintiff was able to recover for the full extent of her
psychiatric illness even though the illness was made more severe
by the fact that she had an underlying personality disorder.
We have already noted that the courts draw a distinction
between “primary” and “secondary” victims of psychiatric
illness. In the next two sections, we consider in more detail how
this distinction is drawn and explore the law relating to recovery
by each type of claimant.

Primary Victims
What is the test for primary victims?
4–016 To qualify as a “primary victim”, the claimant must establish
that he or she has been placed in immediate physical danger by
the defendant’s negligence (or at least has been put in reasonable
fear for his or her physical safety). The position of “primary
victims” is governed by the decision in Page v Smith.47 In this
case, Mr Page was involved in a relatively minor car accident,
but was not physically injured. Prior to the accident, he had for
about 20 years suffered from a condition variously described as
myalgic encephalomyelitis (ME), chronic fatigue syndrome, or
post-viral fatigue syndrome. This had manifested itself from
time to time with different degrees of severity. The illness had
been in remission at the time of the accident and Page was
expecting to return to work after a period of convalescence, but
the crash triggered a recurrence of the disease, which became
chronic and permanent, so that it was unlikely he would be able
to take up full-time employment again.
In the Court of Appeal, it was held that the defendant driver
was not liable, because he could not reasonably have foreseen
that his negligence would cause psychiatric illness. A majority
of the House of Lords, however, overturned this decision and
held that reasonable foreseeability of psychiatric illness need not
be established when physical injury was reasonably foreseeable.
As Lord Lloyd put it:

“Since the defendant was admittedly under

a duty of care not to cause the plaintiff
foreseeable physical injury, it was
unnecessary to ask whether he was under a
separate duty of care not to cause
foreseeable psychiatric injury.”48

Lord Lloyd reasoned that if a plaintiff could recover for

psychiatric illness in a case where he or she had actually
suffered physical harm, it should follow that where the plaintiff
had, by good luck, escaped reasonably foreseeable physical
harm, he should not be deprived of compensation by the
existence of this purely fortuitous fact.
 The reasoning in Page v Smith is quite difficult to
understand.49 In essence, however, their Lordships held that,
where there is a danger of physical injury, the law should regard
physical and psychiatric injury as the same kind of harm
(personal injury). Then, applying the so-called “eggshell skull
rule” (discussed in Ch.6), their Lordships reasoned that, because
it was foreseeable that some (minor) harm of a relevant kind
would be caused (being “shaken up” by the car crash), the
defendant was liable for the full extent of the harm that was
actually suffered. The “eggshell skull” rule provides that where
it is reasonably foreseeable that an injured claimant will suffer
personal injury, the defendant will be liable for all the
consequences of that injury, even though they could not all have
been reasonably foreseen.
Lords Keith and Jauncey dissented in Page v Smith on the
basis that the defendant could not reasonably have foreseen that
a person of ordinary fortitude would suffer psychiatric illness as
a result of a minor car accident. Lord Jauncey appeared to think
the “eggshell skull” rule was not relevant where what was in
issue was the existence of a duty of care to avoid causing a
particular kind of damage—it was only relevant to the extent of
the damage which occurred, once an established duty of care had
been breached.50 Similar criticism of the approach of the
majority in Page v Smith was articulated by Lord Goff in his
dissenting judgment in White v Chief
Constable of South Yorkshire.51 The Court in Grieves v FT
Everard & Sons Ltd.52 also noted that the reasoning in Page v
Smith was controversial and has attracted much criticism, but
declined to say that the case had been wrongly decided. Instead,
they expressed the view that the Page v Smith principle should
be confined to situations where (as Lord Rodger put it)
claimants had been exposed to, but had escaped, “instant
physical harm”.53
Page v Smith tells us therefore that a claimant who is a
primary victim may recover for psychiatric harm, even though
only the occurrence of physical harm was foreseeable. What is
 key is that some form of personal injury to the claimant is
reasonably foreseeable.
4–017 The High Court recently clarified in YAH v Medway NHS
Foundation Trust54 that, in contrast to secondary victims,
primary victims do not have to prove that the psychiatric illness
had been triggered by a sudden shocking event. In Page v Smith,
liability had arisen in the context of a low-impact collision in
which no-one had been hurt. While, then, shock remains a
requirement to establish a duty of care towards secondary
victims (see below), Whipple J. confirmed that this rule did not
apply to primary victims and, on that basis, they would be able
to recover for psychiatric injuries which accumulated over a
period of time.55

What do we mean by “fear for your own

safety”?

4–018 Physical imperilment is a precondition of qualifying as a

“primary victim”. Given the generosity of the Page v Smith test,
the question arose when could a claimant be said to be in
immediate physical danger or have reasonable grounds to fear
for his or her physical safety? Guidance was given in White v
Chief Constable of South Yorkshire56 which indicated that it is
not necessary to show that fear of physical harm is the cause of
the primary victim’s psychiatric illness. (Thus, where the
primary victim is a “rescuer”, although the element of physical
danger—or reasonable fear thereof—must be present, the cause
of the psychiatric illness may be witnessing the imperilment of
those being rescued.) The decision in White is important
because, before that decision, it had been unclear whether the
category of “primary victims” could be said to encompass a
miscellaneous group of claimants, namely employees, rescuers
and other “participants” in the circumstances of an accident
who, although placed in no physical danger, were able to take
advantage of liberal rules in recovering for psychiatric illness.
 White seems to make it clear that such claimants are not to be
regarded as “primary victims”.57 This aspect of the decision is
controversial, and its effects on the position of this group of
claimants are discussed later. Here, however, two further points
should be noted.

◗ There may be a requirement of “actual danger”

4–019 In most cases, of course, a claimant’s reasonable grounds for
fearing for his or her safety will derive from the fact that he or
she is in actual danger. Nevertheless, it is possible to imagine a
case where a claimant reasonably thinks that he or she is in
danger when, as a matter of fact, no such danger exists. The
position of such claimants is unclear because the two leading
opinions in White do not deal with the point in the same way.
Lord Steyn thought that an additional requirement of actual
danger was not necessary, saying that it would be sufficient if a
claimant had “objectively exposed himself to danger or
reasonably believed that he was doing so”.58 According to Lord
Hoffmann, however, claimants have to be “within the range of
foreseeable physical injury”59 to qualify as primary victims—it
is unclear whether his Lordship meant by this that they must be
in actual danger. The point therefore remains unresolved.60

◗ The claimant’s fear for his or her own safety

must be reasonable
4–020 Whether or not there is a requirement of “actual danger”, the
decision of the Court of Appeal, in McFarlane v EE
Caledonia,61 makes it clear that claimants who seek to qualify as
“primary victims” because they have been put in fear for their
physical safety must have some reasonable basis for that fear.
Here, the plaintiff alleged psychiatric illness brought on by his
involvement in the Piper Alpha oil rig disaster—the rig
exploded, causing the death of many workers on board. His
claim as a “primary victim” failed, however, because at the time
 of the disaster he had been working in a support boat about 50
yards away from the rig and it was obvious that the boat had
never been in any danger. It followed that his fear for his safety
was unreasonable. (The plaintiff could not recover as a
“secondary victim”, for reasons which are considered below.)

Secondary Victims
What is the test for secondary victims?
4–021 The position of “secondary victims” is governed by the decision
in Alcock v Chief Constable of South Yorkshire,62 which must
now be examined in detail. The claims in Alcock (and in White)
arose from the tragic events that took place during the 1989 FA
Cup semi-final between Liverpool and Nottingham Forest.
Tickets to the Hillsborough football stadium were sold out, and
the match was being shown on live television. After six minutes
of play, however, it had to be stopped because, owing to
negligent crowd control, too many spectators had been allowed
on to the terraces. It became apparent that some were being
crushed against the high fences erected between the terraces and
the pitch.
South Yorkshire police admitted that the death of 96
spectators, and injuries to hundreds of others, were caused by
their negligence in allowing too many people into the stadium.
Claims for physical injury and death were settled by the police,
as were certain psychiatric illness claims by police officers who
had dragged bodies from the scene of the danger, risking
physical injury to themselves. Psychiatric illness claims were
then brought by two groups of people who had not been in
physical danger: relatives (and a fiancée) who had in various
ways witnessed or heard about the death or injury of their loved
 ones (the plaintiffs in Alcock) and police officers who had
assisted in the aftermath of the tragedy (the plaintiffs in White).
The question for the House of Lords in Alcock was whether
the plaintiffs were owed a duty of care on the basis that their
psychiatric illness was reasonably foreseeable, applying the
reasoning of Lords Bridge and Scarman in McLoughlin v
O’Brian, or whether, in addition, their claims should be
governed by the “control mechanisms” which had been
suggested by Lord Wilberforce in that case. Alcock was a test
case in which the specific plaintiffs had been chosen because
their situations—in terms of closeness of relationship to the dead
and injured and proximity to the disaster in time and space—
were similar to those of about 150 other people who also wished
to claim for psychiatric illness. Their Lordships held that none of
the plaintiffs could succeed. Each of the plaintiffs, in one way or
another, failed to satisfy the stringent criteria that their Lordships
laid down for recovery by “secondary victims”.

The Alcock “Control Mechanisms”

4–022 Following Alcock, which adopted the approach of Lord

Wilberforce in McLoughlin v O’Brian, it is clear that “secondary
victims” of psychiatric illness have to show not only that their
injuries were reasonably foreseeable, but four additional
“control mechanisms”, designed to restrict the scope of liability,
as follows:
▮ proximity of relationship with the “immediate victim”;
▮ proximity in “time and space” to the events causing the
psychiatric illness;
▮ the claimant must have directly perceived the incident
rather than, for example, hearing about it from a third
person; and
 ▮ the claimant’s illness must be induced by a sudden
shocking event.

It should be noted that some elements of the second and third

control mechanisms are sometimes called “proximity of
perception”. Each is considered in turn below.

(1) Proximity of relationship

4–023 The plaintiffs in Alcock were parents, brothers, sisters, a brother-

in-law, a grandparent and a fiancée of the immediate victims.
Their Lordships refused to define rigid categories of relationship
into which secondary victims of psychiatric illness must fall.
Instead, they held that there must generally be a close
relationship of love and affection between the “secondary
victim” and the “immediate victim” of the accident. According
to their Lordships, such a relationship could be presumed to
exist in the case of spouses, parents and children. This
presumption could, however, be rebutted by evidence in an
appropriate case, such as where the parties were estranged. Lord
Keith thought that the presumption relating to spouses should
also extend to fiancé(e)s, or, at least, that it should be extended
to the plaintiff in Alcock who had lost her fiancé, whom she had
known for four years.63 Siblings and other relatives (such as
grandparents,64 uncles and aunts) would not normally be
regarded as having the requisite closeness of relationship, unless
they could show that, because of special factors, such a
relationship did in fact exist. (For example, because they had
brought up the immediate victim as their own child.) Dealing
with the position of the plaintiff who had lost his brother in the
disaster, Lord Ackner pointed out: “The quality of brotherly love
is well known to differ widely”.65 It followed that this plaintiff
did not satisfy the “close tie of love and affection” test in the
absence of evidence that his relationship with his brother had
been particularly close.
 Whilst holding that closeness of relationship was an
important factor to consider, their Lordships declined to hold
that it was an absolute prerequisite of recovery in every case,
leaving open the possibility that a mere “bystander” who
witnessed a catastrophe which was exceptionally horrifying
might be able to recover for psychiatric illness without showing
any relationship at
all with the immediate victim of the catastrophe. Lord Ackner
gave the example of a bystander witnessing a petrol tanker
careering out of control into a school in session and bursting into
flames. Subsequent to the decision in Alcock, however, this point
was tested in the Court of Appeal in McFarlane v EE Caledonia
Ltd.66 When his claim as a “primary victim” failed, the plaintiff,
who had been in the support boat when the Piper Alpha oil rig
had exploded, claimed to be a “secondary victim”, on the basis
that he had witnessed the death of fellow workers in
exceptionally horrific circumstances. His claim failed. In
holding that it was not reasonably foreseeable that a mere
“bystander” would suffer psychiatric illness in such
circumstances, Stuart-Smith LJ noted that people’s reactions to
horrific events were “entirely subjective”.67 This meant that
there were serious practical and policy objections to allowing
recovery by mere bystanders. The reasoning in McFarlane, then,
has probably excluded the possibility of such claims in the
future.

(2) Proximity in time and space

4–024 The various plaintiffs in Alcock had witnessed the injury or

death of their loved ones in different ways. Some had been in
other stands inside the ground and had seen the disaster happen,
others had only seen the events on television, or heard about
them on the radio. After the disaster had occurred, some of the
plaintiffs had gone to the ground to search for their relatives, or
had identified their bodies in a mortuary.
 Their Lordships held that, to succeed as a secondary victim,
a plaintiff had to show a high degree of proximity to the accident
in time and space. Thus, the plaintiff must normally witness the
accident as it actually occurs, or must come upon its “immediate
aftermath” within a very short space of time. Whilst conceding
that subsequent identification of the body of an accident victim
might, in some circumstances, be regarded as part of the
“immediate aftermath”, Lord Ackner thought that Mr Alcock,
who had identified his brother-in-law in a bad condition in a
mortuary some eight hours after the disaster, could not be
described as having come upon its immediate aftermath.68 The
decision in Alcock, then, took the law on the meaning of
“immediate aftermath” little further than it had been taken in
McLoughlin v O’Brian.
However, in Galli-Atkinson v Seghal69 the Court of Appeal
was prepared, on the facts, to take a more generous view of the
circumstances in which a subsequent visit to a mortuary could
constitute the “immediate aftermath” of an accident. Here, the
claimant was a mother whose daughter had been involved in a
road accident. The claimant arrived at the scene just over one
hour later and was told by a police officer that her daughter had
been killed. She then attended the mortuary just over an hour
later (that is, 2 hours 10 minutes after the accident)
and saw her daughter’s body which, although it had been
cleaned-up, had been badly dis-figured by the accident. The trial
judge had not been prepared to accept that the visit to the
mortuary had formed part of the aftermath and had disallowed
the mother’s claim because her psychiatric illness had resulted
from what she had been told, rather than from witnessing the
accident. In allowing her appeal, however, Latham LJ thought
that the visit to the mortuary was not, as it had been in Alcock, a
separate event, taking place after the horror of the accident had
unfolded. Rather, it was the last in a sequence of uninterrupted
events which went to make up the entirety of the claimant’s
perception of the tragedy. His Lordship pointed out that the
mortuary visit had been made not merely to identify the body,
but to “complete the story so far as the appellant was concerned,
 who clearly at that stage did not want—and one can understand
this—to believe that her child was dead”.70
The Court of Appeal in the more recent case of Taylor v A
Novo (UK) Ltd71 indicated, however, that Galli-Atkinson should
not be considered to give a green light for further substantial
extension of the immediate aftermath test by the courts. In this
case, the claimant’s mother had been injured at work due to her
employer’s negligence. Three weeks later, she collapsed and
died due to injuries sustained in the accident. Her daughter,
Crystal, witnessed her death and suffered significant post
traumatic stress disorder (PTSD) as a result. The question was
straightforward: did the immediate aftermath test apply to the
accident at work (which Crystal did not witness) or the death
(which Crystal did witness and for which she would satisfy all
the relevant Alcock criteria)? The Court of Appeal unanimously
held that the secondary victim must be in proximity with the
actual accident. If not, she might have been able to recover even
if her mother had died many years after the accident had taken
place, which would stretch the “immediate aftermath” test too
far. Lord Dyson MR repeated the words of Lord Steyn in White
—“the only sensible strategy for the courts is to say thus far and
no further”72—and indicated that any extension to the scope of
liability for secondary victims should be undertaken by
Parliament, not the courts.73

(3) The means by which the psychiatric

illness is caused

4–025 In Alcock, Lord Jauncey observed:

“The means by which the shock is caused

constitutes a third control, although in
 these appeals I find it difficult to separate
this from proximity.”74

Despite their conceptual similarity to the requirements of

“proximity in time and space” considered above, their Lordships
chose to consider a number of additional points under this third
heading.

◗ No liability where the claimant is merely

informed about the accident
4–026 In Alcock, their Lordships affirmed that a defendant who causes
harm or imperilment to an “immediate victim” will not be liable
to a claimant who is merely informed about this by a third
party.75 This rule, of course, may produce some bizarre results.
Consider a claimant who, very shortly after an accident, is
informed by a friend that his or her loved-one is dying in
hospital. If the claimant suffers psychiatric illness there and then
and faints on the spot, he or she will have no claim. But if the
friend has the legal acumen to revive the claimant and take him
or her to the hospital, the claimant may be compensated under
the “immediate aftermath” doctrine, as was the plaintiff in
McLoughlin v O’Brian. We shall see that the Law Commission
has suggested that this restrictive rule, like many others, should
be abolished.
4–027 It is important to understand that this rule does not mean that
there can never be liability where a claimant suffers psychiatric
illness as the result of hearing distressing news. The person who
communicates the news (as opposed to the person who caused
the harm the news is about) may be liable if the news is broken
in a negligently insensitive manner. In AB v Tameside and
Glossop Health Authority,76 for example, the defendants sent out
letters warning former patients that they were at risk of having
contracted HIV, because a health worker who had treated them
had tested positive for the disease. The plaintiffs alleged they
 had suffered psychiatric illness as a result of hearing the news in
this way, and argued that they should have been told face-to-
face. The Court of Appeal held that the defendants had not been
negligent in choosing to communicate the information by letter,
but their Lordships made no comment on the fact that counsel in
the case had conceded that a duty of care was owed.77 While
such reasoning can be explained on the basis that the person who
communicates the news assumes responsibility to the individual
concerned, it is not clear why no account is taken of the fact that
psychiatric injury, as opposed to physical injury or even pure
economic loss, has been caused.

◗ No liability when informed about the accident by

live television coverage
4–028 This is an extension of the last point. In Alcock, the question was
raised whether the plaintiffs could claim if their shock had been
triggered by viewing a simultaneous live broadcast of the
disaster on the BBC. In McLoughlin v O’Brian, Lord
Wilberforce had left open the question of whether live television
could sometimes be treated as the equivalent of being present at
the scene of a disaster. Their Lordships held that, in the
circumstances of the Alcock case, it could not. This was for two
reasons. First, broadcasters had not shown the suffering of
recognisable individuals—this was prohibited by their
professional code of ethics. (If they had done this, then the
broadcasters, rather than the police, might have been regarded as
the legal cause of the plaintiffs’ psychiatric illness.) Secondly,
the pictures transmitted from Hillsborough had been taken by
cameras from many different viewpoints. They, therefore,
showed a combination of scenes which no one individual present
at the ground would have been likely to see. On this basis, it
could not be said that the plaintiffs could have viewed the
disaster “as if” with their own unaided senses. Lord Atkin
commented: “Although the television pictures certainly gave rise
to feelings of the deepest anxiety and distress, in the
circumstances of this case the simultaneous television broadcasts
 of what occurred cannot be equated with the ‘sight or hearing of
the event or its immediate aftermath’.”78 Their Lordships were,
however, reluctant to lay down an inflexible rule on this point,
holding that there might be very exceptional circumstances
where a simultaneous broadcast of a disaster would equate with
direct perception.
Alcock was decided in November 1991 and technology has
moved on. 24 hour news channels, social media, mobile phones
and the internet mean that we perceive events as they happen
often with limited editorial control, as if we were there. It
remains an interesting question to what extent the courts can
continue to justify a distinction between the “unaided senses” of
the secondary victim and the dispersal of live images through
modern technology such as CCTV and Instagram.

◗ Psychiatric illness caused by a defendant harming

or imperilling himself or herself
4–029 One further point was considered, obiter, in Alcock, but was left
undecided. This was whether the law would allow a claim in
circumstances where a defendant had caused psychiatric illness
to a secondary victim by negligently placing himself or herself
in danger or causing self-inflicted harm. To take the example
given by Lord Oliver, would a mother be able to bring a claim
against her son for psychiatric illness caused by witnessing his
imperilment when he negligently walked in front of an
oncoming car? His Lordship thought that if such a claim were
denied, the denial had to be based on policy rather than logic,
because it would be difficult to imagine a case in which the
elements of foreseeability of psychiatric harm and proximity
were more clearly established. Whilst declining expressly to
decide the point, Lord Oliver suspected that liability in such a
situation would be barred as a matter of policy, noting that this
view had been expressed by Deane J in the Australian case of
Jaensch v Coffey.79
 The issue subsequently arose for consideration in the
extraordinary case of Greatorex v Greatorex.80 Here, the
defendant, John Greatorex, had been out drinking with his friend
and had then crashed his friend’s car while driving on the wrong
side of the road. He was trapped in the car, injured and
unconscious, when the fire brigade arrived. By co-incidence, the
leading fire-officer at the scene was Christopher Greatorex, the
defendant’s father. Christopher Greatorex suffered psychiatric
illness as a result of witnessing his son’s injuries, and so brought
an action against his son. In denying the father’s claim, Cazalet J
reasoned that, since the defendant’s injuries were self-inflicted,
to make him liable to those who witnessed the injuries would be
contrary to public policy. The policy consideration in question
was that making a person liable in such a situation would restrict
his or her right to self-determination—i.e. a person ought to be
free to choose to incur personal risks, without exposing himself
or herself to liability to others. (This point is considered further
in the context of the Law Commission’s proposals.) The issue
was complicated by the fact that the claimant and defendant
were father and son. On this point, Cazalet J thought that if such
litigation were allowed, contrived and ill-founded claims might
be used to prolong and aggravate family conflicts which might
otherwise resolve themselves, causing needless family strife.
Therefore, the law should only provide a remedy for psychiatric
illness caused when a loved one is harmed by a defendant who is
not a family member.

(4) The “sudden shock” requirement

4–030 Lord Ackner reaffirmed in Alcock that “‘shock’, in the context

of this cause of action, involves the sudden appreciation by sight
or sound of a horrifying event, which violently agitates the
mind”. It does not, his Lordship concluded, include psychiatric
illness caused by the accumulation over a period of time of more
gradual assault on the nervous system.81 It is therefore the
sudden psychological impact of witnessing a single event or its
immediate aftermath which triggers the action, not trauma
caused by subsequent reflection on an event,82 or prolonged
exposure to distressing circumstances. This requirement acts as a
barrier to claims or, if you prefer, ensures that the floodgates are
not opened to a multitude of claims.
The application of the “sudden shock” requirement may be
seen in Sion v Hampstead Health Authority.83 The claimant, a
father whose son had been injured in a motorcycle accident, had
stayed by his son’s bedside for 14 days, watching his son
deteriorate, go into a coma and die. The Court of Appeal denied
the father’s claim, because his psychiatric illness had not
resulted from the sudden appreciation of a horrifying event. (By
the time the son died, his death was expected.) The decision of
the Court of Appeal in Walters v North Glamorgan NHS Trust 84
seemed to indicate, however, a more generous approach to this
requirement. Here, the claimant was a mother whose baby,
following negligent treatment at a hospital, had suffered an
epileptic fit leading to a coma and, some 36 hours later, his death
in his mother’s arms. The Court of Appeal was prepared to hold
that the 36 hours during which the claimant had been subjected
to trauma could be regarded as a single event for the purpose of
satisfying the sudden shock requirement.
However, more recently, the Court of Appeal decision in
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne85
has indicated that Walters is the exception, with the “unusual
feature” that the mother had witnessed at first hand the child’s fit
in circumstances in which she had not been prepared for this due
to further incorrect medical advice. In Ronayne, a husband
suffered psychiatric injury as a result of seeing his wife in a
terrible state on two occasions following the hospital’s
negligence in performing a hysterectomy operation on his wife
which led to emergency exploratory surgery. He had observed
her connected to various machines such as drips and monitors
and later, post-operation, unconscious and swollen in intensive
care. The Court of Appeal took a strict view. The hospital had
explained to the husband the nature of his wife’s condition and
what he saw was unpleasant but not “sudden”. Neither was it
 horrifying, using an objective (not subjective) test which
examines the reaction of a person of “ordinary robustness”.86
Patients in this condition would ordinarily have this appearance
in the circumstances: “A visitor to a hospital is necessarily to a
certain degree conditioned as to what to expect, and in the
ordinary way it is also likely that due warning will be given by
medical staff of an impending encounter likely to prove more
than ordinarily distressing”.87 While this seems harsh, it does
indicate that, despite criticism, the sudden shock requirement is
here to stay. It also signifies that, in clinical negligence cases at
least, it will now be difficult to succeed as a secondary victim.88

The Impact of White

4–031 The limits of the decision in Alcock were also explored in White
v Chief Constable of South Yorkshire. Here, as has been said, the
plaintiffs were police officers who had suffered psychiatric
illness as a result of their professional involvement in the
Hillsborough disaster. Subsequent to the full height of the
disaster, five of the six plaintiffs had assisted the injured and had
worked to ensure that there was no further danger to those
leaving the stadium. The sixth plaintiff had been on duty at a
temporary mortuary which had been set up near the ground.
None of the plaintiffs had been in physical danger. A majority of
the Court of Appeal held that the five plaintiffs present at the
stadium could recover in respect of their psychiatric illness.89
This decision provoked outrage from the relatives of those killed
and injured at Hillsborough, who had recently been refused
compensation by the decision in Alcock. It was subsequently
overturned by the House of Lords, which openly acknowledged
the argument that the public would think it unacceptable to
compensate police officers at the ground for psychiatric illness
sustained simply in the course of doing their jobs, when
compensation had been denied to the relatives in Alcock.
In the Court of Appeal, it was said that the police officers
might be regarded as “primary victims” of the Chief Constable’s
negligence. This was because previous authority had suggested
that the category of “primary victims” included plaintiffs who,
though not in any physical danger, had participated in the events
giving rise to their psychiatric illness. In Alcock, their Lordships
had been content to divide psychiatric illness claimants into two
broad categories—on the one hand, claimants who were directly
involved in the accident (“primary victims”) and, on the other
hand, claimants who were only “passive and unwilling”
witnesses of injury to others (“secondary victims”). By the time
the Court of Appeal came to decide White, however, the House
of Lords, in Page v Smith, appeared to have suggested that only
claimants who had been in physical danger could be regarded as
“primary victims”. This, as Henry LJ recognised in the Court of
Appeal, cast doubt on whether the police officers could be
regarded as “primary victims”.
The Court of Appeal thought, however, that even if there
was doubt about their classification as “primary victims”, special
rules applied where a psychiatric illness claimant was a
“rescuer” or an employee, holding that the officers in question
were both. However, the House of Lords in White took a very
different approach, holding that no special rules applied to
“rescuers” or employees. The police officers did not qualify as
“primary victims”—this classification was to be reserved for
people who had been placed in physical danger (or who
reasonably believed themselves to be in danger). All other
psychiatric illness claimants were “secondary victims” and had
to bring themselves within the Alcock criteria in order to
succeed. On the facts, these criteria had obviously not been met,
not least because none of the officers at the scene had a close
relationship of love and affection with the dead and injured.
Clearly, the decision in White has implications for the general
law relating to employers’ liability. It also appears to be contrary
 to the general attitude of the courts that rescuers should be
treated generously. The decision in White also leaves unresolved
the law relating to so-called “unwitting agents”—that is to say,
claimants who, because of the defendant’s negligence, are
placed in a position where they themselves bring about the
death, injury, or imperilment of the “immediate victim”. Below,
then, we consider the implications of White for three types of
claimant:
▮ employees;
▮ unwitting agents; and
▮ rescuers.

The general law of employers’ liability is considered in Ch.7, so

discussion of it here is omitted. The general law on rescuers,
however, is considered here in some detail.

(1) Employees

4–032 In Dooley v Cammell Laird & Co Ltd90 (a case decided before

Alcock and White), a crane driver was operating a crane at the
docks where he worked when, through the fault of his
employers, the sling connecting the load to the crane-hooks
snapped, causing the load to fall into the hold of a ship where
men were working. The crane driver suffered psychiatric illness,
resulting from his fear that the falling load would injure or kill
some of his fellow workmen. Donovan J, whilst drawing the
inference that the men in the ship were friends of the plaintiff,
was prepared to decide liability without requiring the plaintiff to
establish any closer degree of relationship with the imperilled
workers—the plaintiff’s relationship of employment with the
defendant created the necessary degree of “proximity” for his
negligence action to succeed. Before the decision in White, it
was thought that this case, and a number of similar decisions,91
might have established that an employee had a right to recover
 for psychiatric illness caused by witnessing or fearing injury to
fellow workers as a result of an employer’s negligence.
In White, however, their Lordships held that no such
independent right existed. An employer’s duty to safeguard
employees from psychiatric harm was no different from the
general duty of care owed by all people to others whom their
conduct might affect. It followed that in cases where an
employee suffered psychiatric illness through witnessing the
death, injury or imperilment of others, the ordinary rules of tort
applied, namely those laid down in Alcock. Therefore, there was
no advantage to be gained by the police officers framing their
action as a case of
employers’ liability. Their Lordships found little assistance in
Dooley v Cammell Laird & Co Ltd and similar decisions.
Dealing with these cases, Lord Hoffmann said:

“I think that, on a fair reading, they were

each regarded by the judges who decided
them as raising one question of fact, namely
whether psychiatric illness to the plaintiff
was a foreseeable consequence of the
defendant’s negligent conduct. This was in
accordance with the law as it was thought
to be at the time. There was no reference to
the control mechanisms, which had not yet
been invented.”92

(2) “Unwitting agents”

4–033 Although White makes it clear that employees are not to be
regarded as a special group of psychiatric illness claimants, what
remains unclear is whether cases like Dooley v Cammell Laird &
 Co Ltd93 are still good authority for a different proposition,
namely that special treatment should be given to claimants who,
because of a defendant’s negligence, are placed in circumstances
where they accidentally cause the death, injury or imperilment
of another through no fault of their own (or reasonably think that
they have done so). In White, Lord Hoffmann acknowledged that
“there may be grounds for treating such a rare category of case
as exceptional and exempt from the Alcock control
mechanisms”.94
In this context, the decision of the House of Lords in W v
Essex CC95 should be noted. Here, an action for psychiatric
illness was brought by foster parents against a local authority.
The foster parents, who had four young children of their own,
had made it clear to the authority that they would not be willing
to foster a child who had a history of carrying out sexual abuse.
Nevertheless, the authority placed such a child in their care. It
was alleged that the child had perpetrated acts of indecency
against the claimants’ children. The substance of the foster
parents’ claim was that their psychiatric illness had been caused,
not just by discovering the abuse, but also by feelings of guilt
that they, by being parties to a decision to bring their children
into contact with a child abuser, had unwittingly caused harm to
their children.
The local authority applied to have the claim struck out as
disclosing no cause of action, but the House of Lords refused to
do this. Lord Slynn, delivering the unanimous opinion of the
House, thought that although the claimants might have difficulty
in succeeding, their claim could not be said to be unarguable.
His Lordship observed: “. . . the categorisation of those claiming
to be included as primary or secondary victims is not as I read
the cases finally closed”.96

(3) Rescuers

4–034 First, in this section, it is necessary to consider at some length

the approach of the courts towards “rescuers” who suffer
 physical injury. This provides an understanding of the legal
background against which the decision in White may seem
controversial. We then go on to consider the implications of
White for “rescuers” who suffer only psychiatric harm.

◗ Rescuers who suffer physical injury

4–035 We have seen in Ch.2 that in English law there is generally no
duty to go to the rescue of a person in peril. Here, we are
considering a different point: if a person does go to the rescue of
another, and suffers physical harm in attempting the rescue, can
that person (the “rescuer”) claim compensation from the
defendant who negligently endangered the person being
rescued?
In 1934, the courts answered this question in the affirmative,
and they have done so ever since. The relevant case is Haynes v
Harwood.97 In Ch.2, we considered this case in the context of
liability for creating a “source of danger” that is “sparked off”
by the actions of a third party. Here, we consider it in a different
context. The plaintiff was a police constable who was on duty
inside a police station in a street where there were a large
number of people, including children. The defendants had left
their horses unattended in the street. A boy threw a stone at the
horses and caused them to bolt (“sparking off” the danger).
Seeing the defendants’ horses coming down the street, the
plaintiff rushed out of the police station and eventually stopped
them, sustaining injuries in the process. The question for the
Court of Appeal was whether, in the circumstances, physical
harm to the plaintiff was reasonably foreseeable by the
defendants. The court rejected arguments that rescuers were not,
in effect, “foreseeable claimants”, holding that a person who can
reasonably foresee that his act or omission may imperil another
will also be taken to foresee that it may imperil a rescuer. This
idea is encapsulated by the well-known words of the US judge,
Cardozo J, who, in Wagner v International Railway Co,98 said:
“Danger invites rescue. The cry of distress is a summons to
relief”.
 Cardozo J’s words were cited and approved by the Court of
Appeal in Baker v TE Hopkins and Son Ltd,99 a case which
clearly illustrates the approach of the courts in this area. The
defendant company was engaged to clean a well and used a
petrol-driven pump to clear out the water. The defendant’s
managing director realised that this would create carbon
monoxide fumes inside the well, which could be a danger to his
employees. He therefore instructed them not to go down the well
until the next day, by which time, he assumed, the fumes would
have dispersed. In fact, when the employees went down the well
the next morning, the danger had not passed. They were
overcome by the fumes and eventually died. The plaintiff, who
was a doctor, was summoned to the scene by concerned farm
workers. People who had gathered at the top of the well urged
him not to go down, and to wait for the arrival of the fire
brigade, but he insisted, saying, “There are two men down there.
I must see what I can do for them”. Having tied a rope around
his waist and asked the people at the top of the well to hold one
end of it, and pull him up if he felt ill, he descended the well. He
was heard to call up that there was nothing he could do for the
men. He had started to climb up again when he was overcome
by the fumes and collapsed. The people at the top tried to haul
him up, but the rope became caught in a pipe or cross-member
of the well and they were unable to raise him. Soon afterwards,
the fire brigade arrived and the doctor was brought to the
surface. He was unconscious and died before reaching hospital.
The doctor’s estate succeeded in its claim. The Court of
Appeal (as it had done in Haynes v Harwood) rejected the
suggestion that a rescuer, by intervening, should be regarded as
having caused his or her own loss, or as having voluntarily
accepted the risk of injury. Willmer LJ made it clear that,
provided the rescue attempt was not foolhardy or “wanton”, the
presence of a rescuer at the scene of an accident should be
regarded as reasonably foreseeable. His Lordship cited with
approval some additional words of Cardozo J in Wagner v
International Railway Co:
 “The risk of rescue, if only it be not wanton,
is born of the occasion. The emergency
begets the man. The wrongdoer may not
have foreseen the coming of a deliverer. He
is accountable as if he had.”

The courts, then, have taken the view that, as a matter of policy,
rescue attempts should be encouraged and rewarded. This has
led them to hold that a duty may be owed to a rescuer even in
circumstances where no duty is owed to the person being
rescued. Such was the case in Videan v British Transport
Commission.100 Here, a two-year-old boy, who, being the son of
a village stationmaster, lived in a house adjoining the platform,
strayed on to the railway track. The stationmaster saw his son
standing on the track and at the same time saw a power-driven
trolley approaching on the track at considerable speed. He
signalled to the driver of the trolley to stop, but the driver did
not understand the signals and did not see the child until it was
too late to pull up. In a desperate effort to rescue his son, the
stationmaster leapt from the platform on to the track in front of
the trolley, and in so doing was killed. (The child, though saved
by this act, suffered severe injuries.)
4–036 In an action by the stationmaster’s widow in respect of the death
of her husband and on behalf her injured son, the court found
that the trolley driver had been careless. He had driven too fast
in wet conditions and had failed to keep a proper look-out. The
claim in respect of the child’s
injuries failed, because, at the time the case was decided, only
very limited duties were owed to trespassers. This, however, did
not prevent a successful claim in respect of the stationmaster’s
death. Harman and Pearson LJJ based their decision on the fact
that, because the stationmaster had a duty to rescue trespassers
on the line (even though he was off duty at the time), his
presence on the track dealing with an emergency was reasonably
foreseeable by the trolley driver. Lord Denning MR went a stage
further, however, holding that the position would have been the
same if the rescuer had been a mere passer-by and not the
stationmaster rescuing his son—a person who negligently
created a situation of peril should answer for it to anyone who
attempted a rescue, whether or not the victim rescued had a
cause of action.
A number of additional points should be noted about
rescuers. First, where a defendant negligently imperils himself or
herself, as opposed to a third party, a rescuer who suffers
physical injury will have a cause of action against the
defendant,101 although Greatorex suggests that this will not be
the case where the rescuer suffers only psychiatric illness.102
Secondly, it is clear that rescuers have a cause of action where
what has been put in peril is not a person, but property. Thus, in
Haynes v Harwood, it was accepted that the objects of the rescue
were not only the people in the street who were endangered by
the runaway horses, but the horses themselves. Similarly, in
Ogwo v Taylor,103 a fireman succeeded when he was injured
trying to save the defendant’s property from a fire. Where
property is the object of the rescue, however, the question of
whether it is reasonable for the rescuer to intervene and risk his
own safety will have to be very carefully considered104
(whereas, in the case of people, rescue attempts are normally
regarded as reasonable, provided they are not reckless or
“wanton”). Thirdly, the decision in Ogwo v Taylor confirmed
that in English law there is no equivalent of the “firemen’s rule”
which applies in some parts of the US. This rule provides that,
because members of the emergency services are employed to act
as rescuers, defendants cannot be liable to them in respect of the
very dangers they are paid to incur. In English law, however,
(subject to the qualification that defendants are entitled to expect
professional rescuers to use professional skill) professional
rescuers are treated in the same way as public-spirited lay
rescuers.
 ◗ Rescuers who suffer only psychiatric harm
4–037 Prior to White, by way of an extension of their general approach
to rescuers, the courts appeared to have developed a special
approach to cases where rescuers suffered only psychiatric harm.
The leading case here was Chadwick v British Transport
Commission.105 The case arose from the events of a serious train
crash which occurred in December 1957 in Lewisham, South
London.
Mr Chadwick, who lived about 200 yards from the scene of the
accident, went to the scene to do what he could to help, and
worked all through the night giving assistance to the injured and
dying. The key witness at the trial—a woman trapped in the
wreckage who had been given an injection by Mr Chadwick at
the request of a doctor, who was himself too large to enter the
wrecked carriage—described the horrors of the tragedy to which
Mr Chadwick had been exposed: there had been a “sea of
bodies” and people had been screaming in pain and fear. Before
the incident, Mr Chadwick had been a cheerful and active
member of the local community and had run a successful
window-cleaning business, but as a result of his involvement in
the tragedy, he developed severe anxiety and neurosis. Waller J
held that the defendants (who admitted the train collision was
caused by their negligence) were liable for Mr Chadwick’s
psychiatric illness.
Before White, it was widely thought that the decision in
Chadwick meant that rescuers were to be given special treatment
for the purposes of psychiatric illness claims. In particular, they
did not need to establish that they had been in physical danger to
qualify as “primary victims”. Certainly, this was the view taken
by the Law Commission in March 1998, who expressed concern
about aspects of the Court of Appeal’s reasoning in McFarlane v
EE Caledonia that might have suggested otherwise.106 The
majority of the Court of Appeal in White held that the police
officers at the scene were entitled to recover for psychiatric
illness as rescuers, even though they had not been in physical
danger. By a bare 3:2 majority, however, the House of Lords
disagreed. Whilst Lords Goff and Griffiths (dissenting) thought
that rescuers were entitled to special treatment, the majority held
that rescuers must either satisfy the “narrow” definition of
“primary victims” (i.e. by being in physical danger) or must
bring their claims as “secondary victims” and satisfy the Alcock
criteria.
Lord Hoffmann gave two reasons why the law should not
give special treatment to rescuers unless they had been placed in
physical danger. The first was that, if the control mechanism of
physical danger were removed, it would become difficult to
define the concept of a “rescuer”—would the term then apply to
a bystander who had rendered only some trivial assistance? The
second (and in his Lordship’s view more important) reason was
that removing the control mechanism of physical danger would
produce a result in White that would be “unacceptable”, in the
sense that it would offend against the ordinary person’s notions
of distributive justice. His Lordship said that the ordinary
person:

“. . . would think it wrong that policemen,

even as part of a general class of persons
who rendered assistance, should have the
right to compensation for psychiatric injury
out of public funds while the bereaved
relatives are sent away with nothing.”107

In White, then, the majority of the House of Lords distinguished

Chadwick on its facts, saying that the situation of Mr Chadwick
differed from the situation of the police officers at Hillsborough
because Mr Chadwick, by entering wrecked train carriages, had
been “within the range of foreseeable
personal injury”. This made him a “primary victim” (in the
narrow Page v Smith sense). Lords Goff and Griffiths, however,
disagreed with the majority about the ratio of Chadwick. Lord
 Goff pointed out that although Mr Chadwick had been exposed
to some physical danger, “the trial judge [Waller J] treated that
as irrelevant”.108 Lord Steyn, on the other hand (speaking with
the majority), thought that the fact that Mr Chadwick had been
exposed to personal danger had influenced Waller J’s decision,
albeit that his Lordship had not held that fear of personal injury
was the cause of Mr Chadwick’s psychiatric illness.109 Lord
Hoffmann was also prepared to take a restricted view of
Chadwick, stating that the case could be subjected to an “ex post
facto rationalisation”110 and should be regarded as one turning
on the presence of physical danger.

4–038 In his powerful dissenting speech, Lord Goff clearly stated that
he regarded the reasoning of the majority as contrary to the
existing authority of Chadwick, and noted that introducing what
his Lordship saw as a new requirement that rescuers had to be in
physical danger could produce very unjust results. His Lordship
put forward an extreme example to illustrate the point111:

“Suppose that there was a terrible train

crash and that there were two Chadwick
brothers living nearby, both of them small
and agile window cleaners distinguished by
their courage and humanity. Mr. A.
Chadwick worked on the front half of the
train, and Mr.B.Chadwick on the rear half.
It so happened that, although there was
some physical danger present in the front
half of the train, there was none in the rear.
Both worked for 12 hours or so bringing
aid and comfort to the victims. Both
suffered P.T.S.D. in consequence of the
general horror of the situation. On the new
 control mechanism now proposed, Mr. A.
would recover but Mr. B. would not. To
make things worse, the same conclusion
must follow even if Mr. A. was unaware of
the existence of the physical danger present
in his half of the train. This is surely
unacceptable.”

Despite Lord Goff’s objection, the decision of the majority of

the House of Lords in White has effectively closed the door on
future claims by rescuers who have not been placed in physical
peril.112 It remains to be seen, however, whether, in line with
their general approach to rescue cases, the courts will adopt a
liberal interpretation of this requirement in order to do justice in
meritorious cases. In this context, it is interesting to note the
(possible) combined effect of
the decisions in White and Page v Smith. This is that if rescuers
in physical peril are now to be regarded as “primary victims” (in
the narrow Page v Smith sense), they may be able to take
advantage of the “eggshell skull” reasoning in Page v Smith to
establish a duty of care. Thus (arguably) in a case like
Chadwick, provided it could be shown that some very minor
personal injury to the claimant was reasonably foreseeable, the
law would then proceed to regard personal injury and psychiatric
injury as the same kind of damage. Page v Smith reasoning
would then apply, so that the claimant could recover even if he
or she were “peculiarly susceptible” to psychiatric illness. This
consequence of their Lordship’s interpretation of Chadwick has
the effect of widening the scope of liability to rescuers for
psychiatric illness—a point that does not appear to have been
specifically addressed in White.113
 Psychiatric Illness Law:
Proposals for Reform

4–039 In March 1998, the Law Commission published a report which

recommended some important changes to the law.114 In
summary, the report concluded that, in relation to secondary
victims, whilst the “control mechanism” of “close ties of love
and affection” should remain, all of the other Alcock “control
mechanisms” should be abolished. The Law Commission
expressed the view that, with the decision in Alcock, the
common law had in some respects “taken a wrong turn”.115 The
Commission did not think it appropriate, however, to codify all
of the common law on psychiatric illness—this was not a
sensible option, because the flexibility of the common law
would allow new areas of liability to develop incrementally, as
experts learned more about psychiatric illness, and society
further recognised its debilitating consequences. Therefore, the
Commission proposed a strategy of minimal legislative
intervention to modify and clarify the common law. A draft Bill
forms part of the Law Commission’s report. With the help of
consultants from the insurance industry, the Commission was
able to estimate (very roughly and in relation to motor vehicle
insurance only) that its proposals to expand the scope of liability
might lead to an increase in insurance premiums of between 2
and 5%.116
The most radical proposal, then, is that three of the Alcock
“control mechanisms” should be abolished. Thus, it would no
longer be necessary for secondary victims to show proximity to
the accident in time and space,117 or that they had perceived the
accident or its aftermath
by their “own unaided senses”. This would mean that, provided
they could show closeness of relationship with the “immediate
victim” (see below), people in the position of the plaintiffs in
 Alcock would be able to succeed, as would claimants whose
psychiatric illness resulted from merely being told about the
accident. The requirement that the claimant’s psychiatric illness
must be produced by a “sudden shock” would also be abolished.
This would allow recovery, for example, by a long-term carer
who developed psychiatric illness because of the emotional
strain of looking after the victim of the defendant’s negligence.

“Close ties of love and affection”: the

“fixed list”

4–040 In deciding to retain the requirement of “close ties of love and

affection” between a secondary victim and the immediate
victim, the Commission noted that policy considerations dictated
limits to recovery by secondary victims and felt that the
requirement operated as an appropriate control mechanism. It
thought, however, that in Alcock the requirement had been too
narrowly drawn. Under its proposals, therefore, the rebuttable
common law presumptions governing spouses, parents and
children would be replaced with conclusive statutory
presumptions in respect of a wider class of relationships. Thus,
there would be a statutory “fixed list” of relationships in which
close ties of love and affection would be deemed to exist.118
These relationships would be: parent, child, sibling, spouse, and
cohabitant (whether heterosexual or homosexual) for a period of
two or more years. (Thus, the list is wider than the categories of
presumed close relationships in Alcock, because it includes
siblings and cohabitants.) Persons outside the “fixed list” would
remain in the hands of the common law. Thus, they would not be
barred from making a claim, but would be required to establish
the necessary ties of love and affection by evidence. (In this
context, the Commission thought that the class of potential
claimants might extend to non-relatives who could establish a
“relationship of care”—such as might exist between a
schoolteacher and a pupil.) The Commission saw no need for
legislation relating to mere “bystanders”, leaving their position
 to the common law (so the reasoning in McFarlane v E.E.
Caledonia would probably prevent them recovering).
The Commission also recommended that legislation should
provide that the requirement of a close relationship could be
satisfied by the existence of such a relationship either at the time
of the accident, or at the onset of the claimant’s psychiatric
illness. This provision would be necessary to accommodate, for
example, the case of a carer who, whilst having no ties of love
and affection with the victim at the time of the accident,
subsequently developed such ties in the course of looking after
the victim, and suffered psychiatric illness as a result of this
task.

The “just and reasonable” proviso

4–041 The report points out that the duty of care owed by a defendant
to a secondary victim is an independent duty—its existence does
not depend on a duty of care being owed to the immediate
victim. (For example, where the immediate “victim” is placed in
danger but not actually injured, there may be no tort committed
against him or her.) The Law Commission recognised, however,
that in certain circumstances it might be undesirable to impose
liability on a defendant towards a secondary victim if the
defendant would not be liable to the immediate victim (for
example because the immediate victim had consented to the risk
of injury). To accommodate such circumstances, the
Commission proposed a legislative provision stating that
defendants should not be liable to secondary victims in cases
where the court considers that such liability would not be “just
and reasonable”.
Such a provision would also cover situations where the
immediate victim was the defendant—in other words, where the
defendant had injured or imperilled himself or herself, causing a
secondary victim psychiatric illness. We have seen that, in
Alcock, Lord Oliver thought that policy considerations would
probably preclude the liability of such a defendant, and that in
 Greatorex v Greatorex such considerations formed part of the
reasoning in denying liability. The Law Commission, however,
thought that there was no good reason why, generally speaking,
a defendant who injured or imperilled himself or herself should
not owe a duty of care to others. The Commission was
conscious, however, that the imposition of such a duty in all
circumstances might severely restrict a person’s right to self-
determination. For example, it would mean that a person could
not, without exposing himself or herself to potential liability,
choose to engage in a dangerous sport, or refuse medical
treatment for religious reasons. The Commission noted:

“there is a difficult balance to be arrived at

between respecting self-determination and
requiring proper concern to be shown for
the consequences for others of choosing to
harm or incur the risk of harm to
oneself.”119

Regarding this as a matter for the courts, it proposed that, whilst

the absolute bar to liability in such cases (if it existed) should be
removed, the imposition of a duty should be qualified by a
requirement that it must be “just and reasonable” in the
circumstances.

The “actual danger” proviso

4–042 The Law Commission noted that whilst it was not in doubt that,
under existing law, a secondary victim who satisfied the Alcock
criteria would be able to recover where the immediate victim
had been placed in danger but had not actually been injured,
some doubt existed as to
 whether a secondary victim could recover in a situation where
he or she reasonably believed that the “victim” was in danger,
whereas, as a matter of fact, he or she was not. The Commission
thought that, if liability were allowed in such a situation, “the
policy against opening the flood-gates of litigation would be
undermined”.120 It therefore proposed that “legislation should
draw the line at where the loved one has in fact been killed,
injured or imperilled by the defendant”. Thus, to take the Law
Commission’s example,121 there would be no liability in a
situation where a wife suffers psychiatric illness after watching
evening news reports of a train crash, believing that her husband
is on the train, when, in fact, he has been delayed at work and
taken a later train, arriving home safely that night.

Defences

4–043 Finally, it should be noted that the Law Commission’s proposals

would preserve certain defences.122 Thus, there would be no
liability to a secondary victim who had voluntarily assumed the
risk of suffering psychiatric illness, or in relation to whom a
defendant had excluded his or her duty not to cause psychiatric
illness (for example by a contract term123), or in situations where
it would be unjust to allow the secondary victim to recover
because he or she was involved in conduct that was illegal or
contrary to public policy.

Liability for psychiatric illness: conclusion

4–044 Clearly, the law on psychiatric illness, like the law on pure
economic loss, suffers from a lack of coherence. It is an
emotionally charged area of liability which raises acute moral
problems. The rules developed in Alcock and White seem to
deny liability to many genuinely deserving claimants. Moreover,
the application of those rules compounds the moral dilemma. As
Lord Hoffmann noted in Alcock (echoing the views of the Law
Commission)124:

“. . .the spectacle of a plaintiff who has, ex

hypothesi, suffered psychiatric illness in
consequence of his brother’s death or
injury, being cross-examined on the
closeness of their ties of love and affection
and then perhaps contradicted by the
evidence of a private investigator, might not
be to everyone’s taste.”125

It is the prospect of such an undignified spectacle, of course,

which led the Law Commission to recommend replacing the
rebuttable common law presumptions of close ties of love and
affection with conclusive presumptions in statutory form.
In conclusion, we can do little more than endorse the
sentiments of Lord Oliver, who stated in Alcock: “. . . I cannot,
for my part, regard the present state of the law as either entirely
satisfactory or as logically defensible”. After acknowledging
that the answers in this area of the law were to be found “not in
logic but in policy”, his Lordship concluded that the relevant
policy considerations would be “much better accommodated if
the rights of persons injured in this way were to be enshrined in
and limited by legislation”.126 Unfortunately, however, it seems
unlikely that this will happen in the near future. A Government
consultation paper was issued in May 2007, in the response to
the Law Commission’s report.127 The response to this
consultation, published in July 2009, concluded:
 “On balance the Government continues to
take the view that it is preferable for the
courts to have the flexibility to continue to
develop the law rather than attempt to
impose a statutory solution.”128

Such a view may be contrasted, however, with that of the Court

of Appeal in the 2013 case of Taylor v A Novo (UK) Ltd.129 The
court argued that it was not for the courts to make any
substantial development of the principles relating to primary and
secondary victims and that this should be left to Parliament
subject to modest development by the courts.130 It would seem,
therefore, that despite the concerns of the government and the
courts, neither party is currently prepared to undertake the major
reforms needed in this area of law. The best we can expect is
‘modest’ development by the courts.

1 [1999] 2 A.C. 455.

2 [1999] 2 A.C. 455 at 500.

3 [1992] 1 A.C. 310.

4 For comprehensive discussion of the types of psychiatric illness that can

found an action, see Law Com.249 Pt III (paras 3.1–3.33). For criticism that
this requirement is too harsh, see R. Mulheron, “Rewriting the requirement
for a ‘recognized psychiatric injury’ in negligence claims” (2012) 32
O.J.L.S. 77. Note, however, that in cases where the shock has led to a heart
attack or miscarriage, there is no need to show a recognised psychiatric
illness.

5 Lord Denning MR in Hinz v Berry [1970] 2 Q.B. 40 made it clear that “in
English law no damages are awarded for grief or sorrow caused by a
person’s death”. Subsequent to that decision, however, a modest sum has
become payable for bereavement, in limited circumstances, under the Fatal
Accidents Act 1976 s.1A (inserted by Administration of Justice Act 1982
s.3), discussed in Ch.17.

6 As in White v Chief Constable of South Yorkshire [1999] 2 A.C. 455. Note

that in Ward v Leeds Teaching Hospitals NHS Trust [2004] EWHC 2106
(QB); [2004] Lloyd’s Rep. Med. 530 it was noted that the diagnostic criteria
for PTSD required a shocking event of a particularly horrific nature (the
death of loved one in hospital would not normally meet this description.)
This issue overlaps with the “sudden shock” requirement in Alcock,
discussed later in this chapter.

7 As in McLoughlin v O’Brian [1983] 1 A.C. 410 (per Lord Wilberforce at

417).

8 As in Vernon v Bosley (No.1) [1997] 1 All E.R. 577.

9 See the observations of Lord Slynn in W v Essex CC [2001] 2 A.C. 592 at

600. See also Vernon v Bosley (No.1) [1997] 1 All E.R. 577 (where the
claimant’s condition results from a combination of grief and “sudden
shock”, the court will not attempt to draw a fine distinction between the
two).

10 See Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 at

396, 401 and 416. Note, however, that the position may be different where
the defendant has a contractual relationship which requires him or her to
exercise reasonable care in respect of the claimant’s health: see Walker v
Northumberland CC [1995] I.C.R. 702.

11 In addition to the three categories listed here, there are other situations
where psychiatric illness may be recoverable in negligence. These include
situations where psychiatric illness is induced by stress at work (discussed
in Ch.7) and a group of situations which the Law Commission classified as
“miscellaneous” (see Law Com.249 para.2.51). These include: where a
patient suffers psychiatric illness at the hands of a negligent psychiatrist;
and where a prisoner suffers psychiatric illness as a result of ill-treatment in
prison. Such cases, however, fall outside the traditional focus of psychiatric
illness liability and are beyond the scope of this chapter.

12 We use the term “primary victims” here in its “narrow” post-White

sense. Contrast this with the sense in which it was used by Lord Oliver in
Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 at 407.

13 [1988] Q.B. 304.

14 (1888) 13 App. Cas. 222.

15 White v Chief Constable of South Yorkshire [1999] 2 A.C. 455 at 501.

16 (1888) 13 App. Cas. 222 at 226.

17 [1901] 2 K.B. 669.

18 [1901] 2 K.B. 669 at 681.

19 [1897] 2 Q.B. 57.

20 [1925] 1 K.B. 141.

21 e.g. Smith v Johnson & Co (unreported, but considered in Wilkinson v

Downton [1897] 2 Q.B. 57 and Dulieu v White [1901] 2 K.B. 669).

22 [1943] A.C. 92.

23 [1953] 1 Q.B. 429.

24 [1964] 1 W.L.R. 1317.

25 [1983] 1 A.C. 410.

26 [1983] 1 A.C. 410 at 422 (as in Benson v Lee [1972] V.R. 879, to which
Lord Wilberforce referred).

27 (1939) 62 C.L.R. 1. Compare Vernon v Bosley (No.1) [1997] 1 All E.R.

577.
28 [1983] A.C. 410 at 422.

29 A point confirmed by Lord Slynn in W v Essex CC [2001] 2 A.C. 592.

30 [1983] 1 A.C. 410 at 422.

31 [1983] 1 A.C. 410 at 422.

32 [1996] A.C. 155.

33 [1999] 2 A.C. 455.

34 [1986] 1 All E.R. 54.

35 [1988] Q.B. 304.

36 [1988] Q.B. 304 at 320.

37 The decision is not mentioned in Alcock or White, although in Page v

Smith [1996] A.C. 155 at 179 it is referred to in passing by Lord Jauncey
(dissenting) as an illustration of foreseeable damage. It was also considered
in Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512;
[2015] I.R.L.R. 112 (although in relation to the question of the
foreseeability of psychiatric illness in claims brought in tort).

38 See M. Lunney, D. Nolan and K. Oliphant, Tort Law: Text and

Materials, 6th edn (2017), p.372.

39 White v Chief Constable of South Yorkshire [1999] 2 A.C. 455 at 493.

For further discussion of relevant policy considerations, see Law Com.249
paras 6.5–6.8.

40 See S. Hedley, “Nervous Shock: Wider Still and Wider?” [1997] C.L.J.
254, to which his Lordship refers.

41 See, e.g. Lord Wilberforce in McLoughlin v O’Brian [1983] 1 A.C. 410

at 421.
42 [1996] A.C. 155. On the application of the principle in Page v Smith, see
Simmons v British Steel Plc [2004] UKHL 20; [2004] I.C.R. 585.

43 This colourful phrase was coined by Lord Porter in Bourhill v Young

[1943] A.C. 92 at 117.

44 [2007] UKHL 39; [2008] 1 A. C. 281.

45 Note that this part of the decision has not been followed in Scotland
which introduced the Damages (Asbestos-related Conditions) (Scotland)
Act 2009 which treats asymptomatic pleural plaques as actionable harm for
the purpose of personal injury claims.

46 [1984] 1 W.L.R. 997.

47 [1996] A.C. 155.

48 [1996] A.C. 155 at 187.

49 For stringent criticism of its reasoning, see S. Bailey and D. Nolan, “The
Page v Smith saga: A tale of inauspicious origins and unintended
consequences” [2010] C.L.J. 495.

50 [1996] A.C. 155 at 176. Lord Ackner, whilst approving Lord Lloyd’s
analysis, was content to decide the appeal on the basis that psychiatric
illness (as opposed to physical injury) was reasonably foreseeable in the
circumstances, and suggested (at 170) that consideration of the eggshell
skull rule was “nothing to the point”. In the light of Lord Ackner’s position,
then, it is unclear whether the extended application of the rule forms part of
the true ratio of Page v Smith.

51 [1999] 2 A.C. 455 at 470.

52 [2007] UKHL 39; [2008] 1 A. C. 281.

53 [2007] UKHL 39; [2008] 1 A.C. 281 per Lord Rodger at [95].
Comment: J. Steele, “Pleural plaques in the House of Lords: the
implications for Page v Smith” [2008] C.L.J. 28. On the correctness of
Page v Smith, see also the comments of Lord Neuberger in Corr v IBC
Vehicles [2008] UKHL 13; [2008] 1 A.C. 884 at [54].

54 [2018] EWHC 2964 (QB); [2019] 1 W.L.R. 1413. The claimant was
anonymised in proceedings as YAH.

55 [2018] EWHC 2964 (QB); [2019] 1 W.L.R. 1413 at [34].

56 [1999] 2 A.C. 455.

57 Although this effect of White does not seem to have been wholly
accepted by the courts. See, e.g. negligent misinformation cases such as
Farrell v Avon Health Authority [2001] Lloyd’s Rep. Med. 458 where a
claimant was called a “primary victim” by the court.

58 White v Chief Constable of South Yorkshire [1999] 2 A.C. 455 at 499.

59 [1999] 2 A.C. 455 at 504, 505 and 509.

60 Note that the Law Commission suggested that it should be a

precondition of recovery by secondary victims that the immediate victim be
in actual danger. See Law Com.249 para.6.18 (discussed below).

61 [1994] 2 All E.R. 1.

62 [1992] 1 A.C. 310.

63 Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 at 398.

64 But not impossible, see RE (A Child) v Calderdale and Huddersfield

NHS Foundation Trust [2017] EWHC 824 (QB) where the child’s
grandmother who had been present at her birth and witnessed the aftermath
could recover as a secondary victim.

65 [1992] 1 A.C. 310 at 406.

66 [1994] 2 All E.R. 1.

67 [1994] 2 All E.R. 1 at 14.

68 Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 at 405.
Compare the view of Lord Keith, at 397, who appears to endorse the view
of Deane J in Jaensch v Coffey (1984) 155 C.L.R. 549, viz. that the
“immediate aftermath” will continue for as long as the victim remains in the
state caused by the accident.

69 [2003] EWCA Civ 697; [2003] Lloyd’s Rep. Med. 285.

70 [2003] Lloyd’s Rep. Med. 285 at [26].

71 [2013] EWCA Civ 194; [2014] Q.B. 150.

72 [1999] A.C. 455 at 500.

73 [2013] EWCA Civ 194 at [31].

74 [1992] 1 A.C. 310 at 420.

75 Their Lordships doubted the correctness of Hevican v Ruane [1991] 3

All E.R. 65 and Ravenscroft v Rederi AB Transatlantic [1991] 3 All E.R.
73, which had appeared to decide that receiving news of a son’s death could
be an effective cause of psychiatric illness (latter decision subsequently
reversed by the Court of Appeal: [1992] 2 All E.R. 470.)

76 [1997] 8 Med. L.R. 91.

77 See also the reasoning of Morland J in CJD Group B Plaintiffs v Medical

Research Council [2000] Lloyd’s Rep. Med. 161. Comment: N. J. Mullany,
“Liability for careless communication of traumatic information” (1998) 114
L.Q.R. 380.

78 [1992] 1 A.C. 310 at 405.

79 (1984) 155 C.L.R. 549.

80 [2000] 1 W.L.R. 1970.

81 Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 at 401.

Contrast with the position for primary victims described above.
82 Note, however, that in W v Essex CC [2001] 2 A.C. 592 (discussed later
in this chapter) the House of Lords refused to say that a claim in such
circumstances would be unarguable.

83 [1994] 5 Med. L.R. 170. See also Wild v Southend University Hospital
NHS Foundation Trust [2014] EWHC 4053 (QB); [2016] P.I.Q.R. P3.

84 [2002] EWCA Civ 1792; [2003] P.I.Q.R. P16.

85 [2015] EWCA Civ 588; [2015] P.I.Q.R. P20. Followed in Owers v

Medway NHS Foundation Trust [2015] EWHC 2363 (QB) and Wells v
University Hospital Southampton NHS Foundation Trust [2015] EWHC
2376 (QB).

86 See also Shorter v Surrey and Sussex HC NHS Trust [2015] EWHC 614
(QB).

87 [2015] EWCA Civ 588 at [17] per Tomlinson LJ.

88 S. McKinley, “The difficulty of bringing claims for secondary victims in

clinical negligence cases” [2018] JPI Law 105. She also notes that, in such
cases, there will often be a delay between the negligent treatment and the
damage caused to the primary victim rendering it difficult for secondary
victims to meet the time and space requirement also.

89 See Frost v Chief Constable of South Yorkshire [1998] Q.B. 254 (from
which the appeal to the House of Lords in White was made).

90 [1951] 1 Lloyd’s Rep. 271.

91 See Galt v British Railways Board (1983) 133 N.L.J. 870; Wigg v British
Railways Board, The Times 4 February 1986; Mount Isa Mines Ltd v Pusey
(1970) 125 C.L.R 383.

92 White v Chief Constable of South Yorkshire [1999] 2 A.C. 455 at 507.

93 [1951] 1 Lloyd’s Rep. 271.

94 [1999] 2 A.C. 455 at 508.

95 [2000] 2 All E.R. 237.

96 [2001] 2 A.C. 592 at 601. See also Monk v PC Harrington Ltd [2008]
EWHC 1879 (QB), where it was accepted in principle that providing
assistance, in circumstances where the claimant reasonably believed he had
caused the accident, could establish sufficient proximity in the absence of
physical danger.

97 [1935] 1 K.B. 146.

98 232 N.Y. Rep. 176 at 180 (1921).

99 [1959] 1 W.L.R. 966.

100 [1963] 2 Q.B. 650.

101 Harrison v British Railways Board [1981] 3 All E.R. 679.

102 See Greatorex v Greatorex [2000] 1 W.L.R. 1970; the observations of

Lord Oliver in Alcock v Chief Constable of South Yorkshire [1992] 1 A.C.
310 at 418 (discussed above); and Law Com.249 para.6.18 (discussed
below).

103 [1998] A.C. 431.

104 See Hyett v Great Western Railway [1948] 1 K.B. 345.

105 [1967] 1 W.L.R. 912.

106 See Law Com.249 para.7.3.

107 White v Chief Constable of South Yorkshire [1999] 2 A.C. 455 at 500.

108 [1999] 2 A.C. 455 at 484.

109 [1999] 2 A.C. 455 at 499.

110 [1999] 2 A.C. 455 at 509.

111 [1999] 2 A.C. 455 at 487.

112 Thus, the fireman father in Greatorex v Greatorex [2000] 1 W.L.R.

1970, although a rescuer, could not succeed as a primary victim because he
was not in physical danger.

113 Although it is alluded to by Lord Goff at 479–480.

114 “Liability for Psychiatric Illness” Law Com.249 (available from

https://www.lawcom.gov.uk/project/liability-for-psychiatric-illness/
[Accessed 1 August 2020]. Compare the more recent report of the Scottish
Law Commission No.196, “Damages for Psychiatric Injury” (2004)
(discussed by D. Nolan (2005) 68 M.L.R. 983, who argues that the
flexibility it envisages is a recipe for uncertainty.)

115 “Liability for Psychiatric Illness” Law Com.249 para.4.2.

116 “Liability for Psychiatric Illness” Law Com.249 para.1.13.

117 “Liability for Psychiatric Illness” Law Com.249 para.6.12, the report
cites Taylor v Somerset Health Authority (1993) 4 Med. L.R. 34 and
Taylorson v Shieldness Produce Ltd [1994] P.I.Q.R. P329 as examples
where the requirement has produced unjust results.

118 Note, however, as the report points out (at para.6.25), it would still be
open to the court to hold that the absence of a de facto close relationship
meant that psychiatric illness to the claimant was not reasonably
foreseeable, as, e.g. where a mother, who had abandoned her son at birth,
suffered psychiatric illness on reading about his death in a newspaper many
years later.

119 Law Com.249 para.5.42.

120 Law Com.249 para.6.18.

121 Law Com.249 para.6.69.

122 Law Com.249 para.6.42.

123 Unfair Contract Terms Act 1977 s.2(1) prohibits the valid exclusion of
negligence liability for personal injury and death where the liability in
question is “business liability”. For consumers, see the Consumer Rights
Act 2015, s. 65.

124 Law Com.249 para.6.24.

125 Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 at 503.
See also J. Stapleton, “In Restraint of Tort” in The Frontiers of Liability
(1994) Vol.2 p.84, who says that a mother who suffers psychiatric illness
after finding her child’s mangled body in a mortuary “might wonder why
the law rules her child’s blood too dry to found an action”.

126 Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 at 418
and 419.

127 Government Consultation Paper, The Law of Damages, CP 09/07 (May

2007), Ch.3 para.97.

128 Ministry of Justice, The Law of Damages: Response to Consultation

CP9 (R) 9/7, 1 July 2009. An attempt was made in October 2015 to
introduce a Private Member’s bill (the Negligence and Damages Bill 2015–
2016) of which the first part sought to amend the law based on the draft
provisions prepared by the Law Commission. The Bill aimed to both lower
the threshold required to claim compensation successfully for psychological
harm and widen the categories of people who could bring such a claim. It
ran, however, out of Parliamentary time after the first reading.

129 [2013] EWCA Civ 194; [2013] P.I.Q.R. P15.

130 [2013] EWCA Civ 194 at [24] per Lord Dyson MR.
 5

Negligence: Breach of Duty

Introduction
5–001 Once it has been established that the defendant owes the
claimant a duty of care, it must next be established that the
defendant has breached that duty. In practical terms, breach of
duty is the most important element of the tort of negligence,
because in everyday cases the existence of a duty of care and
questions of causation and remoteness are rarely in issue.
Establishing breach of duty involves showing that the
defendant’s conduct has fallen below the standard of care
required in all the circumstances. The standard set by the law is
one of “reasonableness”. The flexibility inherent in the concept
of “reasonableness” is necessary to accommodate the infinite
variety of cases that may arise. Thus, for example, the law says
that motorists must drive with “reasonable care in all the
circumstances” because it cannot possibly prescribe the precise
speed at which motorists must drive in each and every possible
set of road conditions. In the case of driving, of course, the law
makes some attempt to reduce the requirement of
“reasonableness” into a set of concrete “rules”—in the form of
speed limits and the rules of the Highway Code—but generally
speaking the courts have resisted attempts to boil down the
requirement of “reasonableness” into a series of precise and
definite obligations. Decisions in individual cases as to what
 amounts to “reasonable conduct” are regarded only as useful
guides. To treat them otherwise would introduce a rigidity into
the law that might produce injustice.
In this chapter, then, we are not concerned with learning a
multiplicity of specific “rules” about what defendants must or
must not do in various sets of circumstances. Although it is
possible to enumerate a great number of fairly definite “rules”
about what the law considers “reasonable” in specific situations
(for example, when driving, looking after another’s property, or
carrying passengers on a ship), it is not usual to consider all of
these rules in a book of this kind. The only specific obligations
we do consider are those owed by an employer to an employee
(see Ch.7) and by an occupier to persons on his or her premises
(see Ch.8). This chapter deals with the general principles the
courts employ in setting the standard of care.
It begins by exploring these principles. It then discusses the
extent to which the law expects special standards of care from
special categories of defendant (for example from children, or
professionals). Finally, it considers the problem of proving
breach of duty.

The “reasonable person”

5–002 The law’s starting point in deciding breach of duty is to judge

the defendant’s conduct by the standard of the hypothetical
“reasonable person” (in older cases referred to as the
“reasonable man”).1 The most famous example of the
“reasonable person” being used to define the standard of care
comes from the judgment of Alderson B in Blyth v Birmingham
Waterworks Co.2 His Lordship said:

“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.”

Two important points must be noted about the standard of the

“reasonable person”:
▮ The standard is objective.
▮ The standard does not always reflect “average”
behaviour.

◗ The standard of care is objective

5–003 The first point to note, then, is that the decision whether the
defendant has behaved like a “reasonable person” is an objective
one. That is to say, the question for the court is not: “What could
we have expected this particular defendant to do in the
circumstances?” Rather, the question is: “What could we expect
a “reasonable person’ to do?” Thus, a defendant who is
unusually clumsy or absent-minded cannot succeed by arguing
that his or her conduct amounts to an “incompetent best”. The
defendant will be judged according to the best efforts of the
hypothetical “reasonable person”.
The objective nature of the “reasonable person” test was
explained by Lord Macmillan in Glasgow Corp v Muir.3 Here,
the manageress of the defendants’ tea-room, to which access
was obtained by way of a small shop, gave a picnic party
permission to use the tea-room when rain prevented them from
eating their food outside. She allowed two members of the party
to carry a tea urn through the shop. Despite taking all due care,
one of the carriers let go of the urn, so that tea was spilt,
severely scalding several children who were buying sweets at
the counter of the shop. The plaintiffs argued that the
manageress had been negligent in giving permission for the tea
urn to be brought in without first clearing the children out of the
shop. On the facts, the defendants were not liable, because the
risk of injury was not so high that a reasonable person would
have done this in the circumstances. Dealing with the
“reasonable person” standard, Lord Macmillan 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. Some persons
are by nature unduly timorous and imagine
every path beset with lions; others, of more
robust temperament, fail to foresee or
nonchalantly disregard even the most
obvious dangers. The reasonable man is
presumed to be free both from over-
apprehension and from over-confidence.”4

His Lordship conceded, however, that the test for breach of duty
does contain a certain subjective element. This is because the
question for the court is: what would the reasonable person have
done in the defendant’s circumstances? However, although the
defendant’s conduct must be judged in the light of “all the
circumstances of the case”, it is important to distinguish
between, on the one hand, external circumstances (for example,
the defendant was acting in an emergency) and, on the other
hand, “circumstances” which are personal characteristics of the
particular defendant (for example, the defendant’s
“circumstances” were that he or she happened to be a novice).
Whilst the law will adapt the standard of care to take account of
 external circumstances, it will not, generally speaking, take
account of the defendant’s personal characteristics.
The case of Nettleship v Weston5 provides perhaps the most
famous illustration of the objective standard of care. The
defendant was a learner driver. The plaintiff, a family friend, had
agreed to give her driving lessons. On her third lesson, when the
car was moving very slowly,
with the plaintiff moving the gear lever and the defendant
steering, the defendant panicked. The car mounted the pavement
and struck a lamp-post, causing the plaintiff to suffer a broken
knee cap. He sued the defendant for personal injury.
The Court of Appeal held the defendant liable. The majority
of the court held that her conduct was not to be judged, as she
argued, by the standard of a learner driver, but by the standard of
a reasonably competent and experienced one. Lord Denning MR
stated that, although the defendant was not morally at fault, she
should be regarded as legally at fault. Since she was legally
required to be insured, it made sense that she should bear the
risk of her driving. Megaw LJ pointed out that, once the law
accepted the principle that the standard of care could be varied
according to the experience of the particular defendant, it would
be logically impossible to confine application of the principle to
cases of driving. This would mean that in every negligence case,
the court would be obliged to hear evidence about the level of
competence to be expected of a reasonable person with the same
level of experience as the defendant. Such an exercise would be
costly and time-consuming and would undoubtedly produce
unpredictability and uncertainty in the law. His Lordship
concluded, therefore, that “the certainty of a general standard is
preferable to the vagaries of a fluctuating standard”.6

◗ The standard of care is a “hypothetical”, not an

“average” standard
5–004 Although the “reasonable person” is sometimes personified as
the “man on the Clapham omnibus”,7 or the “man on the
Underground”,8 it is important to appreciate that the standard of
care the law requires is sometimes a poor reflection of the
standard such a man would probably, in fact, exercise. Whilst
evidence of the fact that most people behave in a certain way
may, in appropriate cases, be relevant in setting the legal
standard of care, the law will not always regard such evidence as
conclusive. This is because there are situations where, as a
matter of policy, high standards of care are imposed for the
purpose of shifting losses on to defendants, with little regard for
fault. In such cases, the idea of fault is subordinated to the
objectives of compensation and loss distribution, discussed in
Ch.1. Below, we discuss how this is achieved in the context of
road traffic accidents, but the reader should also consider the
issue in the context of the high standards of care required of
employers, discussed in Ch.7.
Because the “reasonable person” is a mythical judicial
creation, then, he or she may sometimes be credited with a level
of skill and prudence that is seldom attainable in the real world.
The Pearson Commission, which in 1978 reported on civil
liability for personal injury, noted:

“Even good drivers make mistakes. A study

by the World Health Organisation in 1962
found that a good driver makes a mistake
every

two miles; and an American study in 1964

suggested that on average a good driver
makes nine mistakes every five minutes.”9

Yet, many of the “mistakes” good drivers make are regarded by

the law as conduct falling below the standard expected of a
“reasonable driver”. This means, in effect, that the standard of
care in relation to driving is so high that in certain situations
there is almost strict liability (liability without fault) for driving.
The reason why this is so has partly to do with historical
accident (the rules on driving were developed when many fewer
cars were on the roads), but it also has to do with particular
policy considerations which apply in road traffic cases. The most
important goal of tort law in the context of driving accidents is
to provide compensation for victims. The issue of fault,
therefore, is subordinated to achieving this goal. As was noted in
Ch.1, the law is assisted in this regard by the availability of third
party insurance, which is compulsory for motorists.
It should be noted, however, that whilst the standard of care
in relation to driving is very high, the courts have stopped short
of holding that liability for driving is entirely divorced from
fault. In Mansfield v Weetabix Ltd,10 the Court of Appeal held
that a driver who becomes unable to control a vehicle will not be
liable for damage caused by his or her loss of control if the
driver is unaware (and should not reasonably have been aware)
of a disabling condition from which he or she is suffering, which
suddenly manifests itself, causing the loss of control. Prior to
this decision, Neill J had held, in Roberts v Ramsbottom,11 that a
driver who suffered a stroke at the wheel remained liable and
suggested that this would be so even if the driver had been
unaware that he had a medical condition likely to lead to a loss
of control. In Mansfield v Weetabix Ltd, however, the Court of
Appeal held that Roberts v Ramsbottom was wrongly decided on
this point, although the decision could be supported on the
alternative ground that the defendant had carried on driving
when he felt strange and ought to have known that he was
probably unfit to drive. In Dunnage v Randall,12 Arden LJ drew
a distinction between the situation in Mansfield where a driver
had got into his car or lorry cab mentally and physically fit for
the journey, but then experienced an unforeseen episode during
the journey which caused him to lose control of the vehicle, and
the situation where a mentally ill person acted irrationally
injuring another where the objective standard of care would
apply. In Dunnage, the defendant was suffering from florid
 paranoid schizophrenia when he set himself on fire with petrol.
The claimant (his nephew) suffered serious burns to his face and
body in trying to put out the fire. The court held that only
defendants whose medical incapacity has the effect of entirely
eliminating any fault or responsibility for the injury can be
excused.13 The actions of a defendant, who is merely
impaired by medical problems, whether physical or mental,
cannot escape liability if he causes injury by failing to exercise
reasonable care.14 Here, it was not enough that the defendant
was acting irrationally, he was still aware of the nature and
quality of his actions and his disease did not excuse him from
needing to take the care of a reasonable man.
Now that we are familiar with the standard of the
“reasonable person”, it is appropriate to explore the various
factors which the courts take into account in deciding whether
this standard has been met.

Factors Relevant to the

Standard of Care

5–005 The relevant factors can be stated as follows:

▮ foreseeability of harm;
▮ magnitude of the risk;
▮ burden of taking precautions;
▮ utility of the defendant’s conduct; and
▮ common practice.
 Below, we consider each of these in turn. We then look at how
some of them may be considered together in a quasi-
mathematical way, using what is known as the “Learned Hand
test”.

Foreseeability of harm

5–006 If the particular harm the claimant suffers is not foreseeable, the
defendant will not be liable. This is because, rather obviously,
the “reasonable person” cannot be expected to take any
precautions against unforeseeable risks. The point is illustrated
by the decision of the Court of Appeal in Roe v Ministry of
Health.15 In 1947, the plaintiff went into hospital for a minor
operation. He suffered permanent paralysis as a result of being
given a spinal anaesthetic which was contaminated with phenol.
The contamination had occurred when glass ampoules
containing the anaesthetic had been stored in the phenol, which
was used as a disinfectant,
and the phenol had seeped through invisible cracks in the glass.
At the time, it was not known that contamination could occur in
this way. The action came to trial in 1954, by which time the
dangers had become known. The defendants were not liable.
Denning LJ made the point that, although in 1954 it would be
regarded as negligent to store anaesthetic in phenol, the court
“must not look at the 1947 accident with 1954 spectacles”.16
Whilst the defendant will escape liability where the risk is
unforeseeable, it does not follow that he or she will
automatically be liable for all risks that are foreseeable. The law
insists that a risk must be reasonably foreseeable before making
a defendant liable. This point is explored below.

The magnitude of the risk

5–007 The “reasonable person” does not take precautions against risks
that are very small. Assessing the “magnitude” of any risk
 involves consideration of two factors. First, there is the
likelihood that harm will occur. Secondly, there is the question
of how serious the consequences will be if harm does occur.

◗ (1) The likelihood of harm

5–008 In Bolton v Stone,17 the plaintiff, who was standing outside her
house on a quiet street, was hit by a cricket ball which came
from a nearby cricket ground. It was clear that the defendant
cricketers could have foreseen that a ball might be hit out of the
ground, because this had happened before, but it was a very rare
occurrence. The evidence established that cricket balls had been
hit out of the ground on about six occasions in the previous 30
years. There was a fence around the ground, which was seven
feet high and, due to the slope of the ground, the top of the fence
was some 17 feet above the level of the pitch. The fence was
some 80 yards away from where the batsman stood. The House
of Lords held that, in these circumstances, the chance of an
injury occurring to someone who was standing in the position of
the plaintiff was so slight that the defendants were not negligent
in continuing to play cricket without taking additional
precautions. Lord Oaksey said that:

“. . . an ordinarily careful man does not

take precautions against every foreseeable
risk. He can, of course, foresee the
possibility of many risks, but life would be
almost impossible if he were to attempt to
take precautions against every risk which
he can foresee.”18

Similarly, Lord Radcliffe thought that a reasonable person,

taking account of the chances against such an accident
 occurring, “would have done what the appellants did: in other
words, he would have done nothing”.19
It is useful to compare Bolton v Stone with the decision of
Ashworth J in Hilder v Associated Portland Cement
Manufacturers Ltd.20 Here, the defendants were the occupiers of
some grassland on which they permitted some small boys to
play football. One of the boys kicked the ball over a low wall
into the adjoining road where it caused the plaintiff, a passing
motorcyclist, to fall off his motorbike and suffer fatal injuries.
The defendants were held liable. Because the risk of injury to a
road user was much greater than the risk in Bolton v Stone—the
land was only some 15 yards from the road—it was not a risk
that the reasonable person would have disregarded.
In Haley v London Electricity Board,21 the House of Lords
was presented with detailed statistical evidence about the
likelihood of harm occurring. The plaintiff, who was blind, fell
into a hole in the pavement that had been dug by the defendants.
As a result of the fall he became deaf. The precautions taken to
guard the hole were sufficient for sighted people but were
insufficient for the blind. Their Lordships considered evidence
relating to the number of blind people who lived in the same
London borough as the plaintiff and concluded that the
likelihood of a blind person falling into the hole was not so
small that the defendants could ignore it. The case is authority
for the proposition that the reasonable person must tailor his
conduct in the light of the characteristics of the people whom he
knows it might affect. Thus (as we shall see in Ch.7), a
defendant employer has been held liable for causing psychiatric
illness to an employee whom he ought to have known was likely
to suffer a nervous breakdown,22 but in other cases, where the
risk of psychiatric illness to the particular employee could not
reasonably have been known, employers have escaped liability.

◗ (2) The seriousness of the consequences

5–009
 The decision in Bolton v Stone does not mean that a reasonable
person is always justified in ignoring a very small risk. The risk
of harm materialising must be weighed against other factors,
including the seriousness of the consequences if the harm does
materialise. The more serious the consequences, the greater the
obligations of the defendant. This point is neatly illustrated by
the decision in Paris v Stepney BC.23 The plaintiff, who was
blind in one eye, was employed by the defendants in a garage.
One day he was called upon to dismantle the chassis
of a large vehicle and had to use a hammer to knock out a rusty
bolt. A fragment of metal came off the bolt and hit him in his
good eye, causing him to become totally blind. The risk of such
an injury occurring was extremely small and did not justify the
use of goggles by ordinary workers. Nevertheless, a majority of
the House of Lords held that the defendants were liable for
failing to provide this particular worker with goggles, knowing
that he might suffer such serious consequences if the small risk
materialised.

The burden of taking precautions

5–010 The court will take account of the cost and practicality of taking
precautions against a risk. If the burden of taking steps to
eliminate a risk is far greater than the benefit obtained by its
elimination, then failure to take those steps will not generally
amount to negligence. Thus, one factor which influenced the
House of Lords in deciding Bolton v Stone was that the only
practical way the defendant cricketers could have prevented
balls from going out of the ground would have been to erect an
extremely high fence—wind conditions made this very difficult,
if not impossible. Alternatively, they could simply have stopped
playing cricket. In either case, taking precautions against the risk
would have placed a burden on the defendants that was out of all
proportion to the risk the precautions would avoid.
The case most often cited in this context is Latimer v AEC
Ltd.24 Here, the floor of the defendants’ factory was flooded by
an exceptionally heavy rainstorm. As a result, an oily cooling
mixture, which was normally contained in a channel in the floor,
mixed with the flood waters. When the flood subsided, the floor
was left in a slippery state. The defendants spread sawdust on
the floor, but did not have enough sawdust to go around, so
some areas were left untreated. The plaintiff, who was working
in an area which had not been treated with sawdust, was
attempting to load a heavy barrel on to a trolley when he slipped
and injured his ankle. The House of Lords held that the
defendants had not been negligent. They had done all that
reasonable employers could be expected to do for the safety of
their workers. The only way the defendants could have
eliminated the risk entirely would have been to close the factory,
and this would have been a precaution out of all proportion to
the risk in question.
It is useful to compare Bolton and Latimer with the decision
of the Privy Council in The Wagon Mound (No.2).25 Here, the
defendants negligently discharged a quantity of furnace oil into
the sea. The evidence in the case established that there was an
extremely small risk that the oil might ignite in very unusual
circumstances. (These circumstances are explained in Ch.6,
because the incident also gave rise to another case—The Wagon
Mound (No.1)—which is the leading authority on remoteness of
damage.) The oil ignited, causing damage to the plaintiffs’ ships.
The defendants argued that, because the risk of damage was very
small, they were justified in disregarding it. The Privy Council
was unimpressed by this argument. The burden of eliminating
the risk in this case was minimal—all the defendants had to do
was ensure that
the oil did not discharge into the harbour by keeping a tap turned
off. Their Lordships pointed out that a reasonable person would
not ignore even a very small risk “if action to eliminate it
presented no difficulty, involved no disadvantage and required
no expense”.26 In The Wagon Mound (No.2), it was also relevant
to a finding of liability that the defendants, in discharging the
oil, were not doing anything worthwhile—they were committing
 an act of pollution. In other words, their act had no “utility”.
This issue is considered at para.5–012.

◗ The defendant’s financial circumstances

5–011 A difficult issue is whether the financial resources available to
the defendant should be taken into account in deciding whether
the defendant should take precautions against a risk. Where the
defendant can be said to have a choice about whether or not to
engage in the activity which creates the risk, he or she cannot
argue lack of resources as a reason for failing to meet the
standard of care. The Australian case of PQ v Australian Red
Cross Society27 serves as a vivid illustration. Here, the
Australian court firmly rejected the argument that the standard to
be expected of the Red Cross in testing blood donations for the
AIDS virus should be determined in the light of the financial
constraints of the charity. The charity had a choice. If it lacked
adequate financial resources to collect blood donations properly,
it should choose not to provide that service.
By contrast, there are situations where the defendant’s lack
of choice in pursuing a certain course of action justifies taking
financial constraints into account. Such is the case where an
occupier comes under an affirmative duty of care to prevent
others being harmed by a natural hazard arising on his land.28
Acting in an emergency may be regarded as another “no choice”
situation in which the actor can only be expected to make use of
the financial resources immediately available.

The utility of the defendant’s conduct

5–012 The greater the social utility of the defendant’s conduct, the less
likely it is that the defendant will be held to be negligent. The
classic case which illustrates this is Daborn v Bath Tramways
Motor Co Ltd.29 The relevant issue was whether, in wartime, the
driver of a left-hand drive ambulance had been negligent in
turning into a road without giving a hand signal. The Court of
Appeal held that she was not liable. During wartime, it was
necessary for many highly important operations to be carried out
by means of vehicles with left-hand drives, and it was
impossible for the drivers of such vehicles to give the warning
signals which drivers might normally
have been expected to give. Asquith LJ noted that the utility of
the defendant’s act had to be weighed against the risks it created,
saying:

“. . .if all the trains in this country were

restricted to a speed of five miles an hour,
there would be fewer accidents, but our
national life would be intolerably slowed
down. The purpose to be served, if suf-
ficiently important, justified the assumption
of abnormal risk.”30

His Lordship concluded that, because ambulance drivers were

performing a valuable service in a time of national emergency, it
would be demanding too high a standard of care from them to
say: “Either you must give signals which the structure of your
vehicle renders impossible or you must not drive at all”.
Similar reasoning was adopted in Watt v Hertfordshire CC.31
Here, the plaintiff was a fire-man, who was injured when
travelling to rescue a woman reported to have been trapped
under a heavy lorry. In the haste of the rescue, the plaintiff’s
colleagues picked up a jack, which was needed to save the
woman’s life, and put it into the lorry in which they were
travelling. The lorry was not equipped for carrying the jack and
the plaintiff was injured when the driver of the lorry braked
suddenly and the jack fell on him. It was held that the defendant
employers were not negligent because the need to act speedily in
an attempt to save the woman’s life outweighed the risk to the
 plaintiff. It should be noted, however, that this decision does not
mean that the emergency services will always escape liability for
accidents occurring in the haste of a rescue. The court will have
regard to all of the circumstances of the particular case. Thus,
for example, in Ward v London CC32 the driver of a fire engine
was held to have been negligent in driving through a red traffic
light.

◗ The Compensation Act 2006 and Social Action,

Responsibility and Heroism Act 2015: the deterrent
effect of potential liability
5–013 Compensation Act 2006 s.1 is designed to promote the idea that
people and organisations wishing to undertake socially
worthwhile activities should not be deterred from doing so by an
unrealistic fear of negligence liability. As Jackson LJ
commented in Scout Association v Barnes,33 “[i]t is the function
of the law of tort to deter negligent conduct and to compensate
those who are the victims of such conduct. It is not the function
of the law of tort to eliminate
every iota of risk or to stamp out socially desirable activities”.
Section 1 was passed following a number of government reports
which had examined the question of whether there might be a
growing “compensation culture” in the UK (i.e. whether society
was becoming more litigious, with citizens believing they had a
right to sue someone whenever they suffered a misfortune).34
These reports had found that, as a matter of fact, this was not the
case—the statistical evidence showed that people nowadays
were not much more likely to sue than in former times.
However, the reports identified that, despite the statistical reality,
there was nevertheless a perception held by many organisations
that they were at risk of being unfairly sued. This fear was
leading to unduly cautious practices that were not in the public
interest.
The sort of unduly cautious behaviour that Parliament had in
mind was exemplified by the attitude adopted by the defendant
local authority in Tomlinson v Congleton BC35—an important
House of Lords case on occupiers’ liability, considered in Ch.8.
The local authority owned and managed a lake for the benefit of
the public. Most visitors used the site responsibly, enjoying the
sandy beaches and respecting the signs prohibiting them from
swimming in the lake. A number of visitors, however,
persistently disobeyed these signs. The local authority became
concerned that it might be sued if one of these swimmers were
to meet with an accident in the water. They therefore resolved to
discolour and destroy the beaches by dumping ballast on them
and planting vegetation—although this, of course, would have
spoiled the enjoyment of the people who used the beaches
responsibly.
The authority had not yet carried out this work when the
claimant, a young man, severely injured himself by diving into
the lake and hitting his head on the bottom. In denying his claim,
the House of Lords reasoned that it would be extremely unjust to
place the authority under a duty to people who disobeyed the
signs and swam. There could be no duty to protect people from
their own irresponsible behaviour, especially where this would
mean destroying a socially desirable public amenity. Their
Lordships expressed concern that, in setting the standard of care,
the courts should not allow the fear of liability to deter local
authorities and other organi-sations from engaging in or
encouraging socially desirable activity. This sentiment is put on
a statutory footing by s.1 of the Act:

“s.1. Deterrent effect of potential liability A

court considering a claim in negligence or
breach of statutory duty36 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.”

In 2015, the UK Government further introduced the Social

Action, Responsibility and Heroism Act 2015 (commonly
known as SARAH).37 Again, the aim was to dampen the
“compensation culture”. This Act applies when a court, in
considering a claim that a person was negligent or in breach of
statutory duty, is determining the steps that the person was
required to take to meet a standard of care. Sections 2–4 of the
Act highlight that the court must have regard to:
▮ whether the alleged negligence or breach of statutory
duty occurred when the person was acting for the
benefit of society or any of its members (s.2);
▮ whether the person, in carrying out the activity giving
rise to the claim, demonstrated a “predominantly
responsible approach”38 towards protecting the safety
or other interests of others (s.3); and
▮ whether the alleged negligence or breach of statutory
duty occurred when the person was acting heroically39
by intervening in an emergency to assist an individual
in danger (s.4).

These provisions seek to provide reassurance, for example, to

volunteer groups which organise outdoor pursuits, and schools
 wishing to take pupils on excursions. It may be noted that the
words “steps” to which the court “may . . . have regard” in the
2006 Act have been replaced by matters to which a court must
have regard in SARAH 2015—in other words, the courts now
have no choice in the matter. While these Acts do not extend the
common law, the aim is to make the law clearer and thereby
discourage unmeritorious claims against bodies which organise
desirable activities and encourage rescuers who may be fearful
of being sued if the rescue goes wrong. Academic commentary
to date has, however, been sceptical whether these laudable aims
have been fulfilled.40

Common practice

5–014 Failure to conform to a common practice of taking safety

precautions is strong evidence of negligence because it suggests
that the defendant did not do what others in the community
regard as reasonable. It must be remembered, however, that such
a failure is not conclusive evidence of negligence. In Brown v
Rolls Royce Ltd,41 for example, the plaintiff contracted
dermatitis from contact with grease during the course of her
work. She claimed that this was caused by the negligence of her
employers, who had not supplied a barrier cream which was
commonly supplied by other employers to people doing the
same type of work. However, whilst it was the common practice
to use this cream, there was conflicting evidence about its
efficacy. In such circumstances, the House of Lords held that
while good sense indicated that the defendant might be in breach
in not adopting commonly used precautions, it is still for the
court to determine whether, on the balance of probabilities, it
signified a failure to take reasonable care. Here, given that the
defendants had relied on the opinion of their own medical officer
who, exercising reasonable care, had advised against the cream,
they were not in breach.
Conversely, where it can be shown that the defendant has
complied with a common practice in relation to safety
 precautions, this is very good evidence that the defendant has
not been negligent.42 Again, however, such evidence cannot be
regarded as conclusive. This is because a particular course of
conduct may be negligent despite its being common practice. As
Lord Tomlin succinctly put it in Bank of Montreal v Dominion
Gresham: “Neglect of duty does not cease by repetition to be
neglect of duty”.43 The question of common practice assumes
enormous significance in cases involving professional
negligence and is discussed more fully in that context later in
this chapter.

The “Learned Hand” test

5–015 It is clear that in deciding breach of duty, the courts “balance” all
of the factors we have considered above. In United States v
Carroll Towing Co,44 a US case, Learned Hand J provided a
useful insight into the way the courts may perform this
“balancing act” in some cases. He suggested that some of the
factors relevant to breach of duty might be given a notional
statistical value, so that the problem could be approached in a
quasi-mathematical way. Taking B as the “burden of taking
precautions”, P as the “probability that the risk will materialise”,
and L as
the “loss which will occur if the risk does materialise”, one can
express the courts’ approach in terms of two “equations”:

B < P × L = Liability
B > P × L = No Liability

Expressed in words, these “equations” mean that, where the

“burden” on the defendant (in terms of taking precautions) is
less than the notional value achieved by multiplying the
“probability” and the “loss”, the court will be likely to find the
defendant liable. Conversely, where the “burden” on the
defendant is greater than the product of the “probability” and
the “loss”, a finding of no liability is likely.
 We can see how these “equations” might work by analysing
two cases—Bolton v Stone and The Wagon Mound (No.2). In
Bolton, a finding of no liability resulted from the fact that a low
value could be given to the probability of the risk materialising
(six times in 30 years) and a relatively low value could be given
to the loss in question (at worst, injury of one individual). The
burden on the defendants (giving up cricket) could be given a
high value. By contrast, in The Wagon Mound (No.2), whilst the
probability of the risk materialising could also be given a low
value, the loss in question (at worst, the complete destruction of
Sydney Harbour) would have to be given a relatively high value,
whilst the slight burden on the defendants (retaining the oil
onboard ship) would obviously be given a very low value. Thus,
a finding of liability resulted.

Special Standards of Care

5–016 There are certain types of defendant to whom additional special

rules apply in determining the standard of care required of them.
These are:
▮ children;
▮ defendants acting in an emergency;
▮ defendants engaged in sport; and
▮ defendants claiming to have special or professional
skill.

In this section, we consider the standard of care required of the

first three of these special types of defendant. The standard of
 care required of professionals warrants more lengthy discussion
and is dealt with in a later section.

Children

5–017 The conduct of a child defendant is judged by reference to the

standard of conduct that can be expected of a reasonable child of
the defendant’s own age. For many years, there was no English
authority on the point, but it was assumed that the courts would
adopt the reasoning of Kitto J in the Australian case of McHale v
Watson.45 Here, the defendant was a 12-year-old boy. He threw a
sharp rod which ricocheted off a post and hit a nine-year-old
girl. The High Court of Australia declined to apply the standard
of the “reasonable person” to cases involving children and
applied a lower standard which was appropriate to the
defendant’s age. Applying that standard, it was held that the boy
was not negligent. It should be noted, however, that the standard
of care applied to children remains an objective one. As Kitto J
remarked:

“It is no answer for [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.”46

In England, the same approach was adopted by the Court of

Appeal in Mullin v Richards.47 Here, the defendant and the
plaintiff were 15-year-old schoolgirls. They were fencing with
plastic rulers during a lesson, when one of the rulers snapped
and a piece of plastic flew into the plaintiff’s eye, causing
blindness. It was held that the proper test to apply was whether
an ordinarily careful and reasonable 15-year-old would have
 foreseen that the game carried a risk of injury. On the facts, the
injury was held to be not reasonably foreseeable by such a child
—the game was common and the girls had never been warned
that it could be dangerous.

Defendants acting in an emergency

5–018 Where the defendant is forced to act quickly “in the heat of the
moment”, the standard of care is relaxed to take account of the
exigencies of the situation. This was established long ago in the
case of Jones v Boyce48 (a case concerned with contributory
negligence). Here, the issue was whether a passenger on a coach
had acted reasonably when, thinking that the coach was about to
overturn, he jumped off in order to save himself, breaking his
leg. The jury found in the man’s favour, Lord Ellenborough CJ
having directed them that the man was not guilty of negligence
just because he had selected the more perilous of two
alternatives with which he was confronted in an emergency. It
made no difference that, with the benefit of hindsight, it was
obvious the man had made the wrong decision. This position has
been re-iterated in the Social Action, Responsibility and
Heroism Act 2015 (SARAH), discussed at para.5–013.
A more modern example of the principle is the case of Ng
Chun Pui v Lee Chuen Tat.49 Here, the defendant was driving a
coach on a dual carriageway when another vehicle cut in front of
him without warning, forcing him to brake suddenly. The coach
swerved and skidded across the central reservation, where it
collided with a bus travelling in the opposite direction, injuring
the plaintiffs, who were passengers on the bus. The Privy
Council held that the driver’s actions had been reasonable, given
the emergency with which he was faced.
It appears from the decision in Marshall v Osmond50 that
where the police are chasing a suspected criminal, this may
count as an emergency situation. Here, the plaintiff, a suspect,
was injured when a police car drew up alongside the car from
which he was attempting to run away. It was held that in these
 circumstances the actions of the police could not be judged by
the same standard of care that would apply had there been time
for reflection. This decision, however, should be compared with
Rigby v Chief Constable of Northamptonshire.51 Here, the police
were held liable for fire damage to the plaintiff’s shop when they
fired a canister of CS gas into the shop to flush out a dangerous
psychopath. The nature of the situation did not justify the
police’s failure to ensure that fire-fighting equipment was at
hand.

Participants in sport

5–019 It is clear that those engaged in sport owe a duty of care both to
other competitors in the sporting event and to spectators. The
courts have recognised, however, that a participant in sporting
activity is in a similar position to a person faced with an
emergency, in the sense that he or she may have to take a
decision in the heat of the moment. The required standard of
care takes account of this. As summarised by Sir John
Donaldson MR in Condon v Basi:

“You are under a duty to take all

reasonable care taking account of the
circumstances in which you are placed,
which, in a game of football, are quite
different from those which affect you when
you are going for a walk in the
countryside.”52

In the well-known case of Wooldridge v Sumner,53 the Court

of Appeal laid down a test for the sporting standard of care that
meant that a participant in sport would only be liable
to spectators if he or she had “acted in reckless disregard of the
spectators’ safety”. This test, however, was subjected to severe
academic criticism on the basis that the need to show
“recklessness” seemed too favourable to the defendant. The
courts appear to have responded to this criticism. Thus, in Wilks
v Cheltenham Cycle Club,54 the Court of Appeal applied the test
suggested by Professor Goodhart in his commentary on
Wooldridge, namely that there was negligence if injury was
caused “by an error of judgment that a reasonable competitor,
being the reasonable man of the sporting world, would not have
made”.55 Applying this test, it was held that the defendant, a
participant in a motorcycle scramble, was not negligent when his
bike left the course and hit a spectator. The standard of care
would be adjusted to take account of the fact that a competitor
could reasonably be expected to “go all out to win”, even if this
meant exposing others to some risk. This did not mean,
however, that it was acceptable for a competitor to expose others
to danger by conduct that was “foolhardy”.56
It is clear that the mere fact that a competitor has broken the
rules of a game will not, of itself, provide a conclusive
indication of negligence. This point is illustrated by the decision
of the Court of Appeal in Caldwell v Maguire.57 The claimant, a
professional jockey, was injured when the defendants, two other
jockeys, rode in such a way as to cause an accident. The
defendants’ conduct was investigated by the Jockey Club and
found to amount to “careless riding” in breach of its rules.
However, the Court of Appeal drew a distinction between a
finding of carelessness by a regulatory body and a finding of
negligence by a court of law. In the circumstances, it was not
possible to characterise the defendants’ momentary carelessness
as negligence. Nevertheless, we can say that where the
sportsman has acted recklessly and broken the rules of the game,
the court is more likely to find him to be negligent.
Where referees put competitors at risk by failing to enforce
the rules of the game, they may be liable where this causes
injury to the competitors. Thus, in Vowles v Evans58 a rugby
 referee was held liable when a player was injured by a
scrummage collapsing in circumstances where the referee should
not have allowed the game to continue with contestable
scrummages after the substitution of an untrained player. The
court was careful to point out, however, that the threshold of
referee liability should be a high one, and that the standard of
care expected of referees depended on all the circumstances of
the case. One of those circumstances was the nature of the game.
Thus, in a fast-moving game, a referee could not be expected to
avoid some oversight and error of judgment when supervising
the game.

The Professional Standard of

Care

5–020 In this section, we consider the standard of care demanded of

people who, by following a particular trade or profession, hold
themselves out as having special skills. In relation to such
people, the question of breach of duty is decided by applying the
so-called “Bolam test”.

The Bolam test

5–021 The case of Bolam v Friern Hospital Management Committee59
(the facts of which we shall discuss later) confirmed the
application of two important principles, which can be
summarised as follows:
▮ Where the defendant purports to have a special skill, the
defendant’s conduct is judged according to the standard
 of a reasonable person having the skill the defendant
claims to possess. It is not judged by the standard of the
reasonable lay person.
▮ The law will not regard a professional defendant as
having fallen below the required standard of care if it is
shown that the defendant’s conduct is regarded as
proper by one responsible body of professional opinion.
This is the case even if some other members of the
defendant’s profession may think the conduct is
negligent.

It is convenient to explore each principle in turn.

◗ The standard of the “reasonable skilled person”

5–022 This first element of the “Bolam test” is straightforward. The
obvious point here is that the law expects a member of a trade or
profession to live up to the standard of an ordinary skilled
member of the trade or profession in question. As McNair J put
it in Bolam:

“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 the 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.”60

Accordingly, the law will not judge a surgeon performing an

operation by the standard of a reasonable lay person performing
that operation (to do so would be absurd) but by the standard of
the “reasonable surgeon”. Although most cases of interest in this
area concern allegations of medical negligence, it should be
remembered that the relevant principles apply equally in other
contexts. Thus, a lawyer is judged by the standard of a
“reasonable lawyer”, an accountant by the standard of a
“reasonable accountant”, and so on. Similarly, in Gates v
McKenna,61 Paul McKenna, the well-known stage hypnotist,
was judged by the standard of a “reasonably careful exponent of
stage hypnotism”.
It is important to note that the relevant issue is not whether
the defendant is in fact a member of a trade or profession, but
whether, in all the circumstances, by undertaking a particular
task, the defendant has held himself or herself out as possessing
a trade or professional skill. There are cases, however, where the
fact that the defendant is not a member of a relevant trade or
profession has been seen as important in determining whether
the defendant has held himself or herself out as possessing a
particular level of skill. In Philips v William Whiteley Ltd,62 for
example, it was held that the plaintiff, who had had her ears
pierced by the defendants, who were jewellers, could not expect
them to exercise the same degree of care and skill that would be
exercised by a qualified surgeon. Similarly, in Wells v Cooper,63
where the plaintiff suffered injury when a door handle came off
in his hand, it was held that, although householders who decide
to carry out work on their property involving carpentry skills
must achieve the standards of a reasonably competent amateur
carpenter, the safety of their work was not to be judged by
reference to the contractual obligations that might be owed by a
professional carpenter working for reward, since this would be
too high a standard.64
In Wilsher v Essex AHA65 it was confirmed that the standard
of care to be expected from a professionally qualified defendant
is to be determined by considering the nature of his or her “post”
and the tasks which it involves. The professional standard of
care is objective in the sense that the same standard of care will
be required of all professionals holding the same “post”. In
Wilsher, therefore, where a number of medical professionals
professed expertise in the care of premature babies, the Court of
Appeal held that each of them could be expected to exercise a
degree of care and skill appropriate to the tasks usually
undertaken by a person holding his or her post. The defendant’s
“post” was to be distinguished from the defendant’s “rank” or
“status”. This meant that, where a junior doctor was filling a
“post” involving the performance of tasks more usually
undertaken by someone more senior, the junior doctor would be
judged by exactly the same standards as a senior doctor. Dealing
with the argument that this placed too great a burden on young
doctors, Mustill LJ commented:

“To my mind, it would be a false step to

subordinate the legitimate expectation of
the patient that he will receive from each
person concerned with his care a degree of
skill appropriate to the task which he
undertakes, to an understandable wish to
minimise the psychological and financial
pressures on hard-pressed young
doctors.”66

The apparent harshness of this rule, however, is mitigated to

some extent by the Court of Appeal’s assertion in Wilsher that
where an inexperienced doctor is called upon to perform a task
in which he or she lacks expertise, it is sufficient for the doctor
to discharge the duty of care to the patient if he or she seeks and
acts on the advice of a more senior colleague.
In this context, it should also be noted that a doctor or other
professional may, in certain circumstances, discharge the duty of
care by simply refusing to act. In certain professions, the
 position is straightforward. Barristers, for example, have a
professional duty to decline cases that are beyond their
competence. In the context of the medical profession, however,
the position is more complicated. Junior doctors on duty in
casualty departments, for example, cannot, without breaching
their duty of care, decline to treat patients whose conditions call
for expertise they do not possess. On the other hand, it is clear
that a general practitioner, unskilled in open heart surgery, can
and should decline to perform that task.

◗ The relevance of common practice and

professional opinion
5–023 The second element of the “Bolam test”—namely that a
professional will escape liability if his or her conduct accords
with one view of responsible common practice—has proved
controversial. Before considering the nature of this controversy,
it is useful to explore the facts of Bolam, which neatly illustrate
the problem which this part of the test was designed to solve.
Mr Bolam was a mental patient suffering from acute
depression. One of the accepted forms of treatment for this
condition was (and still is today) to administer electro-
convulsive therapy (ECT). The treatment involves the patient
being given a brief but severe electric shock. An unfortunate
side effect, however, is that the shock causes muscle spasms.
These can sometimes be of such magnitude as to break the
patient’s bones. Mr Bolam suffered a fractured pelvis during a
bout of ECT treatment. He contended that the doctor who
administered the treatment had been negligent in a number of
respects. First, he argued that he should have been given relaxant
drugs prior to the treatment. Secondly, he argued that a
restraining sheet should have been used to hold him down whilst
the shock was being given. His third argument related not to the
way in which the treatment was administered, but to the doctor’s
failure to warn him of the danger of broken bones so that he
could decide for himself whether or not to undergo the
treatment. (The issue of whether doctors have a duty to disclose
the risks of treatment is considered in more detail later.)
At the trial, the expert evidence given showed a marked
difference of opinion within the medical profession as to the
correct procedure for administering ECT. It became clear that
some doctors favoured relaxant drugs, whilst others preferred
not to use them because they could depress the respiratory
system, causing the patient to stop breathing. Whilst some
doctors favoured restraining sheets, others preferred to leave the
limbs free during the treatment (as the doctor in this case had
done), arguing that if bones were trapped under a sheet, they
were, in fact, more likely to break.
In summing up the case for the jury (the case was decided
when juries were used in negligence trials), McNair J pointed
out that ECT was a “progressive science”, on which responsible
medical opinion differed. His Lordship stated that, according to
the law, a doctor will not be liable in 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”.
He went on to say that a professional person would not be liable
“merely because there is a body of opinion which would take a
contrary view”.67 Unsurprisingly, in the light of this direction,
the jury in Bolam returned a verdict in favour of the defendant
doctor.
The controversial aspect of the approach taken in Bolam,
which has been followed in subsequent cases, is that, to a great
extent, it allows the professions to be “self-regulating”—if the
conduct required of a doctor is to be determined, not by a judge,
but by evidence of what some other doctors do, then it can be
argued that doctors are not truly answerable to their patients
through the courts, because they are allowed to set their own
standards of care.68 We shall see, however, that there are limits
to the extent to which doctors and other professionals can place
themselves “above the law” in this way. These limits were re-
affirmed by the House of Lords in the important case of Bolitho
v City and Hackney Health Authority discussed below.69
 It is important to recognise that the “Bolam test” means that
a judge is not normally permitted to substitute his or her own
views for the views of the defendant’s responsible expert
witnesses. In other words, even though a judge, as a lay person
in medical (or other professional) terms, may strongly prefer a
form of practice advocated by the claimant’s expert witnesses,
and may instinctively feel that the defendant’s way of doing
things was wrong, he or she must resist the temptation to choose
between two competing “responsible” schools of professional
thought.
This point is clearly illustrated by Maynard v West Midlands
Health Authority.70 Here, the defendants carried out a diagnostic
procedure, in the nature of a biopsy, on the plaintiff’s throat. The
procedure was performed with all due care and skill, but it
carried a small risk of damage to the vocal chords. This risk
materialised, and the plaintiff brought a negligence action
alleging that the biopsy had been unnecessary. The defendants
contended that they
had acted properly in deciding to perform the procedure,
because it was required in order to exclude the possibility (albeit
remote) that the plaintiff was suffering from Hodgkin’s Disease.
The trial judge preferred the view of the plaintiff’s experts—
who would have waited for the results of blood tests to come
through instead of carrying out a biopsy—and held the
defendants liable. His Lordship’s judgment, however, was
overruled by the Court of Appeal and the House of Lords. Lord
Scarman said:

“a judge’s ‘preference’ for one body of

distinguished professional opinion to
another also professionally distinguished is
not sufficient to establish negligence in a
practitioner.”
 The practical result of Lord Scarman’s approach, then, is that it
is extremely difficult for a claimant to prove professional
negligence—he or she must effectively show that no responsible
body of professional opinion would have supported what the
defendant did. Whilst showing this may be difficult, however, it
is not always impossible. This is because the cases have
repeatedly made it clear that a judge is only obliged to accept the
views of the defendant’s experts if those views are
“responsible”.

◗ The limits of the “Bolam principle”

5–024 As we have already noted, the fact that the defendant has
conformed with common practice cannot be regarded as
conclusive evidence that he or she has met the standard of care,
because the common practice in question may itself be
negligent. Thus, in Edward Wong Finance Co Ltd v Johnson,
Stokes & Master,71 the Privy Council held that a conveyancing
practice which involved a risk to the client was negligent,
despite its widespread adoption by the legal profession in Hong
Kong. The courts clearly have a part to play in setting standards
of professional conduct. Were it otherwise, certain professionals
might persist with outdated or clearly indefensible practices, and
escape justice by saying that are only doing what some other
professionals do. This would amount to an abuse of their
position in society.
In Bolam itself, McNair J made it clear that “mere personal
belief that a particular technique is best is no defence unless that
belief is based on reasonable grounds”.72 His Lordship went on
to explain that it had long been the law, for example, that a
doctor who obstinately refused to use anaesthetics or antiseptics
could not escape liability simply by calling as witnesses
colleagues who took a similarly stubborn and irrational view.
More recently, in Bolitho v City and Hackney Health
Authority,73 Lord Browne-Wilkinson, delivering the opinion of a
unanimous
House of Lords, took the opportunity to clarify the
circumstances in which a court was entitled to reject the
professional opinions of the defendant’s experts.
Bolitho is a rather complicated case, because it involves
issues of causation as well as issues of breach of duty. It is
further considered in Ch.6. For present purposes, it is sufficient
to note that the case concerned a two-year-old boy who was
admitted to hospital suffering from breathing difficulties. In the
events which happened, the boy suffered cardiac arrest leading
to brain damage, and his mother brought a negligence action on
his behalf. One of the questions for the court was whether the
doctor in charge should have intubated the child (put a tube
down his throat to assist his breathing) or whether, given the
boy’s symptoms, she would have been justified in taking no such
action. At the trial, the judge heard evidence from eight different
experts. Five of them (called for the plaintiff) said that, in the
circumstances, any competent doctor should have intubated the
boy. Three of them (called for the defendant doctor) said that
intubation would not have been appropriate and referred to the
fact that intubation carried a very small risk of injuring the
child’s throat. The trial judge held that the doctor was not liable.
Although, having listened to the experts, as a lay person he felt
persuaded that intubation would have been the right course of
action, he felt bound to hold that the defendant escaped liability
because her failure to intubate was endorsed by one responsible
body of medical opinion. To hold otherwise would amount to
substituting his own views for the views of the defendant’s
expert witnesses, and the “Bolam test” did not allow him to do
this.
The House of Lords confirmed the judge’s approach as
correct. What is important to note, however, is that Lord
Browne-Wilkinson made it clear that in some circumstances a
judge would be entitled to reject the opinions of professional
experts, if he or she felt that their opinions had no logical basis.
Thus, where (as in this case) the expert evidence was concerned
with the question of weighing up the risks presented by different
forms of treatment, the experts, in order to have their evidence
accepted, had to show that they had directed their minds to this
question and had reached a conclusion that was logically
defensible. The Court of Appeal reiterated recently, however,
that, in all ordinary circumstances, it would not be appropriate
for a judge to hold that a particular clinical decision had no
logical basis or was unreasonable without the support of expert
evidence.74
On one view, it can be argued that Lord Browne-Wilkinson’s
approach entails a slight modification of the “Bolam test”. That
is to say, whilst McNair J had made it clear in Bolam that expert
evidence could be rejected if the person giving it was not
“responsible”, Bolitho now makes it clear that expert evidence,
even when given by a responsible and respected expert, can be
rejected if the evidence itself is not “responsible”, in the sense
that it does not withstand logical analysis. The distinction
between the credibility of the evidence and the credibility of the
person giving it is, of course, an extremely fine one. This point
did not escape Lord Browne-Wilkinson, who thought that, in
most cases, the fact that an opinion was held by a responsible
medical expert would, in itself, demonstrate that the opinion was
a reasonable one. His Lordship was careful to point out that, this
being the case, it would be only in
very rare cases that a judge would be justified in rejecting
professional expert opinion as unreasonable.75
Lord Browne-Wilkinson went on to conclude that the case
before him was not, in fact, one of these rare cases. On the facts
of Bolitho, the trial judge had been right in accepting the
defendant’s expert evidence, because the experts had given a
logical justification for their opinion that intubating the child
was not appropriate—namely that intubation involved a small
risk of injury. Accordingly, because the defendant doctor’s
failure to intubate had been endorsed by one body of reasonable
medical thought, she escaped liability.
It is clear from Bolitho, then, that a doctor cannot escape
liability for his or her conduct unless that conduct has a rational
justification.76 In particular, one thorny problem remains to be
directly addressed by the courts: suppose the defendant’s experts
 say that he or she was justified in withholding a very expensive
drug from a patient, on the basis that it is common medical
practice to have regard to budgetary constraints in administering
treatment. Would a judge be entitled to reject this view because,
in the words of Lord Browne-Wilkinson, it “does not withstand
logical analysis”?77

Disclosure of the risks of treatment

5–025 Here, we consider the extent to which the standard of care

expected of doctors requires them to disclose to a patient the
risks of treatment, so that the patient can make an informed
choice about whether to consent to that treatment. (It will be
recalled that this was one of the issues in Bolam.) Where the
treatment in question involves physical contact (as opposed to
taking a drug orally, for example), absence of consent on the part
of the patient may render the doctor liable in the tort of battery.
This issue is discussed in Ch.11. Here, we are concerned with
liability in negligence.
Until recently, the leading case was Sidaway v Bethlem
Royal Hospital Governors.78 Here, the plaintiff had not been
warned by her surgeon that there was a very small risk (around
1%) of damage being done to her spine during an operation on
her back. The plaintiff consented to the operation and it was
performed with all due care and skill, but the risk of injury
material-ised, leaving the plaintiff disabled. She claimed that if
she known about the risk, she would not have agreed to the
operation.
The House of Lords (Lord Scarman dissenting) held that the
surgeon was not liable in negligence for failing to tell her about
the risk. The majority were of the view that the Bolam test
applied in this context. If, therefore, the surgeon had conformed
with a responsible body of medical opinion
which would not have disclosed the risk, he escaped liability.
Only if disclosure of a particular risk was so obviously
necessary that no reasonably prudent medical man would fail to
 make it would liability arise. In Sidaway, then, the majority
declined to adopt a strict doctrine of “informed consent” and
adopted a paternalistic approach to risk disclosure. In the words
of Lord Bridge:

“The doctor cannot set out to educate the

patient to his own standard of medical
knowledge of all the relevant factors
involved. He may take the view, certainly
with some patients, that the very fact of his
volunteering, without being asked,
information of some remote risk involved in
the treatment proposed, even though he
describes it as remote, may lead to that risk
assuming an undue significance in the
patient’s calculations.”79

Lord Scarman, however, took a different view. His Lordship

thought that the question of disclosure should be decided by the
courts, using an objective test whereby doctors should be placed
under a duty to disclose all “material” risks to the patient.
5–026 In Sidaway Mrs Sidaway had not specifically asked the surgeon
about the risks of the operation. Lord Bridge suggested,
however, that in a case where a doctor was questioned
specifically by the patient, the doctor would be obliged to
answer “both truthfully and as fully as the questioner
requires”.80 This principle was applied in Chester v Afshar.81
The claimant, who was considering an operation on her spine,
specifically asked her consultant about the risks inherent in the
operation. The defendant was held to be in breach of duty when,
instead of explaining that the operation carried a small but
inherent risk, he merely gave the light-hearted reply: “Well, I
have never crippled anybody yet”. Full risk disclosure thus
required a very assertive patient, prepared, when ill, to demand
full disclosure from his or her doctor.
The issue of risk disclosure was re-examined in 2015 by the
Supreme Court in Montgomery v Lanarkshire Health Board.82 In
this important decision, a consultant obstetrician had failed to
advise the pregnant Mrs Montgomery of a 9–10% risk of injury
to her baby if she chose a natural birth instead of a caesarean
section. The baby sadly was born with severe disabilities as a
result of this injury occurring. A unanimous seven member
Supreme Court accepted that the Sidaway approach, relying on
Bolam, could no longer be considered satisfactory. An adult
person of sound mind was entitled to decide which, if any, of the
available forms of treatment
to undergo, and her consent had to be obtained before treatment
interfering with her bodily integrity was undertaken. Doctors
were under a duty to take reasonable care to ensure that patients
were aware of any material risks involved in any recommended
treatment, and of any reasonable alternative or variant
treatments.83 Material risks are those to which, in the
circumstances of the particular case, a reasonable person in the
patient’s position would be likely to attach significance OR
those to which the doctor is or should reasonably be aware that
this particular patient would be likely to attach significance.84
This is not simply a question of percentages, but a matter of
assessing the options open to the patient and the likely impact of
the risk manifesting itself. On this basis, the doctor had been
negligent in failing to tell Mrs Montgomery of the risk of injury
and to discuss the alternative of delivery by caesarean section. In
a later case, the court confirmed that Montgomery applies to
post-treatment discussions. It is the patient’s right to be informed
of the outcome of the treatment, the prognosis, and what the
follow-up care and treatment options are.85
Montgomery marks a firm step, therefore, from the ideology
of “doctor knows best” to that of respecting the autonomy of the
patient (as seen earlier in Chester). As the Supreme Court noted,
this places the UK court in line with other major Commonwealth
jurisdictions. The court thus supported an “informed choice”
 model to disclosure of risks which treats patients as persons
holding rights rather than as passive recipients of care by the
medical profession. The new rule is, however, subject to two
exceptions which are likely to be interpreted narrowly86:
▮ The therapeutic exception: where the doctor reasonably
believes that the disclosure of information would be
seriously detrimental to the patient’s health; and
▮ The necessity exception: where the treatment must be
provided before there is any practical possibility of
disclosure e.g. the patient is unconscious.

Policy issues in medical negligence cases

5–027 It is possible to discern a number of policy considerations

underlying the decisions we have examined in this section. The
courts have traditionally been concerned that their decisions
should not encourage the practice of “defensive medicine”, i.e.
medical care which involves a “belt and braces” approach to
treating patients, motivated by the desire to avoid negligence
liability.87 There is some concern in the US that doctors are
adopting this sort of approach,
which is not always in the best interests of the patient, subjecting
them, for example, to unnecessary tests and procedures. In
Whitehouse v Jordan,88 Lord Denning MR, in the Court of
Appeal, warned of the dangers of following the US example.
The case involved an allegation of negligence against a senior
registrar who, it was argued, had wrongly persisted in delivering
a baby by forceps when a Caesarean section was called for. In
holding the defendant not liable, Lord Denning MR expressed
the view that if too high a standard of care were demanded of
doctors, experienced practitioners might refuse to treat certain
patients, and young people might be deterred from entering the
medical profession because of the high insurance premiums that
would be required to meet professional negligence claims.
 The practice of “defensive medicine” would therefore be
expensive, because it requires the administration of
“precautionary” tests and treatments to exclude remote risks.
The courts’ attempts to contain the scope of liability for medical
negligence may reflect concern about the proper allocation of
scarce NHS resources. The courts seem at times anxious also not
to encourage a “culture of litigation” in medical cases, because
of the harm that unjustified allegations of negligence can do to a
defendant’s reputation.89
It is noticeable, however, that the Supreme Court in
Montgomery adopted a very different approach. Patients were
described, perhaps controversially, as “consumers exercising
choices”90 with every right to be informed of the risks associated
with that choice. Rather than giving rise to defensive practices,
the Supreme Court argued that encouraging patients to take
responsibility for their choices might be less likely to encourage
recriminations and litigation in the event of an adverse
outcome.91 It took the view that:

“. . . a departure from the Bolam test will

reduce the predictability of the outcome of
litigation, given the difficulty of overcoming
that test in contested proceedings. It
appears to us however that a degree of
unpredictability can be tolerated as the
consequence of protecting patients from
exposure to risks of injury which they
would otherwise have chosen to avoid. The
more fundamental response to such points,
however, is that respect for the dignity of
patients requires no less.”92
 It remains to be seen whether this approach, which deals with
negligence through the perspective of patient’s rights, is applied
more generally in medical negligence cases.93

Proof of Breach

5–028 Although the claimant bears the burden of proving breach of

duty, there are certain circumstances in which special rules will
assist in discharging this burden.

Civil Evidence Act 1968

5–029 Civil Evidence Act 1968 s.11(1) provides that, in a civil trial,
proof that a person has been convicted of a criminal offence
shall be taken as proof that he or she committed the offence,
unless the contrary is proved.94 What this means in the context
of a negligence trial is that, if the claimant shows that the
defendant has been convicted of an offence arising out of the
same facts as those in issue at the trial, the burden of proof is
reversed, so that the defendant will have to disprove negligence.
Thus, in Wauchope v Mordecai,95 the plaintiff was injured by
being knocked off his bicycle when the defendant suddenly
opened the door of a parked car. The defendant had been
convicted of an offence arising out of the incident. The Court of
Appeal held that the effect of s.11 of the 1968 Act was to shift
the burden of proof to the defendant. Since the defendant had
failed to prove that he had not been negligent, the trial judge had
been wrong to dismiss the plaintiff’s case on a finding that the
plaintiff had not proved negligence.
 Res ipsa loquitur
5–030 The maxim res ipsa loquitur means “the thing speaks for itself”.
Where the maxim applies, the court is prepared to draw an
inference that the defendant has been negligent without
requiring the claimant to bring evidence about the precise way in
which the negligence occurred. As Toulson LJ commented
recently, it is a “rule of evidence based on fairness and common
sense”.96 This idea originates from the judgment of Erle CJ in
Scott v London and St Katherine Docks Co,97 a case which
provides a good example of when the maxim will apply.
The plaintiff was passing the defendants’ warehouse when
six bags of sugar, which were being hoisted by the defendant’s
crane, fell on him. The plaintiff could not prove how and why
this happened—the only thing he could prove was that the bags
fell and caused him injury. It was held, however, that these facts
were sufficient to give rise to an inference of negligence. Bags
of sugar do not usually fall from a crane unless someone has
been negligent, so the fact
of negligence “spoke for itself”. Since the defendants had failed
to provide an innocent explanation of how the incident had
occurred, they were held liable.

◗ When does the maxim apply?

5–031 There are three conditions which must be satisfied before res
ipsa loquitur can apply:

◗ (1) The occurrence must be one that will not

normally happen
5–032 This requirement was clearly met on the facts of Scott v London
and St Katherine Docks—there was no obvious alternative
explanation why the bags fell off the crane. Similarly, in Byrne v
Boodle98 the maxim was held to apply when a barrel of flour fell
on the plaintiff as he was passing underneath the defendant’s
 window. The cases in which the requirement has been met are
many and varied. In Chapronière v Mason,99 for example, the
court was prepared to infer negligence when a stone was found
in a bun, and in Ward v Tesco Stores Ltd,100 negligence was
inferred when the plaintiff slipped on a spillage of yoghurt on a
supermarket floor, which the defendants had failed to clean up.
As the reliability of machines has improved, the courts have
become increasingly willing to conclude that accidents involving
machines are more probably due to the negligence of their
operators than to mechanical failure. Thus, the courts have been
willing to invoke the maxim in road traffic cases where cars
skid,101 or veer on to the pavement102 or into the opposite
carriageway.103 In a medical context, res ipsa loquitur has been
applied, for example, to a case where a surgeon left a swab
inside a patient’s body.104 It has also been applied in the context
of failed treatment. Thus, in Cassidy v Ministry of Health,105 as
Denning LJ put it, the plaintiff was entitled to say:

“I went into hospital to be cured of two stiff

fingers. I have come out with four stiff
fingers and my hand is useless. That should
not happen if due care had been used.
Explain it if you can.”

◗ (2) The defendant must have control of the thing

which causes him harm
5–033 This requirement can be illustrated by comparing two cases
involving railway accidents. In Gee v Metropolitan Railway,106
the plaintiff was injured when he fell out of an underground
train, having leaned against a door. Because the train had only
just left the station, it could be inferred that the defendants, who
clearly had a duty to see that the door was closed before the train
 departed, had been in control of the door at the time it flew open.
By contrast, in Easson v London and North Eastern Ry Co,107
where a four-year-old boy fell through an unsecured train door,
it was held that res ipsa loquitur did not apply. At the time of the
accident, the train was seven miles beyond its last stopping
place. In these circumstances, although the accident might have
been due to the defendants’ negligence, it was not appropriate to
infer that it was, because the door might have been opened by a
passenger, rather than by one of the defendants’ employees.

◗ (3) The cause of the occurrence must be unknown

to the claimant
5–034 This requirement is not of any great practical significance. All it
means is that, where the facts are sufficiently known, there is no
need to invoke the maxim because the claimant can prove what
actually happened. Thus, in Bolton v Stone,108 the maxim was
held to have no application, because it was obvious that the
cricket ball must have been hit over the fence by the batsman. In
Barkway v South Wales Transport Co Ltd,109 where a burst tyre
on a bus caused an accident, it was held that the maxim should
not be applied. There was some evidence that the bus company
might have prevented the accident if it had told its drivers to
report incidents involving blown tyres, and it had failed to do so.
Accordingly, the plaintiff was required to investigate this issue,
rather than rely on res ipsa loquitur.

◗ What is the effect of the maxim?

5–035 There has been some debate about whether the effect of res ipsa
loquitur is to reverse the legal burden of proof, or whether it
places only an evidential burden on the defendant to rebut the
inference of negligence.110 In most cases, the point is of little
practical importance, but in one circumstance it may be
significant. Suppose that, after hearing the defendant’s
explanation, the judge finds that the balance of probabilities is
equal as between a negligent and an
innocent explanation of the occurrence in question. Who should
win the case? If the effect of the maxim is to reverse the legal
burden of proof, the claimant should win, because the defendant
has not proved, on the balance of probabilities, that he or she has
not been negligent. On the other hand, if the burden of proof
stays with the claimant, the defendant should win, unless the
claimant can adduce further evidence to tip the scales in his or
her favour.
In Colvilles Ltd v Devine,111 Lord Donovan in the House of
Lords said that the maxim had no effect on the legal burden of
proof. However, a year later, the House of Lords appeared to
take a different approach in the case of Henderson v Henry E
Jenkins & Sons.112 Here, the plaintiff’s husband was killed when
the brakes of the defendants’ lorry failed. The failure was caused
by corrosion of a brake fluid pipe. In answer to the plaintiff’s
claim of res ipsa loquitur, the defendants gave evidence that they
had maintained the lorry in accordance with common practice.
They had had the lorry regularly inspected, but the pipe in
question could only be fully inspected by removing it from the
lorry, and this was not recommended by the manufacturers until
the lorry had done a certain mileage. In spite of this, the House
of Lords held that the defendants had failed to rebut the
inference of negligence—they should have gone on to show that
there was nothing in the history of the lorry that would have
caused abnormal corrosion and required a special inspection.
Thus, although the point was not entirely clear, their Lordships
appeared to say that it was for the defendants to prove that they
were not negligent. As Lord Pearson put it, the defendants lost
the case because “their answer was incomplete”.113
More recently, however, in Ng Chun Pui v Lee Chuen Tat,114
the Privy Council has reasserted that in res ipsa loquitur cases
the burden of proof does not switch to the defendant. Here, a
coach veered across a central reservation into the opposite
carriageway, where it collided with oncoming traffic. This fact
alone would have justified a finding of negligence, so the
 plaintiff called no evidence. The defendants, however, explained
that a car had suddenly cut across the driver’s path, causing him
to brake suddenly and skid. In the light of this explanation, the
Privy Council held that there could be no inference of
negligence, because the driver’s actions in such an emergency
had not been negligent. What is important is that, rather than
saying that the defendants had discharged the burden of proof,
their Lordships said, in effect, that the explanation had tilted the
balance of probabilities against the plaintiff. The burden of proof
remained with the plaintiff, who was entitled to bring further
evidence to show that the defendants had been negligent. But
since he could not do so, he lost the case. Lord Griffiths,
delivering the opinion of the Privy Council, said that it was
misleading to talk of the burden of proof shifting to the
defendant in a res ipsa loquitur situation. The burden of proving
negligence rests throughout the case on the plaintiff. Although
Ng Chun Pui v Lee Chuen Tat is a Privy Council decision, and
therefore not technically binding, it is probable that this
approach will be followed in future cases.115

Breach of duty: conclusion

5–036 We have seen that breach of duty is in most respects a relatively

straightforward element of the tort of negligence, but one where
policy nevertheless plays an important part in the courts’
decisions. In Chs 7 and 8, we shall explore breach of duty again
in the specific contexts of employers’ liability and occupiers’
liability. First, however, it is appropriate to examine two further
elements of the tort of negligence, namely causation and
remoteness.

1 The focus on the “reasonable man” has received criticism from feminist
critics, who argue that it embodies a male point of view or, more generally,
permits an unrepresentative judiciary to set standards and that more is
needed to achieve a truly objective standard: see, e.g. M. Mayo, Rethinking
the Reasonable Person (OUP, 2003) and J. Miola, “The Standard of Care in
Medical Negligence—Still Reasonably Troublesome?” in J. Richardson and
E. Rackley, Feminist Perspectives on Tort Law (Routledge, 2012). See also
J. Gardner, “The many faces of the reasonable person” (2015) 131 L.Q.R.
563.

2 (1856) 11 Ex. 781 at 784.

3 [1943] 2 A.C. 448.

4 [1943] 2 A.C. 448 at 457. See Dunnage v Randall [2015] EWCA Civ
673; [2016] Q.B. 639: objective test applied regardless of physical or
mental health problems. Only defendants whose medical incapacity had the
effect of entirely eliminating any fault or responsibility could be excused.
As Arden LJ commented at [153], “The objective standard of care reflects
the policy of the law. It is not a question of the law discriminating unfairly
against people with physical or mental illness. The law takes the view as a
matter of policy that everyone should owe the same duty of care for the
protection of innocent victims”.

5 [1971] 2 Q.B. 691.

6 [1971] 2 Q.B. 691 at 707.

7 per Greer LJ in Hall v Brooklands Auto Racing Club [1933] 1 K.B. 205 at
224.

8 per Lord Steyn in White v Chief Constable of South Yorkshire [1999] 2

A.C. 455 at 495.

9 Report of the Royal Commission on Civil Liability and Compensation for

Personal Injury, Vol.1 Ch.18 para.983.

10 [1998] 1 W.L.R. 1263. Compare C (A Child) v Burcome [2003] C.L.Y.

3030 (liability imposed where a 70-year-old driver with a heart condition
had been advised not to engage in strenuous activity, but continued to drive
after pulling in to change a wheel).

11 [1980] 1 All E.R. 7.

12 [2015] EWCA Civ 673; [2016] Q.B. 639.

13 e.g. actions done in a state of automatism or while sleepwalking.

14 [2015] EWCA Civ 673 at [131] per Vos LJ.

15 [1954] 2 Q.B. 66.

16 [1954] 2 Q.B. 66 at 84.

17 [1951] A.C. 850.

18 [1951] A.C. 850 at 863. See also Whippey v Jones [2009] EWCA Civ
452 per Aikens LJ at [16] (standard of care of dog owner).

19 [1951] A.C. 850 at 869.

20 [1961] 1 W.L.R. 1434. Bolton v Stone was applied, e.g. in Zucchi v

Waitrose Ltd 2000 WL 345171 (30 March 2000) where the risk of
customers being injured by a collapsing stack of plastic bottles was so small
that the store had acted reasonably in disregarding it.

21 [1965] A.C. 778.

22 Walker v Northumberland CC [1995] 1 All E.R. 737.

23 [1951] A.C. 367.

24 [1953] A.C. 643.

25 Overseas Tankship (UK) v Miller Steamship Co Pty Ltd, The Wagon

Mound (No.2) [1967] 1 A.C. 617.

26 [1967] 1 A.C. 617 at 642.

27 [1992] 1 V.R. 19.

28 See Goldman v Hargrave [1967] 1 A.C. 645 and Leakey v National

Trust [1980] Q.B. 485, discussed in Ch.10.
29 [1946] 2 All E.R. 333.

30 [1946] 2 All E.R. 333 at 336. See also Humphrey v Aegis Defence
Services Ltd [2016] EWCA Civ 11; [2017] 2 All E.R. 235 (judge entitled to
take into account the scarcity of Iraqis willing to act as interpreters, the
importance of their role and the need for them to work as part of a team
with the security contractors when determining the nature and scope of any
duty of care owed to its employees).

31 [1954] 1 W.L.R. 835.

32 [1938] 2 All E.R. 341. See also Nelson v Chief Constable of Cumbria
[2000] C.L.Y. 4217.

33 [2010] EWCA Civ 1476 at [34].

34 See Report of the Better Regulation Task Force (2004) and report of the
Constitutional Affairs Committee (2006). For comment on the
Compensation Act 2006, see R. Herbert, “The Compensation Act 2006”
[2006] 4 J.P.I. Law 337; K. Williams, “Politics, the media and refining the
notion of fault: Section 1 of the Compensation Act 2006” [2006] 4 J.P.I.
Law 347.

35 [2003] UKHL 47; [2004] 1 A.C. 46.

36 The reference in the Act to “breach of statutory duty” was thought

necessary to cover claims under the Occupiers’ Liability Acts (see Ch.8).
However, the Act affects only statutory duties which involve a standard of
care. It has no application where liability for breach is strict (see Ch.7).

37 Note that this Act only extends to England and Wales: s.5(1).

38 This key phrase is not defined.

39 The phrase “acting heroically” is also not defined. It will be for the
courts to determine the scope of this concept.

40 See R. Mulheron, “Legislating dangerously: Bad Samaritans, good

society and the Heroism Act 2015” (2017) 80 M.L.R. 88 and S. Peyer and
R. Heywood, “Walking on thin ice: the perception of tortious liability rules
and the effect on altruistic behaviour” (2019) 39 L.S. 266.

41 [1960] 1 W.L.R. 210.

42 This is often raised in the context of employers’ liability (discussed in

Ch.7): see Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968]
1 W.L.R. 1776 where the judge (at 1783) commented that “where there is a
recognised and general practice which has been followed for a substantial
period in similar circumstances without mishap, [the employer] is entitled
to follow it, unless in the light of common sense or newer knowledge it is
clearly bad; but, where there is developing knowledge, he must keep
reasonably abreast of it and not be too slow to apply it”. See also Baker v
Quantum Clothing Group Ltd [2011] UKSC 17; [2011] 1 W.L.R. 1003.

43 [1930] A.C. 659 at 666.

44 159 F. 2d 169 (1947).

45 (1966) 115 C.L.R. 119.

46 (1966) 115 C.L.R. 119 at 213.

47 [1998] 1 W.L.R. 1304. Mullin v Richards was applied in Etheridge v K

[1999] Ed. C.R. 550 where a teacher was injured by a basketball thrown by
a 13-year-old boy. See also Blake v Galloway [2004] EWCA Civ 814;
[2004] 1 W.L.R. 2844 and Orchard v Lee [2009] EWCA Civ 295; [2009]
P.I.Q.R. P16 (comment: P. Giliker (2009) 25 P.N. 91–95).

48 (1816) 1 Stark. 493; 171 E.R. 540.

49 [1988] R.T.R. 298.

50 [1983] Q.B. 1034. Compare Nelson v Chief Constable of Cumbria

[2000] C.L.Y. 4217 (police driver causing a crash to be judged by the same
standard as an ordinary driver unless in a situation of pursuit at speed) and
see also Henry v Chief Constable of Thames Valley [2010] EWCA Civ 5;
[2010] R.T.R. 14.
51 [1985] 1 W.L.R. 1242.

52 [1985] 1 W.L.R. 866 at 868.

53 [1963] 2 Q.B. 43.

54 [1971] 1 W.L.R. 668.

55 A. L. Goodhart, “The sportsman’s charter” (1962) 78 L.Q.R. 490, 496.

56 per Lord Denning MR at 670. Compare the behaviour of the defendant

in Condon v Basi [1985] 1 W.L.R 866 who was liable for a rugby tackle
made in a “reckless and dangerous manner”.

57 [2001] EWCA Civ 1054; [2002] P.I.Q.R. P6. The approach in Caldwell v
Maguire was followed in the context of children’s horseplay in Blake v
Galloway [2004] 1 W.L.R. 2844. Comment: P. Charlish, “A reckless
approach to negligence” [2004] 4 J.P.I. Law 291.

58 [2003] EWCA Civ 318; [2003] 1 W.L.R. 1607. See also Smolden v
Whitworth [1997] P.I.Q.R. P 133.

59 [1957] 1 W.L.R. 582.

60 [1957] 1 W.L.R. 582 at 586.

61 [1998] Lloyd’s Rep. Med. 405. See also Bhamra v Dubb (t/a Lucky
Caterers) [2010] EWCA Civ 13: standard of care of caterers at a Sikh
wedding.

62 [1938] 1 All E.R. 566.

63 [1958] 2 Q.B. 265.

64 [1958] 2 Q.B. 265 per Jenkins LJ at 271. On the standard of care owed
by a jobbing labourer, see James v Butler [2005] EWCA Civ 1014.

65 [1987] Q.B. 730. The facts of Wilsher are considered in Ch.6. The case
eventually went to the House of Lords and is important in the context of
causation.

66 [1987] Q.B. 730 at 751.

67 Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582

at 587–588.

68 See A. Grubb, “Contraceptive advice and doctors—A law unto

themselves?” [1988] C.L.J. 12.

69 [1998] A.C. 232.

70 [1984] 1 W.L.R. 634. It is important to distinguish this type of case from

a case such as Penney v East Kent Health Authority [2000] Lloyd’s Rep.
Med. 41 where the expert witnesses agree that the defendant’s conduct was
wrong but give conflicting opinions about whether it is “excusable”.

71 [1984] A.C. 296.

72 Bolam v Friern Hospital Management Committee [1957] 1 W.L.R 582 at

587.

73 [1998] A.C. 232. Comment: R. Heywood (2006) 22 P.N. 225. For a

more detailed examination of the impact of Bolitho on the Bolam test, see
R. Mulheron, “Trumping Bolam: A critical legal analysis of Bolitho’s
‘gloss’” [2010] C.L.J. 609.

74 Williams v Cwm Taf Local Health Board [2018] EWCA Civ 1745 at
[14].

75 Although Mulheron in her survey of the law notes that the Bolitho test
has changed the outcome of medical negligence cases more often than the
label ‘rare’ would suggest: [2010] C.L.J. 609 at 618.

76 Consider, e.g. Hucks v Cole (1968) (1993) 4 Med. L.R. 393: relatively
low cost of administering penicillin to prevent septicaemia was a relevant
reason for rejecting the defendant’s evidence that it was reasonable not to
administer the drug.
77 See Garcia v St Mary’s NHS Trust [2006] EWHC 2314 (QB); [2011]
Med. L.R. 348: practice of having no specialist registrar on site overnight to
deal with emergencies was reasonable in the circumstances.

78 [1985] A.C. 871.

79 Sidaway v Bethlem Royal Hospital Governors [1985] A.C. 871 at 899.

80 [1985] A.C. 871 at 898.

81 [2004] UKHL 41; [2005] 1 A.C. 134. This case is important in the
context of causation and is further considered in Ch.6. The court was not
required in this case to rule on the appropriate standard of risk disclosure.

82 [2015] UKSC 11; [2015] A.C. 1430. Comment: R. Bagshaw (2016) 132
L.Q.R. 182. Applied in Webster v Burton Hospitals NHS Foundation Trust
[2017] EWCA Civ 62 and, in the context of financial investment advice, in
O’Hare v Coutts [2016] EWHC 2224 (QB), but see now Barker v
Baxendale Walker Solicitors [2017] EWCA Civ 2056; [2018] 1 W.L.R.
1905 at [63]–[64]. Ooi argues that there there is no real basis for extending
the reasoning in Montgomery outside the context of medical negligence:
(2018) 34 P.N. 171.

83 See, in particular, [87]–[89] of Montgomery v Lanarkshire Health Board

[2015] UKSC 11; [2015] A.C. 1430.

84 See Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA

Civ 1307; [2018] P.I.Q.R. P18 (clinician was not required to warn of a risk
of which he could not reasonably be taken to be aware).

85 Gallardo v Imperial College Healthcare NHS Trust [2017] EWHC 3147

(QB) (patient only learnt of the true nature of his condition nine years after
an operation for the removal of a tumour which had been found to be
malignant).

86 See [91] of Montgomery v Lanarkshire Health Board [2015] UKSC 11;

[2015] A.C. 1430.
87 See J. B. Fanning, “Uneasy lies the neck that wears a stethoscope: Some
observations on defensive medicine” (2008) 24 P.N. 93.

88 [1980] 1 All E.R. 650 CA. The decision was subsequently upheld by the
House of Lords at [1981] 1 W.L.R. 246.

89 See, e.g. Ashcroft v Mersey Regional Health Authority [1983] 2 All E.R.
245, affirmed on appeal [1985] 2 All E.R. 96.

90 Montgomery v Lanarkshire Health Board [2015] UKSC 11 at [75].

91 Reid regards this view as “optimistic”, arguing that it might equally be

anticipated that dissatisfied patients will claim that any discussion
negligently failed to meet the Montgomery test: E. Reid (2015) 19 Edin. L.
Rev. 360, 364.

92 Montgomery v Lanarkshire Health Board [2015] UKSC 11 at [93].

93 See J. Laing, “Delivering Informed consent post-Montgomery:

Implications for professional practice and professionalism” (2017) 33 P.N.
128.

94 See M. Dyson and J. Randall, “Criminal convictions and the civil

courts” [2015] C.L.J. 78.

95 [1970] 1 W.L.R. 317.

96 Smith v Fordyce [2013] EWCA Civ 320 at [61].

97 (1865) 3 Hurl. & C. 596; 159 E.R. 665. For a modern example of the
application of the doctrine, see George v Eagle Services Ltd [2009] UKPC
21. Comment: K. Williams, “Res ipsa loquitur still speaks” (2009) 125
L.Q.R. 567.

98 (1863) 2 Hurl. & C. 722.

99 (1905) 21 T.L.R. 633.

100 [1976] 1 W.L.R. 810. Applied in Dobson v Asda Stores [2002] C.L.Y.
4551 and Hall v Holker Estate Co Ltd [2008] EWCA Civ 1422.

101 Richley v Faull [1965] 1 W.L.R. 1454 but contrast Smith v Fordyce
[2013] EWCA Civ 320.

102 Ellor v Selfridge & Co Ltd (1930) 46 T.L.R. 236.

103 Ng Chun Pui v Lee Chuen Tat [1988] R.T.R. 298.

104 Mahon v Osborne [1939] 2 K.B. 14.

105 [1951] 2 K.B. 343 at 365.

106 (1873) L.R. 8 Q.B. 161.

107 [1944] 2 K.B. 421.

108 [1951] A.C. 850.

109 [1950] A.C. 185.

110 See, e.g. P. S. Atiyah, “Res ipsa loquitur in England and Australia”
(1972) 35 M.L.R. 337.

111 [1969] 1 W.L.R. 475.

112 [1970] A.C. 282. A similar approach was taken by the Court of Appeal
in Ward v Tesco Stores Ltd [1976] 1 W.L.R. 810.

113 [1970] A.C. 282 at 303.

114 [1988] R.T.R. 298.

115 See, e.g. the approach taken by the Court of Appeal in O’Connor v
Pennine Acute Hospitals NHS Trust [2015] EWCA Civ 1244; [2016] Med.
L.R. 11 at [60]: “the so-called res ipsa loquitur cases are merely cases in
which, on the totality of the evidence, the court was able to make a finding
of negligence”.
 6

Causation and Remoteness

Introduction
6–001 This chapter deals with the question whether the defendant’s
actions can be said to be the legal cause of a claimant’s loss.
Essentially, in answering this question, two separate issues need
to be considered. First, there is the issue of whether what the
defendant did was the factual cause of the defendant’s loss (or
whether the loss was caused by something else). Secondly, there
is the issue of whether, in certain cases, although the claimant’s
loss is the factual result of the defendant’s actions, the law
should nevertheless say that the defendant is not liable because
that loss is too “remote”—in the sense that it is too unusual or
“far removed” a consequence of the defendant’s actions. We
explore each of these issues in turn.

Factual Causation

6–002 Factual causation is a difficult subject. It divides into a number

of separate issues, but there is a considerable degree of
 conceptual overlap between these issues. Often, when a court
focuses on one particular issue, it is merely selecting one
particular approach from a number of alternatives. In some
cases, a number of approaches are adopted concurrently, and it
may be difficult to classify a given case as turning on one issue
rather than another.1 The root of all the
confusion is the difficult nature of causation as a philosophical
problem. We begin by examining this problem and noting, in
general terms, the law’s response to it.

The pragmatic approach

6–003 The relationship between “cause” and “effect” is complex.

Philosophically speaking, every “effect” is produced by the
coming together of many different “causes”. Moreover, all of
these “causes” will, in truth, themselves be “effects” produced
by other “causes”. Take an example: I light a cigarette and
carelessly discard my lighted match in your wastepaper basket,
which results in a fire burning down your house. Who is to
blame? Legally speaking, the answer is pretty obvious—it is my
carelessness that has caused the fire. But philosophically
speaking, the fire has many causes. A philosopher might say that
there are many “conditions” without which the fire might not
have happened. It might not have happened had you not allowed
the wastepaper basket to become so full with paper. It certainly
would not have happened without your inviting me to your
house in the first place and allowing me to smoke there. Do
these factors mean that you are the cause of your own loss?
Alternatively, we might say that there would have been no fire if
I were not an addicted smoker. Therefore, can we not blame the
person who offered me my first cigarette? Ultimately, if I had
not been born, your house would not have burned down. Does
this mean we can blame my parents? How about fixing the
blame on my distant ancestors? Clearly, the law cannot take a
philosophical approach to causation. If it did, nobody could ever
be said to have caused anything. Defendants could always “pass
 the buck”, or, as a lawyer might say, fix responsibility on a
person or an event further back in the “chain of causation”.
Therefore, the law takes a pragmatic, or “common sense” view
of causation. As Lord Wright put it in Yorkshire Dale Steamship
Co Ltd v Minister of War Transport, “Causation is to be
understood as the man in the street, and not as either the scientist
or the metaphysician, would understand it”.2 Yet this approach
can leave us in a position where the reasoning in the cases defies
analysis in terms of logical principle. Another unfortunate
consequence of the “common sense” approach is that, in
causation cases, legal language is particularly apt to produce
confusion. For example, judges and writers may say that a
defendant is not liable unless he has “caused” the damage; on
the other hand, they may say that a defendant is not liable for all
of the damage that he has “caused”. Qualifying the word “cause”
with adjectives such as “legal”, “proximate” or “remote” does
little to unravel the mysteries of the topic.3
In most cases, the application of the “man in the street”
approach reveals that there is only one activity or event that can
be sensibly regarded as the cause of the claimant’s loss, so the
issue is straightforward. In a small minority of cases, however,
the law must somehow choose between two or more competing
causes of the claimant’s loss. These problematic cases are the
focus of this chapter. We shall consider them once we have
examined in more detail the test the courts apply in
straightforward cases.

The “but for” test

6–004 The law’s starting point in determining causation is to apply the

“but for” test.4 In other words, to ask the question, “Can it be
said that ‘but for’ the defendant’s conduct, the claimant’s loss
would not have occurred?” Another way of putting this is to ask,
“Would the claimant’s loss have occurred in any event, even
without the defendant’s conduct?” If the answer to this question
is “yes”, then the defendant will not have caused the claimant’s
loss. The classic illustration of the application of the “but for”
test is the case of Barnett v Chelsea and Kensington Hospital
Management Committee.5 Here, a man went to a casualty
department feeling unwell after having drunk some tea. The
doctor in charge sent him away without treatment, telling him to
see his own doctor. He subsequently died from arsenic
poisoning. It was held that the doctor was in breach of his duty
of care in failing to examine the man, but expert evidence
indicated that, having drunk the arsenic, the man was beyond
help when he arrived at the hospital and would have died in any
event. Therefore, the doctor’s breach of duty had not caused the
man’s death.
In applying the “but for” test, the courts take into account
not only existing causes that might have produced the claimant’s
loss (for example, the arsenic in Barnett), but also hypothetical
causes that might have produced the loss. For example, in
McWilliams v Sir William Arrol Ltd,6 a steel erector fell to his
death at work. The defendants were in breach of their statutory
duty in failing to provide him with a safety harness, but the
evidence was that he had rarely used such a harness in the past.
In the House of Lords, the defendants successfully argued that
this meant he would not have worn a harness even if one had
been provided. This being the case, it followed that the
defendants were not liable because the man would probably
have died in any event.
Bolitho v City and Hackney Health Authority7 (considered in
Ch.5) was another case in which the House of Lords had to
consider the causal effect of a hypothetical omission. Here, a
two-year-old boy was admitted to hospital suffering from
breathing difficulties and was kept under observation. His
condition deteriorated and on two occasions a nurse contacted
the doctor in charge, asking her to attend, but she failed to do so.
The child subsequently suffered cardiac arrest leading to brain
damage. The doctor had clearly been negligent in failing to
attend, but the doctor argued that her non-attendance had not
caused the child’s death. She maintained
 that, given the child’s symptoms, even if she had attended and
examined the child, she would not have taken any action, but
would have left the child for a further period of observation. The
plaintiff countered this argument by saying that such a course of
action would have been negligent—given the symptoms, a
competent doctor should have “intubated” (inserted a tube) to
assist the child’s breathing.
As was noted in Ch.5, the House of Lords held that the
doctor’s failure to intubate would not have been negligent,
because her reasons for not doing so were supported by a body
of responsible medical opinion. What is relevant here, however,
is to note that in deciding the question of causation, the House of
Lords was prepared to ask not simply, “Would the doctor have
intubated if she had attended?”, but “Should the doctor have
intubated in such circumstances?” As Lord Browne-Wilkinson
put it:

“A defendant [who is in breach of duty]

cannot escape liability by saying that the
damage would have occurred in any event
because he would have committed some
other breach of duty thereafter.”8

Problems with the “but for” test

6–005 The “but for” test works well enough in the majority of cases,
but in cases where there are “multiple causes” it runs into
problems. The celebrated example is that of two fires—Fire A
and Fire B—both started negligently on different pieces of
neighbouring land, which each are capable of burning down the
claimant’s house.9 The fires converge and destroy the house. If
the claimant sues the creator of Fire A, the creator of Fire A can
argue that the loss would have happened in any event, because
 of the existence of Fire B. If the creator of Fire B is sued, he can
employ a similar argument. Thus, applying the “but for” test,
neither defendant is liable. It is doubtful that the courts would
countenance such an unjust result. They would (probably) treat
the case as one involving “cumulative causes” (discussed
below), making both defendants jointly liable for the full extent
of the damage.10
In the sections below, we consider the courts’ approach to
different types of cases involving multiple causes. It is
traditional to classify such cases under a number of headings.
But this classification, and the traditional accompanying analysis
of the various “rules” governing each class of case, can give the
misleading impression that causation is a rather “technical” or
“evidential” branch of the law, in which policy plays only a
minor role. It should not be forgotten that, as in other areas of
tort law, the rules are flexible. We shall see that they have often
been stretched to accommodate policy concerns. Indeed, they
have sometimes been stretched so far that they cease to
withstand clear analysis.

Concurrent Causes

6–006 Certain cases are traditionally described as involving

“concurrent causes”, by which is meant simply that the causes in
question occur more or less simultaneously, as opposed to one
after another. As a means of classification, the expression is
rather inadequate, because, as we shall see, it might equally be
applied to certain cases traditionally described as involving
“consecutive causes”, in which the causes occur at different
times but their effects operate at the same time. Nevertheless, it
is traditional to consider the so-called “concurrent cause” cases
separately.
“Concurrent cause” cases can be divided into two groups, as
follows:
 ▮ “Indeterminate cause”: In these cases, there is more
than one defendant, but there is only one “operative
cause” of the claimant’s loss, it being unclear which of
the defendants’ acts produced this cause. Such is the
case, for example, where a claimant has one bullet in
his leg, but several defendants have been negligent in
shooting their guns in the claimant’s direction. (As in
Cook v Lewis and Summers v Tice, considered below.)
▮ “Cumulative cause”: In these cases, there is more than
one “operative cause” of the claimant’s loss, each
produced by the act of a different defendant, but the
problem is, these causes have combined inextricably to
produce the same damage. Such is the case, for
example, where a claimant has two bullets in his leg,
each fired by a different defendant, and as a result of
this predicament has to have his leg amputated.

We consider each type of case in turn.

“Indeterminate cause”

6–007 The relevant principles here can be understood by considering

the Canadian case of Cook v Lewis11 and the US case of
Summers v Tice.12 Both cases involved hunting accidents in
which the plaintiff had been shot by one bullet, fired by one of
two defendants, each of whom had been careless in aiming his
gun in the plaintiff’s direction. The evidence could not establish
from whose gun the shot had been fired. The courts adopted the
pragmatic approach of reversing
the burden of proof. Thus, in the absence of evidence from either
defendant that he had not been responsible for the bullet, both
defendants were held liable as joint tortfeasors.13 Joint
tortfeasors are each potentially liable for the whole of the
claimant’s loss. Each defendant can then seek a contribution
from the other, but that is a separate question relating to
damages rather than to liability (see Ch.17).
In Sindell v Abbott Laboratories,14 another US case, the
court adopted a more radical solution. The case concerned the
liability of manufacturers for a defective pregnancy drug which
caused cancer in the female children of mothers who had taken
it. The problem did not become apparent until the children had
reached puberty and it was then impossible to show which of
several hundred manufacturers had produced the particular drug
taken by the plaintiffs’ mothers. It was known, however, that the
drug was inherently defective, so that any one of the
manufacturers could have been responsible. The court rejected
the solution of imposing joint liability, as in Summers v Tice,
because only a few of those potentially responsible were
defendants before the court and it was unfair to make them
responsible to the full extent. Instead, the court held each
defendant liable according to the degree of its share of the
market for the drug at the relevant time, on the basis that this
was the best approximation that could be made of each
defendant’s likely responsibility.
In the cases discussed above, the courts had to decide which
of two human actions produced the claimant’s loss. The
solutions adopted in these cases, however, have not been
favoured by the English courts in cases where the fault of one
defendant is competing with one or more “innocent” or “natural”
explanations for the claimant’s loss. The leading authorities here
are Wilsher v Essex AHA,15 Hotson v East Berkshire AHA16 and
Gregg v Scott.17 In these cases, the courts have not been
prepared to make a defendant liable unless the claimant can
show that, on the balance of probabilities, his or her loss was
caused by the defendant’s fault rather than by a natural
occurrence. In such cases, the standard of proof required of the
claimant assumes enormous significance. For this reason, these
cases are worthy of separate consideration and are discussed in a
later section of this chapter, under the heading “proof of
causation”.
 “Cumulative cause”
6–008 We have already considered a good example of a “cumulative
cause” situation—that of two negligently started fires, each
capable of burning down the claimant’s house, which
converge and destroy the house. We have noted that in such
situations, applying the “but for” test would result in neither
defendant being liable. Therefore, the usual approach of the
courts is to say that, because either negligent act would have
produced the same damage, each defendant is liable for the
whole of the damage.18 This is what happened in The Koursk,19
where two ships collided because both were simultaneously
subject to negligent navigation.
In the example above, we have made the assumption that the
act of one defendant alone would have given rise to the whole of
the damage. If we cast aside this assumption, however, we are
left with a slightly different and more complex type of
“cumulative cause” case. This is the sort of case where one
defendant (the “first defendant”) commits a tortious act, and
then, very shortly afterwards, and before the force of that act is
spent, a second defendant commits an act which combines with
it, producing a single result that might not have occurred without
the operation of the second act. In such cases, both the first and
the second defendant may be liable for the result produced. Take
an example: negligent driver A causes his vehicle to obstruct the
highway, and subsequently negligent driver B crashes into it,
causing injury to a bystander, C. Here, driver A may be held to
have caused C’s injuries, and may be jointly liable with driver
B.20 This is so, even though it cannot be said that driver A’s
negligence alone would have caused the accident.
One of the best-known examples of this type of “cumulative
cause” case is Fitzgerald v Lane.21 Here, the plaintiff was
crossing a pelican crossing when the lights showed green for
cars, but red for pedestrians. He was hit by a car driven
negligently by the first defendant. The force of the collision
threw him up on the bonnet and propelled him into the middle of
 the road. He was then hit by a car driven negligently by the
second defendant. He suffered severe injuries to his spine
resulting in tetraplegia. At the trial, the evidence could not
establish whether his tetraplegia resulted from impact with the
first car or from impact with the second car. Moreover, it was
impossible to say whether the tetraplegia had only one
(indeterminate) cause, or whether it was the result of the
combined effect of being hit by both cars. It was clear, however,
that the plaintiff had himself been careless in crossing when the
lights were against him. The judge held that all three parties
involved had been negligent and that, since it was impossible to
say that one of the parties was more or less to blame than the
other, the responsibility should be borne equally by all three.
Therefore, both defendants were held liable and the plaintiff was
held contributorily negligent.

Successive Causes

6–009 In so-called “successive cause” cases, the key issue is whether,

where one act succeeds another, there are circumstances where
the effect of the first act can be said to have become “overtaken”
or “obliterated” by the effect of the second act, in such a way
that the first act ceases to be a cause of the claimant’s loss. The
classic illustration of this sort of situation is this: Imagine that a
man is about to set out on a journey across the desert. He has a
lethal dose of poison put into his water bottle by one of his
enemies. Later, the bottle is emptied by a second enemy.
Ignorant of these events, he sets out on his journey during the
course of which he dies of thirst.
Now, in theory we might absolve the second enemy by
pointing to the fact that, if the water bottle had not been emptied,
the man would have died in any event from poison. But we
could also absolve the poisoner by pointing out that, if the water
had not been poisoned, the man would still have died of thirst.
Thus, applying the “but for” test makes nobody liable. This sort
of situation, however, is different from the example of the
converging fires, where the law, unable to determine which
action caused the loss, may make both actors liable. Here, the
factual cause of the traveller’s death is clear—he died of thirst
and not of poison. In cases of this sort, then, we might say that
the effect of the poisoner’s act was “overtaken” or “obliterated”
by the act of the second enemy. In other words, in the light of
what the second enemy did, the act of the poisoner had no effect.
Situations like that in the example above, however, must be
distinguished from cases where the effect of the first wrongful
act is said to continue, in spite of the effect of the second.22 Such
was the case in Performance Cars v Abraham.23 The plaintiff’s
Rolls-Royce was involved in two collisions in the space of a
fortnight. After the first collision, the car was in need of a
respray. It was then hit by a second driver (the defendant),
sustaining the sort of damage that would also necessitate a
respray. In an action against the second driver, the Court of
Appeal rejected the owner’s claim for the cost of a respray on
the grounds that the loss did not flow from the defendant’s
wrongdoing—at the time of the second collision, the vehicle was
already in need of a respray. Here, then, rather than saying that
effect of the first tort was obliterated by the second, the court
applied exactly the opposite sort of reasoning: the second tort
had no effect, given the continuing effect of the first.
Broadly similar reasoning was applied by the House of
Lords in Baker v Willoughby.24 The plaintiff was run down by
the defendant’s negligent driving, suffering a stiff leg which
caused him loss of mobility and a consequent reduction in his
earning capacity. Before the action came to trial, the plaintiff
was shot in the same leg by armed robbers, after which the
leg had to be amputated. The defendant driver argued that his
liability should be limited to the loss caused by the original
injury up to the date of the robbery—any loss of mobility and
reduction in earning capacity thereafter had been caused, not by
him, but by the amputation of the leg. In other words, it was
argued that the effect of the original injury had been submerged
or obliterated by the second. The defendant also argued that,
because, in assessing the amount of damages, it is the courts’
practice to discount the award to take account of the
hypothetical “vicissitudes of life” that a claimant may suffer in
the future (that is, unexpected changes to his or her fortunes
which would have happened in any event), it followed that
where these “vicissitudes” had become actual, the damages
should be reduced accordingly.
The House of Lords rejected these arguments. Lord Reid,
speaking for the majority, held the defendant liable for all of the
consequences of the first injury, just as if the second injury had
not occurred. In essence, his Lordship was treating the case as
one where the plaintiff’s continuing loss of amenity had
cumulative causes—the car accident and the shooting. Did, for
example, the injury from the motor accident lead Baker to take
the menial job in a scrapyard where he was shot or prevent him
from escaping from the robbers? Such speculation disguises the
fact that the Court was seeking in reality to avoid “manifest
injustice” and took the view that this could only be achieved by
taking a “comprehensive and unitary view of the damage caused
by the original accident”.25 In other words, as Lord Reid put it:

“A man is not compensated for the physical

injury: he is compensated for the loss which
he suffers as a result of that injury. His loss
is not in having a stiff leg: it is in his
inability to lead a full life . . . and his
inability to earn as much as he used to earn
or could have earned if there had been no
accident. In this case, the second injury did
not diminish any of these [losses]. So why
should it be regarded as having obliterated
or superseded them?”26
 It seems likely, therefore, that their Lordships were
influenced by the need to do practical justice. The thieves who
had shot the plaintiff could not be found, and even if they could
be found and sued in tort, it would be unlikely that they would
be able to pay compensation. Moreover, if the thieves were sued
in tort, they would be entitled to “take their victim as they found
him”. This meant that they could not be liable for the whole of
the plaintiff’s loss of amenity, but only for the extent to which
they had made his condition worse. In this light, it would be
very unfair to say that the first tortfeasor could not be fully liable
either, because this would leave the plaintiff under-compensated.
He would “fall between two defendants”. Policy therefore
dictated that a first tortfeasor should remain liable for the
continuing effects of his or her tort, even where a second tort
produced the same (or worse) effects.
6–010 The decision in Baker v Willoughby should be contrasted with
that in Jobling v Associated Dairies Ltd.27 In Jobling, the
defendant employers had been responsible for injuring the
plaintiff’s back, causing him loss of mobility and reduced
earning capacity. Before the action came to trial, the plaintiff
succumbed to a crippling back disease, completely unrelated to
his accident, which rendered him totally unfit for work. As in
Baker, the House of Lords had to decide whether, in the light of
a successive event giving rise to the same loss, the defendants
could remain liable for the plaintiff’s reduced earning capacity
in the future. Here, however, the subsequent event in question
was a disease rather than a tort. Their Lordships reached the
opposite conclusion from that in Baker. Taking account of the
aim of an award of damages, their Lordships held that the
plaintiff would be over-compensated if he were able to recover
from the defendants. It was held, therefore, that the defendants’
liability ceased at the time of the onset of the disease.
In Jobling, Lord Bridge felt unable to accept the approach
that had been adopted in Baker. His Lordship pointed out that
the decision in Baker appeared to ignore the fundamental
principle that the aim of a damages award in tort is to put the
claimant in the same position he or she would have been in had
the tort not occurred. On Lord Bridge’s analysis of Baker, it
could be said that, had the first tort not occurred, the plaintiff
would have suffered the same sort of loss in any event when he
was shot by the thieves. Thus, the outcome of the decision was
one which actually put him in a better position than he would
have been in had the first tort never occurred.28
Lord Edmund-Davies, acknowledging academic criticism of
the decision in Baker,29 pointed out that the decision had
appeared to overlook the fact that the plaintiff could be
compensated under the Criminal Injuries Compensation Scheme
in respect of the actions of the thieves. This meant that the
“injustice” the decision sought to avoid “did not, at least in its
full dimensions, exist”.30 Both Lord Edmund-Davies and Lord
Wilberforce thought that the decision in Baker could not be
properly analysed in terms of legal principle and that the case
had been decided on policy grounds. Lord Edmund-Davies
concluded:

“I can formulate no convincing juristic or

logical principles supportive of the decision
of this House in Baker v Willoughby, and
none were there propounded.”31

Although, in Jobling, their Lordships criticised the decision in

Baker, they were not prepared to overrule it and accepted that
the case might have been correctly decided on its facts. Lords
Keith and Russell drew a distinction between a supervening
illness, which would obliterate the effect of a previous tortious
act, and a supervening tort, which might not.32 This distinction
is
hard to justify. At bottom, it must be admitted that the decisions
in Baker and in Jobling cannot be satisfactorily reconciled. The
 decisions show us that the answers to causation questions are
heavily dependent on a pragmatic, policy-driven approach.
What might be discerned, however, is a tendency in the
modern law to prefer the Jobling approach in this type of case.
Thus, in Gray v Thames Trains Ltd33 one of the issues which
arose was whether a claim for continuing loss of earnings could
be made after the claimant had been sentenced for a crime.
Although the loss of earnings was initially caused by the injury
resulting from the defendant’s negligence, the House of Lords
held that the principle in Jobling prevented such a claim—after
the claimant had been sentenced, the effective cause of his
continuing lost earnings was to be regarded as his incarceration,
rather than the defendant’s tort.

Proof of Causation

6–011 In this section we are concerned with the difficult question of

how, in cases where the defendant’s conduct competes with
other possible explanations of the claimant’s loss, the courts
approach the question of requiring the claimant to prove that the
defendant’s breach is the cause of his or her loss. The nature of
the approach the courts will take depends on the type of case
with which they are concerned, and here, again, we can see that
the courts’ decisions seem heavily influenced by policy
considerations. A number of different approaches can be
discerned, which may be described as:
▮ the “all or nothing” approach;
▮ the “material contribution to injury” approach;
▮ the “vindication of rights” approach; and
 ▮ the “material increase in risk” approach.

It is difficult to reconcile these approaches with one another on

the basis of coherent principle. Each is simply a pragmatic
response to what the courts perceive as the broad demands of
justice in particular circumstances. Indeed, the “vindication of
rights” and “material increase in risk” approaches might be
better described as exceptions to the “but for” test whose scope
is fiercely contested.34

(i) The “all or nothing” approach

6–012 The “all or nothing” approach is the approach that will be

applied in most cases. Applying the “but for” test, it takes as its
starting point the proposition that the claimant, who bears the
burden of proof in a civil trial, must discharge that burden by
meeting the normal civil standard of proof. Thus, the claimant
must show that, on the balance of probabilities, it was the
defendant’s breach (rather than some other event) that caused the
loss. This is known as an “all or nothing” approach because,
where a claimant succeeds in showing that it is probable (at least
51% likely) that the breach caused the loss, the law will treat this
probability as a certainty, so the claimant will win the case and
be compensated for all of the loss. If, on the other hand, a
claimant can only show, say, a 25% likelihood that the breach
caused the loss, the claimant will lose the case and leave court
with nothing.
The “all or nothing” approach was adopted by the House of
Lords in Wilsher v Essex AHA.35 In Wilsher, the plaintiff was a
premature baby who suffered from oxygen deficiency. In
monitoring the levels of oxygen in his blood, one of the doctors
employed by the defendants negligently failed to notice that a
catheter had been wrongly placed into a vein instead of an artery.
This meant that the monitoring equipment gave a misleading
reading, resulting in the plaintiff being given too much oxygen.
The plaintiff developed retrolental fibroplasia (RLF)—a
condition permanently affecting his retina—which left him
almost totally blind. The expert evidence suggested that excess
oxygen was a possible cause of RLF, but that RLF was a
condition that occurred even in premature babies who did not
receive oxygen. There was therefore evidence of a causal link
between RLF and at least five conditions that were very
common in premature babies.
The trial judge and the Court of Appeal (relying on the
House of Lords’ decision in McGhee v National Coal Board—
discussed below) had held the defendants liable on the basis that,
by supplying excess oxygen, they had “materially increased the
risk” that the plaintiff would succumb to RLF. The House of
Lords, however, rejected this liberal approach to causation and
substituted the “all or nothing” approach, holding that the
plaintiff had failed to establish, on the balance of probabilities,
that his RLF had been produced by the excess oxygen, rather
than by one of the five other possible common causes of RLF.
Lord Bridge, who delivered the unanimous opinion of the House
of Lords, acknowledged that the application of the “all or
nothing” approach had produced a harsh result for the plaintiff.
His Lordship said:

“Many may feel that [ordering a retrial]

serves only to highlight the shortcomings of
a system in which the victim of some
grievous misfortune will recover substantial
compensation or none at all according to
the unpredictable hazards of the forensic
process. But, whether we like it or not, the
law, which only Parliament can change,
requires proof of fault causing damage as
the basis of liability in tort.
 We should do society nothing but disservice
if we made the forensic process still more
unpredictable and hazardous by distorting
the law to accommodate the exigencies of
what may seem hard cases.”36

6–013 The harshness that can result from this approach may be seen in
the so-called “loss of chance” cases. Here the claimant is suing
on the basis that his or her chance of recovery was diminished
due to the defendant’s negligence. In Hotson v East Berkshire
AHA,37 the plaintiff, when aged 13, fell while climbing a tree
and sustained injury to his hip. He was taken to hospital, but his
injury was not correctly diagnosed or treated for five days. In the
event, he suffered avascular necrosis—a condition that left him
with severe and permanent disability by the time he was 20. Had
the hospital treated him promptly when he was first admitted,
the plaintiff would have had a 25% chance of making a full
recovery, but the effect of the delay in treatment was that the
plaintiff lost that 25% chance.
The trial judge (Simon Brown J) awarded the plaintiff a sum
in damages which reflected 25% of the damages which might
have been awarded had the hospital’s negligence been the only
possible cause of his disability. This decision was affirmed by
the Court of Appeal, but was reversed by the House of Lords.
The key finding of the House of Lords was that the plaintiff had
failed to prove his case on the balance of probabilities. Simon
Brown J, assessing the medical evidence, had found, of course,
that there had been a 75% chance that avascular necrosis would
have resulted in any event, even if the plaintiff had been treated
promptly. This meant, in their Lordships’ view, that on the
balance of probabilities the plaintiff’s disability had been caused
when he fell out of the tree. In these circumstances, Simon
Brown J had been wrong to embark on a “quantification” of the
loss caused by the defendant—the issue of quantifying the loss
 could only arise once the hurdle of causation had been
overcome, and this the plaintiff had failed to do.
On the evidence, the reason for the plaintiff’s disability was
clear—when he fell from the tree, he was, on the balance of
probabilities, disabled; the law would treat this probability as a
factual certainty, which meant that, by the time the plaintiff
arrived at the hospital he was as a matter of decided fact already
disabled. Thus, in effect, at this point in time the plaintiff had
had no chance to lose.38
The strict approach to causation exemplified in Hotson was
subsequently followed by a majority of the House of Lords in
Gregg v Scott.39 Here, the defendant, a GP, had negligently
failed to refer the claimant to hospital to be tested for cancer, so
that there was a delay of nine months before his condition was
diagnosed. According to the accepted statistical evidence,
when the claimant had originally gone to see his GP, he had had
a 42% chance of making a full recovery with prompt treatment
(and, of course, a 58% chance of not doing so). The effect of the
negligent delay was to reduce the claimant’s chance of recovery
to 25%.
The claimant felt able to bring his case because, in their
decision in Fairchild v Glenhaven Funeral Services Ltd40
(discussed below) the House of Lords had recently ruled that the
“all or nothing” approach could be modified in certain
circumstances, where the demands of justice made it right to do
so. In Gregg v Scott, however, their Lordships declined to extend
the reasoning in Fairchild (which had involved a risk of
industrial disease) to cover the claimant’s case. By a 3:2
majority, their Lordships held that the traditional rules of
causation should apply. Thus, the claimant lost his case because
the “but for” test was not satisfied—he could not show, on the
balance of probabilities, that the fact that he had failed to make a
full recovery was due to the GP’s negligence. The probability
(58%) was that he would have failed to make a full recovery in
any event.

6–014
The reasoning in Gregg v Scott reveals a stark division of
opinion between the Law Lords about the correct approach to be
taken in medical negligence cases involving loss of a chance of
recovery. The key issue is whether justice demands that the tort
of negligence should abandon its strict causation rules in this
type of case, and, instead, compensate claimants for lost chances
that (even though less than 50%) were of real and substantial
value to them. Lord Nicholls, in a powerful dissenting judgment,
said that if the law failed to do this, it would be “irrational and
indefensible”.41 His Lordship went on to say:

“The law should be extremely slow to

disregard medical reality . . . In these cases
a doctor’s duty to act in the best interests
of his patient involves maximising the
patient’s recovery prospects, and doing so
whether the patient’s prospects are good
or not so good. In the event of a breach of
this duty the law must fashion a matching
and meaningful remedy . . . It cannot be
right to adopt a procedure having the
effect that, in law, a patient’s prospects of
recovery are treated as non-existent
whenever they exist but fall short of 50%.
If the law were to proceed in this way it
would deserve to be likened to the
proverbial ass.”42

Baroness Hale, however, speaking in the majority, explained the

difficulty the courts would face if they recognised claims for loss
of a (less than 50%) chance of recovery. Such recognition
 would, as her Ladyship put it, require “that personal injury law
should transform itself”.43 If a claimant who had lost, say, a 40%
chance of recovery, were entitled to a “proportionate”
sum representing that loss, where would be the justice in
allowing a claimant who had lost a 51% chance of recovery
(thereby satisfying the standard of proof) to leave court with
100% of the damages? Surely the idea of proportionate
compensation would cut both ways, allowing defendants, if it
suited them, to reformulate the gist of the action against them as
“loss of a chance”. This would lead to the strange proposition (to
borrow her Ladyship’s example) that, where it is shown that
there is a 90% chance that my negligence broke your leg, I am
entitled to require the court to reduce your damages by 10%, to
reflect the chance that your leg might have become broken in
any event. This proposition would create an unwelcome
complication in the great majority of personal injury cases and
would make recovery of compensation much less predictable for
defendants and for the insurance market. For these reasons, then,
it was not desirable that the court should view Mr Gregg’s loss
in a case like Gregg v Scott as a “lost chance”.44 Rather, it
should be viewed as an outcome (i.e. after the negligent
treatment, he was unlikely to get better)—and on this basis, of
course, the outcome of the defendant’s negligence had placed the
claimant in no different a position from the position he had been
in before the negligence had occurred, meaning, in effect, that he
had suffered no actionable loss.

(ii) The “material contribution to injury”

approach

6–015 Despite continued assertions by the judiciary that the rules of

causation should not be displaced to accommodate “hard cases”,
there has been some evidence of flexibility. Where, for example,
the claimant suffers from a disease which has been caused by
exposure to a particular agent and there has been both innocent
(non-negligent) and guilty (negligent) exposure, the courts will
find causation to be established where the guilty exposure makes
a material contribution to the injury suffered. It remains a source
of contention whether this is simply a more fluid interpretation
of the “but for” test or a distinct test in its own right.45 It does
differ, however, from the Wilsher situation (discussed above)
where the disease could have been caused by one or more of a
number of disparate factors.
The classic case is that of Bonnington Castings Ltd v
Wardlaw46 where the plaintiff had
complained that his employer had exposed him to silicone dust
while working in his workshop which had led to
pneumoconiosis. The evidence indicated that the dust was
created by two sources: the operation of a pneumatic hammer
(which was not due to negligence) and the swing grinders
(which was). Lord Reid held that it was for the claimant to prove
that the defendants’ fault on the balance of probabilities caused,
or materially contributed to, his injury.47 Where, as here, the
disease had been caused by the cumulative effect of the
inhalation of dust from both sources, the real question was
whether the dust from the swing grinders materially contributed
to his disease: What is “material” will be a question of degree on
the facts of each case. Lord Reid held that:

”A contribution which comes within the

exception de minimis non curat lex is not
material, but I think that any contribution
which does not fall within that exception
must be material. I do not see how there
can be something too large to come within
the de minimis principle but yet too small
to be material.”48
On the facts, it was shown that the swing grinders contributed a
quota of silica dust which was more than negligible to the
claimant’s lungs and so helped to produce the disease.
The application of this test has inevitably in view of Wilsher
(above) proven controversial in medical negligence cases. In
Bailey v Ministry of Defence,49 for example, it was unclear
whether the claimant’s condition had been caused by her
medical condition (pancreatitis) or by the negligent post-
operative care she had received. Treating the case as one of
“cumulative causes” which produce indivisible harm, the Court
held that where medical science cannot establish the evidence
needed to apply the “but for” test, it would suffice to show that
the defendants’ negligence materially contributed to the injury,
that is, made a contribution which is more than negligible.50
Here, the negligence was found to have materially contributed to
the claimant’s weakness which led to her choking. The Privy
Council in Williams v Bermuda Hospitals Board51 addressed the
application of this test again in a medical negligence context:
here there had been a negligent delay in treatment and sepsis52
from a ruptured appendix had damaged the claimant’s heart and
lungs. The injury to the heart and lungs had been caused by a
single known agent (as in Bonnington): the sepsis from the
ruptured appendix.53 The negligence had
been to delay the operation and this had extended the period of
exposure to sepsis. On the facts, it was held that, on the balance
of probabilities, the negligence had materially contributed to the
injury to the heart and lungs. The Privy Council maintained that
when there are cumulative causes, it did not matter whether they
were concurrent (as in Bonnington) or successive (as here, the
sepsis due to the hospital’s negligence developing after the non-
negligent sepsis had already begun to develop). The Privy
Council (obiter) did, however, throw doubts on Bailey, arguing
that a departure from the “but for” test had not been necessary in
that case. It shared the view of the first instance judge that the
totality of the claimant’s weakened condition had caused the
harm and so “but for” causation had been established. The fact
that her vulnerability had been heightened by her pancreatitis
was subject to the rule that the tortfeasor must take the victim as
he finds him (see para.6–033: The “eggshell skull” rule).54
Commentators, such as Sarah Green, have been critical of the
use of the material contribution test in medical negligence cases
such as Bailey and Williams, however. Green argues that both
cases should have failed when the claimant was unable to show
that it was more likely than not that the defendant’s breach made
a difference to the claimant’s outcome and warns that they are
likely to have significant cost implications for the NHS.55
Stephen Bailey has argued recently that Bailey and Williams
have confused the material contribution test to such an extent
that review by the Supreme Court is urgently needed.56
Where the injury caused is in fact divisible (i.e. attributable
to a particular source), then the defendant will only be held
liable for the part of harm he has been proved to have caused.
This is what happened in Holtby v Brigham & Cowan (Hull)
Ltd.57 Here, the claimant contracted asbestosis. Asbestosis is a
disease that can get progressively worse the more a person is
exposed to asbestos. The claimant had been exposed to asbestos
for most of his working life, but had only been employed by the
defendants for about half that time. The medical evidence stated
that if the claimant’s exposure to asbestos had been limited to
that caused by the defendants, his condition would not be so bad.
The Court of Appeal therefore reduced the claimant’s damages,
holding that the defendants could only be liable to the extent that
their fault had made a causal contribution to the claimant’s
condition. Where, however, the claimant suffers an indivisible
single injury (i.e. the sources combine to produce one illness),
the claimant will recover in full from the defendant—liability
being joint and several. As Lord Phillips clarified in Sienkiewicz
v Greif (UK) Ltd:

“Where the disease is indivisible, such as

lung cancer, a defendant who has tortiously
 contributed to the cause of the disease will
be liable in full. Where the disease is
divisible, such as asbestosis, the tortfeasor
will be liable in respect of the share of the
disease for which he is responsible.”58

(iii) The “vindication of rights”

approach: Chester v Afshar

6–016 Chester v Afshar59 adopts a different approach to causation from

those examined above. It is a 3:2 majority decision, taken by a
House of Lords that was differently constituted from the House
that decided Gregg v Scott (also a 3:2 majority decision). Here,
the claimant, who was suffering from chronic back pain, went to
see the defendant, an eminent neurosurgeon. He advised her to
have surgery, but failed, in response to her questioning, to warn
her that there was a very small risk (1 or 2%) of complications
with the surgery. Ignorant of this risk, the claimant consented to
the surgery. Unfortunately, the risk materialised, leaving her
with pain and disability, for which she sued the defendant in
negligence.
It was clear that the defendant had been in breach of duty by
failing to warn the claimant of the risk (see Ch.5). The difficulty,
however, was that the claimant was unable honestly to say that,
if she had known about the risk, she would not have consented
to the surgery—the most she could say was that she would not
have had the operation immediately, but would have taken time
for reflection, and perhaps sought a second opinion, before,
perhaps, having the operation (with the same associated risk) at
a later date. She could not prove, therefore, that “but for” the
negligent failure to warn, her disability would never have
arisen.60 Despite this difficulty, the Court of Appeal upheld her
claim, as did the House of Lords (but for different reasons).
 The Court of Appeal, taking a robust and pragmatic
approach, held that the claimant could succeed by applying
conventional causation principles. Thus, it could be said that the
claimant’s disability had resulted from having a particular
operation at a particular time. If the defendant had warned her
about the risks, she would not have had that particular operation
— she would have had an operation (with the same risks) at a
later date. If she had had this later operation, in all probability,
the very small risk of disability would not have materialised. On
this basis, it could be said that the defendant’s failure to warn
had resulted in the claimant’s disability.
The House of Lords did not find this approach attractive. As
Lord Hoffmann put it, the approach of the Court of Appeal was:

“. . .about as logical as saying that if one

had been told, on entering a casino, that the
odds on the number 7 coming up were only
1 in 37, one would have gone away and
come back next week or gone to a different
casino. The question is whether one would
have taken the opportunity to avoid or
reduce the risk, not whether one would
have changed the scenario in some
irrelevant detail.”61

In the House of Lords, both the majority and the minority

rejected the reasoning of the Court of Appeal and held that the
claimant could not succeed in proving causation on conventional
principles. For the minority (Lords Hoffmann and Bingham),
this was sufficient to dispose of the case. However, the majority
went on to state that, for policy reasons, the traditional rules of
causation ought to be relaxed to allow the claimant to succeed.
Central to their Lordship’s reasoning was the need to give effect
to the right of a patient to make an informed choice about
whether and when to undergo medical treatment. In law, this
right was underpinned by a doctor’s duty to warn the patient
about any material risks involved in the treatment. It would
therefore be unjust if a breach of this duty did not give rise to a
remedy. If the doctor were not made liable for such a breach, the
duty to inform the patient about significant risks would, as Lord
Hope put it, be a “hollow one”. His Lordship said:

“The function of the law is to enable rights

to be vindicated and to provide remedies
when duties have been breached. Unless
this is done the duty is a hollow one,
stripped of all practical force and devoid of
all content. It will have lost its ability to
protect the patient and thus to fulfil the
only purpose which brought it into
existence. On policy grounds therefore I
would hold that the test of causation is
satisfied in this case.”62

The effect of the decision in Chester v Afshar, then, is that,

for policy reasons, the law requires that a doctor who negligently
fails to warn a patient about a complication from treatment must
compensate the patient for the consequences of that
complication occurring. Lord Steyn thought that such a
proposition was sound because it reflected “the reasonable
expectations of the public in contemporary society”.63 The
approach in Chester, however, is very dif-
to reconcile with the approach taken in Gregg (above). If the
claimant in Chester is said to have a “right” (to self-
determination) that must be “vindicated” by a modification of
causation principles, what about Mr Gregg’s “right” to be
 promptly advised about treatment that would maximise his
chances of surviving cancer? It is difficult to draw a distinction
between the two, because, in both cases, what is in issue is the
dignity of the patient, which is supported by a doctor’s duty to
act in the patient’s best interests.64
More recently, in Duce v Worcestershire Acute Hospitals
NHS Trust,65 the Court of Appeal reviewed Chester and
effectively restricted its application. Reading the majority
judgments “in their factual context”, the Court determined
Chester did not establish a free-standing test for causation, but
rather represented a modification of the normal “but for” test,
that is, it treated something that did not satisfy the “but for” test
as a sufficient cause in law in the unusual circumstances of the
case. This meant that, at the very least, the claimant must
establish that but for the failure to inform, the operation would
not have taken place when it did.66 In Chester, the evidence was
that Ms Chester would not have consented to the operation
taking place on the stipulated date and sought a second and
possibly third opinion, delaying the operation. In Duce,
however, the causation argument failed in the face of abundant
evidence to show that even had Duce been warned, she would
have proceeded with the operation as she did.

(iv) The “material increase in risk”

approach: Fairchild

6–017 This is the true exception to the “all or nothing” version of the
“but for” test outlined above. It can be traced back to McGhee v
National Coal Board,67 where the plaintiff had contracted the
skin disease dermatitis from the presence of abrasive brick dust
on his skin. Some exposure to brick dust was an inevitable part
of his job—he worked in brick kilns. It was accepted that the
defendants were not negligent in exposing him to brick dust
during his working day. The plaintiff’s argument, however, was
that because no washing facilities were provided at his place of
work, throughout his working life he had had to cycle home
each day with his skin coated with the dust. He argued that,
without this additional and unnecessary exposure to the dust, he
would not have contracted dermatitis. The defendants admitted
that they had been negligent in failing to provide washing
facilities, but they argued that their negligence was not the cause
of the plaintiff’s disease. The medical evidence established that
exposure to brick dust caused
dermatitis, but the experts were unable to say that, on the
balance of probabilities, the additional negligent exposure to
brick dust had been the cause of plaintiff’s condition—it might
have occurred in any event, given that he was daily exposed to
the “innocent” dust.
The House of Lords held the defendants liable, finding that it
was sufficient that, by failing to provide washing facilities, the
defendants had “materially increased the risk” of the plaintiff
contracting the disease. Their Lordships justified this conclusion
in different ways meaning that there was no clear ratio.
According to one judge, Lord Wilberforce, the outcome was
dictated by policy. The defendants, by their negligence, had
created a risk of a particular kind of damage, and when damage
of that very kind materialised, they should not be allowed to
escape liability because of the claimant’s “evidential difficulties”
in proving causation. In appropriate cases, where such
difficulties became apparent they should, as a matter of policy
and justice, be borne by the person who created the risk. As his
Lordship put it:

“. . .it is a sound principle that where a

person has, by breach of a duty of care,
created a risk, and injury occurs within the
area of that risk, the loss should be borne
by him unless he shows that it had some
other cause.”68
The logical objection to Lord Wilberforce’s approach, of course,
was that it appeared to ignore the fundamental principle that the
claimant must prove his case. There was really no evidence to
suggest that the plaintiff’s damage materialised “within the area
of risk” created by the defendants’ negligence. (It might have
materialised within the area of risk created by his doing his job,
for which it was accepted that the defendants could not be
liable.) Clearly, Lord Wilberforce’s attempt to elide what were,
in fact, two distinct “areas of risk” owed much to the broad
policy consideration that, as a matter of justice, large employers
should be made to compensate their employees for all injuries
and diseases occurring in the workplace.
When the House of Lords came to decide Wilsher, Lord
Bridge, no doubt mindful of this logical objection, sought to
explain the decision in McGhee by saying that the case had “laid
down no new principle of law whatever”—on a proper
interpretation, it was simply a case where their Lordships had, in
the light of the evidence, felt able to draw a “legitimate
inference of fact”,69 namely that the absence of washing
facilities had actually been one of the causes contributing to the
plaintiff’s dermatitis. In Fairchild v Glenhaven Funeral Services
Ltd,70 however, the House of Lords rejected this explanation of
McGhee,71 stating that there had been no evidence in the case
from which their Lordships could have legitimately inferred that
the defendant’s conduct was an actual cause of the dermatitis—
all the defendants had done was to create an increased risk of
dermatitis. Accordingly, the decision in McGhee should indeed
be
seen as having laid down a new principle of law, namely that, in
appropriate cases, a claimant will succeed by merely
establishing a “material increase in risk”.
The approach in McGhee was followed in Fairchild v
Glenhaven Funeral Services Ltd. This was a case concerning a
number of claimants who had contracted mesothelioma (a lung
tumour) as a result of exposure to asbestos, having worked for a
number of different employers during their working life. All the
 employers admitted they were in breach of their duty of care to
protect the claimants against exposure to asbestos. The problem
for the claimants, however, was that they could not establish
which of their different employers had exposed them to the
particular asbestos that had caused their disease. The medical
evidence was that the disease did not necessarily build up
gradually with continued exposure to asbestos, but could be
triggered suddenly at any time, perhaps by one single fibre
causing a cell to become malignant. It followed that, while all
the employers could be said to have increased the risk of
mesothelioma, it was not possible to say that all of them had
been responsible for cumulatively causing the disease. And, of
course, it was not possible to say which of them had been
responsible for the particular fibre(s) that had suddenly triggered
the disease.
The solution adopted by the House of Lords was to make all
of the employers liable, on the basis that each had increased the
risk of mesothelioma, without requiring the claimants to prove
which of the employers had been responsible for causing it.
Their Lordships affirmed the principle laid down in McGhee
that, in appropriate cases, merely establishing a “material
increase in risk” would be sufficient to discharge the claimant’s
burden of proving causation.

Contribution between defendants: The

Compensation Act 2006

6–018 The House of Lords in Fairchild gave no guidance as to how

that liability should be shared between the defendants. This
omission gave rise to academic criticism72 and left lawyers to
presume that the effect of Fairchild was to impose “joint
liability”. Where this sort of liability is imposed, each defendant
is potentially liable for the whole amount of the loss—the
defendants are then left to argue amongst themselves as to who
should contribute how much to the claimant’s compensation
award, but, at the end of the day, the award must be paid in full
by one or more of them. This sort of liability has a clear
advantage for the claimant—should one or more of the
defendants be insolvent or untraceable, the claimant is entitled to
look to the remaining defendant(s) to satisfy judgment.
Almost four years after Fairchild, however, the House of
Lords again faced a case involving appeals concerning
mesothelioma. In Barker v Corus UK Ltd,73 their Lordships held
that the sort of liability that should be imposed on employers in
cases like Fairchild was “several liability”, and not “joint
liability”. This meant that liability to pay compensation was to
be apportioned among the various defendants according to their
relative degree of contribution to the risk of the
claimant contracting the disease. Although their Lordships
declined to be specific on the point, it was clear that these
contributions would normally be worked out by reference to the
length of time each defendant had exposed the claimant to
asbestos, the intensity of that exposure, and (where quantifiable)
the potency of the type of asbestos in question. This approach
was thought necessary in order to be fair to the defendants in
these cases. As Lord Hoffmann put it, apportionment of liability
would “smooth out the roughness” of the justice created by joint
liability.74 His Lordship took the view that apportionment was
appropriate because the fault of each defendant lay in creating a
percentage risk of mesothelioma. It could not be said that any of
the defendants had actually caused the mesothelioma.75 (Indeed,
the whole point of the Fairchild principle was that it applied
where the cause could not be determined.)
The result of the decision in Barker, therefore, was that the
risk that one or more defendants would be insolvent or
untraceable fell on the claimants. In many cases, this meant that
claimants’ compensation would be substantially reduced,
because much of their exposure to asbestos had occurred long
ago, and the companies that had employed them were no longer
in existence. Moreover, in practice, claimants would have to
trace all relevant defendants, so far as possible, before
apportionment could be carried out and any compensation could
be paid. The practical implication of this was that claims would
 take much longer to conclude, so claimants and their families,
who were already under considerable stress, would have a
lengthy wait before receiving any compensation.76
When these implications of Barker became apparent, there
was a public and parliamentary outcry. The government moved
swiftly to pass legislation reversing the effect of the decision.
The effect of Barker was therefore reversed by the
Compensation Act 2006 s.3. This provides that, where a
defendant, through negligence or breach of statutory duty, has
exposed a claimant to asbestos, and that claimant contracts
mesothelioma, the defendant is liable “for the whole of the
damage caused to the victim by the disease”. Liability is
declared to exist “jointly and severally” with any other persons
responsible for asbestos exposure. It should be noted, however,
that s.3 is expressly limited to claimants contracting
mesothelioma. Logically, this signifies that Barker has not been
overturned in relation to claimants able to rely on the Fairchild
principle, but not suffering from this specific disease. This
restrictive view of s.3 was confirmed recently by the Supreme
Court in International Energy Group Ltd v Zurich Insurance plc
UK.77 Here the claimant had brought his claim in Guernsey
where the Compensation Act 2006 had not been enacted. The
court held that on this basis, the Barker rule of proportionate
recovery would apply. Section 3 of the Act did not change the
common law, but only overrode it to the extent that the section
itself provides.78

When will the “material increase in risk

approach” apply?

6–019 First, it must be remembered that the Fairchild principle will

have no application in cases where evidence can be produced to
show that particular defendants are responsible for making
distinct and quantifiable causal contributions to the claimant’s
loss. In such cases, the courts will apportion liability to each
defendant in accordance with his or her degree of fault. The
Fairchild principle is reserved for the sort of exceptional
circumstance that occurred in the case itself, namely where all
the defendants are shown to be in breach of duty and it is
established that the whole of the damage results from a single
agent (e.g. exposure to an asbestos fibre) at a specific time in the
past, yet the limits of scientific knowledge mean that it is
impossible to say which agent, out of a number of identical
agents (or agents acting in the same causative way),79 has
actually caused the damage. The Court of Appeal in Heneghan v
Manchester Dry Docks80 saw no reason why it would not apply
to diseases other than mesothelioma (here lung cancer) where all
the material factors which triggered the Fairchild principle were
present. Such claims would not, however, be able to benefit
from the Compensation Act 2006 s.3 and Mr Heneghan’s estate
therefore would only receive a proportionate amount of liability
from the defendants still able to meet his claim.81
In cases where the Fairchild principle applies, it sits rather
uncomfortably alongside the approach adopted by the House of
Lords in Wilsher. If the claimants in Fairchild could succeed
simply by showing that exposure to asbestos had increased the
risk of mesothelioma, why was it that the plaintiff in Wilsher
could not succeed by showing that exposure to excess oxygen
had increased the risk that he would contract RLF? Their
Lordships in Fairchild were content to say that Wilsher had been
correctly decided, the majority basing this assertion on the
factual differences between that case and cases like McGhee and
Fairchild. The key difference is that, in the Fairchild type of
case, there is only one “causal agent” of the claimant’s injury
(brick dust in McGhee and asbestos in Fairchild) whereas, in a
case like Wilsher, there are many competing “causal agents”
(oxygen and the other possible natural causes of RLF).
It is clear from the decision of the Supreme Court in
Sienkiewicz v Greif82 that the Fairchild principle will also apply
in mesothelioma cases where only a single defendant has
negligently exposed the claimant to asbestos. In contrast to the
situation in Fairchild and Barker, where a number of defendants
 had negligently exposed the victim to asbestos and thereby
materially increased the risk of the employee developing
mesothelioma, in Sienkiewicz, there was only
one defendant, and evidence that the victim had been at risk in
any event of developing the disease from low-level exposure to
asbestos in the general atmosphere. Seven Justices of the
Supreme Court unanimously provided that the Fairchild
approach would also apply where a single defendant had
negligently exposed the victim to asbestos. Although the
claimant could only establish an increased risk of 18% arising
from the defendant’s negligence, such a risk was material: a risk
would only be regarded as immaterial if the negligent exposure
had been too insignificant to be taken into account, having
regard to the overall exposure. This was a matter for the judge
on the facts of the particular case. The Supreme Court did warn,
however, that the rule in Fairchild and Barker had been adopted
to cater for an evidential gap that had existed at the time of those
decisions about the causes of mesothelioma.83 This did not
preclude the courts from reverting to the conventional approach
of balance of probabilities should advances in medical science in
relation to the disease make such a step appropriate.84

6–020 We might question whether these rather technical distinctions,

based on the number of “causal agents” or “distinct causes”
present in a case, provide a satisfying or coherent justi-fication
for adopting different approaches to causation.85 They may be
justified, however, on policy grounds. Certainly, the distinctions
can prevent the Fairchild principle from creating widespread
negligence liability where the causes of damage are
indeterminate. We have seen also that in Gregg v Scott the
House of Lords declined to adopt a broad interpretation of the
Fairchild principle in the context of medical negligence, and so
refused to apply a “material increase in risk” approach to the fact
of Mr Gregg’s untimely diagnosis and treatment. Further, the
Court of Appeal in Williams v University of Birmingham86
refused to allow the more generous approach to causation in
Fairchild to influence the ordinary breach of duty test, set out in
Ch.5. In contrast, the Supreme Court in Durham v BAI (Run off)
Ltd87 was determined to avoid a situation where the insurers of
the employers liable under the Fairchild principle could avoid
paying out under their insurance policies on the basis that it
could not be said that the employers “caused” the injury (a
requirement of the insurance policies in question), but merely
materially increased the risk of injury. Lord Mance, giving the
leading judgment, argued that, under Fairchild, causation was
“deemed” to be proved. This was based on a weak or broad view
of the causal link in this particular context. He concluded that
the intention under the insurance policies must be taken to have
been that they would respond to whatever liability the insured
employers might be held to incur within the scope of the risks
for which they were insured.88
To decide otherwise would undermine the protective purpose of
legislation which requires employers to take out compulsory
insurance against liability for injuries suffered by employees in
the workplace.89
It is clear that this is an area of law where the courts are
prepared to sacrifice conceptual clarity to avoid unjust results,
but not in every case. This means that the limits to the
application of the Fairchild principle remain a matter of
considerable importance. It should also be noted that the
Fairchild exception has not been recognised in other common
law jurisdictions such as Australia.90 Lord Hoffmann has since
expressed his regret at the Fairchild decision:

“Fairchild was wrong because it introduced

an arbitrary distinction into what had been
a clear principle . . . in Fairchild we
assumed we alone could do something to
put right an injustice to mesothelioma
victims. We did not consider that
Parliament might intervene.”91
 In other words, the House of Lords engaged in unwarranted
judicial law-making. It remains a matter for debate whether the
court in Fairchild should have “left well alone”, as Lord
Hoffmann now advises, or whether the House was correct in
reaching the difficult decision that the demands of justice
required the courts to develop the law, albeit creating a limited
exception to the “but for” test. The Court of Appeal recently
resolved that92:

“. . . once the courts can be confident that

the objective of ensuring victim protection
has been achieved, it is desirable that the
anomalies should be corrected and that the
law should return to the fundamental
principles of the common law. Put shortly,
once unorthdodoxy has served its purpose,
we should revert to orthodoxy.”

Novus Actus Interveniens

6–021 In certain circumstances, where one act follows another, the law
will say that the second act (the “new intervening act”) is to be
regarded as 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; it is not fair to hold
the defendant liable, however gross his breach of duty,
when some independent supervening cause is the actual cause of
the claimant’s injury.93 This idea, known as the doctrine of
novus actus interveniens, is explored here. It should be noted
that the essence of the doctrine overlaps not only with the
reasoning in “successive cause” cases, which we have already
examined, but with other areas of the law—in particular, the
question of whether a person owes a duty to prevent a third party
from causing damage (considered in Ch.2) and the defences of
Act of God, volenti non fit injuria and act of stranger, which are
considered in later chapters. Each area of the law simply
represents a different way of determining liability. The fact that
some cases are decided using the concepts of “duty” or
“defence”, rather than causation, is sometimes the result of
historical accident in the way the law has developed, and
sometimes the product of a judicial search for clarity.
It should also be noted that many writers and judges treat the
idea of novus actus inter-veniens as part of the test for
“remoteness of damage”.94 This is mainly because, as we shall
see later, the test for “remoteness” is whether the kind of damage
in question is reasonably foreseeable, and the same issue arises
when considering whether a defendant is liable in spite of an
intervening act. Some writers, on the other hand (myself
included), reserve the phrase “remoteness of damage” for a
slightly different problem, namely, where, on any sensible view,
there is only one true cause of the claimant’s loss, but where the
loss caused seems too far removed to be recoverable. This
problem is explored in a later section.
It is convenient to place the relevant cases into two groups—
intervening act of a third party and intervening act of the
claimant. It should be noted that, rarely, acts of nature, such as a
storm, may also act to break the chain of causation. In such
cases, the chain of causation will be broken when it is the act of
nature which is the effective cause on the claimant’s loss and
eclipses the defendant’s wrongdoing.95

Intervening act of a third party

6–022 It is useful to draw a distinction between three different ways in
which a third party may interfere with a course of events—
natural (or “instinctive”) intervention; negligent intervention;
and intervention in the form of intentional wrongdoing. We
consider each type of intervention in turn.

◗ Natural or “instinctive” intervention

6–023 The classic example of “instinctive” human conduct failing to
amount to a novus actus inter-veniens is the very old case of
Scott v Shepherd.96 Here, the defendant threw a lighted firework
into a market place. It landed on a stall belonging to a third
party, A, who threw it on so that it landed on the stall of a fourth
party, B, who reacted in a similar way. The firework ultimately
hit the plaintiff and injured him. It was held that neither the
intervening act of A or B broke the causal connection between
the defendant’s act and the subsequent damage. Both A and B
had acted in an instinctive and natural way to avoid damage to
themselves and their property.
It is clear from Scott v Shepherd, then, that a third party’s
intervention will not break the chain of causation where it is an
involuntary reaction in the “heat of the moment”. However, the
same sort of reasoning appears to apply in cases where the third
party has some opportunity to reflect before taking action.
Consider, for example, The Oropesa.97 Here, because of the
defendants’ negligence, a ship of that name collided with a ship
called the Manchester Regiment. The captain of the Manchester
Regiment set out in a life boat to consult the captain of The
Oropesa about how best to save his crew. The life boat capsized,
causing the death of many of those aboard. The captain’s
intervention did not break the chain of causation.

◗ Negligent intervention
6–024 It is impossible to state with absolute clarity the circumstances
in which the negligent conduct of a third party will break the
chain of causation. Where A commits a tort, and B commits a
subsequent tort, the key question is whether the nature of B’s
tort is so powerful that it ought to be regarded as rendering A’s
tort merely part of the surrounding historical circumstances—
the backdrop against which B’s tort occurred. Thus, negligent
conduct will not always break the chain of causation. For
example, in Roberts v Bettany,98 the defendant negligently
started an underground fire, and was ordered by the council to
extinguish it. He failed to comply with this order, so the council
intervened to extinguish the fire. Unfortunately, owing to the
council’s negligence in so doing, subsidence occurred under the
claimant’s house. The Court of Appeal held that the council’s
negligence did not break the chain of causation, so the defendant
was liable for the subsidence. The defendant, having started the
fire, could not be said to be merely part of the “surrounding
circumstances” of the council’s negligence—it being the direct
cause of the council’s foreseeable and necessary intervention.
Some flavour of the courts’ approach can be gained by
considering a number of cases involving negligent driving. In
Knightley v Johns,99 for example, the defendant negligently
overturned his car in a tunnel. A police inspector then arrived at
the scene to take charge of the situation, and negligently ordered
a police motorcyclist to secure the closure of the tunnel by riding
against the traffic towards its entrance. The motorcyclist collided
with the plaintiff’s oncoming car. In holding the defendant not
liable for this accident, the Court of Appeal stated that the
relevant question to ask was whether the whole sequence of
events was a natural and
probable consequence of the defendant’s negligence, so that it
should have been reasonably foreseen by the defendant, or
whether the events were foreseeable only as a mere possibility.
In answering this question, it was helpful to consider whether
the third party’s negligent intervention had involved a deliberate
choice to do a positive act, as opposed to an error of judgment in
the course of performing an act in which the third party was
already engaged. Here, the conduct of the police had taken the
form of a deliberate positive act and was not reasonably
foreseeable by the defendant.
 It is useful to compare Knightley v Johns with the decision in
Rouse v Squires.100 Here, the defendant lorry driver negligently
caused an accident which blocked two lanes of a motorway. The
plaintiff, who was assisting at the scene, was killed when a
second lorry driver negligently drove into the obstruction. The
Court of Appeal held that the defendant was 25% to blame. The
negligent driving of the second lorry driver did not break the
chain of causation between the original accident and the
plaintiff’s death—a driver who caused an obstruction could be
taken reasonably to foresee that a further accident might be
caused by other drivers negligently colliding with the
obstruction. The matter therefore became a question of
cumulative causation.
Whilst an act of negligent driving may not break the chain of
causation, then, reckless driving may amount to a novus actus
interveniens, because such driving is not normally foreseeable.
Such was the case in Wright v Lodge.101 Here, the second
defendant was driving her Mini at night along a dual
carriageway. It was foggy and the road was unlit. The Mini
broke down and came to a stop in the near side lane. A few
minutes later, as she was trying to restart her car, it was hit from
behind by an articulated lorry being driven at 60 mph by the first
defendant. After hitting the Mini, the lorry careered across the
central reservation. It ended up on its side, blocking the opposite
carriageway, and four oncoming vehicles collided with it. One
driver died of his injuries and another was seriously injured. The
Court of Appeal accepted that the Mini driver had been
negligent in failing to push her car off the road before trying to
restart it—which she could easily have done with the help of her
passengers—but held that the lorry driver’s dangerous driving
was to be regarded as the true cause of the plaintiffs’ injuries.
A particularly difficult question is whether, when a claimant
is injured by a defendant’s negligence and subsequently
undergoes negligent medical treatment, the latter can be
regarded as a novus actus interveniens. This should not be
confused with the more straightforward question of whether a
defendant remains liable when non-negligent medical treatment
 makes a claimant’s position worse because of the claimant’s pre-
disposition to respond adversely to treatment. This point is
discussed in a later section.
The circumstances in which negligent treatment will break
the chain of causation cannot be stated with certainty.
Assistance, however, may be found from the decision of the
House of Lords in Hogan v Bentinck West Hartley Collieries
(Owners) Ltd.102 The case concerned a miner
who injured his thumb at work. He was taken to hospital, where,
initial treatment having failed to relieve his pain, doctors
negligently decided to amputate part of his thumb. This reduced
his earning capacity, because it left him able to do only light
work. The question before the House of Lords was whether the
man’s incapacity resulted from the original injury or the
operation. The case was complicated by the fact that the man
had a congenital abnormality (an additional top joint to his
thumb) for which amputation in the event of pain was
considered a reasonable form of treatment. By a 3:2 majority,
their Lordships held that the amputation amounted to a novus
actus interveniens, absolving the defendant employers from
liability. Lord Reid, however, in a powerful dissenting speech,
thought that subsequent medical treatment should only break the
chain of causation where there was a “grave lack of skill and
care” on the part of the doctors. It should not do so in this case,
because it was not abundantly clear that an alternative form of
treatment would have cured the plaintiff of his condition. It has
been suggested that, nowadays, only where the treatment in
question is “so grossly negligent as to be a completely
inappropriate response to the injury inflicted by the defendant”
should it operate to break the chain of causation.103

◗ Intentional acts of wrongdoing

6–025 Where a third party’s intervention takes the form of a deliberate
act of wrongdoing, the courts are very reluctant to hold a
defendant liable and will usually say that the third party’s act has
broken the chain of causation. However, much will depend on
the particular circumstances of the case. In Att-Gen of the British
Virgin Islands v Hartwell,104 an emotionally disturbed police
officer in the British Virgin Islands, whom the defendant police
authority had given access to a gun, deserted his post and
travelled to a bar where he shot and injured a British tourist. The
Privy Council, whilst conceding that the case was a “closely
balanced” one, held that this action did not break the chain of
causation. The defendant authority was liable for the tourist’s
injuries. The standard of diligence expected of the authority in
supervising the use of firearms was a high one, in view of the
grave risks involved. Moreover, given that the authority knew
about the officer’s disturbed emotional state, his actions were
sufficiently foreseeable.
The case of Home Office v Dorset Yacht Co Ltd105
(discussed in Ch.2) is a further example of a situation where
criminal intervention did not break the chain of causation. In the
case, because of the carelessness of the guards, a number of
prisoners had escaped from detention on an island and caused
damage to some yachts moored in the harbour. Such an event
was extremely foreseeable by the defendants—there was a close
relationship between the
negligent guards and the prisoners, and their actions were the
“very kind of thing” that was likely to happen if the guards
allowed them to escape.
The “foreseeability-based” approach to liability for the
criminal acts of third parties caused some difficulty for the Court
of Appeal, however, in Lamb v Camden LBC.106 Here, a burst
water main, for which the defendant council was responsible,
had caused the plaintiff’s house to become flooded. The
plaintiff, who was living abroad at the time, moved her furniture
out of the house and made arrangements for repairing the
damage. Whilst the house was left unoccupied, squatters moved
in and caused extensive damage to the house. The plaintiff’s
action in respect of this damage failed. The council was not
liable for the squatters’ antisocial and criminal behaviour. This
was so even though (according to the majority) in modern times
the actions of the squatters could be regarded as highly
foreseeable.
In Lamb, their Lordships arrived at their decision by slightly
different routes. Lord Denning MR thought that, as a matter of
policy, the responsibility for keeping the squatters out lay with
the plaintiff and not the council and that the loss they had caused
should be borne by the plaintiff’s insurers. (We can see at work
here the economic and political consideration that loss should
not be transferred from a private insurance arrangement to a
publicly funded authority, discussed in Ch.3.) His Lordship
thought that, in Home Office v Dorset Yacht, Lord Reid had been
wrong to decide the question of novus actus interveniens using a
test of foreseeability, and that it was not helpful to attempt to
distinguish between different degrees of foreseeability. To
illustrate the point, Lord Denning MR put forward an example:
Suppose a prisoner escapes and steals a car. He then drives many
miles, abandons the car, breaks into a house to steal a change of
clothes, gets a lift in a lorry and continues with his criminal
activities. On Lord Reid’s test of “very likely to happen”, none
of the prisoner’s intervening acts would break the chain of
causation, so that the Home Office would be liable for all of the
damage caused by escaped convicts. As a matter of policy, this
was unacceptable.
Oliver LJ, on the other hand, was content to say that the
squatters’ intervention was not reasonably foreseeable (although
it was foreseeable as a mere possibility). Watkins LJ thought
that, in addition to foreseeability, the court should consider a
number of other factors, including:

“the nature of the event or act, the time it

occurred, the place where it occurred, the
identity of the perpetrator and his
intentions and responsibility, if any, for
taking measures to avoid the occurrence
and matters of public policy.”107
 The authorities suggest that the nature of the relationship
between the defendant and the third party is an important
consideration for the courts. In Lamb, the third parties were
strangers to the defendant, whereas in Dorset Yacht there was a
relationship of supervision and care. The relationship between
the defendant and the claimant may also be important. Thus, in
Stansbie
v Troman108 (considered in Ch.2), the decorator, who had
impliedly agreed to look after the plaintiff’s house, was liable
for the actions of the thief who broke in—the thief’s action did
not amount to a novus actus interveniens. Applying both of these
“relationship” considerations, we can explain why, for example,
in Topp v London Country Bus (South West) Ltd109 the
defendants were not liable when a bus driver, for whose actions
the defendants were responsible, left his bus unattended with the
keys in the ignition and it was stolen by a third party whose
careless driving caused injury to the plaintiff.
In the final analysis, it seems that both “relationship” and
“degree of foreseeability” play a part in the courts’ reasoning in
these cases. Much seems to rest on the judiciary’s perception of
the scope of the duty of care owed by the defendant. The law
reflects, therefore, the view taken more generally in negligence
(as seen in Ch.2) that defendants should only rarely be held
responsible for the deliberate tortious actions of independent
third parties.110

Intervening act of the claimant

6–026 In appropriate circumstances, the actions of the claimant can
break the chain of causation, so that he or she, rather than the
defendant, is to be regarded as the operative cause of his or her
own loss. Here, the question is whether the conduct of the
claimant is so wholly unreasonable that it eclipses the tort of the
defendant and amounts to the effective cause of the injury. Such
cases are rare. The courts tend to be more willing to consider
whether the claimant’s conduct can be characterised as
contributory negligence which is a defence (discussed in Ch.16)
or even amounts to acceptance of the risk of injury (the defence
of volenti non fit injuria, also considered in Ch.16). In a sense, it
is regarded as unfair to deny a claimant, who has surmounted the
hurdles for proving that the defendant has committed a tort, any
remedy at all, whereas contributory negligence simply reduces
the claimant’s damages to the extent that their fault contributed
to the harm suffered. In Scott v Gavigan,111 therefore, the court
indicated that even recklessly running across the road into the
path of traffic was more likely to give rise to an award of
damages heavily reduced for contributory negligence, rather
than a finding that such conduct amounted to a novus actus
interveniens.
As a side note, it should be noted that the “all or nothing”
approach to causation, which depends on the balance of
probabilities, sits somewhat uneasily alongside the fact that a
claimant may be regarded by the law as so contributorily
negligent that his or her damages are reduced by an amount
greater than 50%. Where this is so, why does the law not regard
the claimant, rather than the defendant as the true cause of the
loss? There is no clear answer to this question, save to say that
the law places the question of contributory negligence in a
separate “conceptual compartment” from factual causation, and
sees it as a matter relating to the quantification of damages,
rather than as a matter relating to the determination of liability in
the first place.112
The courts’ general approach to deciding whether a
claimant’s own act breaks the chain of causation can be
illustrated by comparing two cases: McKew v Holland and
Hannens and Cubitts (Scotland) Ltd113 and Wieland v Cyril Lord
Carpets Ltd.114
In McKew, the plaintiff suffered a slight injury to his leg as a
result of the defendant’s negligence, so that it had a tendency to
give way when he was walking. Shortly afterwards, he went
with his family to look at a flat. He descended a steep staircase
with no handrail, ahead of his family, and holding a child by the
hand. His injured leg gave way and he fell, fracturing his ankle.
The House of Lords held that the plaintiff’s unreasonable
behaviour was a novus actus interveniens. He, not the defendant,
had caused his injury by descending the staircase without
waiting for the assistance of his wife or brother-in-law, knowing
that his leg might give way at any moment.
A claimant’s act will only break the chain of causation when
it is unreasonable. Thus, in Wieland v Cyril Lord Carpets Ltd,
although the facts were similar to those in McKew, the court
reached a different conclusion. The plaintiff suffered an injury to
her neck, caused by the defendant’s negligence. Shortly after
this, the plaintiff, who wore bi-focal spectacles, returned to the
hospital where she had originally been taken and was fitted with
a surgical collar. The position of her neck in the collar deprived
her of her usual ability to use her bi-focals—she could not easily
adjust the position of her head. After leaving the hospital, the
plaintiff was in a nervous state because of the trauma of the visit,
and this, together with the problem with her bifocals, made her
unsteady on her feet. She went to her son’s office to ask him to
take her home. He accompanied her down the stairs of the office
building, but when she neared the bottom she fell and injured
her ankles. Eveleigh J held that these injuries were caused by the
defendant’s negligence, which had impaired her ability to
negotiate the stairs. Her actions in descending the stairs had been
reasonable and could not be regarded as a novus actus
interveniens.
More recently, the same principle was applied in Spencer v
Wincanton Holdings Ltd.115 Here, the claimant had had his leg
amputated as a result of the defendant’s negligence. He had been
fitted with a prosthesis, but pending further adaptations to his
car, this could not be worn whilst he was driving. He pulled into
a filling station, and, without the aid of his prosthesis or walking
sticks, got out of his car and filled it with petrol, using the car
for support. As he was returning to the driver’s door, he tripped
and fell, sustaining a further injury which confined him to a
wheelchair. The Court of Appeal upheld the trial judge’s finding
that the claimant’s actions were not so unreasonable as to break
the chain of causation. He had made a misjudgement in
running a risk by not using his prosthesis or sticks, but this was
properly reflected in a finding of contributory negligence.
In a number of cases, the question has arisen whether a
claimant’s taking his or her own life will break the chain of
causation. The courts’ approach has been to hold that where the
defendant’s negligence creates a risk of psychiatric illness
leading to suicide, the suicide does not constitute a novus actus
interveniens. Thus, in Corr v IBC Vehicles Ltd,116 the claimant
suffered a head injury at work as a result of his employer’s
negligence. He succumbed to severe depression and eventually
killed himself. In an action by his widow, it was held that his
suicide did not break the chain of causation.
A similar conclusion was reached by the House of Lords in
Reeves v Metropolitan Police Commissioner.117 Here, the
deceased was in police custody. Taking advantage of the police
officers’ inadvertence in leaving the flap of his cell door open,
he hanged himself by tying his shirt through the spy hole on the
outside of the door. It had been noted in police records that the
deceased was a suicide risk, having made two previous attempts
to kill himself whilst in custody. The doctor who had examined
him on his arrival at the police station, whilst finding no
evidence of psychiatric illness, had noted that he should be kept
under frequent observation in the light of his previous suicide
attempts. By a 3:2 majority, the House of Lords held that the
suicide, although a deliberate and informed act, could not be
regarded as having broken the chain of causation, given that the
police were under a specific legal duty to guard against the
commission of that very act.

Remoteness of Damage
6–027 Here, we are not concerned with whether the claimant’s loss
may have an alternative cause. Rather, the question is whether
the law will deny recovery on the basis that the loss in question
is a very unusual result of the defendant’s conduct.

The old law

6–028 Before 1961, the law was dominated by the decision of the
Court of Appeal in Re Polemis and Furness, Withy & Co,118 in
1921. Here, a ship had been loaded with a quantity of petrol,
which, unbeknown to any of the parties, had leaked, causing the
hold of the ship to fill with vapour. A dock worker employed by
the defendants negligently allowed a wooden plank to drop into
the hold, where it somehow caused a spark that ignited the petrol
vapour, causing the ship to be lost by fire. The Court of Appeal
held the defendants liable. Whilst the worker could not have
foreseen that the falling plank would cause a fire, he could have
foreseen that it might cause some damage to the ship (such as a
scratch on the paint work). Given that this was so, the
defendants were liable for all of the damage that was a direct
factual consequence of the worker’s negligence.
The exact ratio of Re Polemis is a matter of some confusion.
It is often argued that there are two possible interpretations of
the decision. On the first interpretation, their Lordships appear to
have held that because some damage of the relevant kind was
reasonably foreseeable, the defendants were liable for all
damage of that kind. In other words, they were liable for the fire
because “damage to a ship”, whether by fire or by a scratch in
the paintwork, was the same kind of damage—damage to
property. According to this interpretation, then, all that their
Lordships did in Re Polemis was to draw a distinction between
“damage to property” on the one hand, and other “kinds” of
damage (economic loss and personal injury) on the other. The
second, wider, interpretation of the case, however, is that so long
as some damage (of whatever “kind”) was the foreseeable result
of the defendant’s conduct, he or she would be liable for any
 damage that was a “direct” consequence of his or her conduct
(including damage of a different “kind”, and even damage to an
“unforeseeable claimant”).
In the subsequent case of The Wagon Mound (No.1), which
is now the leading authority on remoteness of damage, the Privy
Council appeared to treat Re Polemis as authority for this
second, wider, proposition. Their Lordships held that the “rule”
in the case—that a defendant was to be liable for all the direct
consequences of his or her actions—was wrong, because, if it
were right, it would mean that a defendant could be liable even
for damage that could not be reasonably foreseen.119 Such a
proposition could not be reconciled with important cases that
had been decided after Re Polemis, not least of which was
Donoghue v Stevenson.

The modern law: The Wagon Mound

(No.1)

6–029 The decision in Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co Ltd120 is known as The Wagon Mound (No.1)
because it is the first of two cases involving a ship of that name.
It will be recalled that the second of these cases—The Wagon
Mound (No.2)—has already been considered in Ch.5 as a case
involving breach of duty. It is important not to confuse the two
cases. The difference between them lies in the fact that, whereas
in The Wagon Mound (No.2) the evidence before the court
showed there was a foreseeable risk (albeit a small one) that the
oil would ignite, in The Wagon Mound (No.1)—the case we are
now concerned with—the evidence was that the oil catching fire
was unforeseeable. This rather surprising difference is explained
by the fact that, at the time The Wagon Mound (No.1) was
brought to trial in New South Wales,
contributory negligence was a complete defence. This meant that
the plaintiffs in The Wagon Mound (No.1) did not dare allege
that it was reasonably foreseeable that the oil might catch fire,
for fear that they might be held contributorily negligent in
continuing with their welding operations.
It will be recalled that in the Wagon Mound litigation the
defendants negligently allowed some furnace oil to spill on to
the sea while their ship was in Sydney Harbour. In The Wagon
Mound (No.1), the plaintiffs were ship repairers. The oil was
washed by the tide so that it fouled the plaintiffs’ slipways,
causing them to stop work. However, having been assured that
there was no chance of the oil igniting, the plaintiffs resumed
their welding operations. It was not clear what happened next,
but it was assumed that some cotton waste, which was floating
on the water, was ignited by a fragment of molten metal from the
welding operations. The cotton waste, acting as a sort of wick,
allowed the oil to ignite, and the plaintiffs’ wharf and equipment
were extensively damaged in the ensuing blaze. As has been
said, the important finding of fact, on which the Privy Council
based its decision, was that the occurrence of the fire was not
reasonably foreseeable. But it was reasonably foreseeable, of
course, that the oil might cause some damage to the plaintiffs’
wharf by fouling it.
The Privy Council held that the defendants were not liable.
Declaring Re Polemis to have been wrongly decided, their
Lordships held that the proper test for remoteness of damage
was whether the defendant could have reasonably foreseen the
kind of damage for which the plaintiffs were suing. Their
Lordships thought that “damage by fire” should be regarded as a
different “kind” of damage from “damage by fouling”, and since
the former could not have been foreseen, the defendants were
not answerable for it. Viscount Simonds explained the basis for
the decision, saying:

“It does not seem consonant with current

ideas of justice or morality that for an act
of negligence, however slight or venial,
which results in some trivial foreseeable
 damage the actor should be liable for all
consequences however unforeseeable and
however grave.”121

It may be argued, of course, that his Lordship’s explanation is

not wholly satisfactory. It views the matter exclusively from the
defendant’s point of view, and imports into tort law the criminal
law idea that the “punishment” should fit the wrong, ignoring
the idea that the traditional role of tort is to compensate the
victim. Why should not the defendant, who (unlike the claimant)
has been to blame at least in some degree, be made to shoulder
all the loss caused by his or her fault? Such considerations have
doubtless influenced the courts in their interpretation of the
decision in The Wagon Mound (No.1), especially in the context
of personal injury cases. This will be explored below.
The principle in The Wagon Mound (No.1) contains a
number of elements, which (as in the following sections) are
traditionally considered in turn. It should be noted, however, that
the
elements overlap considerably. We shall see that this area of the
law is beset with uncertainty and contains many decisions that
are quite hard to reconcile.

◗ Foreseeability of the “kind of damage”

6–030 In Hughes v Lord Advocate,122 the Post Office, in breach of its
duty, left a manhole open in the street during the course of its
work on some telephone cables. The manhole was covered with
a tent and, in the evening, left unguarded but surrounded by
warning paraffin lamps. The plaintiff was an eight-year-old boy
who had picked up one of the lamps and clambered down the
manhole. Because of a very unusual set of scientific
circumstances, an explosion occurred, causing him severe burns.
The House of Lords held that the Post Office was liable, even
though it could not reasonably have foreseen that anyone might
be burned by an explosion in the manhole. It was sufficient to
found liability that there was a reasonably foreseeable risk of the
boy being burned by the paraffin lamp. In other words, “damage
by burning” was the “kind” of damage in question, there being
no distinction between burning caused by the flame of the lamp
and burning caused by an unforeseeable explosion.
Similar reasoning was applied in Bradford Corp v Robinson
Rentals Ltd.123 Here, the plaintiff suffered frostbite when he was
sent on a journey by his employer in a van without a heater. It
was held that, although frostbite was a rather unusual
consequence in the circumstances (it was practically unheard of
in Britain), it was nevertheless “of the type and kind of injury
which was reasonably foreseeable”.124
Both of these cases, then, suggest that the courts are happy to
view personal injury as a single and indivisible “kind” of
damage. Whilst the decision in The Wagon Mound (No.1) shows
us that the courts will subdivide “damage to property” into
different “kinds” of damage—such as “damage by fire” and
“damage by fouling”—the courts appear not to apply the same
sort of reasoning in personal injury cases. The difference in
approach can be explained in terms of policy. First, the law has
always been more anxious to protect physical wellbeing than to
protect property. Secondly, if “damage to property” were
regarded as a single, indivisible “kind” of damage, defendants
might be exposed to “crushing liability” for very large amounts
of loss. By contrast, in personal injury cases, losses are generally
likely to be less expensive to compensate.
There is one well-known case, however, that appears to
conflict with a general proposition that personal injury is an
indivisible “kind” of damage. In Tremain v Pike,125 the plaintiff
was a herdsman employed by the defendants, who were farmers.
The farm became infested with rats and the plaintiff contracted
Weil’s disease—a rare disease that is caught by coming into
contact with rats’ urine. Payne J held that, even on the
assumption that the defendants had been
negligent in failing to control the rat population, the plaintiff
could not succeed. His Lordship thought that Weil’s disease was
both unforeseeable and “entirely different in kind” from the
foreseeable consequences of contact with rats, such as food
poisoning or the effects of a rat-bite. The status of Tremain v
Pike is uncertain, especially in the light of Parsons v Uttley
Ingham (discussed later), where the Court of Appeal implicitly
rejected its reasoning.
So far as property damage is concerned, whilst it is clear that
The Wagon Mound (No.1) allows the courts to subdivide
property damage into different “kinds” of damage, the
limitations (if any) on their ability to do so remain unclear.
Analysis of the issue is difficult for a number of reasons. First,
the answer to the question: “what is the kind of damage in
question?” is inextricably bound up with the problems
(considered below) of whether the extent of the damage, and the
way it is caused, have to be foreseeable. Secondly, the issue is
often difficult to separate from the issue of the measure of
damages necessary to compensate a foreseeable kind of loss. It
is well established that if a defendant injures a person with a
high earning capacity, or damages a valuable piece of property,
he or she cannot object to paying damages on the basis that the
cost of compensation is greater than it might have been if the
person had had a low income, or if the property had been less
valuable.126 But, suppose that (for some reasonable purpose)
you leave a priceless Ming vase on your coffee table and I
negligently break it. In such bizarre circumstances, can I not
argue that, whilst “damage to a household ornament” might have
been a foreseeable consequence of my negligence, “damage to a
priceless antique” is an unforeseeable “kind” of damage? Or will
the court say that “damage to a vase” was the foreseeable “kind”
of damage, and that it matters not that the cost of replacing the
vase is much greater than I could have expected?
To make matters worse, all of these issues are difficult to
separate from the questions of whether, and how, the “eggshell
skull” rule applies in the context of property damage (considered
in a later section). In the final analysis, one is left with the
suspicion that the courts are reluctant to rule authoritatively on
the subdivision of property damage into different “kinds”, so as
 to preserve the flexibility necessary to do justice whilst
containing the scope of liability in appropriate cases.

◗ Foreseeability of the “way the damage is caused”

6–031 In Hughes v Lord Advocate it was held that the precise manner
in which the damage was caused did not have to be reasonably
foreseen. So long as the defendant could reasonably foresee
damage of the relevant “kind”, the damage would not be too
remote. In Hughes, therefore, the Post Office was liable even
though it could not have foreseen the scientific circumstances
which led to an underground explosion injuring the plaintiff. The
same approach was adopted in The Trecarrell.127 Here, the
defendants were held liable when one of their employees, whilst
working in a shipyard, carelessly dropped a drum of
inflammable lacquer. The drum fell on a
temporary electricity cable and severed it, causing a short circuit
which ignited the lacquer. The plaintiffs’ ship was damaged in
the resulting blaze.
There are, however, two cases where precisely the opposite
reasoning has been applied— the defendants were not liable
because they could not have foreseen harm caused in such an
unusual way. In Doughty v Turner Manufacturing Ltd,128
workmen employed by the defendants had allowed an asbestos
cover to drop into a vat of very hot liquid. The cover slid in at an
angle and did not cause a splash. A few minutes later, however,
chemical changes in the asbestos brought about by the high
temperature caused an eruption of the liquid, which splashed out
of the vat, burning the plaintiff. The possibility of an eruption
occurring in this way was unknown at the time. The Court of
Appeal, following The Wagon Mound (No.1),129 held that the
defendants were not liable. Hughes was distinguished on the
basis that, in Doughty, the risk which materialised was very
substantially different from any that could be foreseen.
This narrow view of risk was also adopted by the Divisional
Court in Crossley v Rawlinson.130 Here, the defendant had
stopped his lorry when, as a result of his negligence, a tarpaulin
covering the body of the lorry had caught fire. The plaintiff, an
AA patrolman, who was on duty at a nearby AA service centre,
saw the fire and ran out to assist. Whilst running towards the
lorry on a rough path, he caught his foot in a concealed hole and
fell. His claim for personal injury was dismissed on the basis
that his being injured in this way was not reasonably
foreseeable. The court drew a fine distinction between injury
occurring during the course of tackling the fire (which was
foreseeable) and injury occurring on the way to tackle the fire
(which was not). Bearing in mind that the plaintiff was a rescuer,
and that rescuers usually receive more sympathetic treatment
from the courts, this seems a particularly harsh decision which
has received considerable criticism.131
The validity of such reasoning must now be questioned in
the light of the House of Lords’ decision in Jolley v Sutton
LBC.132 Here, a 14-year-old boy had been severely injured when
a boat, abandoned on council land, had fallen upon him,
breaking his back. He and his friend had been attempting to
repair the boat to take it to Cornwall to sail it. Although the
council, as occupier, owed him a duty of care, the Court of
Appeal had rejected his claim on the basis that whilst it was
foreseeable that children playing on the boat might suffer some
minor injuries, it was not foreseeable that a teenager would
attempt to reconstruct the boat. The House of Lords disagreed.
Hughes required the court to judge foresight according to the
nature of the risk which ought to have been foreseen. Here, in
view of the known ingenuity of children in finding unexpected
ways of doing mischief to themselves, and the fact that the
council had conceded that it was under a duty to remove the boat
to avoid the risk of minor injuries—which
would have cost it no more than removing it to avoid the injuries
that actually occurred133— their Lordships adopted a broad view
of risk: was it foreseeable that children would meddle with the
boat causing some physical injury? On this basis, the council
was found liable for the claimant’s injuries.
 Their Lordships in Jolley, then, adopted a far more generous
interpretation of risk than that seen in Doughty and Crossley
above, although they did stress that much would depend on the
individual facts of each case. Nevertheless, Lord Nicholls,
delivering the opinion of the Privy Council in Att-Gen of the
British Virgin Islands v Hartwell,134 doubted whether the
reasoning in Doughty would find favour with modern courts,
and suggested that courts now take a more liberal approach in
determining whether the way in which the damage is caused is
foreseeable.

◗ Foreseeability of the “extent” of the damage

6–032 In Hughes v Lord Advocate, Lord Reid made it clear that a
defendant can be liable even when the damage caused is greater
in extent than was reasonably foreseeable. Only where the
damage is different in “kind” can the defendant escape
liability.135 This approach was followed in Vacwell Engineering
Co Ltd v BDH Chemicals Ltd.136 The defendants manufactured
and supplied a chemical that was liable to explode in contact
with water, but they gave no warning of this hazard to the
plaintiffs. The plaintiffs bought a quantity of the chemical and a
scientist who worked for them put the ampoules containing the
chemical in the sink. A violent explosion resulted, causing
extensive damage to the plaintiffs’ premises. Rees J, whilst
holding that an explosion of the magnitude which occurred was
not reasonably foreseeable, thought that, given that a small
explosion was foreseeable, the damage was not too remote. The
damage was of a foreseeable kind, and it did not matter that it
was greater in extent than could have been foreseen.
Similarly, in Parsons v Uttley Ingham & Co Ltd,137 the
defendants installed a feed hopper for the plaintiffs’ pigs, but
negligently failed to leave open the ventilator, so that the nuts
stored inside became mouldy. On eating the nuts, the pigs
contracted a rare disease and a number of them died. The Court
of Appeal held that, provided some damage of the relevant kind
 was reasonably foreseeable (in the form of mild illness of the
pigs), the plaintiffs could recover for the more serious and
unforeseeable consequence resulting from the defendants’
negligence.

The “Eggshell Skull” Rule

6–033 Before the decision in The Wagon Mound (No.1), it was

established law that where an injured claimant suffered from
some peculiar hypersensitivity which exacerbated his or her loss,
then, provided the defendant could reasonably foresee some
injury to a normal claimant,138 the defendant would be liable for
the full extent of the loss. Thus, in Dulieu v White & Sons,139
Kennedy J stated:

“If a man is negligently run over or

otherwise negligently injured in his body, it
is no answer to the sufferer’s claim for
damages that he would have suffered less
injury, or no injury at all, if he had not had
an unusually thin skull or an unusually
weak heart.”140

The “eggshell skull” rule is sometimes also referred to as the

maxim that “the defendant must take his victim as he finds him”.
For a short time, it was uncertain whether the reasoning in
The Wagon Mound (No.1) had displaced the rule. The matter
was quickly settled, however, by the decision in Smith v Leech
 Brain & Co Ltd.141 The plaintiff’s husband was burned on the
lip at work by a splash of molten metal. At the time of the
accident, it was not known that he had a form of pre-malignant
cancer. The burn triggered the onset of the cancer, from which
he died three years later. Lord Parker CJ stated that, in The
Wagon Mound, whilst the Privy Council had held that a
defendant must foresee the kind of damage in suit, their
Lordships had not meant to hold that the extent of the damage
had to be foreseeable. It followed that the “eggshell skull” rule
had not been displaced. Thus, apparently regarding “damage by
burning” and “damage by cancer” as the same “kind” of damage
(personal injury caused by an accident at work), his Lordship
held the defendants liable.

6–034 It is clear that the rule will apply in cases where the particular
characteristics of the claimant act in combination with
surrounding circumstances (including the reasonable action of a
third party) to exacerbate the claimant’s loss. Thus, in Robinson
v Post Office,142 owing to the defendant’s negligence, the
plaintiff slipped and wounded his leg at work. He was
subsequently given
an anti-tetanus injection and developed encephalitis because of
an unforeseeable reaction to the serum. The defendants were
held liable for this consequence.
What is less clear is whether the “eggshell skull” rule applies
to claims in respect of damage to “hypersensitive” property as
well as to hypersensitive people. It has been convincingly
suggested that it should. Thus, for example, where a defendant
drops a lighted cigarette on an unexpectedly “hypersensitive”
carpet, which catches fire and is destroyed, he or she should be
liable for the full extent of the damage, even though the
reasonably foreseeable damage is no more than a small hole. It
has been suggested that to hold otherwise would present the
impossible difficulty of determining the extent of the
“foreseeable” damage in circumstances where that damage has
been “swallowed up” by events—if the carpet is completely
destroyed, how can a court quantify the damage which would
have been caused by a mere hole? Damages would have to be
awarded by guesswork, rather than to compensate losses proved
to have been suffered by the claimant.143
Until 2003, however, the courts refused to apply the
“eggshell skull” rule to losses which were caused by the
claimant’s own lack of funds. In Liesbosch Dredger v SS
Edison,144 the House of Lords had restricted the plaintiffs’ claim
for losses caused by the sinking of their dredger due to the
defendants’ negligence, to exclude the additional costs incurred
by hiring a replacement dredger at an exorbitant rate to fulfil an
existing contract. Their Lordships awarded the lesser cost of
buying a comparable dredger, and refused to recognise that, due
to the plaintiffs’ impe-cuniosity, such a purchase had been a
financial impossibility. The additional costs incurred in hiring a
replacement vessel had an “extraneous cause”,145 namely the
plaintiffs’ financial circumstances, and were therefore too
remote.
This decision received considerable academic criticism,146
and subsequent courts sought to distinguish it. For example, in
Dodd Properties (Kent) Ltd v Canterbury CC,147 it was held that
The Liesbosch did not govern a situation where the claimant,
because of “commercial prudence” rather than impecuniosity,
made a decision not to undertake prompt repairs to damaged
property. In view of such criticism, the House of Lords in
Lagden v O’Connor148 in 2003 finally accepted that The
Liesbosch should no longer be viewed as good law. In the words
of Lord Hope:

“. . .the law has moved on, and . . . the

correct test of remoteness today is whether
the loss was reasonably foreseeable. The
wrongdoer must take his victim as he finds
him . . . This rule applies to the economic
state of the victim in the same way as it
 applies to his physical and mental
vulnerability.”149

Causation and remoteness: conclusion

6–035 In concluding, it is important to note that although the law we

have examined in this chapter has developed as part of the tort
of negligence (and most of the cases we have discussed are
negligence cases), the rules relating to factual causation are
applicable to all torts (although it should be noted that for torts
actionable per se, no damage need be proved). Equally, the rules
relating to remoteness are applicable to all torts, although some
torts, for example the tort of deceit, still favour a test based on
loss directly resulting from the fraudulent statement in
question.150
We have seen that causation and remoteness are difficult
areas of law, where the courts, in a sense, are faced with the
tricky problem of “what to do when the rules run out”. The
apparent absence of logical rules leaves one with the impression
that in many cases the judges adopt a practice of “reasoning
backwards”. In other words, they decide what would be a fair
and just outcome for the case at hand, and then select an
appropriate set of rules to justify that decision.

1 For more detailed discussion of causation, see H. L. A. Hart and T.

Honoré, Causation in the Law, 2nd edn (Clarendon Press, 1985), S. Green,
Causation in Negligence (Hart, 2015), S. Steel, Proof of Causation in Tort
(CUP, 2015) and G. Turton, Evidential Uncertainty in Causation in
Negligence (Hart, 2016).

2 [1942] A.C. 691 at 706.

3 See D. Howarth, M. Matthews, J. Morgan, J. O’Sullivan and S. Tofaris,

Hepple and Matthews’ Tort Law: Cases and Materials, 7th edn
(Bloomsbury, 2015), p.345.

4 Cork v Kirby MacLean Ltd [1952] 2 All E.R. 402. Stapleton argues,
however, that a more generous test is needed, see J. Stapleton,
“Unnecessary causes” (2013) 129 L.Q.R. 39 and “An ‘extended but-for’
test for the causal relation in the law of obligations” (2015) 35 O.J.L.S. 697.

5 [1969] 1 Q.B. 428.

6 [1962] 1 All E.R. 623.

7 [1998] A.C. 232. Comment: P. Giliker (1998–99) 9 K.C.L.J. 109 and N.

Glover (1999) 15 P.N. 42.

8 Bolitho v City and Hackney Health Authority [1998] A.C. 232 at 240.

9 See P. Cane and J. Goudkamp, Atiyah’s Accidents, Compensation and the

Law, 9th edn (2018), para.5.2.4 on multiple causal factors.

10 Alternatively, the courts might apportion liability equally between the

two defendants. Consider also the alternative NESS test of Richard Wright
(Necessary Element of a Sufficient Set), who argues that as long as the
factor was necessary for the sufficiency of one of the sets of conditions that
actually occurred on the particular occasion then it was a cause: R. Wright,
“The NESS Account of Natural Causation: A Response to Criticisms” in
Goldberg (ed.), Perspectives on Causation (Hart, 2011) p.293.

11 [1951] S.C.R. 830.

12 119 P.2d 1 (1948).

13 In the mesothelioma litigation discussed later in the chapter, the House

of Lords attempted to impose several (rather than joint) liability in this type
of situation (see Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 A.C.
572), only to be reversed by the Compensation Act 2006.

14 607 P.2d 924 (1980).

15 [1988] A.C. 1074.

16 [1987] A.C. 750.

17 [2005] UKHL 2; [2005] 2 A.C. 176.

18 Note, however, that where the evidence shows that one defendant is
more responsible than another, the court will apportion liability between
them in proportion to their fault: see Holtby v Brigham & Cowan (Hull) Ltd
[2000] 3 All E.R. 421 and Allen v British Rail Engineering Ltd [2001]
EWCA Civ 242; [2001] I.C.R. 942.

19 [1924] P. 140.

20 See Rouse v Squires [1973] Q.B. 889 per Cairns LJ at 898, but see also
Wright v Lodge [1993] 4 All E.R. 299 (discussed below) for a restriction on
the application of this principle, namely that subsequent “reckless” conduct
by the second driver will exculpate the first driver.

21 [1987] Q.B. 781 CA. There was an appeal to the House of Lords, but
only on the question of apportionment of damages, which is discussed in
Ch.17.

22 Also known as multiple sufficient causes cases (see M. Lunney, D.

Nolan and K. Oliphant, Tort Law: Text and Materials, 6th edn (Oxford,
OUP)).

23 [1962] 1 Q.B. 33. Applied in the context of medical negligence in

Reaney v University Hospital of North Staffordshire NHS Trust [2015]
EWCA Civ 1119; [2016] P.I.Q.R. Q3: did negligent treatment of patient
with preexisting condition merely add to her existing needs (a quantitative
difference) or cause an injury which was qualitatively difference from her
pre-existing needs? Here it was the former, so hospital only liable to the
extent to which the existing condition has been worsened by negligence.

24 [1970] A.C. 467.

25 See Lord Pearson at [1970] A.C. 467 at 496.

26 [1970] A.C. 467 at 492.

27 [1982] A.C. 794.

28 [1982] A.C. 794 at 820.

29 e.g. P.S. Atiyah (1969) 85 L.Q.R. 475.

30 Jobling v Associated Dairies [1982] A.C. 794 at 807.

31 [1982] A.C. 794 at 808–809.

32 In Heil v Rankin [2001] P.I.Q.R. Q3 the Court of Appeal affirmed that

there was no absolute rule that the effect of a supervening tort would
obliterate the effect of a previous tort.

33 [2009] UKHL 33; [2009] 1 A.C. 1339.

34 Steel argues that acceptance of exceptions does not undermine the

general rule: S. Steel, “Justifying exceptions to proof of causation in tort
law” (2015) 78 M.L.R. 729.

35 [1988] A.C. 1074.

36 [1988] A.C. 1074 at 1092.

37 [1987] A.C. 750.

38 For further consideration of all these issues, see J. Stapleton, “The gist of
negligence Part 2: the relationship between ‘damage’ and causation” (1988)
104 L.Q.R. 389 and H. Reece, “Losses of chances in the law” (1996) 59
M.L.R. 189.

39 [2005] UKHL 2; [2005] 2 A.C. 176. Contrast Oliver v Williams [2013]

EWHC 600 (QB): delayed diagnosis by 5.5 months, but not established that
this made any material or measurable difference to patient’s life expectancy.

40 [2002] UKHL 22; [2003] 1 A.C. 32.

41 Gregg v Scott [2005] 2 A.C. 176 per Lord Nicholls at [6].

42 [2005] 2 A.C. 176 per Lord Nicholls at [42] and [43].

43 [2005] 2 A.C. 176 per Baroness Hale at [222].

44 Compare the approach of the courts in cases where the lost chance is one
of financial gain. See, e.g. Allied Maples Group Ltd v Simmons and
Simmons [1995] 1 W.L.R. 1602. It is difficult to distinguish such cases from
Gregg v Scott, save (as Baroness Hale did in Gregg at [220]) on the basis
that the claimant’s loss is different in quality: “There is not much difference
between the money one expected to have and the money one expected to
have a chance of having: it is all money. There is a difference between the
leg one ought to have and the chance of keeping a leg one ought to have”.
Nevertheless, this distinction was affirmed by Lord Neuberger MR in
Wright (A Child) v Cambridge Medical Group (A Partnership) [2011]
EWCA Civ 669; [2013] Q.B. 312 at [84], arguing that it was not
appropriate for the Court of Appeal to expand the loss of chance doctrine
into the realm of clinical negligence, while adding that “the question would
be appropriate for reconsideration by the Supreme Court”.

45 See S. Bailey, “Causation in negligence: What is a material

contribution?” (2010) 32 L.S. 396. Lord Phillips in Sienkiewicz v Greif
[2011] UKSC 10; [2011] 2 A.C. 229 described it at [17] as “an important
exception to the ‘but for’ test”.

46 [1956] A.C. 613.

47 [1956] A.C. 613 at 620.

48 [1956] AC 613 at 621.

49 [2008] EWCA Civ 883; [2009] 1 W.L.R. 1052. For criticism, see M.
Stauch [2009] C.L.J. 27.

50 Wilsher v Essex AHA [1988] A.C. 1074 (discussed above) was

distinguished on the basis that it involved “distinct causes” which operated
in different ways, and the claimant could not establish which cause had
either “caused or contributed” to his injury.
51 [2016] UKPC 4; [2016] A.C. 888 at [47].

52 Sepsis is a potentially life-threatening complication of an infection,

which can trigger inflammatory responses throughout the body. This
inflammation can trigger a cascade of changes that can damage multiple
organ systems, causing them to fail.

53 In Bailey [2008] EWCA Civ 883; [2009] 1 W.L.R. 1052, the “single
agent” was the patient’s overall weakness. It has been argued, however, that
the material contribution approach applies to both single agency and
multiple factor cases: John v Central Manchester and Manchester
Children’s University Hospitals NHS Foundation Trust [2016] EWHC 407
(QB); [2016] 4 W.L.R. 54 at [97] per Picken J.

54 For criticism of this view for muddying the waters between factual and
remoteness, see J. Stapleton and S. Steel, “Causes and contribution” (2016)
132 L.Q.R. 363, 366–368.

55 See S. Green, Causation in Negligence (Hart, 2015), Ch.5 and (2016) 32

P.N. 169. Alternatively, Plunkett argues that they represent a limited
extension to the material contribution test where the defendant’s negligence
has contributed to a condition or state of affairs that does cause the damage
complained of: J. Plunkett (2016) 32 P.N. 158, 162.

56 S.H. Bailey, “Material contribution after Williams v The Bermuda

Hospitals Board” (2018) 38 L.S. 411.

57 [2000] 3 All E.R. 421. See also Allen v British Rail Engineering Ltd
[2001] EWCA Civ 242; [2001] I.C.R. 942, Bonnington Castings Ltd v
Wardlaw [1956] A.C. 613 and, recently, Carder v University of Exeter
[2016] EWCA Civ 790.

58 [2011] UKSC 10; [2011] 2 A.C. 229 at [90].

59 [2005] 1 A.C. 134. Comment: C. Miller, “Negligent failure to warn: why

is it so difficult?” (2012) 28 P.N. 266.
60 Contrast the view of J. Stapleton, who argues that the success of the
claimant did not require any departure from orthodoxy: (2006) 122 L.Q.R.
426.

61 [2005] 1 A.C. 134 per Lord Hoffmann at [31].

62 [2005] 1 A.C. 134 per Lord Hope at [87].

63 [2005] 1 A.C. 134 per Lord Steyn at [25]. In Montgomery v Lanarkshire

Health Board [2015] UKSC 11; [2015] A.C. 1430, the “vindication of
rights” approach was approved in the context of the duty of the doctor to
disclose material risks to the patient, but the Court found it “unnecessary”
to rule on the more controversial issue of the Chester v Afshar causation
test: [105].

64 On the issue of the “mixed messages” sent by the HL in Gregg and

Chester, see S. Maskrey QC and W. Edis (who were opposing counsel in
Gregg) [2005] 3 J.P.I. Law 205.

65 [2018] EWCA Civ 1307; [2018] P.I.Q.R. P18, at [66] per Hamblen L.J.
The decision has led some commentators to speculate whether Chester
would now survive a challenge in the Supreme Court: C. Foster (2018)
168(7808) N.L.J. 1.

66 See also Correia v University Hospital of North Staffordshire NHS Trust

[2017] EWCA Civ 356 at [28].

67 [1973] 1 W.L.R. 1. For a detailed account of the case, see Lord Hope of
Craighead, “James McGhee—a second Mrs Donoghue?” [2003] C.L.J. 587
(who had been junior counsel for the respondents in that case).

68 [1973] 1 W.L.R. 1 at 6.

69 [1988] 1 A.C. 1074 at 1090.

70 [2002] UKHL 22; [2003] 1 A.C. 32.

71 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1

A.C. 32 at [22] per Lord Bingham.
72 See, e.g. J. Stapleton,’Lords a’ Leaping Evidentiary Gaps” (2002) 10
Torts L.J. 276.

73 [2006] UKHL 20; [2006] 2 A.C. 572.

74 [2006] 2 A.C. 572 at [43].

75 The other members of the House of Lords did not go as far as Lord
Hoffmann on this point. Baroness Hale, although with the majority on
apportionment, agreed (at [120]) with Lord Rodger (who dissented) that the
“gist” of the harm was the mesothelioma itself, not the risk of causing it.

76 See Compensation Act 2006, Explanatory Notes para.14.

77 [2015] UKSC 33; [2016] A.C. 509. See S. Green, “Between a rock of
uncertainty and a hard case” (2016) 132 L.Q.R. 25.

78 [2015] UKSC 33 at [100] and [201].

79 Sienkiewicz v Greif [2011] UKSC 10; [2011] 2 A.C. 229 at [104] per
Lord Phillips.

80 [2016] EWCA Civ 86; [2016] 1 W.L.R. 2036. For criticism, see S.
Green (2017) 133 L.Q.R. 25 who argues that this is an illegitimate
extension of Fairchild to a case where the illness had been found on a
particular occasion to be caused by a single agent. In reality lung cancer is
not an illness triggered by a single agent like mesothelioma in that it can be
triggered by smoking.

81 The defendants were responsible for 35.2% of the whole exposure. It has
been argued that such claims give rise to a compelling case to extend the
Compensation Act 2006 s.3 to lung cancer victims: D. Allan QC, “The
extension of Fairchild to lung cancer” [2016] J.P.I. Law 61.

82 [2011] UKSC 10; [2011] 2 A.C. 229. Comment: S. Steel and D. Ibbetson
[2011] C.L.J. 451.

83 See Lord Phillips [2011] UKSC 10 at [18]: “The special rule of

causation applied to mesothelioma was devised because of ignorance about
the biological cause of the disease. It was accepted in Fairchild and Barker
that this rendered it impossible for a claimant to prove causation according
to the conventional “but for” test and this caused injustice to the claimants”.

84 See Lord Rodger [2011] UKSC 10 at [142].

85 But see S. Steel, “Justifying exceptions to proof of causation in tort law”

(2015) 78 M.L.R. 729.

86 [2011] EWCA Civ 1242; [2012] P.I.Q.R. P4. Comment: J. Stapleton

[2012] C.L.J. 32.

87 [2012] UKSC 14; [2012] 1 W.L.R. 867 (Lord Phillips dissenting on the
causation issue). Comment: N. McBride and S. Steel (2012) 28 P.N. 285.

88 [2012] UKSC 14 at [69].

89 The Employers’ Liability (Compulsory Insurance) Act 1969 s.1

(discussed in Ch.7).

90 Amaca Pty Ltd v Ellis (2010) 240 C.L.R. 111.

91 Lord Hoffmann, “Constitutionalism and private law” (2014–15) 6

UKSCY 177 at 181–182.

92 Equitas Insurance Ltd v Municipal Mutual Insurance Ltd [2019] EWCA

Civ 718 at [91] per Males L.J.

93 Lord Bingham in Corr v IBC Vehicles Ltd [2008] UKHL 13; [2008] 1
A.C. 884 at [15].

94 See, e.g. the terminology used by the Court of Appeal in Lamb v

Camden LBC [1981] Q.B. 625.

95 Carslogie Steamship Co v Royal Norwegian Government [1952] A.C.

292.

96 (1773) 2 Wm. Bl. 892.

97 [1943] P. 32.

98 [2001] EWCA Civ 109; [2001] N.P.C. 45.

99 [1982] 1 W.L.R. 349.

100 [1973] Q.B. 889.

101 [1993] 4 All E.R. 299.

102 [1949] 1 All E.R. 588. The case decided a claim under the Workmen’s
Compensation Act 1925. It is only of persuasive authority in the tort of
negligence.

103 Clerk & Lindsell on Torts, 23rd edn (2020), para.2–121. See also Webb
v Barclays Bank Plc [2001] EWCA Civ 1141; [2002] P.I.Q.R. P8 and
Wright (A Child) v Cambridge Medical Group (A Partnership) [2011]
EWCA Civ 669; [2013] Q.B. 312 where the judges affirmed that in cases of
successive negligent acts, intervening medical negligence would not
ordinarily break the chain of causation unless it were gross or egregious.

104 [2004] UKPC 12; [2004] 1 W.L.R. 1273.

105 [1970] A.C. 1004.

106 [1981] Q.B. 625. Compare Clark Fixing Ltd v Dudley MBC [2001]
EWCA Civ 1898 (discussed in Ch.2).

107 [1981] Q.B. 625 at 647.

108 [1948] 2 K.B. 48.

109 [1993] 1 W.L.R. 976.

110 See Lord Goff’s analysis of the problem in Smith v Littlewoods [1987]
A.C. 241, considered in Ch.2.

111 [2016] EWCA Civ 544 at [34] per Christopher Clarke LJ (drunk
pedestrian crossing road in front of oncoming traffic).
112 See, e.g. Stapley v Gypsum Mines [1953] A.C. 663 where the damages
were reduced by 80% because of contributory negligence. See also P. S.
Atiyah, “Causation, Contributory Negligence and Volenti Non Fit Injuria”
(1965) 43 Can. Bar. Rev. 609.

113 [1969] 3 All E.R. 1621.

114 [1969] 3 All E.R. 1006.

115 [2009] EWCA Civ 1404; [2010] P.I.Q.R. P8. Comment: K. Hughes
[2010] C.L.J. 228.

116 [2008] UKHL 13; [2008] 1 A.C. 884.

117 [2000] 1 A.C. 360.

118 [1921] 3 K.B. 560.

119 The Wagon Mound (No.1) [1961] A.C. 388 at 398. See also R.W.M.
Dias, “Remoteness of Liability and Legal Policy” [1962] C.L.J. 178.

120 [1961] A.C. 388.

121 [1961] A.C. 388 at 422.

122 [1963] A.C. 837.

123 [1967] 1 W.L.R. 337.

124 [1967] 1 W.L.R. 337 per Rees J at 344.

125 [1969] 1 W.L.R. 1556.

126 Smith v London & South Western Railway Co (1870) L.R. 6. C.P. 14.

127 [1973] 1 Lloyd’s Rep. 402.

128 [1964] 1 Q.B. 518.

129 [1961] A.C. 388.

130 [1982] 1 W.L.R. 369.

131 e.g. M. Jones, Textbook on Torts, 8th edn (OUP, 2002), p.269 finds the
decision “arbitrary and inconsistent with Hughes”.

132 [2000] 1 W.L.R. 1082. This decision concerns occupiers’ liability and
will be considered further in Ch.8. The principles of causation and
remoteness are the same, however, for common law negligence and under
the occupiers’ liability statutes.

133 See Lord Hoffmann [2000] 1 W.L.R. 1082 at 1093.

134 [2004] 1 W.L.R. 1273.

135 Hughes v Lord Advocate [1963] A.C. 837 at 845.

136 [1971] 1 Q.B. 88.

137 [1978] Q.B. 791. The action was for breach of contract but was decided
on the basis that the rules of remoteness being considered were equally
applicable in tort.

138 It should be remembered that the rule does not come into play unless
the claimant first establishes that a duty of care was owed and breached.
Thus, in Bourhill v Young [1943] A.C. 92 Lord Wright, at 109, correctly
stated: “One who suffers from the terrible tendency to bleed on slight
contact, which is denoted by the term ‘a bleeder’, cannot complain if he
mixes with the crowd and suffers severely, perhaps fatally, from being
merely brushed against. There is no wrong done there”. In the context of
psychiatric illness, however, consider Lord Lloyd’s reasoning in Page v
Smith [1996] A.C. 155 (explored in Ch.4).

139 [1901] 2 K.B. 669.

140 [1901] 2 K.B. 669 at 679. Note, however, that his Lordship’s reference
to “no injury at all” seems inconsistent with the modern approach to the
rule.
141 [1962] 2 Q.B. 405.

142 [1974] 1 W.L.R. 1176.

143 Clerk & Lindsell on Torts, 23rd edn (Sweet & Maxwell, 2020), para.2–
173.

144 (The Liesbosch) [1933] A.C. 449.

145 [1933] A.C. 449 per Lord Wright at 460.

146 See, e.g. B. Coote, “Damages, The Liesbosch, and impecuniosity”

[2001] C.L.J. 511.

147 [1980] 1 W.L.R. 433. See also Mattocks v Mann [1993] R.T.R. 13.

148 [2004] 1 A.C. 1067. Comment: B. Coote (2004) 120 L.Q.R. 382.

149 [2004] 1 A.C. 1067 at [61]. For a recent application, see Hussain v EUI
Ltd [2019] EWHC 2647 (QB): ability to claim for hired replacement
vehicles when the vehicles of self-employed drivers were off the road
pending repair or replacement.

150 See Doyle v Olby (Ironmongers) Ltd [1969] 2 Q.B. 158; Shelley v
Paddock [1980] Q.B. 348. Uncertainty about the application of The Wagon
Mound (No.1) to the rule in Rylands v Fletcher has been removed by the
decision of the House of Lords in Cambridge Water Co Ltd v Eastern
Counties Leather Plc [1994] 2 A.C. 264 (considered in Ch.10).
 7

Employers’ Liability
Employers’ Liability

Introduction
7–001 Injury in the workplace is a significant problem. The Health and
Safety Executive reported that, in 2018–19, 147 people in Great
Britain lost their lives at work.1 The legal response to such
injury takes a number of forms. For many injured employees,
the simplest option is to turn to social security, which provides
specific benefits for industrial injuries. Since 1948,2 such
compensation has been part of the welfare state. Therefore,
victims who suffer personal injury due to an industrial accident3
are entitled to claim benefits from the Department for Work and
Pensions. Such benefits are inevitably not as high as any tort
award and are subject to restrictions, but, for many victims, they
provide a simpler and cheaper way of gaining compensation.
Readers are advised to consult textbooks on labour law generally
for employers’ liability outside tort law4 and in particular should
consider the impact of criminal liability under the Health and
Safety at Work etc. Act 1974, which applies to all persons at
work in Great Britain, and regulations such as the Management
of Health and Safety at Work Regulations 19995 and the
Provision and Use of Work Equipment Regulations 1998.6
 This chapter will concentrate on employers’ liability in tort. This
can take three forms:
▮ personal liability to employees in negligence;
▮ liability for breach of statutory duty; and
▮ vicarious liability (that is, where the employer is held at
law strictly liable for the torts committed by its
employees in the course of their employment).

Employers are popular targets for tort claims. As insurance is

compulsory,7 claimants know that if they succeed, the employer
is likely to be able to meet their claim and may, for the sake of
labour relations or to avoid adverse publicity, be willing to
settle. Although this chapter will examine all three forms of
liability below, it will spend more time discussing vicarious
liability, which plays a significant role in distributing loss and
ensuring that claimants receive adequate compensation.
First of all, this chapter will examine the historical
development of employers’ liability. In seeking to understand
the current law, it is particularly important to understand its
historical background and why the rules have developed in their
present form. For example, it may be questioned why there are
three forms of liability and not simply one head of employers’
liability. The answer lies in the historical development of the
law, which is outlined below.

The development of employers’ liability

7–002 The law on employers’ liability reflects the economic and

political trends of the last 200 years. Courts have always been
aware, even if this has not been admitted openly, that their
decisions affect the relationship between employers and
employees and, more bluntly, the amount of money employers
will have to spend on employee protection. It is perhaps
unsurprising that in the early nineteenth century, at a time of
increasing industrialisation, and with the insurance industry still
embryonic, the courts were not prepared to impose a heavy
burden of liability on employers and strove instead to urge
employees to take responsibility for their own safety. In
Priestley v Fowler,8 the Court of Exchequer introduced what
became known as the doctrine of common employment. This
prevented an employee from suing his or her employer for injury
negligently caused by a fellow employee. The courts held that it
was implied in the employee’s contract of employment that he or
she would assume the risk of injury caused by the negligence
of fellow employees, provided they had been selected with due
care by the employer.9 Liability was further restricted by the fact
that contributory negligence at that time was an absolute bar to
any claim in negligence10—however minimal the negligence of
the claimant—and the fact that the courts were willing to apply
the defence of voluntary assumption of risk to tasks undertaken
in the workplace.11 The result of this “unholy trinity” was very
limited liability on the employer.
However, as the nineteenth century progressed (and
insurance began to develop by which employers could protect
themselves against legal claims), attitudes changed. The
judiciary and legislature began to take note of the hardship
suffered by employees injured by new machinery and the
introduction of the railways. New concepts were developed to
circumvent the obstacles to recovery. The doctrine of vicarious
liability continued to expand,12 but this could not overcome the
obstacle of the doctrine of common employment. The courts
therefore developed the idea of a personal duty on the employer
towards his employees which was non-delegable, i.e.
responsibility could not be displaced onto another party.
Personal liability allowed claimants to sue the employer for
damages, even if the injury had been caused by another
employee and provided a means of circumventing the barriers to
liability. Groves v Lord Wimborne13 also established that the
doctrine of common employment did not apply to the tort of
breach of statutory duty, and therefore boosted the use of this
 tort to permit an injured employee to sue for an award of
damages.
Unsurprisingly, in the twentieth century, the three barriers to
employers’ liability came under attack. The doctrine of common
employment was abolished under the Law Reform (Personal
Injuries) Act 1948, and the Law Reform (Contributory
Negligence) Act 1945 permitted the courts to apportion liability
where the claimant had been contributorily negligent.14 In Smith
v Charles Baker & Sons,15 the House of Lords had already
expressed its reluctance to apply the defence of voluntary
assumption of risk to employees, and so by 1948, all three
obstacles had either been abolished or tightly confined.
Despite these changes, the distinction between personal and
vicarious liability remains.16 Nevertheless, from the perspective
of modern law, the employers’ personal liability to its employees
and for breach of statutory duty are less important than in the
past. As we will see, it is the doctrine of vicarious liability which
is of particular importance in 21st century tort law.

Personal Liability

7–003 To understand the nature of the employer’s personal liability, it

is necessary to remember that it was developed to circumvent
the doctrine of common employment. As a result of this doctrine
—which prevented employees claiming against the employer in
respect of a fellow employee’s negligence—where an employee
(X) brought an action against his employer (Y) for negligent
injury in the workplace, X ran the risk that Y could simply claim
that he was not liable because:
▮ the injury was caused by the action of a fellow
employee; and
 ▮ Y had taken reasonable care in choosing the employee
in question.

The victim would be left with an action against a fellow

employee, which would be difficult to establish and, in all
probability, worthless.
The leading case of Wilson and Clyde Coal Co v English17
resolved this difficulty by making the duty on the employer non-
delegable. “Non-delegable” here does not mean that the
employer cannot delegate its health and safety tasks (this would
simply be impracticable in modern employment conditions), but
that it cannot delegate responsibility at law. It is no excuse that
the employer has taken care to ensure a competent fellow
employee deals with safety: if the employee is injured due to
lack of care, the employer is liable.
The facts of Wilson and Clyde Coal Co v English18 illustrate
this point. A miner had been crushed in a mining accident, and
had sued the mine-owners, on the basis that a safe system of
work had not been adopted. The defendants argued that they had
delegated pit safety to a quali-fied manager, as required by
statute, and should not be held liable. Lord Wright, in the House
of Lords, held that it was not enough for an employer to entrust
the fulfilment of its duty of care to its employees, even when
they had been selected with due care and skill.19 The employer
retained responsibility to provide a competent staff, adequate
plant and equipment and effective supervision. If these were not
provided with reasonable care and skill, the employer would be
liable. Here, the system of working had not been reasonably safe
and so the employers were liable.

The nature of the duty

7–004 This section will examine the nature of the non-delegable duty
placed on the employer. An employer’s personal duty is a duty
to see that reasonable care is taken.20 This will also apply
 to analogous relationships, for example the relationship between
the Chief Constable of Police and police officers, although the
courts do consider the demands of public policy in this
context.21 To comply with this duty, case law indicates that the
employers should take care in the provision of:
▮ competent staff;
▮ adequate plant and equipment;
▮ a safe place of work; and
▮ a safe system of work.

Each of these matters will be examined in more detail below.

◗ (1) Provision of competent staff

7–005 This was obviously important when the doctrine of common
employment barred the employer’s liability for the negligence of
fellow employees. It meant that the employer would be
personally responsible for providing such incompetent staff. It
still has some modern relevance, however. A good example is
Hudson v Ridge Manufacturing Co.22 An employee had for
nearly four years persistently engaged in practical jokes, such as
tripping up fellow employees, and had been reprimanded many
times. His employers were found to be personally liable when he
tripped up the plaintiff and caused him injury. They had failed to
exercise reasonable care to put an end to such conduct, which
was a potential danger to other employees.23 Equally an
employer may find itself liable for failing to prevent a campaign
of sustained bullying when it was in its power to do so.24

◗ (2) Provision of adequate plant and equipment

and a safe place to work
7–006
The employer should take reasonable care to ensure that the
employee’s place of work is safe, which extends to access to the
premises.25 This includes a duty to take reasonable care to
prevent exposure of its employees, and members of their
families, from inhaling asbestos that might cause
mesothelioma.26 In addition, the employer must take reasonable
care to provide all necessary equipment and to maintain it in a
reasonable condition. An interesting point was raised by Davie v
New Merton Board Mills.27 In this case, the plaintiff lost the
sight in his left eye when a particle of metal chipped off a tool he
was using, due to a fault in its manufacture. The tool had been
provided by his employers, who had bought it from a reputable
supplier, and the defect could not be detected by reasonable
inspection. The House of Lords held that his employers were not
liable. Although they had a duty to take reasonable care to
provide a reasonably safe tool, this had been discharged28—they
had bought the tool from a reputable source and they had no
means of discovering that it contained a latent defect. The court
held that if liability was imposed in such circumstances, any
employer “employing another and supplying him with tools for
his job acts at his peril”.29
This decision, which obviously favoured employers, was
reversed by the Employer’s Liability (Defective Equipment) Act
1969. Section 1 provides that where an employee is injured in
the course of his or her employment in consequence of a defect
in equipment provided by the employer for the purposes of the
employer’s business, and the defect is due (wholly or partly) to
the fault of a third party, then the injury will be attributed to the
fault of the employer. This applies regardless of whether the
third party is identified or not and extends to plant, machinery,
vehicles, aircraft and even clothing.30 This provision is
obviously intended to make it easier for an employee to sue. He
or she is no longer required to pursue a manufacturer31 who may
be overseas, but can sue his or her employer. The employee must
nevertheless show that:
 ▮ a defect in equipment caused the accident; and
▮ the defect, on the balance of probabilities, was due to
some fault in its manufacture.

These matters are not always easy to prove. The Act also
provides that the rules relating to contributory negligence still
apply.

◗ (3) Provision of a safe system of work

7–007 This is difficult to define, but essentially refers to decisions
adopted by the employer on the method of working.32
Employers are required to take reasonable steps to organise and
supervise the work of their employees, and to give proper
instructions and guidance to employees and check that it is
adhered to. Employers must take account of the fact that
employees are often heedless of their own safety and so the
system of work adopted should, so far as possible, minimise the
danger of the employee’s own foreseeable carelessness. For
example, in General Cleaning Contractors v Christmas,33 there
was an obvious danger that if window cleaners stood on the sill
to clean the outside of the window, they might suffer injury if
the window closed. By failing to instruct the window cleaners to
take precautions, their employers had failed to provide a safe
system of work. Particular care must be taken if the work is
complex or involves a large number of personnel.

The modern scope of personal liability

7–008 It can be seen that the personal liability of an employer in

negligence to his employees differs from the ordinary duty of
care examined earlier in this book. Rather than being a duty to
take care, it is perhaps more accurately described as a duty to see
that reasonable care is taken. This duty extends not only to the
actual work of employees, but to all such acts as are normally
and reasonably incidental to a day’s work, such as making a cup
of tea or going to the toilet.34 Yet, apart from this, the ordinary
rules of negligence apply. The employee must show that the duty
of care has been breached and that breach caused the loss
suffered. The duty is owed to the individual employee. As seen
in Ch.5, the particular characteristics of an employee may
require extra care to be taken. In Paris v Stepney BC,35 the court
held that the employer was required to undertake extra safety
precautions in respect of a one-eyed employee. The defendants
were therefore liable for not providing safety goggles, even
though they were not required to provide them to two-eyed
employees.
Case law suggests that the courts are prepared to adopt a
very generous approach towards the personal liability of
employers, although this seems to be confined to personal injury
rather
than economic or reputational harm.36 In McDermid v Nash
Dredging and Reclamation Co Ltd,37 the plaintiff was an
employee of the defendants, which were a wholly-owned
subsidiary of a Dutch company, Stevin. The function of the
defendants was to provide and pay the staff engaged in Stevin’s
operation in Sweden. The plaintiff had been injured whilst
working on the deck of a tug owned by Stevin, due to the
negligence of one of Stevin’s employees. The question was
whether the defendants (the subsidiary company) could be liable
in such circumstances. The House of Lords held that the
defendants could not effectively delegate the task of providing a
safe system of work to the Dutch company and its employees
and therefore retained personal responsibility for any lack of
care which injured the plaintiff.
This decision stretches personal liability very far, but may be
explained by the close connection between the Dutch company
and the defendants. It should also be noted that the House of
Lords was quite happy to base a failure to provide a safe system
of work on a negligent failure to devise such a system or
 negligence in its operation.38 It has been observed that this
represented an extension of existing legal principles.39

◗ Stress in the workplace

7–009 A similarly generous approach was adopted in the context of
psychiatric illness in Walker v Northumberland CC.40 In this
case, Colman J held that there was no logical reason for
excluding the risk of psychiatric damage from the scope of an
employer’s duty to provide a safe system of work. Here, the
plaintiff, the defendants’ area social services manager, suffered a
second nervous breakdown due to stress and pressure at work.
The plaintiff had suffered an earlier breakdown due to stress at
work and it was therefore reasonably foreseeable that a failure to
lessen his workload might lead to a second breakdown.
Colman J in Walker applied the ordinary principles of
employers’ liability. No mention was made of the House of
Lords’ decision in Alcock v Chief Constable of South Yorkshire41
(discussed in Ch.4) which stipulated that a restrictive approach
should be taken towards psychiatric
damage. This led some to question the status of Walker,
particularly in the light of the subsequent case of White v Chief
Constable of South Yorkshire,42 where the House of Lords held
that police attending the victims of the Hillsborough disaster
could not claim against their employers for psychiatric illness
suffered as a result.43 Although the majority of the House of
Lords expressed no clear view on Walker, some comments were
made. Lord Hoffmann suggested that a distinction may be drawn
between claims arising from the work itself and claims due to
witnessing injury to others in the course of work.44 Lord Steyn,
however, did seem to advocate that the ordinary rules of tort,
which restrict recovery for psychiatric damage, should apply to
all employee claims.
Subsequent case law has confirmed the status of Walker and
attempted to clarify exactly when employers will find
themselves liable for psychiatric injury arising from stress or
harassment in the workplace. The leading decision is that of
Sutherland v Hatton.45 In this case, the Court of Appeal, dealing
with four conjoined appeals, sought to give employers guidance.
It distinguished:
a cases where the harm suffered was the reasonably
foreseeable product of specific breaches of a contractual
duty of care between the defendant and a known
primary victim (e.g. the employee in Walker);
b cases where the relationship was only in tort (e.g. Page
v Smith,46 Alcock v Chief Constable of South Yorkshire
Police47) and
c cases where the secondary victim has a contractual
relationship with the defendant (e.g. the police officer
witnessing the Hillsborough disaster in White v Chief
Constable of South Yorkshire).

The control mechanisms of White and Alcock would only apply

under (b) and (c), and not where the employee was a primary
victim under (a). This seems a rather fine distinction and is
clearly introduced to maintain the Walker line of authority for
potential claimants. Nevertheless, Hatton has been welcomed by
employers primarily due to its acceptance that an employer is
entitled, unless he knows otherwise, to assume that the employee
can cope. This is obviously in the employer’s favour.48 Only if
the employer knows, or should know, of some particular
problem or vulnerability will the employer be liable. This will
require the court to look at a number
of relevant factors, including the nature and amount of work
undertaken by the employee (is the employee overworked or
placed under unreasonable pressure?) and signs of stress in the
employee. The indications that a person is about to suffer harm
from stress at work must be plain enough for any reasonable
employer to realise something should be done about it. Yapp v
Foreign and Commonwealth Office held that it would require
exceptional circumstances for an employer to foresee that an
 apparently robust employee, with no history of any psychiatric
ill-health, would develop a depressive illness as a result even of
a very serious setback at work.49 Even if the risk of harm is
foreseeable, the court must in every case examine what the
employer could and should have done, bearing in mind the size
and scope of the operation, its resources, whether it is in the
public or private sector, and other demands placed upon it.50 The
“threshold question” is whether this kind of harm to this
particular employee was reasonably foreseeable.51

7–010 In the case of Hatton, Mrs Hatton had suffered a stress-related

psychiatric illness whilst teaching at a comprehensive school.
However, like many people, she had struggled to cope and did
not complain to her superiors or ask for help. Yet, the fact that
she had struggled on without complaint led the court to conclude
that there was no clear indication that she was likely to suffer
from psychiatric injury and that the school should not be
liable.52 In contrast, in the conjoined case of Barber v Somerset
CC,53 another school teacher, Mr Barber, had been forced to take
three weeks off school, which had been certified by his GP as
due to depression and stress, and could point to several meetings
in which he had expressed concern as to his workload and its
effect on his health. Although these meetings had taken place
before the summer vacation (“usually a source of relaxation and
recuperation for hard-pressed teachers”) and his actual
breakdown had taken place the following November, the House
of Lords (on appeal) overturned the view of the Court of Appeal
that “it is expecting far too much to expect school authorities to
pick up the fact that the problems were continuing without some
such indication.”54
Although the Court of Appeal guidelines in Hatton were not
appealed,55 Lord Walker, giving the leading judgment in Barber,
appeared to favour a more “employee-friendly” approach. His
Lordship found that although the Hatton guidelines provided
practical assistance, the overall test remains “the conduct of the
reasonable and prudent employer, taking positive thought for the
safety of his workers in the light of what he knows or ought to
know.”56
On this basis, although this case was close to the borderline, the
school had been negligent in failing to make ongoing inquiries
as to Mr Barber’s health and in not taking any measures to ease
the problem.
The more recent Court of Appeal decision in Hartman v
South Essex Mental Health and Community Care NHS Trust,57
involving six conjoined appeals, sought to quash any fears of
inconsistency between Hatton and Barber. Scott-Baker LJ,
giving judgment for the court, found that Lord Walker was not
disagreeing with the Hatton guidelines, but simply sounding a
word of caution that no two cases were alike and that the test
must be applied to each new set of facts.58 The decisions
reached in Hartman indicate that the courts will continue
generally to require some specific signs to be evident to the
reasonable employer that a problem exists.59 In Hartman itself,
the claim of a hard-working nursing auxiliary dealing with
children with learning difficulties failed. The Court of Appeal
rejected the argument that such a job required a higher degree of
alertness from employers. Equally, knowledge of an earlier
nervous breakdown disclosed in confidence to the Occupational
Health Department would not be attributed to the employer. This
decision may be contrasted with the sixth appeal, Melville v
Home Office. Here, the Home Office had conceded that the job
of health care officer in a prison, which included the recovery of
the bodies of prisoners who had committed suicide, might cause
injury to health and had undertaken to provide support following
any such incident. Mr Melville unfortunately had been unable to
access this support. The Court of Appeal distinguished ordinary
claims for stress in the workplace from a situation where the
employer foresaw that a specific task might lead to mental injury
and devised a system to deal with this. In such circumstances, a
negligent failure to implement this system would lead to
liability.60 It nevertheless cautioned that the mere fact that an
employer offered an occupational health service should not lead
 to the conclusion that the employer had foreseen the risk of
injury due to stress at work.
As may be seen, complaints to one’s employer will often
form the basis for any claim for liability. Yet, few employees in
such circumstances will wish to alert their superiors to the fact
that they are not doing their job properly. The Court of Appeal in
Hatton recognised this, but insisted that it is difficult in such
circumstances to blame the employer for failing to act. Any
stricter regime would be better implemented by way of
regulations imposing specific statutory duties.61

Breach of Statutory Duty

7–011 This is a tort in its own right.62 Although, as will be seen below,
breach of statutory duty is not confined to the employment
context, traditionally its main application has been in the
employment field, particularly in relation to matters of industrial
safety.63 It therefore forms a part of the potential liability of
employers in tort and it is appropriate to deal with it in this
chapter. It should be noted, however, that government reforms in
2013 have diminished the role of breach of statutory duty in the
employment context. Previously, the Health and Safety at Work
etc Act 1974 s.47(2) had provided that breach of a duty imposed
by health and safety regulations would, so far as it caused
damage, give rise to civil liability. This presumption has now
been reversed. From 1 October 2013,64 s.47(2) now provides
that health and safety regulations introduced under the 1974 Act
shall not be civilly actionable except to the extent that the
individual regulations specifically provide.65 This means that
regulations which do not expressly provide for civil liability
(and few do) will no longer support an action for breach of
statutory duty and, in such circumstances, employees will have
to rely on the employer’s duty of care in negligence, discussed
above.66 Nevertheless, the tort of breach of statutory duty is still
relevant in giving a remedy for breach of statutory duties where
the legislature did intend that, in addition to any criminal or
administrative penalties, the injured party should have a right to
sue in tort. The House of Lords, in Lonrho Ltd v Shell Petroleum
Co Ltd (No.2),67 declined to accept the broader notion that
liability could arise whenever damage results from a
contravention of a statutory duty. The question, therefore, is
when does Parliament intend such a right to exist?
Unfortunately, very few statutes expressly deal with this issue.68
In the absence of an express right to sue69 (or an
express exclusion from suing),70 the courts are left to construe
the statute, and to infer whether Parliament intended to provide a
right to damages in tort. This gives the courts a considerable
amount of discretion, in the exercise of which they will consider
the purpose of the statute and whether, in all the circumstances,
individuals such as the claimant could have been intended to
have a civil remedy.
The first question in dealing with breach of statutory duty is
therefore to look at the wording of the particular statutory
provision which has been breached: construing it according to
the guidelines established by the courts, does it give a remedy in
tort to individuals who suffer harm as a result of its breach? If
this is established, there are four further matters to consider:
▮ Is the duty owed to this particular claimant?
▮ Has the defendant breached his or her statutory duty?
▮ Did the breach cause the damage in question?
▮ Was the injury of the kind which the statute intended to
prevent?

Only if all five questions are answered in the affirmative will an

action lie for breach of statutory duty. It must be stated that
 much turns on the interpretative powers of the courts and
whether or not they are willing to accept that a regulatory statute
was intended to place an additional burden on defendants to pay
civil damages. Generally, the courts have shown themselves
willing to adopt such a construction in relation to employee
safety, but have adopted a more restrictive view in other
contexts. In considering the employment cases, it should be
borne in mind that until 1948, breach of statutory duty formed
one of the ways of circumventing the doctrine of common
employment. Policy considerations have therefore been
influential in deciding when to allow a remedy for breach of
statutory duty—arguably this is inevitable when the courts are
given a broad interpretative discretion. The Law Commission, in
1969,71 attempted to limit this discretion by recommending the
enactment of a general statute that would have created a
presumption that a civil remedy was intended unless the contrary
was stated. This did not become law. Such a provision would
have greatly increased the role of this tort, in a way which does
not reflect the current restrictive view taken.
Although the courts exercise discretion in such cases, this
discretion is not without limits. The courts have developed
guidelines which they use in deciding whether a civil remedy
was intended. These are examined below.

Construing Parliamentary intention

7–012 The courts have identified a number of factors which indicate

whether Parliament intended a remedy to lie for breach of
statutory duty. The leading case of Lonrho Ltd v Shell Petroleum
Co Ltd (No.2)72 highlights the most significant factors. The case
concerned the supply of oil in breach of certain sanctions
following the unilateral declaration of independence (UDI) by
Southern Rhodesia in 1965. Lonrho brought an action for breach
of statutory duty, alleging that it had suffered heavy losses when
(unlike its competitors) it had complied with the sanctions. Lord
Diplock, giving the leading judgment, held that the action failed.
 Whilst confirming that the overall test was one of identifying
whether the purpose of the Act was to give the claimant a civil
remedy, his Lordship identified a number of factors which
assisted the courts in construing statutory provisions. His
Lordship held that the courts should generally take a restrictive
view where the Act provided its own penalties, but that there
were two main exceptions to this rule. The first exception was
where the claimant could show that the statute had been enacted
for the benefit or protection of a particular class of individuals.
The second exception was where the statute conferred a public
right and a particular member of the public suffered special
damage.73 Neither exception was applicable in Lonrho. The
sanctions had been imposed, as a matter of state policy, to
destroy the illegal UDI regime and were not intended either to
benefit a particular class of individuals, nor to establish a public
right. Lonrho therefore had no valid claim for breach of statutory
duty.
Whilst the considerations which influence the courts in
construing Parliamentary intention are elusive, and difficult to
examine in isolation, it is possible to identify and discuss a
number of relevant points:
▮ whether the statute protects a specific “class” of
individuals;
▮ the nature of the legislation;
▮ whether alternative remedies exist at law.

Each of these points will be examined below.

◗ (1) Protection of a class

7–013 There is clear authority that if the statute is passed for the
protection of a limited class of the public, rather than for the
benefit of the public as a whole, a court will be more inclined to
find
that a civil remedy was intended.74 Thus, in Atkinson v
Newcastle Waterworks Co,75 the Court of Appeal rejected the
claim of a householder whose premises had burnt down. The
defendants had been in breach of their statutory duty to maintain
water pressure in their pipes. As a result, when the fire broke
out, there was insufficient water to extinguish it. Lord Cairns LC
held that it would be a startling proposition to place an
additional burden on a company supplying a town with water by
making it liable to householders whose properties were damaged
by fire.76 The statutory scheme was for the benefit of the public
as a whole and not individual householders, otherwise the
company would be practically insuring householders against
damage by fire.77
However, the fact that a particular provision refers to a
certain class of individuals will not of itself give rise to an action
in tort. As Lord Browne-Wilkinson stated in Xv Bedfordshire
CC:

“a private law cause of action will arise if it

can be shown, as a matter of construction of
a statute, that the statutory duty was
imposed for the protection of a limited class
of the public and that Parliament intended
to confer on members of that class a private
right of action.”78

The purpose of the statute remains important. For example, in

Cutler v Wandsworth Stadium Ltd,79 the Betting and Lotteries
Act 1934 s.11(2) required the owner of a dog-racing track to
provide space for bookmakers. The House of Lords held that
although bookmakers were indeed an identifiable class, they
could not sue for damages when excluded from the track. The
purpose of the statute was to regulate the conduct of racetracks,
 and not to protect the livelihood of bookmakers, who might
benefit incidentally from such regulation.
Similarly, in the more recent case of R. v Deputy Governor
of Parkhurst Prison Ex p. Hague,80 the House of Lords held that
the Prison Rules 1964 were intended to regulate the
- administration of prisons and the management and control of
prisoners. They did not give rise to any private rights for
prisoners if they were breached.

◗ (2) The nature of the legislation

7–014 This also seems to be significant in recent years. Where a statute
has a “social welfare” goal, the courts have resisted imposing the
burden of civil liability on usually a public authority defendant.
In X v Bedfordshire CC81 (discussed in Ch.2) the plaintiffs
brought actions against local authorities concerning the
negligent performance of their statutory duties relating to
education and child welfare. Actions were also brought for
breach of statutory duty. The plaintiffs were unsuccessful in their
claims in negligence and, unsurprisingly, their Lordships were
also reluctant to impose liability for breach of statutory duty.
Lord Browne-Wilkinson held that although the legislation was
designed to protect children at risk and ensure adequate
educational provision, it was nevertheless not Parliament’s
intention to allow individual children or their families to sue for
damages. The plaintiffs were told to pursue their claims in
administrative law, rather than the law of torts. In the later case
of Phelps v Hillingdon LBC,82 Lord Slynn reiterated that,
despite the existence of a valid claim for negligence, no remedy
would lie for breach of statutory duty where the purpose of the
legislation was one of social welfare:

“The general nature of the duties imposed

on local authorities in the context of a
national system of education and the
 remedies available by way of appeal and
judicial review indicate that Parliament did
not intend to create a statutory remedy by
way of damages.”83

A similar position was taken in O’Rourke v Camden LBC84 in

relation to the local authority’s statutory duty to house homeless
persons. Lord Hoffmann in O’Rourke set out the reasoning of
the court:

“. . .the Act is a scheme of social welfare,

intended to confer benefits at the public
expense on grounds of public policy. Public
money is spent on housing the homeless not
merely for the private benefit of people who
find themselves homeless but on grounds of
general public interest: because, for
example, proper housing means that people
will be less likely to suffer illness, turn to
crime or require the attention of other
social services. The expenditure interacts
with

expenditure on other public services such as

education, the National Health Service and
even the police. It is not simply a private
matter between the claimant and the
housing authority.”85
 On this basis, the statutes in both cases were passed for the
benefit of society in general, and not for the benefit of
individuals. This indicator is therefore perhaps better analysed as
a particular example of (1) above: the courts rejecting liability
where the statute is not for the benefit of a spe-cific class of the
public, but for the public at large. The courts are also very
conscious of the wide discretion exercised by public authorities
in such cases and are reluctant to regulate this discretion through
the tort of breach of statutory duty. As Lord Hoffmann
commented in O’Rourke:

“the existence of all these discretions makes

it unlikely that Parliament intended errors
of judgment to give rise to an obligation to
make financial reparation. Control by
public law remedies would appear much
more appropriate.”86

◗ (3) Alternative remedies

7–015 This overlaps with (2) in that the courts are influenced by the
fact that public authorities are accountable in administrative
law.87 Moreover, where the statute sets up a system of fines, the
court will be reluctant to assume that Parliament intended the
additional burden of civil liability, unless, as stated by Lord
Diplock in Lonrho,88 it is apparent that the duty was imposed for
the benefit or protection of a particular class.89 In contrast, if
there is no stated remedy for breach and there is an intention to
protect a limited class, the court is more likely to hold that the
statute gives rise to a civil action.90
Similarly, if adequate remedies are provided by the common
law, or by other statutory provisions, this will indicate that no
additional civil action exists. This, however, begs the question as
to what is meant by “adequate”. In McCall v Abelesz,91 adequate
remedies were said to exist against the harassment of tenants,
which justified the refusal of liability, but it may be questioned
whether this was in fact the case. The court in Issa v Hackney
LBC92 held that the adequacy of alternative remedies should be
assessed at the date of enactment of the statute in question, and
in that case refused to take account of the fact that the protection
of tenants had diminished since the enactment of the Public
Health Act 1936.
The common law position can impact in a further way. As
well as suggesting that no liability should exist where there is an
alternative remedy at law, it also indicates that no liability
should exist where it is for a type of damage irrecoverable at
common law. The case of Pickering v Liverpool Daily Post93
illustrates this point. Here, the plaintiff (a convicted murderer
and sex offender) wished to prevent a newspaper from
publishing information about his application to a mental health
review tribunal to be discharged from a mental hospital. The
House of Lords held that any breach of the Mental Health
Review Tribunal Rules did not grant him a right to a civil
remedy. There is no general tort of breaching privacy in English
law,94 and, at that time the court held that the defendants’
actions were not capable of causing the plaintiff loss of a kind
for which the law affords a remedy.95 The courts also, in line
with the common law position, seem far more willing to award
damages for personal injury than for economic loss.96
The considerations discussed above are subject to the
underlying policy decisions of the courts. As stated earlier, the
courts have shown a notable leniency in finding civil liability for
breaches of statutes involving industrial safety.97 The
questionable case of Monk v Warbey98 is also a good example of
the influence of policy on the courts. Despite clear authority that
road-users did not form an identifiable class,99 the court held
that civil liability would be imposed on the owner of a vehicle
who had allowed an uninsured driver to use it, contrary to the
Road
 Traffic Act 1930 s.35(1).100 This was obviously an attempt to
ensure that the victim received compensation. Nowadays such a
problem is dealt with by the Motor Insurers’ Bureau (see Ch.1),
although Monk remains good law.101
7–016 A contrasting approach was taken by the Court of Appeal,
however, in the more recent case of Richardson v Pitt-
Stanley.102 In this case, the plaintiff, who had been injured at
work, had successfully sued his employers only to find that the
company which employed him was in liquidation and unable to
pay, and had failed to comply with its obligation under the
Employers’ Liability (Compulsory Insurance) Act 1969 to
obtain insurance against liability. He therefore brought an action
against the directors of the company for breach of statutory duty.
The majority of the Court of Appeal rejected his claim. Monk
was distinguished on a number of technical grounds.103 There
was no express provision in the 1969 Act which created a civil
liability on the part of an employer for the failure to insure and
the Court held that the Act was intended to be a statute within
the confines of the criminal law and not to create civil liability
on the part of an employer or its directors and officers. The
majority of the Supreme Court in Campbell v Gordon,104 in a
similar case involving an injured workman suing the sole
director of a company which had gone into liquidation and had
failed in its obligation to obtain full insurance under the Act,
also adopted a formalistic construction of the Act. In the words
of Lord Carnwath (speaking for the majority), the case depended
“not on general questions of fairness, but on the interpretation of
a particular statutory scheme in its context”.105 The majority
found that the language of the 1969 Act had been deliberately
chosen by Parliament and was specifically directed at criminal,
not civil, liability. Where Parliament had used such a well-
established formula, it was, in its view, particularly difficult to
infer an intention to impose by implication a more general
liability of which there was no hint in its actual language. Monk
was again distinguished—the majority noting that while the
Road Traffic Act 1930 imposed direct responsibility on both the
 user of the vehicle and the person who permits this use, the 1969
Act solely imposes direct responsibility upon the employer
company, not its directors. Such a construction undoubtedly
masked a policy decision not to render company directors liable
in tort for failing to comply with the insurance provisions of the
Act. The dissenting Justices, Lord Toulson and Lady Hale (and
indeed Sir
John Megaw in Richardson), were critical of an approach which
ignored the purpose of the Act (in their view to protect
vulnerable employees) in favour of a formal construction of its
provisions.
It is therefore impossible to divorce the decisions of the
courts from the influence of policy. In fact, the whole task of
finding whether Parliament intended civil liability has been
dismissed by many writers as a fiction.106 It is unlikely in many
cases that parliamentary drafters actually considered whether a
remedy should exist in tort and it might be suspected that, even
if the issue was considered, it would have been avoided as
politically contentious. This leaves a considerable amount of
discretion with the courts. While this may be thought
undesirable, the courts have little option until parliamentary
drafters deal with the question of civil liability for breach of
statutory obligations on a more regular basis. The law at present
is unpredictable and reflects the policy choices of the court. It is
important, however, not to over-exaggerate these problems. In
practice (and particularly in the light of government reforms to
the Health and Safety at Work etc Act 1974), the number of
claims made for breach of statutory duty is small and the
significance of such problems is minimal.

Further considerations

7–017 If the statute is one for which the courts are prepared to find civil
liability, then this is not the end of the matter. The claimant has
to satisfy four further hurdles:
 ▮ Is the duty owed to this particular claimant?
▮ Has the defendant breached his or her statutory duty?
▮ Did the breach cause the damage concerned?
▮ Was the damage of the kind which the statute intended
to prevent?

These will be examined below.

◗ (1) Is the duty owed to this particular claimant?

7–018 The claimant must show that he or she is within the class of
persons intended to benefit under the statute. This goes back to
the construction of the statute. In Knapp v Railway Executive,107
for example, a breach of regulations in maintaining a level
crossing, which led to a gate swinging back to injure the driver
of an oncoming train, was held not to be actionable. Although
the
statutory provisions did give a remedy at common law, they
were only for the benefit of road-users and did not benefit
persons travelling on the train.

◗ (2) Has the defendant breached his or her duty to

the claimant?
7–019 The defendant must have acted in breach of his or her duty as set
out in the statute. Again, it is important to turn back to the
wording of the statute and examine just what the defendant was
required to do or not to do. Is the duty one of reasonable care or
does the statute impose strict liability? The courts will examine
the exact wording of the statute and, again, in the industrial
context, have interpreted legislation in a pro-employee manner.
For example, the provision that the employer must act “so far as
is reasonably practicable” has been interpreted to place the legal
burden on the employer to establish that it was not reasonably
 practicable to take the precautions in question.108 However, the
courts do respect the strict wording of the statute. In Chipchase v
British Titan Products Co Ltd,109 a regulation required every
working platform from which a person could fall more than six
feet six inches to be at least 34 inches wide. The plaintiff fell
from a platform that was nine inches wide, but only six feet from
the ground. On this basis, no claim could arise under statute and
the plaintiff was left to pursue a claim in ordinary negligence.

◗ (3) Did the breach cause the damage concerned?

7–020 Causation must be proved, and a similar approach is taken to
that adopted for the tort of negligence, as discussed in Ch.6.110
One particular problem which has arisen is where the statutory
duty is placed on both the employer and the employee, and
although the employer has taken all reasonable steps, the
conduct of the employee has caused the accident. In such cases,
the courts are reluctant to find the employer liable for the
employee’s own breach of statutory duty. In Boyle v Kodak
Ltd,111 the plaintiff had been injured when he fell off a ladder
which was required by law to be secured. Previous authority
demonstrated that civil liability arose from breach, but the
House of Lords held that it was not prepared to find the
employer liable if only the plaintiff had been at fault. Lord Reid
stated that:

“it would be absurd if, notwithstanding the

employer having done all he could
reasonably be expected to do to ensure
compliance, a workman, who deliberately
disobeyed his employer’s orders and
thereby put the employer in breach of a
regulation, could claim damages for injury
 caused to him solely by his own
wrongdoing.”112

On the facts, however, the court found that the employers had
failed to show that the accident was solely due to the fault of the
plaintiff and so liability would be divided 50:50, due to the
contributory negligence of the plaintiff. The limitations of Boyle
should be noted. Only if the duty is placed both on the employer
and employee and the employee is the only person at fault will
the courts refuse liability.

◗ (4) Is the damage of the kind which the statute

intended to prevent?
7–021 This, again, is a question of construction. The courts will
examine the statute, and if the claimant has suffered an injury
different from that mentioned in the statute, then the claimant
will not be able to recover. It will therefore depend on how the
court interprets “damage”. In Gorris v Scott,113 the Court of
Exchequer adopted a strict line. Here, the Act in question
required that animals be transported in pens to prevent the
spread of contagious diseases. In violation of the Act, the
plaintiff’s sheep had been transported without pens and had been
washed overboard in bad weather. The court held that such
damage was “something totally apart from the object of the Act
of Parliament”114 and rejected the plaintiff’s claim. Nowadays it
is unlikely that a court would take such a strict approach. The
courts (in line with the approach taken in The Wagon Mound)
will simply examine whether the damage suffered is of the kind
that the statute was designed to prevent.115

Defences

7–022
 These will be discussed in more detail in Ch.16. It is worth
noting at this stage that there is some indecision as to whether
the defence of voluntary assumption of risk (or volenti non fit
injuria) applies to breach of statutory duty. The House of Lords
in ICI v Shatwell116 held that the defence
would apply where the employer was not at fault and was only
liable vicariously for the acts of its employees. Lords Reid and
Pearce stressed that the defence should not apply if the employer
is in some way at fault in failing to comply with the duty.117
Although the principle of contributory negligence clearly
applies to the tort of breach of statutory duty,118 there is some
authority that it will be applied leniently towards employees
injured in the course of their employment. In Caswell v Powell
Duffryn Associated Collieries,119 it was held that the courts
should take account of any continual noise, strain and risk to
which employees were exposed which might lead to their failure
to take reasonable care. This seems to be another example of the
preferential treatment given to industrial injury claims.

Breach of statutory duty and EU law

7–023 Following the decision of the European Court of Justice in

Francovich v Italy,120 prior to Brexit claimants were able to
bring a claim against the State (which was interpreted
broadly)121 for breaching EU law, for example, by failing to
implement a directive within the stipulated time period. In
Garden Cottage Foods Ltd v Milk Marketing Board,122 the
House of Lords indicated that remedies would arise under the
tort of breach of statutory duty (the statute here being the
European Communities Act 1972 s.2(1), which provided that the
State has an obligation to ensure that national law shall be
consistent with EU law). The ground-breaking decisions of
Francovich v Italy123 and Brasserie du Pêcheur v Germany; R. v
Secretary of State for Transport Ex p. Factortame (No.4)124
extended liability beyond directly effective Treaty provisions to
 include breaches of EU law more generally. In the leading case
of Brasserie du Pêcheur v Germany; R. v
Secretary of State for Transport, Ex p. Factortame (No.4),125 the
European Court of Justice indicated the scope of this new right
to sue for damages for breach of EU law:

“Community law confers a right to

reparation where three conditions are met:
the rule of law infringed must be intended
to confer rights on individuals; the breach
must be sufficiently serious; and there must
be a direct causal link between the breach
of the obligation resting on the state and the
damage sustained by the injured
parties.”126

7–024 While Francovich liability does resemble the traditional tort of

breach of statutory duty, there are differences.127 The first and
third conditions of Brasserie du Pêcheur are very similar to
those of the common law tort, although it should be noted that
the English courts have construed the conferral of rights test
narrowly.128 However, the second condition does differ from
that of breach of statutory duty. It is not a test of fault, but
whether the State has shown a manifest and grave disregard to
the limits of its discretion, rendering the breach inexcusable.129
An obvious example would be acting contrary to a judgment of
the Court of Justice of the European Union which had indicated
that the conduct in question was a clear infringement of EU law.
Other factors which may be taken into account include the
clarity and precision of the rule breached, the measure of
discretion left by the rule to the national or EU authorities,
whether the infringement and the damage caused was intentional
 or involuntary, whether any error of law was excusable or
inexcusable, the fact that the position taken by a EU institution
may have contributed towards the omission, and the adoption or
retention of national measures or practices contrary to EU
law.130 Where the conditions are met, States must provide
remedies which are no less favourable than rules applying to
similar claims based on national law.131 Subject to these
principles of equality and effectiveness, it remains for the
national court to find the facts, decide whether the rule of law
infringed was intended
to confer rights on individuals, the breach of EU law was
sufficiently serious132 and determine whether there was a direct
causal link between the breach and the damage suffered. There
is no precondition that the claimant should have exhausted all
domestic remedies before relying on this cause of action.133
Francovich liability was, then, a hybrid form of breach of
statutory duty—part European, part UK law. As such, it will not
survive the UK leaving the EU. To the end, there was debate
whether it could really be regarded as a form of breach of
statutory duty given the differences identified above.134
Nevertheless, the history of Francovich liability provides an
interesting insight into common law legal development and its
ability to deal with external sources of law.

Vicarious Liability

7–025 This is a different concept from the two forms of liability

examined above. It is not a tort in its own right, but a rule of
responsibility which renders the defendant strictly liable for the
torts committed by another.135 The commonest example is that
of an employer for its employees and this chapter will therefore
focus on the employer/employee relationship. Other examples of
vicarious liability include the liability of a firm for the torts of its
partners.136
Vicarious liability is essentially a rule of convenience. It
does not mean that the tortfeasor (X) is not personally liable for
his negligence, but that the claimant has the choice to sue X or
his employer (Y) and generally, the claimant will sue Y because
Y has more money, or as the courts put it “the deeper pocket”.
As a matter of strict law, the employer may seek to recover
damages from the employee who committed the tort.137 This is
known as the employer’s indemnity. This may occur either for
breach of an implied term in the contract of employment to use
reasonable care and skill, or, because vicarious liability is treated
as joint and several liability under the Civil Liability
(Contribution) Act 1978. The 1978 Act entitles the employer to
seek a contribution from the employee with respect to his or her
responsibility for the damage caused.138 However, in practice,
this rarely happens. Employers’ liability insurers have entered
into a “gentlemen’s agreement” not to pursue actions against
employees except where there has been evidence of collusion or
wilful misconduct.139 This, of course, contradicts completely the
idea of corrective justice, discussed in Ch.1, that only those at
fault should pay compensation in tort.
There are limits, however, to vicarious liability. It is confined
first to “employees” (a category, which we will see, has
expanded recently), and secondly to acts committed in the
course of employment. An employer is not responsible if the
employee’s wrongful act does not relate to his or her position,
for example, where the employee (X) negligently crashes his car
into the claimant whilst driving home from work. This has led to
subtle distinctions, which will be discussed below.
To establish vicarious liability against an employer, the
claimant must show three things. First prove that X has
committed a tort. Once this is shown, the Supreme Court in the
leading case of Various Claimants v Catholic Child Welfare
Society (CCWS)140 indicated two further elements:
 ▮ A relationship between X and Y capable of giving rise
to vicarious liability; and
▮ A close connection that links the relationship between
X and Y and the act or omission of X

The Supreme Court noted that these elements may overlap in

that what is critical at the second stage is the connection that
links the relationship between X and Y and the act or omission of
X. In 2016, 2017 and 2020, the Supreme Court in five important
decisions gave further guidance how to apply the relationship
test (in Cox v Ministry of Justice,141 Armes v Nottinghamshire
CC142 and Barclays Bank v Various Claimants143) and the
connection test (in Mohamud v WM Morrison Supermarkets
Plc144 and WM Morrison Supermarkets Plc v Various
Claimants145).
These requirements are examined below.

(1) The employee committed a tort

This may be considered obvious but is worth noting. If the
claimant is unable to prove that a tort has been committed
against him or her, vicarious liability cannot arise. If, therefore,
suing an employer for vicarious liability on behalf of its
employees, the claimant must first prove that the employee’s
conduct satisfies all the requirements of the tort in question.146

(2) The relationship between the

tortfeasor and the employer
7–027
7–026 The primary relationship giving rise to vicarious liability
remains that of employer/employee. The courts draw a
distinction between, on the one hand, a contract of service147 or
employment—where the person employed is an “employee”,
and, on the other hand, a contract for services—where the
person employed is an “independent contractor”. An employer
will not be vicariously liable for the actions of independent
contractors. There is now a third category: workers who are
“akin” to employees. These are staff who are not technically
working under contracts of service but perform the function of
employees and therefore satisfy the relationship test. This
category (added recently) will be examined in more detail
below.
The key distinction, then, is between employees and
independent contractors. If I employ a workman to fix the
reception on my television, for example, I have not employed
him under a contract of service—he is just visiting to fix my
reception—but rather I have entered a contract for services with
an independent contractor and I would not be vicariously liable
for his torts. Unfortunately, this distinction is not always so easy
to draw. In recent times, the nature of employment has changed,
with workers far more insecure than they have been in the past.
Workers may be employed on a casual basis, or via an
employment agency, or on a government scheme, and it is
difficult to ascertain their exact status.148 This difficulty is
compounded by the various arrangements undertaken by
workers to limit their tax liability, frequently by labelling
themselves as independent contractors for this purpose. The
courts, therefore, face a real challenge in distinguishing between
contracts of employment and contracts for services and this is
one of the reasons which led the courts to develop a third
category of “quasi-employees” hired in circumstances akin to
employment. A number of factors can be identified as important
to the courts in deciding this question, but it is fair to state that
the courts generally adopt a “broad brush” approach, dependent
on the facts of each particular case.149

◗ Factors identifying “employees”150

THE TERMS OF THE CONTRACT

7–028 The courts have clearly stated that they will not be governed by
the wording of the contract but will examine the substance of the
contract. In Ferguson v Dawson,151 for example, it had been
agreed between the parties that workers employed on a building
site would be “self-employed labour only sub-contractors”. By
this means, the workers avoided the deduction of income tax and
national insurance contributions from their weekly payments.
The plaintiff, who worked on the defendants’ building site,
argued when injured that he was an employee and therefore able
to sue for breach of statutory duty. The court held that in reality
the relationship was indeed one of employer and employee. The
defendants could dismiss the workmen, move them between
sites, tell them what work to do and had provided them with
tools. These factors indicated that they were employees and not
independent contractors.
However, the courts have experienced some disquiet in
allowing a worker, who deliberately chooses to be employed as
an independent contractor to avoid tax, to turn to the courts
when he or she wishes to obtain the benefit of employee
protection legislation.152 The Court of Appeal in Young and
Woods v West153 was sympathetic to such concerns, but
maintained that the court should look to the realities of the
situation in the belief that “the Inland Revenue would [not] fail
to discharge their statutory duty”.154

CONTROL
7–029 In the past, the control test was the primary indicator used by the
courts.155 An employer/employee relationship was held to exist
when an employer could tell an employee what work to
undertake and how it should be done. While this test is still used,
it is clearly outdated in relation to modern work practices.156 In
an advanced technological age, employees are frequently
expected to be able to exercise discretion and initiative in their
performance. Professionals with skill and experience do not
expect to be told what to do and how to act during each working
day. A good example is that of a doctor in the Accident and
 Emergency department of a hospital.157 It is clearly impossible
for any employer to tell the doctor how to perform his or her
duties. The
doctor will be expected to exercise a large amount of discretion
in deciding how to deal with patients. As Cooke J commented in
Market Investigations v Minister of Social Security158:

“the most that can be said is that control

will no doubt always have to be considered,
although it can no longer be regarded as the
sole determining factor.”

THE RELATIONSHIP AS A WHOLE

7–030 This is the modern approach, which encompasses the two earlier
points. The cases reveal a number of factors which the courts
will consider in deciding whether an employer/employee
relationship exists.159 These include, in addition to the terms of
the contract and the control test:
▮ the payment of wages and National Insurance
contributions etc, on a regular basis;
▮ an indefinite term of employment;
▮ a fixed place and time of performance;
▮ the provision of equipment or materials by the
employer;
▮ the degree of financial risk and investment taken by the
worker;
▮ whether the worker can profit from his or her
performance;
 ▮ whether the worker must hire his or her own assistants
or replacements; and
▮ whether the work is integrated into the business or
accessory to it (the business integration test).160

On this basis, in Market Investigations v Minister of Social

Security,161 part-time interviewers working under short-term
contracts for a market research company were held to be
employees. Their employers exercised extensive control over
their work and Cooke J held that the limited discretion given to
employees to decide when they would work, and the ability to
work for others during the relevant period, were not inconsistent
with the existence of a series of contracts of employment. In
contrast, in Ready Mixed Concrete (South East) Ltd v Minister of
Pensions and National Insurance,162 McKenna J held that
arrangements to deliver ready-mixed concrete by “owner-
drivers”, paid at fixed mileage rates, were not contracts of
employment. This difficult case illustrates the problem often
facing the court where there are indications both ways. Against a
contract of employment was the fact that the drivers had to buy
their own vehicles, which were maintained at their own expense,
and the fact that the drivers were described in the contracts as
independent contractors. Yet in favour of a contract of
employment was the high level of control exercised by the
company. Vehicles were bought on hire purchase from a
company associated with the defendants and had to be painted in
the company’s colours. The drivers were obliged to wear the
company uniform and comply with the company’s rules,
including a prohibition on using the vehicles for any other
business. Nevertheless, McKenna J felt that ownership of the
vehicles, and the fact that the drivers took the chance of profit
and bore the risk of loss, indicated that the drivers were in reality
independent contractors.163

RELATIONSHIPS “AKIN” TO EMPLOYMENT164

7–031
In the leading Supreme Court decision of Various Claimants v
Catholic Child Welfare Society,165 Lord Phillips confirmed that
while the vast majority of cases would relate to
employer/employee relationships under a contract of
employment, English law now recognised that there were
relationships “akin” to employment where it would be fair and
just to impose vicarious liability.
In so doing, the Supreme Court confirmed the correctness of
the Court of Appeal decision in JGE (or E) v English Province
of Our Lady of Charity166 which had held that the Catholic
Church could be held vicariously liable for the acts of abuse of a
priest, despite the fact that he was an “office-holder” and not
strictly an employee. In that case, the majority of the court had
held that in circumstances where the bishop had exercised some
control over the priest (who could be dismissed for gross breach
of his duties under canon law) and where, under canon law
itself, priests were bound to show reverence and obedience to
the bishop, the relationship between bishop and priest was
sufficiently close (or “akin”) to that of employer and employee
for it to be fair and just to impose vicarious liability. The priest
had been fully integrated into the
Church’s mission of spreading the word of God and, on balance,
the relationship bore a closer resemblance to that of
employer/employee rather than employer/independent
contractor.
The same issue arose in the Catholic Child Welfare Society
case. Here, 170 men had alleged that they had been sexually
abused by teachers at a residential school. The headmaster and a
number of other teachers at the school had been supplied by a
religious organisation (the Institute of the Brothers of the
Christian Schools), which consisted of lay Catholic brothers
whose mission was to teach and who handed their teaching
salaries to the Institute.167 The Supreme Court held that the
Institute would be vicariously liable for their actions, regardless
of the absence of any contract of employment linking it to the
teachers. The “business” of the Institute was to provide teaching
for boys and the lay brothers had been acting in the furtherance
of this mission and were expected to abide by the Institute’s
rules in conducting themselves as teachers. On this basis, the
relationship between the Institute and the brothers was
sufficiently akin to that of employer/employee and the absence
of a contractual link (or indeed any form of payment) was
regarded as immaterial.
The Supreme Court in Cox v Ministry of Justice168 and
Armes v Nottinghamshire CC169 recently approved this line of
reasoning and expanded it to two new contexts: prisoners
working in a prison kitchen and foster parents looking after
children in care. In Cox, a prison catering manager had been
injured due to the negligence of one of the prisoners working in
the prison kitchen. While the prisoner was clearly not employed
by the prison—he was serving a prison sentence—he was paid a
nominal sum to work in the kitchen as part of the rehabilitation
process. Lord Reed held that prisoners working in the kitchens,
under the direction of prison staff, were integrated into the
operation of the prison and carried out an integral part of its
activities for its benefit: feeding prisoners. They could thus be
described as “akin to employees”. Similarly, in Armes, foster
parents, caring for children in local authority care, were deemed
to be acting for the benefit of the local authority in enabling it to
fulfil its statutory duties to children in care. They had received
training, were paid expenses and were subject to inspection and
supervision without any parallel to ordinary family life. As such,
they provided care as an integral part of the local authority’s
organisation of its childcare services and could not, in the view
of the court, be seen as carrying out an independent business of
their own. There is, however, a line to be drawn. Most recently
the Supreme Court in Barclays Bank v Various Claimants170
emphasised that the court needed to focus on the details of the
parties’ relationship—was the person carrying out his or her own
independent business or sufficiently analogous to employment to
justify the imposition of vicarious liability? In the case, an
independent doctor providing health checks for the bank (which
was a minor part of his practice) was deemed to be an
independent contractor. He worked for a number of different
 bodies, he was not on retainer and could refuse work at any
time.

LENDING AN EMPLOYEE
7–032 The Catholic Child Welfare Society case also casts light on the
previously difficult issue of whether more than one defendant
could be vicariously liable for the torts of the employee. This
arises typically when the errant employee has been hired out to
work for a different company at the time of commission of the
tort (here the Institute sending the brothers to teach in a school
managed by another body). Who will be responsible for the
employee’s torts? Previously, authority had indicated that only
one party could be liable. This would generally be the original
employer and only in exceptional circumstances would the hirer
be liable. In Mersey Docks and Harbour Board v Coggins and
Griffith (Liverpool) Ltd,171 for example, the harbour board had
employed Newall as a crane driver and had hired the crane,
together with Newall, to a firm of stevedores. The harbour board
was held liable when Newall negligently injured one of the
hiring firm’s employees while loading a ship. At the time of the
accident, although the firm had instructed Newall in what work
to do, they had no control as to how Newall operated the crane.
Looking at all the circumstances of the case, the facts that the
harbour board retained authority to control how the crane was
driven and paid the wages of Newall were deemed to indicate
that it was still his employer. Lord Porter indicated that in future
cases, courts should consider a number of factors, including who
pays the worker’s wages, who has power of dismissal, how long
the alternative work lasts and the complexity of the machinery
used.172 The more complex the machinery, the more unlikely it
was that the employee would be deemed to work for the
company hiring his or her services. In contrast, where the
employee is unskilled and loaned out on a labour-only contract,
then the stronger the possibility that the hirer may be found
vicariously liable for his or her torts.173
In 2005, however, the Court of Appeal in Viasystems
(Tyneside) Ltd v Thermal Transfer (Northern) Ltd174 rejected the
 previously held assumption that the court must choose between
employers and found that the general and temporary employer
could be jointly liable. In this case, both employers had
exercised some form of control over the employee, Strang, who
had negligently caused a flood in a factory in which he was
working. Strang and his immediate boss (a fitter) had been
supplied to the subcontractors on a labour-only basis, but at the
time of the accident, while acting on the instructions of the fitter,
he had also been under the supervision of the subcontractors’
employee, Horsley. Unable to choose between defendants, the
Court of Appeal found dual liability. The court was split,
however, on the appropriate test: May LJ favouring a test based
on control175 and Rix LJ favouring a test based on business
integration.176 The Catholic Child Welfare Society case resolved
that the Rix business integration test was the correct test to
apply.177 This marks a change from the restrictive approach of
the past and dual (or multiple) vicarious liability is likely to be
easier to establish in future, providing further protection for
claimants who may find one of the defendants insolvent or no
longer in business. The test can, therefore, now be stated as
follows: vicarious liability will be shared where the employee in
question is so much a part of the work, business or organisation
of both employers that it is just to make both employers answer
for his tort.178

(3) A connection that links the

relationship between the tortfeasor
and employer and the commission of
the tort—Acting in the course of
employment

7–033 The employer will be liable for torts committed by the employee
“when acting in the course of employment”. This phrase has
caused considerable problems in interpretation. It has been
 established that the employer cannot simply argue that the
employee was not employed to commit torts and was therefore
acting outside the course of his or her employment when
committing a tort. This would effectively undermine the whole
concept of vicarious liability. A broader test is therefore applied.
Traditionally, the test has been that the employee is acting in the
course of employment if his or her conduct was authorised by
the employer, or was considered to be an unauthorised means of
performing the job for which he or she is employed.179 While it
is obvious that an employer will be liable for actions it has
authorised,180 the second category has proven more difficult to
explain. It has now been interpreted as covering actions closely
connected to the job for which the tortfeasor is employed.181 The
“course” or “scope” of employment will depend on the facts of
each particular case, but a selection of case law will be discussed
below which indicates the approach which the courts have
adopted. Again, as will be seen, the recent cases of Various
Claimants v Catholic Child Welfare Society,182 Mohamud v WM
Morrison Supermarkets Plc183 and WM Morrison Supermarkets
Plc v Various Claimants184 make an important contribution to
our understanding of this area of law.
7–034 Generally, the courts have taken a generous approach to this
question. For example, in Century Insurance v NI Road
Transport Board,185 a driver of a petrol lorry was held to be
acting in the course of his employment when he discarded a
lighted match, which he had used to light a cigarette, while
delivering petrol. This led to an explosion which damaged the
tanker, a car, and several nearby houses. Lighting a cigarette was
held to be an act of comfort and convenience which would not
be treated as outside the scope of employment.186
An equally broad approach was taken by the House of Lords
in Smith v Stages.187 This case raised the problem whether
employees driving to and from work were acting within the
scope of their employment. The court held that generally this
will not be the case unless special circumstances exist, for
example the employee is required under the contract of
employment to use the employer’s transport to work.188 Equally,
if the employee’s job requires travel, for example because he or
she is a sales rep or a gas-fitter, then such travel will be deemed
to be within the course of his or her employment. However, a
deviation or interruption from a journey taken in the course of
employment will, unless incidental, take the employee out of the
course of employment for the time being. This last point is
illustrated by two cases involving tortfeasors employed to drive
a horse and cart for their employers. In Whatman v Pearson,189
the employee had, against strict instructions, chosen to travel
home for dinner by horse and cart. His employers were held
liable for the damage caused when the horse escaped due to the
employee’s negligence. Byles J held that the employee was
clearly acting within the general scope of his authority in dealing
with the horse and cart during the day. In contrast, in Storey v
Ashton,190 the court held that an employee who, after business
hours, had driven to a friend’s house, was not in the course of
employment. The trip had nothing to do with his employment
and his employer was thus not held liable for the injuries
suffered by the plaintiff due to the employee’s negligent driving.
It may be seen from these cases that the question is therefore one
of degree.
The facts of Smith v Stages raised a different issue. Here,
two employees who normally worked in Staffordshire had been
sent to South Wales to undertake certain emergency works. They
had been paid their ordinary salary to travel to and from Wales,
together with their travel expenses. The employees decided to
work non-stop and so return to Staffordshire earlier than
anticipated. They drove back immediately on completion of the
job without any sleep. A crash occurred in which both men were
seriously injured. As the driver (Stages) was uninsured, his
passenger sued their employer, claiming that the employer was
vicariously liable for Stages’ negligent driving.
The court held that the employer was vicariously liable. The
employer had paid the men their wages and not merely a travel
allowance for the time taken on the journey. This meant that the
men were still acting in the course of their employment. This
 was despite the fact that the employer did not provide the car
and left the mode of transport to the discretion of the men. This
seems to be a policy decision ensuring that, in the absence of
insurance, and in circumstances where the Motor Insurers’
Bureau would not provide cover,191 the victim is fully
compensated.
The line distinguishing conduct within and outside the scope
of employment can be extremely fine. A good illustration is
Staton v NCB.192 Here, an employee at a colliery was held to be
within the course of his employment while cycling across his
employer’s premises at the end of the working day to collect his
wages from the pay office. Finnemore J held that it was an act
incidental to his employment and, if performed negligently, his
employer would be vicariously liable.

◗ Prohibited and criminal conduct by employees

7–035 Even if the conduct in question has been expressly prohibited by
the employer, this does not mean that the employee has acted
outside the scope of his or her employment. Whilst this may
seem unfair to employers, as stated earlier, it would be wrong if
the employer could escape liability by simply prohibiting the
commission of torts in the course of employment. The test is
therefore whether the prohibition limits the scope of
employment (as opposed to simply directing how the employee
does his or her job). This is not particularly clear, but the courts’
decisions provide some assistance.
If the prohibited conduct can be found to benefit the
employer in some way, then there is authority that the courts will
be willing to find the employer vicariously liable. For example,
in Limpus v London General Omnibus Co,193 the company’s
instructions not to race with, or obstruct, other buses had been
disobeyed by one of its drivers who had obstructed a rival bus.
This led to a collision with the plaintiff’s bus, which overturned.
The court found the company vicariously liable for the driver’s
negligent actions, on the basis that the employee’s actions were
simply an improper and unauthorised mode of doing an act
 which he was authorised to do, namely promoting the
company’s bus service.
More difficult are the cases where the driver of a company
vehicle, contrary to express instructions, gives a lift to an
unauthorised passenger. Will the employer be vicariously liable
for any injury to the passenger in such circumstances? The
majority of the Court of Appeal in
Rose v Plenty194 found the employer liable for the negligent
driving of its milkman, despite the fact he had been warned by
his employer not to allow children to assist him, nor to allow
passengers on his float. In breach of these instructions, he had
engaged the plaintiff, aged 13, to help him and the plaintiff had
been injured due to the milkman’s negligent driving. The
majority held that if the purpose of the prohibited act was to
further the employer’s business, the act was in the course of
employment. The decision may seem generous. There is also
authority that an act is not required to benefit an employer to be
in the course of employment,195 but the judgment of Denning
LJ, which referred to the introduction of compulsory insurance
in 1972 to cover motor vehicle accidents, indicates the influence
of policy and the desire to ensure that the injured boy obtained
compensation.
7–036 The role of policy may further be seen in relation to
vicarious liability for criminal acts by employees. Whilst
vicarious liability in tort may seem surprising in this context, it
should be remembered that crimes such as assault, theft and
fraud are also torts, and employers have been found liable in
such circumstances. In Poland v John Parr and Sons,196 for
example, the defendants were found liable for their employee
assaulting a boy whom he believed had stolen a bag of sugar
from his employer’s wagon. The court held that the employee
had implied authority to make reasonable efforts to protect his
employer’s property, and that the violence was not so excessive
as to take the act outside the scope of his employment. Equally,
in Lloyd v Grace, Smith & Co,197 a firm of solicitors was found
vicariously liable for the fraudulent activities of its managing
clerk, who had defrauded a widow of her property. However, the
courts have stressed that for fraudulent misrepresentation,
employers will only be liable if they have given the employee
actual or ostensible authority to make the statements and this
authority is relied upon by the claimant.198 There is also
authority that an employer may be vicariously liable for the theft
by an employee of goods entrusted to his or her care.199
The decisive case, however, is that of the House of Lords in
Lister v Hesley Hall Ltd.200 This case reviewed the application
of vicarious liability in the context of serious criminal conduct
amounting to an intentional tort. Here, the warden of a home for
boys with emotional and behavioural difficulties had been found
guilty of systematic sexual abuse of some of the boys under his
care. In the earlier case of Trotman v North Yorkshire County
Council,201 the Court of Appeal had refused to accept that
similar misconduct—the antithesis of what a carer was
employed to do—could be deemed to be “in the course of his
employment”. The House of Lords took a different view. Where
the intentional tort was closely connected to the work the
perpetrator was employed to do, it would be fair and just to find
his employer vicariously liable.202 The warden in Lister had
been employed to provide a home for the boys and supervise
them day-to-day in circumstances where he and his disabled
wife were often the only members of staff on the premises. Such
close contact was sufficient to satisfy the court that there was a
close connection between what he had been employed to do and
the acts of abuse committed. If, however, the acts of abuse had
been committed by a groundsman, there would have been no
close connection between his job and the torts in question.
To establish this connection, then, the court will examine the
nature and purpose of the job and the circumstances and context
in which the acts took place. Their Lordships maintained,
however, that this would not affect existing authority that private
acts of passion, resentment or spite were outside the scope of
employment. The application of the Lister test in subsequent
case law was considered in the Catholic Child Welfare Society
 case and, more recently, in Mohamud v Morrison Supermarkets
and Morrison Supermarkets v Various Claimants.

◗ The application of the Lister “close connection”

test
7–037 In Various Claimants v Catholic Child Welfare Society,203 the
question arose whether the acts of abuse had been in the course
of employment of the Catholic brother teachers. The Supreme
Court examined a number of cases since Lister where employers
had been held vicariously liable for serious criminal misconduct
by employees. For example, in a commercial context, the House
of Lords in Dubai Aluminium Co Ltd v Salaam204 had found that
work undertaken by a
solicitor for a client which assisted a fraud was closely
connected to his work. Lord Nicholls, in a helpful judgment, set
out a general test for identifying the connection needed:

“Perhaps the best general answer is that the

wrongful conduct must be so closely
connected with acts the partner or
employee was authorised to do that, for the
purpose of the liability of the firm or the
employer to third parties, the wrongful
conduct may fairly and properly be regarded
as done by the partner while acting in the
ordinary course of the firm’s business or
the employee’s employment.”205

This formulation was supported in subsequent decisions. A

particularly generous application may be found in Mattis v
Pollock.206 Here, the Court of Appeal held a nightclub owner
vicariously liable when one of its guests had been rendered
paraplegic when stabbed by the bouncer outside the club.
Although the act had been one of revenge for injuries and
humiliation inflicted on the bouncer some time earlier in the
club by the victim’s group of friends, the court held that since
the employee had been encouraged by his employer to keep
order by violent behaviour, the employer would be vicariously
liable for an assault linked to the incident in the club.207 Here,
much would seem to turn on the court’s condemnation of the
employer’s behaviour. He had known of and encouraged the
violent tendencies of the bouncer and so the court was able to
find a close connection between the attack and what the bouncer
had actually been employed to do.208
Lord Nicholls in Dubai, however, did question whether the
close connection test provides sufficient guidance in itself to
determine when vicarious liability should be found.209 Judge LJ
in Mattis described it as “a deceptively simple question”.210 Put
simply, just how closely connected does the tort have to be to the
employee’s job for the employee to be “fairly” and “properly”
said to be acting in the course of employment?
In response to such concerns, we now look to three decisions
of the Supreme Court in the Catholic Child Welfare Society case
(CCWS), Mohamud v Morrison Supermarkets (Mohamud) and,
most recently, Morrison Supermarkets v Various Claimants
(Morrisons) for guidance.
In CCWS, the Supreme Court found a common theme in
physical and sexual abuse cases.211 Vicarious liability is
imposed where the tortfeasor is employed to work for the
defendant in circumstances where the nature of the job created
or significantly enhanced the risk of harm to the victim.212 The
creation of the risk thus provided a justification for liability. In
the case itself,
the boys who were abused had lived in the residential school as
virtual prisoners and were vulnerable and needing care. The
Supreme Court found a very close connection between the
brother teachers’ employment in the school and the sexual abuse
they committed.
In Mohamud, the Supreme Court sought to provide a
simplied version of the close connection test, looking at: (1)
what functions or “field of activities” had been entrusted by the
employer to the employee and (2) whether there was a sufficient
connection between the job and the wrongful conduct such as to
make it right for the employer to be held vicariously liable?213
In the case itself, Mohamud had been seriously assaulted by a
Morrison employee when he had made an enquiry at its petrol
kiosk concerning the availability of printing facilities. The
employee had threatened and then assaulted Mr Mohammed,
despite instructions from his supervisor to stop. Lord Toulson
found that the employee’s job was to attend to customers and
respond to their enquiries. This was a foul mouthed and
inexcusably bad way of doing this. While a gross abuse of his
position, it was sufficiently connected with the business in which
he was employed to serve customers. For the court, “the risk of
an employee misusing his position is one of life’s unavoidable
facts”214 and social justice required that the employer be held
vicariously liable.
This new formulation gave rise to fears that claimants need
only show a causal link between the tort and the employee’s job
to establish vicarious liability. This was based on the fact that
the decision seemed to replace the “close” connection test with
one based on showing merely a “sufficient” connection. In April
2020, in a significant decision, the Supreme Court unanimously
stated in Morrisons that this was not the case. Any such view215
was based on a misunderstanding of Mohamud. Here the facts
were unusual. An internal IT auditor held a grudge against his
employers, Morrisons. In revenge, he had posted confidential
payroll data for the company’s entire workforce on the internet
using his home computer. The employees, whose data had been
disclosed, sued Morrisons, claiming they were vicariously liable
for this misuse of private information. Overturning the view of
the Court of Appeal that there was “an unbroken thread that
linked [the employee’s] work to the disclosure”,216 the Supreme
 Court held that the employee’s wrongful disclosure of data was
not so closely connected with the tasks he was authorised to do
that it could be fairly and properly be regarded as made in the
ordinary course of employment. An employer should not
normally be liable for an employee, as here, who was not
furthering his employer’s business, but rather pursuing a
personal vendetta. Two points arise here. First, the Supreme
Court reasserted the “close” connection test. The test in
Mohamud was explained as a “simplication” of the close
connection test stated in Dubai
Aluminium, rather than one intended to make any change in the
law.217 Secondly, the formulation used by the Court is taken
from Lord Nicholls in Dubai Aluminium (set out above) and not
Mohamud. In so doing, the Supreme Court avoided the
extraordinary finding of the Court of Appeal that an employee
seeking revenge on his employers could render his employers
vicariously liable for his wrongs and thereby cause the
employers further harm.218

Summary

7–038 Lord Phillips in the leading case of Various Claimants v

Catholic Child Welfare Society commented that: “The law of
vicarious liability is on the move”.219 Lord Reed added in Cox v
Ministry of Justice that “it has not yet come to a stop”.220 In
recent years, the doctrine of vicarious liability has expanded to
include relationships akin to employment and, following
Mohamud, potentially a very broad notion of the meaning of
“course of employment”. The Supreme Court in April 2020,
however, in Barclays Bank and Morrisons reminded the lower
courts that vicarious liability was not unlimited and that two
important limits should be recognised:
(1) It is necessary to maintain a distinction between
employees/those akin to employees and independent
contractors for whom vicarious liability did not apply.
 The “akin to employee” category should be interpreted
on a case by case basis with a focus on the details of the
relationship.
(2) The test of close connection should be applied with
reference to previous case-law, recognising that it was a
test of principle rather than pure policy. The tort must
be so closely connected with the tasks the employee
was authorised to do that it could be fairly and properly
be regarded as made in the ordinary course of
employment.

It is important also not to forget that, in the majority of cases, the

employer/employee relationship will be obvious—cases such as
Cox and Armes are the exception. It seems likely, however, that
the lower courts will continue to struggle to resolve how broadly
they should interpret the close connection test in the light of
Mohamud and Morrisons. Morrisons does emphasise, however,
that courts should feel free to find employees, particularly those
with personal vendettas, to be acting “on a frolic of their
own”.221
Morrisons also reminds us that vicarious liability does not
apply to independent contractors,
that is, those workers whose relationship with the employer is
not that of employee or even akin to employment. However, an
employer may find itself personally liable for the torts of an
independent contractor where the independent contractor has
been taken on to perform a task for which the employer is
directly responsible and cannot delegate responsibility. The
extent of such liability will be examined below.

Liability for the torts of independent

contractors

7–039 Lord Bridge in D&F Estates Ltd v Church Commissioners for

England222 held that it was trite law that the employer of an
independent contractor is, in general, not liable for the
negligence or other torts committed by the contractor in the
course of the execution of the work. Whilst an employer cannot
be vicariously liable for the torts of independent contractors, an
employer may nevertheless find itself liable where it owes a
non-delegable duty to the victim,223 or it has authorised the
independent contractor to commit a tort.224 A non-delegable
duty, as discussed at para.7–003, imposes a direct duty on the
employer to ensure that reasonable care is taken in relation to the
victim. While the employer may hire someone (e.g. an
independent contractor) to fulfil its duties to the victim, the
employer cannot delegate responsibility at law if the
independent contractor fails to take reasonable care. Examples
of such non-delegable duties include the employer’s duty of care
to its employees (discussed from para.7–003), liability under the
rule in Rylands v Fletcher (discussed in Ch.10), and liability for
works conducted on or over the highway, such as occurred in the
odd case of Tarry v Ashton,225 where a householder was found
strictly liable when a lamp attached to his house, which was
adjacent to the highway, fell on a person walking past.226 An
employer will therefore be liable to an employee for breach of
its
non-delegable duty of care if reasonable care is not taken in
providing a safe place of work, even though the problem has
been created by the negligence of an independent contractor.
The Supreme Court recently reconsidered the role of non-
delegable duties in protecting victims injured by independent
contractors. In Woodland v Essex CC,227 a ten-year-old
schoolgirl had suffered severe brain damage after falling into
difficulties during a school swimming lesson. The school had
contracted out the lessons to a commercial organisation (that is,
an independent contractor) and it was alleged that those
supervising the lesson had been negligent. The court held
unanimously that the school had assumed a duty to ensure that
the claimant’s swimming lessons were carefully conducted and
supervised by whoever it had engaged to perform those
functions. The swimming lessons were an integral part of the
school’s curriculum and had taken place during school hours
when the pupil had been entrusted into the school’s care and
control. The alleged negligence had therefore occurred in the
course of the very functions which the school had assumed an
obligation to perform. If (and this remained to be determined)228
the independent contractors had been negligent, the school
would have been in breach of its non-delegable duty to the pupil.
Lord Sumption set out a set of five criteria which will help
identify the existence of non-delegable duties in future229:
▮ The claimant is a patient or a child, or for some other
reason especially vulnerable or dependent on the
protection of the defendant against the risk of injury.
▮ There is a pre-existing relationship between the
claimant and the defendant, independent of the
negligent act or omission itself, which (i) placed the
claimant in the actual custody, charge or care of the
defendant, and (ii) from which it was possible to impute
to the defendant the assumption of a positive duty to
protect the claimant from harm, not just a duty to
refrain from conduct which would foreseeably damage
the claimant. It was characteristic of such relationships
that they involved an element of control.
▮ The claimant had no control over how the defendant
chose to perform the relevant obligations (whether
personally or through employees or third parties).
▮ The defendant had delegated to a third party some
function which was an integral part of the positive duty
which he had assumed towards the claimant; and the
third party was exercising, for the purpose of the
function thus delegated to him, the defendant’s custody
or care of the claimant and the element of control that
went with it.
 ▮ The third party had been negligent in the performance
of the very function assumed by the defendant and
delegated by the defendant to him.

The Woodland case has the potential to increase the use of the
non-delegable duty mechanism and respond to “out sourcing” of
duties to independent contractors which might previously have
been undertaken by the defendant’s employees (and, for whom
as Lady Hale pointed out, the school would have been
vicariously liable).230 It will not, however, extend to the defaults
of independent contractors providing extra-curricular activities
outside school hours, e.g. organising a school trip during the
school vacation, or for individuals to whom the duty to care for
the pupils has not been delegated e.g. a bus-driver taking the
pupils and teachers on a trip to the zoo.231 The court suggested
that other examples of non-delegable duties might include
prisoners and residents in care homes.232 Woodland indicates
that the more generous approach to vicarious liability identified
in this chapter is now extending to the doctrine of non-delegable
duties.
It should be noted, however, that the courts are not prepared
to find the employer liable, even when a non-delegable duty is
owed, for collateral or casual negligence by the independent
contractor which is unconnected with the job the independent
contractor was engaged to perform.233 The leading example is
that of Padbury v Holliday and Greenwood Ltd.234 Here, a sub-
contractor, engaged to place casements in windows on a building
site, had negligently placed an iron tool on a window sill. The
tool fell and injured a passer-by. The Court of Appeal held that
placing the tool on the sill was not an action taken in the
ordinary course of doing the work he was employed to do, but
was an act of collateral negligence for which the defendants
were not liable. The case therefore limits the scope of the
employer’s duty to guard against risks which are not created by
the work itself.
 Can vicarious liability be justified?
7–040 So far this chapter has discussed the various criteria used by the
courts to impose vicarious liability. This section addresses a
different issue: should we have a rule of vicarious liability in
English law at all? It is plainly inconsistent with any idea that
the person at fault should pay the claimant damages, and with
the concept of corrective justice (see Ch.1). It also diminishes
the deterrent effect of tort law. Why should I take care at work if
any harm I cause will be
compensated for by my employer?235 The courts themselves
have in the past shown no particular willingness to pin down the
rationale behind vicarious liability. Scarman LJ famously in
Rose v Plenty commented that “It [is] important to realise that
the principle of vicarious liability is one of public policy. It is
not a principle which derives from a critical or refined
consideration of other concepts in the common law”.236
Professor Glanville Williams agreed: “However distasteful the
theory may be, we have to admit that vicarious liability owes its
explanation, if not its justification, to the search for a solvent
defendant”.237
A number of arguments have nevertheless been put forward
to justify vicarious liability.238 It has been suggested that the
employer has, in effect, caused the accident by setting the whole
incident in motion by negligently employing a careless
employee. Alternatively, the employer takes on the employee in
the pursuit of profit, and one of the “costs” of employing the
employee is his or her potential to cause harm (the enterprise
liability argument).239 Alternatively, vicarious liability will
encourage employers to take greater measures to prevent such
accidents occurring in the first place to the benefit of society as a
whole. It cannot also be denied that vicarious liability provides
an efficient means of compensating claimants in a way that
losses are spread efficiently via the network of compulsory
employer insurance. Employers are free to spread the cost of
insurance either through the price of their goods or by
controlling other fixed costs, such as the level of wages.
However, little credit is given now to early ideas that vicarious
liability rested on the fact that the employee’s acts were
impliedly authorised, or that the employee should have been
controlled by the employer.
Lord Phillips in the leading Supreme Court decision of
Various Claimants v Catholic Child Welfare Society240 argued
that there was no difficulty in identifying a number of policy
reasons that usually make it fair, just and reasonable to impose
vicarious liability on the employer:
(i) the employer is more likely to have the means to
compensate the victim than the employee and can be
expected to have insured against that liability (the
deeper pockets argument);
(ii) the tort will have been committed as a result of activity
being taken by the employee on behalf of the employer
(delegation of task argument);
(iii) the employee’s activity is likely to be part of the
business activity of the employer (enterprise risk
argument);
(iv) the employer, by employing the employee to carry on
the activity will have created the risk of the tort
committed by the employee (creation of risk argument);
and
(v) the employee will, to a greater or lesser degree, have
been under the control of the employer (control
argument).

In Cox v Ministry of Justice,241 Lord Reed approved these five

factors, but noted that they are not all equally significant. The
first (deeper pockets) and fifth (control) were, in his view,
unlikely to be of independent significance in most cases. In
contrast, in Armes v Nottinghamshire CC242 his Lordship did
find it helpful to look at all five factors and was notably
 influenced by the fact that the local authority was far more able
than the foster parents to provide substantial sums of
compensation and the local authority had exercised significant
control over both what the foster parents did and how they did it.
The Supreme Court more recently in Barclays Bank v Various
Claimants243 and WM Morrison Supermarkets Plc v Various
Claimants244 reminded the courts, however, of the need for a
principled approach, incrementally developing past case law and
that vicarious liability should not be determined simply on the
basis of broad tests of social justice.245 The mere presence of all
five of the above factors does not therefore guarantee that
vicarious liability will be imposed by the court.246 Lady Hale in
Barclays Bank commented specifically on the dangers of
favouring policy rather than principle in engaging in legal
development.247
Looking at past case law, however, it is indisputable that
risk-based arguments, as stated in (iii) and (iv) above, have
proven particularly influential in cases involving physical and
sexual abuse. In Armes, for example, the Court highlighted that
the placement of vulnerable children into foster care, which was
an integral part of the local authority’s child care services,
created a relationship of authority and trust between foster
parents and the children in circumstances where children would
be particularly vulnerable to abuse. Lord Phillips in CCWS held
that in such cases, creation of the risk of abuse is always likely
to be an important element in the facts that give risk to such
liability.248 Lord Reed in Morrisons recognised the distinct
nature of these cases.249
To sum up, we can conclude that there are a number of
justifications for vicarious liability. The courts have not elected
one single justification and seem unlikely at present to do so.

Employers’ liability: conclusion

7–041
 Employers’ liability is a large subject. Tort law forms only a part
of the potential liability of an employer. Nevertheless, it is
important, particularly in the form of vicarious liability which
plays a significant role in ensuring that victims are able to
recover compensation in the law of torts and where there have
been recently a large number of Supreme Court decisions.
Although, following the abolition of the doctrine of common
employment, the employer’s personal liability to employees is
no longer as important, it is still a noteworthy part of negligence
liability in tort. Breach of statutory duty is a limited remedy, and
until statutory drafters undertake to provide some clarity in this
area of law, or a clear policy stance is taken by the Government
—such as that suggested by the Law Commission in 1969—this
will continue to be a confusing area of law.

1 Health and Safety Executive, HSE Statistics

(https://www.hse.gov.uk/statistics/ [Accessed 1 August 2020]). In 2017–18,
there were over 0.6 million non-fatal injuries reported and an estimated 1.4
million people suffered from ill health which they believed had been caused
or made worse by current or past work. 2,523 people died from
mesothelioma in 2017 and thousands more from other occupational cancers
and diseases such as chronic obstructive pulmonary disease (COPD).

2 Industrial benefits first appeared in 1897 (see Workmen’s Compensation

Acts 1897, 1925 and 1943), but the changes in 1948 led to industrial
benefits being integrated into the welfare state.

3 This includes certain industrial diseases. For its relationship with tort law,
see R. Lewis, “Industrial Injuries Compensation: Tort and social security
compared” (2017) 46 I.L.J. 445.

4 See, e.g. G. Pitt, Employment law, 11th edn (Sweet & Maxwell, 2020).

5 SI 1999/3242, which replaced the Management of Health and Safety at

Work Regulations 1992. These are part of significant EU developments to
improve workplace conditions.
6 SI 1998/2306, as amended.

7 Employers’ Liability (Compulsory Insurance) Act 1969. Employers’

Liability (Compulsory Insurance) Regulations 1998 (SI 1998/2573) (as
amended) reg.3 raises the sum to be insured to not less than £5 million.

8 (1837) 3 M. & W. 1; 150 E.R. 1030. B.A. Hepple and M. Matthews, Tort:
Cases and Materials, 4th edn (Butterworths, 1991), p.566, report that in
addition to losing his case, Priestley spent some years in a debtors’ prison
because he could not pay the costs of his unsuccessful action.

9 See Bartonshill Coal Co v Reid (1858) 3 Macq. 266; Johnson v Lindsay &
Co [1891] A.C. 371.

10 See Senior v Ward (1859) 1 El. & El. 385; 120 E.R. 954.

11 This is discussed more fully in Ch.16.

12 See D. Ibbetson, A Historical Introduction to the Law of Obligations

(OUP, 1999), pp.181–184.

13 [1898] 2 Q.B. 402.

14 See Ch.16.

15 [1891] A.C. 325 HL, unless the job of necessity involved risk. For full
discussion, see Ch.16.

16 See Staveley Iron & Chemical Co v Jones [1956] A.C. 627. This has
nevertheless been the subject of extensive academic debate—see G.
Williams, “Vicarious Liability: Tort of the Master or of the Servant” (1957)
72 L.Q.R. 522, F. H. Newark, “Twine v Bean’s Express Ltd” (1954) 17
M.L.R. 102, R. Stevens, “Vicarious liability or vicarious action?” (2007)
123 L.Q.R. 30—and the distinction is not always clearly expressed by the
judiciary—see, e.g. Lord Hobhouse in Lister v Hesley Hall Ltd [2001]
UKHL 22; [2002] 1 A.C. 215.

17 [1938] A.C. 57. See G. Williams, “Liability for Independent

Contractors” [1956] C.L.J. 180, 190–192.
18 [1938] A.C. 57

19 [1938] A.C. 57 at 78. See also Lord Herschell in Smith v Baker [1891]
A.C. 325 at 362.

20 As stated in Ch.5, readers should note the distinction between the

employer’s duty of care and breach of that duty. The duty is to see that
reasonable care is taken. Breach of duty can be shown by evidence that the
employer had failed to take reasonable steps to provide competent staff or a
safe system of work.

21 See Waters v Commissioner of Police for the Metropolis [2000] 1 W.L.R.

1607 and Mullaney v Chief Constable of West Midlands Police (CA) [2001]
EWCA Civ 700.

22 [1957] 2 Q.B. 348. See also Smith v Crossley Brothers Ltd (1951) 95
Sol. Jo. 655 and Sir Nicolas Browne-Wilkinson VC in Wilsher v Essex AHA
[1987] Q.B. 730 CA at 778: “In my judgment, a health authority which so
conducts its hospital that it fails to provide doctors of sufficient skill and
experience to give the treatment offered at the hospital may be directly
liable in negligence to the patient”.

23 The employer here is unlikely to be vicariously liable for the “playful”

activities of such an employee as it is doubtful whether a court would find
such conduct to be in the course of his or her employment: see Graham v
Commercial Bodyworks Ltd [2015] EWCA Civ 47.

24 See Waters v Commissioner of Police for the Metropolis [2000] 1 W.L.R.

1607 (breach of duty found to be arguable).

25 See Ashdown v Samuel Williams & Sons Ltd [1957] 1 Q.B. 409 CA.

26 This is unusual in extending the duty to the families of workers but the
risk of secondary exposure to asbestos has been known since October 1965:
see Carey v Vauxhall Motors Ltd [2019] EWHC 238 (QB). The exposure
must, however, be more than de minimis.

27 [1959] A.C. 604.

28 The court held that the employer could not be found to have delegated
its duty of care to the manufacturer.

29 Viscount Simonds [1959] A.C. 604 at 618. Comment: C. J. Hamson

[1959] C.L.J. 157.

30 Coltman v Bibby Tankers Ltd (The Derbyshire) [1988] A.C. 276 even
extended the Act to a ship which had sunk off the coast of Japan with the
loss of all hands. See also Knowles v Liverpool City Council [1993] 1
W.L.R. 1428 (not restricted to tools and plant and could include flagstone
which broke injuring workman laying the pavement).

31 The employee still has a right to sue the manufacturer. Liability of

manufacturers in tort will be discussed in Ch.9.

32 Consider McGhee v National Coal Board [1973] 1 W.L.R. 1 discussed in

Ch.6 (failure to provide adequate washing facilities).

33 [1953] A.C. 180, see in particular Lord Oaksey at 189–190. See, more
recently, Ammah v Kuehne & Nagel Logistics Ltd [2009] EWCA Civ 11.

34 Davidson v Handley Page Ltd [1945] 1 All E.R. 235.

35 [1951] A.C. 367.

36 The Supreme Court recently refused to hold that an employer owed its
employees a duty of care to conduct litigation against itself in a manner
which protected them from economic or reputational harm: James-Bowen v
Commissioner of Police of the Metropolis [2018] UKSC 40; [2018] 1
W.L.R. 4021. See, generally, Reid v Rush & Tompkins Group Plc [1990] 1
W.L.R. 212 CA and Crossley v Faithful & Gould Holdings Ltd [2004]
EWCA Civ 293; [2004] 4 All E.R. 447 (refusal to imply a general term into
every contract of employment that an employer should take reasonable care
of an employee’s economic well being).

37 [1987] A.C. 906. For a commentary on the case, see J. G. Fleming

[1988] C.L.J. 11.
38 See also Mullaney v Chief Constable of West Midlands Police [2001]
EWCA Civ 700 (failure to operate a safe system of work where distress
calls from a police officer had not been monitored as instucted with the
result that the officer received severe head injuries from an assailant).

39 See E. McKendrick, “Vicarious liability and independent contractors—a

re-examination” (1990) 53 M.L.R. 770, 773–774 who remarks that the
effect of the decision is as if vicarious liability had been imposed.

40 [1995] I.C.R. 702; [1995] 1 All E.R. 737. Comment: D. Nolan (1995) 24
I.L.J. 280.

41 [1992] 1 A.C. 310.

42 [1999] 2 A.C. 455.

43 By a majority of 4 to 1, Lord Goff dissenting. Nevertheless, the Law

Commission (Law Commission Report No.249 Liability for Psychiatric
Illness (1998), para.7.22) had found that Walker represented “a just
development in the law”.

44 See Lord Hoffmann [1999] 2 A.C. 455, 506.

45 [2002] EWCA Civ 76; [2002] 2 All E.R. 1. Hale LJ at [20] cited Walker
and Lord Hoffmann’s judgment in White above with approval.

46 [1996] A.C. 155.

47 [1992] 1 A.C. 310.

48 See N. J. Mullany, “Containing claims for workplace mental illness”

(2002) 118 L.Q.R. 373.

49 [2014] EWCA Civ 1512; [2015] I.R.L.R. 112 per Underhill LJ at [125].

50 Note that this is a more subjective test than that used in ordinary
negligence claims (discussed in Ch.5).
51 See Hale LJ in Hatton [2002] EWCA Civ 76; [2002] 2 All E.R. 1 at
[23]. Her Ladyship lists 16 practical propositions at [43] which aim to
provide clear guidance for employers in future.

52 See also Pratley v Surrey CC [2003] EWCA Civ 1067; [2004] I.C.R.
159 (foresight of risk of illness arising from continuing overwork in the
future not sufficient).

53 [2004] UKHL 13; [2004] 1 W.L.R. 1089 HL ([2002] 2 All E.R. 1 CA).

54 [2004] UKHL 13 at [59].

55 Lord Walker, giving the leading judgment, describes them at [63] and
[65] as “a valuable contribution to the development of the law” and “useful
practical guidance, but . . . not . . . having anything like statutory force”.

56 Quoting Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and

Nuts) Ltd [1968] 1 W.L.R. 1776 at 1783. His judgment was heavily
criticised by Lord Scott dissenting for setting an unrealistically high
standard of care on the school.

57 [2005] EWCA Civ 6; [2005] I.C.R. 782. Comment: C. McIvor (2005) 21

P.N. 123.

58 [2005] EWCA Civ 6; [2005] I.C.R. 782 at [10].

59 e.g. in Garrod v North Devon NHS Primary Care Trust [2006] EWHC
850; [2007] P.I.Q.R. Q1, a health visitor had already had a breakdown due
to pressure of work. Nevertheless, on her return, she was repeatedly put
under pressure to the detriment of her health.

60 “It is illogical to argue that when an employer has foreseen a risk of

psychiatric injury to employees exposed to certain traumatic incidents, such
injury is not foreseeable”: Scott-Baker LJ in Hartman v South Essex Mental
Health and Community Care NHS Trust [2005] I.C.R. 782 at [134].

61 Hale LJ [2002] 2 All E.R. 1 at 9–10. The Court of Appeal further

indicated that should the employer set up a confidential advice service, with
referral to appropriate counselling or treatment services, it would be
unlikely to be found liable, but see now Daw v Intel Corp (UK) Ltd [2007]
EWCA Civ 70; [2007] 2 All E.R. 126 (counselling services were not a
panacea by which employers could discharge their duty of care in all cases.
It was a question of fact).

62 Although there are arguments to the contrary, most notably the argument
of statutory negligence forwarded by E.R. Thayer, “Public wrong and
private action” (1914) 27 Harv. L.R. 317. It should be noted that the tort of
breach of statutory duty is distinct from statutes which place liability in
negligence in statutory form such as the Occupiers’ Liability Acts which are
discussed in Ch.8. See, generally, K.M. Stanton, Statutory Torts (Sweet and
Maxwell, 2003), R.A. Buckley, “Liability in tort for breach of statutory
duty” (1984) 100 L.Q.R. 204 and K.M. Stanton, “New forms of the tort of
breach of statutory duty” (2004) 120 L.Q.R. 324.

63 See G. Williams, “The Effect of Penal Legislation in the Law of Tort”

(1960) 23 M.L.R. 233.

64 Enterprise and Regulatory Reform Act 2013 (Commencement No.3,

Transitional Provisions and Savings) Order 2013 (SI 2013/2227) art.2(f).

65 As amended by Enterprise and Regulatory Reform Act 2013 s.69.

Section 47(2A) of the 1974 Act confirms that the provisions apply to
statutory provisions existing prior to the 2013 Act.

66 See A. Roy, “Without a safety net: Litigating employers’ liability claims

after the Enterprise Act” [2015] J.P.I. Law 15.

67 [1982] A.C. 173 at 187, rejecting the majority judgment in Ex p. Island

Records Ltd [1978] Ch.122.

68 Despite the plea by Lord du Parcq in Cutler v Wandsworth Stadium Ltd

[1949] A.C. 398 at 410 that Parliament should state explicitly whether it
intended that there should be a civil remedy or not. See also McCall v
Abelesz [1976] Q.B. 585.

69 e.g. see Consumer Protection Act 1987 s.41.

70 e.g. Health and Safety at Work etc Act 1974 s.47(1)(a) which provides
that the general duties under the Act do not give rise to civil liability. See
also Guard Dogs Act 1975 s.5 and Railways Act 2005 s.44.

71 See Law Commission Report No.21, The Interpretation of Statutes

(1969) para.38. This proposal did form part of the Interpretation of
Legislation Bill 1980, but this was subsequently withdrawn. R.A. Buckley
(1984) 100 L.Q.R. 204, 231–232 argues that this provision would not, in
any event, have resolved all the problems involved in construing statutes.

72 [1982] A.C. 173 at 185.

73 His Lordship’s second exception is contentious and it is fair to say that it

has not been taken up by the courts. The best example of liability in such
circumstances is that of public nuisance (discussed in Ch.10) which is
clearly not statutory.

74 See Xv Bedfordshire CC [1995] 2 A.C. 633 at 731 and O’Rourke v

Camden LBC [1998] A.C. 188 at 193. But note criticism of this approach
by Atkin LJ in Phillips v Britannia Hygienic Laundry Co [1923] 2 K.B. 832
at 841.

75 (1877) 2 Ex.D. 441. This marked a change from the more liberal
approach first adopted by the courts, see Couch v Steel (1854) 3 E. & B.
402; 118 E.R. 1193.

76 (1877) 2 Ex. D. 441 at 445–446.

77 See also Thames Trains Ltd v Health and Safety Executive [2003]
EWCA Civ 720; (2003) 147 S.J.L.B. 661 CA (duty owed by Health and
Safety Executive to anyone affected by the railway being unsafe did not
give rise to individual rights for passengers and train operators).

78 [1995] 2 A.C. 633 at 731 (emphasis added).

79 [1949] A.C. 398.

80 [1992] 1 A.C. 58. The House of Lords held that prisoners’ rights were
adequately protected by alternative claims in public law and in the torts of
misfeasance in public office, trespass to the person and negligence. For the
significance of alternative remedies, see below. A restrictive approach was
also taken in Morrison Sports Ltd v Scottish Power Plc [2010] UKSC 37;
[2010] 1 W.L.R. 1934 (legislative scheme pointed against individuals
having private right of action) and in St John Poulton’s Trustee in
Bankruptcy v Ministry of Justice [2010] EWCA Civ 392; [2011] Ch 1
(Insolvency Rules 1986 r 6.13, which requires court service to give notice
of bankruptcy petition to land registry, not intended to benefit simply
creditors as limited class of the public, but all parties intending to deal with
relevant property).

81 [1995] 2 A.C. 633.

82 [2001] 2 A.C. 619.

83 [2001] 2 A.C. 619 at 652. See also Carty v Croydon LBC [2005] EWCA
Civ 19; [2005] 1 W.L.R. 2312 at [19].

84 [1998] A.C. 188. Comment: R. Carnwath [1998] P.L. 407.

85 [1998] A.C. 188 at 193.

86 [1998] A.C. 188 at 194.

87 See Xv Bedfordshire C.C. [1995] 2 A.C. 633 and Phelps v Hillingdon

LBC [2001] 2 A.C. 619.

88 Lonrho Ltd v Shell Petroleum Co Ltd (No.2) [1982] A.C. 173 at 185.

89 This may be unclear on the facts. Compare, e.g. the Court of Appeal
decisions of Todd v Adams (The Maragetha Maria) [2002] EWCA Civ 509;
[2002] 2 Lloyd’s Rep 293 and Ziemniak v ETPM Deep Sea Ltd [2003]
EWCA Civ 636; [2003] 2 Lloyd’s Rep 214, which both concerned breach
of safety rules pursuant to the Merchant Shipping Act 1995. In Todd, the
court somewhat reluctantly found that breach of rules made under the Act
concerning the safety of fishing vessels did not give a right of action
following a tragic fishing accident with the loss of all crew. The rules had
specifically provided criminal sanctions and penalties and established a
certification scheme which rendered civil liability inappropriate. However,
in Ziemniak breach of rules in a different part of the Act did provide a civil
remedy for a claimant seriously injured during a lifeboat test in harbour.
Here, the claim was treated as one of safety in the workplace, thereby
meriting the more generous treatment given to such claims. The rules did
contain criminal sanctions, although they did not cover the accident in
question. Todd was doubted, but nevertheless distinguished.

90 See Cutler v Wandsworth Stadium Ltd [1949] A.C. 398 and Kirvek
Management & Consulting Services Ltd v Attorney General of Trinidad and
Tobago [2002] UKPC 43; [2002] 1 W.L.R. 2792 PC. However, this did not
assist the plaintiff in R. v Deputy Governor of Parkhurst Prison Ex p.
Hague [1992] 1 A.C. 58.

91 [1976] Q.B. 585 (the case concerned the Rent Act 1965 s.30(2) which is
no longer applicable) See also Cullen v Chief Constable of the Royal Ulster
Constabulary [2003] UKHL 39; [2003] 1 W.L.R. 1763 HL(NI): adequate
public law remedies justified denying the claimant a private law claim when
refused a reason for denial of access to solicitor in custody (note the strong
dissent of Lords Bingham and Steyn concerning adequacy).

92 [1997] 1 W.L.R. 956.

93 [1991] 2 A.C. 370.

94 Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406, but see
now Ch.15.

95 “[T]hough [publication] may in one sense be adverse to the patient’s

interest” per Lord Bridge at 420. This is applied very narrowly in Cullen v
Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39; [2003]
1 W.L.R. 1763 HL(NI). Privacy law has since developed following the
implementation of the Human Rights Act 1998: see Campbell v Mirror
Group Newspapers Ltd [2004] UKHL 22; [2004] 2 A.C. 457.

96 See Richardson v Pitt-Stanley [1995] Q.B. 123 at 130 and 132.

97 See, e.g. Groves v Lord Wimborne [1898] 2 Q.B. 402 and Black v Fife
Coal Co Ltd [1912] A.C. 149.

98 [1935] 1 K.B. 75 CA.

99 See Phillips v Britannia Hygienic Laundry Co [1923] 2 K.B. 832.

100 Now the Road Traffic Act 1988 s.143. See also Roe v Sheffield City
Council [2003] EWCA Civ 1; [2004] Q.B. 653. The duty, however, is
limited to third party insurance against liability for death or bodily injury or
damage to property and liability will not arise in relation to claims for pure
economic loss: see Bretton v Hancock [2005] EWCA Civ 404; [2006]
P.I.Q.R. P1 (rejecting a claim by joint tortfeasor that, due to the failure to
insure, he was unable to recover a contribution to damages payable).

101 See Norman v Ali (Limitation Period) [2000] R.T.R. 107 where the
MIB required, pursuant to the Uninsured Drivers’ Agreement 1988 s.5(1)
(d), that the claimant should bring the car-owner (Aziz) into the action, on a
Monk v Warbey type action, for permitting Ali to drive the car when
uninsured against third party risks. The limitation period for such actions is
that of personal injury claims, namely, three years.

102 [1995] Q.B. 123 (Sir John Megaw dissenting).

103 Which have been described as “less than compelling”: see J.

O’Sullivan [1995] C.L.J. 241, 242.

104 [2016] UKSC 38; [2016] A.C 1513 (Lord Toulson and Lady Hale
dissenting).

105 [2016] UKSC 38 at [18].

106 G. Williams (1960) 23 M.L.R. 233, 244 describes it as “this process of

looking for what is not there”.

107 [1949] 2 All E.R. 508 CA.

108 Nimmo v Alexander Cowan & Sons Ltd [1968] A.C. 107 HL
(admittedly by a slim majority of 3 to 2). Applied in McDonald v
Department for Communities and Local Government [2013] EWCA Civ
1346; [2014] P.I.Q.R. P 7.

109 [1956] 1 Q.B 545 CA.

110 See, in particular, McWilliams v Sir William Arrol Ltd [1962] 1 All E.R.
623 which concerns breach of statutory duty.

111 [1969] 1 W.L.R. 661. See also Ginty v Belmont Building Supplies Ltd
[1959] 1 All E.R. 414 at 423–424 and Anderson v Newham College of
Further Education [2002] EWCA Civ 505; [2003] I.C.R. 212. It was also
applied in Brumder v Motornet Services and Repairs Ltd [2013] EWCA Civ
195; [2013] 1 W.L.R. 2783 where the claimant was actually the sole
director and shareholder of the defendant company and it was his own acts
and omissions which constituted the defendant company’s breach.

112 [1969] 1 W.L.R. 661 at 665–666.

113 (1874) L.R.9 Exch.125.

114 (1874) L.R.9 Exch.125 at 129–130 per Kelly CB. See also Fytche v
Wincanton Logistics Plc [2004] UKHL 31; [2004] 4 All E.R. 221 (boots
provided under Regulations were to protect against impact injury, not
frostbite due to leak in boots).

115 Donaghey v Boulton & Paul Ltd [1968] A.C. 1 at 26 per Lord Reid HL
(who draws a clear comparison with the position in negligence under The
Wagon Mound [1961] A.C. 388 discussed in Ch.6).

116 [1965] A.C. 656.

117 Lord Pearce, [1965] A.C. 656 at 687, extends this to where the
employer is vicariously in breach of statutory duty through the neglect of
some person who is of superior rank to the claimant and whose commands
the claimant was bound to obey.

118 See Law Reform (Contributory Negligence) Act 1945 s.4.

119 [1940] A.C. 152 at 166. It should be noted that this case was decided
before the Law Reform (Contributory Negligence) Act 1945 when
contributory negligence was an absolute defence to the employee’s claim
which may have encouraged a more generous approach.

120 (C6/90) [1991] E.C.R. I-5357.

121 See Foster v British Gas Plc (C-188/89) [1990] E.C.R. I-3133 at [18]:
the State will include “organizations or bodies which were subject to the
authority or control of the State or had special powers beyond those which
result from the normal rules applicable to relations between individuals”. It
will also include the courts themselves: Köbler v Austria (C-224/01) [2004]
Q.B. 848 and Traghetti del Mediterraneo SpA (In Liquidation) v Italy (C-
173/03) [2006] All E.R. (EC) 983; [2006] 3 C.M.L.R. 19.

122 [1984] A.C. 130. See also Lords Nicholls, Walker and Mance in
Sempra Metals Ltd v Inland Revenue Comrs [2007] UKHL 34; [2008] 1
A.C. 561 at [69], [162] and [225] respectively and R. v Secretary of State
for Transport Ex p. Factortame (No.6) [2001] 1 W.L.R. 942 QBD (T &
CC), Judge Toulmin QC.

123 (C6/90) [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66.

124 (C46/93 and C48/93) [1996] Q.B. 404; [1996] 1 C.M.L.R. 889. See P.
P. Craig, “Once More Unto the Breach: The Community, The State and
Damages Liability” (1997) 113 L.Q.R. 67.

125 [1996] Q.B. 404.

126 [1996] Q.B. 404 at para.51. For recent case-law, see Energy Solutions
EU Ltd v Nuclear Decommissioning Authority [2017] UKSC 34; [2017] 1
W.L.R. 1373 which highlights the differences between Francovich liability
and traditional breach of statutory duty claims.

127 The courts have quite rightly rejected the argument that such claims
could be classified as misfeasance in public office in that it fails to meet the
criteria for this tort: Three Rivers DC v Bank of England (No.3) [2003] 2
A.C. 1.
128 See Poole v HM Treasury [2007] EWCA Civ 1021; [2008] 1 All E.R.
(Comm) 1132: Council Directive 73/239 did not intend to grant rights to
Lloyds underwriting names. See also Three Rivers DC v Bank of England
(No. 3) [2000] UKHL 33; [2003] A.C. 1.

129 See Brasserie du Pêcheur v Germany; R. v Secretary of State for

Transport Ex p. Factortame (No.4) [1996] Q.B. 404 at para.45.

130 Brasserie du Pêcheur [1996] Q.B. 404 at para.56. See also Haim v
Kassenzahnaertzliche Vereinigung Nordrhein (424/97) [2000] E.C.R. I-
5123 at para.43.

131 [1996] Q.B. 404 at 504 para.90.

132 In R. v Secretary of State for Transport Ex p. Factortame (No.5) [2000]

1 A.C. 524, e.g. the House of Lords found that the Government’s breach of
EU law in enacting the Merchant Shipping Act 1988 which prevented
foreign nationals from fishing in British waters was “sufficiently serious”.

133 Spencer v Secretary of State for Work and Pensions [2008] EWCA Civ
750; [2009] Q.B. 358.

134 See P. Giliker, “English tort law and the challenge of Francovich
liability: 20 years on” (2012) 128 L.Q.R. 541 and K. Stanton, “New forms
of the tort of breach of statutory duty” (2004) 120 L.Q.R. 324 at 329–330:
“The Eurotort [should] simply . . . be classified as a tort in domestic
proceedings and the repeated references to breach of statutory duty are a
redundancy”.

135 See, generally, P S. Atiyah, Vicarious Liability in the Law of Torts

(Butterworths, 1967) and P. Giliker, Vicarious Liability in Tort: A
Comparative Perspective (CUP, 2010).

136 Partnership Act 1890 s.10. See Dubai Aluminium Co Ltd v Salaam
[2002] UKHL 48; [2003] 2 A.C. 366 HL: firm of solicitors liable for
partner’s dishonest participation in a fraud. Section 10 covers both common
law and equitable wrongs. Vicarious liability has also been linked with the
concept of agency. For an attempt to use agency to extend the liability of an
(insured) car owner, see Morgans v Launchbury [1973] A.C. 127 HL. In
exceptional circumstances, where the owner of the vehicle retains control
and has an interest in the purpose for which the vehicle is being used, the
courts have been prepared to find the owner of the vehicle liable for the
torts of the driver: see Ormrod v Crosville Motor Services Ltd [1953] 1
W.L.R. 1120 CA, confirming the judgment of Devlin J [1953] 1 W.L.R.
409.

137 Lister v Romford Ice and Cold Storage Co Ltd [1957] A.C. 555.

138 The 1978 Act is discussed in more detail in Ch.17.

139 For commentary, see G. Gardiner (1959) 22 M.L.R. 652 and R. Lewis
(1985) 48 M.L.R. 275, 281–282.

140 [2012] UKSC 56; [2013] 2 A.C. 1 at [35].

141 [2016] UKSC 10; [2016] A.C. 660.

142 [2017] UKSC 60; [2018] A.C. 355.

143 [2020] UKSC 13; [2020] 2 W.L.R. 960.

144 [2016] UKSC 11; [2016] A.C. 677.

145 [2020] UKSC 12; [2020] 2 W.L.R. 941.

146 See Credit Lyonnais NV v Export Credits Guarantee Department

[2000] 1 A.C. 486 HL.

147 Readers will find reference to “masters and servants” in older case law,
but we now speak of “employers and employees”.

148 See, for example, the question of the status of the plumber in Pimlico
Plumbers Ltd v Smith [2018] UKSC 29; [2018] I.C.R. 1511.

149 The question of the existence of a contract of employment will, in most

cases, be considered a mixed question
 of law and fact for the trial judge, and an appeal court will be reluctant to intervene in the absence
of an error of law or perversity: see Lord Hoffmann in Carmichael v National Power Plc [1999]
1 W.L.R. 2042.
150
Chief Constables will be vicariously liable for the torts of police officers even though they
are not strictly employees: see Police Act 1996 s.88(1). See Weir v Bettison [2003] EWCA
Civ 111; [2003] I.C.R. 708.

151 [1976] 1 W.L.R. 1213. See also Mersey Docks and Harbour Board v
Coggins and Griffith (Liverpool) Ltd [1947] A.C. 1.

152 Lawton LJ dissenting in Ferguson v Dawson [1976] 1 W.L.R. 1213 at

1227 held that it was contrary to public policy to allow a worker to change
his or her status in such a manner and that the worker should be held to the
initial bargain. See also comments in Massey v Crown Life Assurance
[1978] 1 W.L.R. 676 CA.

153 [1980] I.R.L.R. 201.

154 [1980] I.R.L.R. 201 at 207 per Stephenson LJ.

155 Originating in the judgment of Bramwell LJ in Yewens v Noakes (1880)

6 Q.B.D. 530.

156 See O. Kahn-Freund, “Servants and Independent Contractors” (1951)

14 M.L.R. 504 who criticised the control test as old-fashioned in 1951.
Note, however, that some commentators continue to regard control as
important: P. Morgan, “Recasting vicarious liability” [2012] C.L.J. 615.

157 See Cassidy v Ministry of Health [1951] 2 K.B. 343 CA.

158 [1969] 2 Q.B. 173 at 185. See also Lord Reed in Cox v Ministry of
Justice [2016] UKSC 10 at [21]: “it is a factor which is unlikely to be of
independent significance in most cases”.

159 See, notably, Cooke J in Market Investigations Ltd v Minister of Social

Security [1969] 2 Q.B. 173 at 184–185 (“the matter had never been better
put than by Cooke J”: Lord Griffiths in Lee Ting Sang v Chung Chi-Keung
[1990] 2 A.C. 374 at 382 PC).
160 See Denning LJ in Stevenson, Jordan and Harrison Ltd v Macdonald
and Evans [1952] 1 T.L.R. 101 at 111. It is questionable whether this does
any more than restate the question. Nevertheless, the relevance of this factor
has been stressed in recent case law, e.g. in the Catholic Child Welfare
Society case, discussed below.

161 [1969] 2 Q.B. 173.

162 [1968] 2 Q.B. 497.

163 See also Todd v Adams (The Maragetha Maria) [2002] EWCA Civ
509; [2002] 2 Lloyd’s Rep 293 where the Court of Appeal held that an
arrangement whereby remuneration of the crew of a fishing vessel
depended solely on a share of the profits (or losses) of each trip should be
characterised as a joint venture rather than a contract of service.

164 The development of this new category of claims was influenced by the
articles of McKendrick and Kidner: see E. McKendrick, “Vicarious liability
and independent contractors—a re-examination” (1990) 53 M.L.R. 770 and
R. Kidner, “Vicarious liability: for whom should the ‘employer’ be liable?”
(1995) 15 L.S. 47.

165 [2012] UKSC 56; [2013] 2 A.C. 1 at [35].

166 [2012] EWCA Civ 938; [2013] Q.B. 722 (Tomlinson LJ dissenting).
Comment: P. Giliker (2012) 28 P.N. 291.

167 The school itself had previously been found vicariously liable but was
seeking to establish that the Institute was jointly liable.

168 [2016] UKSC 10.

169 [2017] UKSC 60.

170 [2020] UKSC 13, overturning the Court of Appeal: [2018] EWCA Civ
1670.

171 [1947] A.C. 1.

172 [1947] A.C. 1 at 17.

173 See Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18; [2006]
P.I.Q.R. P17: nightclub found to be vicariously liable for a doorman hired
under a contract for the provision of security services where the doorman
could be shown to be acting under the orders of the nightclub manager.

174 [2005] EWCA Civ 1151; [2006] Q.B. 510. Comment: R. Stevens, “A
servant of two masters” (2006) 122 L.Q.R. 201.

175 This is the more conservative test; May LJ assuming that in most cases
the courts will continue to find the general employer solely liable for the
acts of the lent employee: [2005] EWCA Civ 1151 at [46]. It was followed
initially: see Stanley Burnton LJ in Biffa Waste Services Ltd v
Maschinenfabrik Ernst Hesse GmbH [2008] EWCA Civ 1257; [2009] Q.B.
725 (subsequently criticised in the Catholic Child Welfare Society case at
[46]).

176 [2005] EWCA Civ 1151 at [80].

177 [2012] UKSC 56 at [45].

178 [2005] EWCA Civ 1151 at [79].

179 R.E.V. Heuston and R.A. Buckley, Salmond and Heuston on the Law of
Torts, 21st edn (Sweet & Maxwell, 1996), p.443 (the so-called Salmond
test).

180 Although arguably the employer is primarily liable for such actions: see
Lord Millett in Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 A.C.
215.

181 See Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 A.C. 215.

182 [2012] UKSC 56; [2013] 2 A.C. 1.

183 [2016] UKSC 11; [2016] A.C. 677.

184 [2020] UKSC 12; [2020] 2 W.L.R. 941.

185 [1942] A.C. 509. See also Bayley v Manchester, Sheffield and
Lincolnshire Ry Co (1873) L.R. 8 C.P. 148: railway porter mistakenly
pulling passenger from what he believed to be the wrong train just after the
train had started to leave the station found to be in the course of his
employment.

186 Would a court take the same view in 2020 when smoking is less
common?

187 [1989] A.C. 928.

188 See Lord Goff [1989] A.C. 928 at 936–937 and Lord Lowry [1989]
A.C. 928 at 955–956. This is subject, of course, to any express
arrangements between employer and employee.

189 (1868) L.R. 3 C.P. 422.

190 (1869) L.R. 4 Q.B. 476.

191 Lord Lowry [1989] A.C. 928 at 939 comments that the case arose
because the driver was uninsured and the time limits under the Motor
Insurers’ Bureau agreement had not been complied with.

192 [1957] 1 W.L.R. 893.

193 (1862) 1 Hurl. & C. 526; 158 E.R. 993. See also Ilkiw v Samuels [1963]
1 W.L.R. 991 and Kay v ITW Ltd [1968] 1 Q.B. 140, but contrast Beard v
London General Omnibus Co [1900] 2 Q.B. 530 (bus conductor not in the
course of employment when driving bus).

194 [1976] 1 W.L.R. 141. Comment: J. Finch (1976) 39 M.L.R. 575.

Contrast, however, the earlier case of Twine v Bean’s Express Ltd (1946) 62
T.L.R. 458: giving a lift to a hitchhiker was not an act which the driver was
employed to perform (Lord Greene MR arguably influenced by the fact that
trespassers were owed a minimal duty of care in 1946 (see Ch.8)).

195 See Lloyd v Grace, Smith & Co [1912] A.C. 716 overturning Barwick v
English Joint Stock Bank (1867) L.R. 2 Ex. 259 on this point.
196 [1927] 1 K.B. 236. See also Dyer v Munday [1895] 1 Q.B. 742 and F.D.
Rose, “Liability for an Employee’s Assaults” (1977) 40 M.L.R. 420 who
argued for a more liberal approach. The fact that the boy in Poland had
fallen and had his leg amputated as a result of the injury might have
encouraged a more generous approach.

197 [1912] A.C. 716. See also Uxbridge Permanent Benefit Building
Society v Pickard [1939] 2 K.B. 248 and Noel v Poland [2001] 2 B.C.L.C.
645.

198 See Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] A.C. 717
HL and Kooragang Investments Pty v Richardson & Wrench [1982] A.C.
462 PC but see Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48;
[2003] 2 A.C. 366. The principle was affirmed recently by the Court of
Appeal in Winter v Hockley Mint Ltd [2018] EWCA Civ 2480; [2019] 1
W.L.R. 1617.

199 Although the Court of Appeal in Morris v Martin [1966] 1 Q.B. 716
found an employer liable for the employee’s theft on the basis of the
principles of bailment for reward, it has been suggested that this case could
simply have been decided on the basis that the act was in the course of the
thief’s employment: see Lord Steyn in Lister v Hesley Hall Ltd [2001]
UKHL 22; [2002] 1 A.C. 215 at [19]. See also Brink’s Global Services Inc v
Igrox Ltd [2010] EWCA Civ 1207; [2011] I.R.L.R. 343.

200 [2001] UKHL 22; [2002] 1 A.C. 215. Comment: P. Giliker (2002) 65
M.L.R. 269 and C.A. Hopkins [2001] C.L.J. 458.

201 [1999] L.G.R. 584.

202 The House noted that a test of “close connection” had been used by the
Supreme Court of Canada in Bazley v Curry (1999) 174 D.L.R. (4th) 45 and
Jacobi v Griffiths (1999) 174 D.L.R. (4th) 71, noted by P. Cane (2000) 116
L.Q.R. 21.

203 [2012] UKSC 56; [2013] 2 A.C. 1 at [35].

204 [2002] UKHL 48; [2003] 2 A.C. 366. Contrast JJ Coughlan Ltd v
Ruparelia [2003] EWCA Civ 1057; [2004] P.N.L.R. 4 CA (no close
connection between promotion of “preposterous” fraudulent scheme
promising risk-free investment with return of 6,000% per annum and
ordinary course of solicitor’s business).

205 [2002] UKHL 48; [2003] 2 A.C. 366 at [23] (his Lordship’s emphasis).

206 [2003] EWCA Civ 887; [2003] 1 W.L.R. 2158 (leave to appeal to HL
refused: [2003] 1 W.L.R. 2838).

207 Even where the employee in question had been chased out of the club
by the group of friends, gone to his nearby home to fetch a knife and then
had returned to the club to wreak revenge.

208 The court was even, in such circumstances, prepared to find the
employer primarily liable for the attack.

209 [2003] 2 A.C. 366 at 377–378.

210 [2003] EWCA Civ 887; [2003] 1 W.L.R. 2158 at [19].

211 [2012] UKSC 56 at [87].

212 [2012] UKSC 56 at [86]. See also Lord Millett in Lister v Hesley Hall
Ltd [2001] UKHL 22 at [65] and Lord Reed in Morrisons [2020] UKSC 12
at [23] who notes the importance of the employer conferring authority on
the employee to deal with the victims in such cases.

213 [2016] UKSC 11 at [44]–[45]. The Court of Appeal in Bellman v

Northampton Recruitment Ltd [2018] EWCA Civ 2214; [2019] I.C.R. 459
described Mohamud as “the most recent and authoritative distillation of the
relevant legal principles to be applied in this area of the law”: [12]. Despite
its concerns with the reasoning in Mohamud, the Supreme Court in
Morrisons held that Bellman had been correctly decided in that it could not
be regarded as a personal vendetta case: [2020] UKSC 12 at [46].

214 [2016] UKSC 11 at [40] per Lord Toulson.

215 Apparently held by the Court of Appeal in this case: [2018] EWCA Civ
2339.

216 [2018] EWCA Civ 2339 at [184].

217 [2020] UKSC 12 at [17]. Note the High Court of Australia in Prince
Alfred College Incorporated v ADC [2016] HCA 37 had rejected the
simplified test in Mohamud as unprincipled (at [83]), preferring a test
whether the employment provides “the occasion for the commission of the
wrongful act”.

218 The scandal had already cost Morrisons more than £2m, primarily in
improving its security following this incident.

219 [2012] UKSC 56; [2013] 2 A.C. 1 at [19].

220 [2016] UKSC 10; [2016] A.C. 660 at [1].

221 See Parke B in Joel v Morrison (1834) 6 C. & P. 501; 172 E.R. 1338.

222 [1989] A.C. 177, 208. See also Widgery LJ in Salsbury v Woodland
[1970] 1 Q.B. 324, 336. This rule can be traced back to Quarman v Burnett
(1840) 6 M. & W. 499; 151 E.R. 509.

223 See, generally, G. Williams, “Liability for Independent Contractors”

[1956] C.L.J. 180, who is critical of the whole notion of a non-delegable
duty of care. Lord Sumption in the now leading case of Woodland v Essex
CC [2013] UKSC 66 acknowledged at [22] that non-delegable duties are
inconsistent with the fault-based principles on which the tort of negligence
is based and should therefore be regarded as exceptional.

224 Ellis v Sheffield Gas Consumers Co (1853) 2 E. & B. 767; 118 E.R.
955.

225 (1876) 1 Q.B.D. 314. Contrast the two Court of Appeal decisions in
Salsbury v Woodland [1970] 1 Q.B. 324 and Rowe v Herman [1997] 1
W.L.R. 1390, which adopt a narrow interpretation of this category.
226 Other examples include withdrawal of support from neighbouring land:
Bower v Peate (1876) 1 Q.B.D. 321 and cases involving extra-hazardous
acts: Honeywill & Stein v Larkin Bros [1934] 1 K.B. 191. Although
Honeywill is still good law, it is more often distinguished than applied and it
has been questioned whether the House of Lords would continue to accept
an authority resting on the subtle distinction between what is or is not
“extra-hazardous”: see Brooke LJ in Bottomley v Todmorden Cricket Club
[2003] EWCA Civ 1575; [2004] P.I.Q.R. P18. Stanley Burnton LJ in Biffa
Waste Services Ltd v Maschinenfabrik Ernst Hesse GmbH [2008] EWCA
Civ 1257 remarked at [78] that the Honeywill case “is so unsatisfactory that
its application should be kept as narrow as possible. It should be applied
only to activities that are exceptionally dangerous whatever precautions are
taken”. The Supreme Court in Woodland below found it unnecessary to deal
with this point, but recognised that Honeywill was “ripe for re-examination”
at [6].

227 [2013] UKSC 66; [2014] A.C. 537.

228 Liability was determined in Woodland v Maxwell [2015] EWHC 273

(QB).

229 [2013] UKSC 66 at [23].

230 Lady Hale commented at [29]: “[T]he public might well be perplexed if
one pupil could sue her school for injuries sustained during a negligently
conducted swimming lesson but another could not”.

231 [2013] UKSC 66 at [25]. See P. Giliker, “Vicarious liability, non-

delegable duties and teachers: Can you outsource liability for lessons?”
(2015) 31 P.N. 259.

232 [2013] UKSC 66 at [23]. The Woodland non-delegable duty was

successfully argued in GB v Home Office [2015] EWHC 819 (QB) (Home
Office owed a non-delegable duty of care to an immigration detainee
receiving medical care at immigration removal centre). Contrast, however,
Armes v Nottinghamshire CC [2017] UKSC 60; [2018] A.C. 355 (non-
delegable duty would be inconsistent with statutory regime dealing with
responsibilities of local authorities to children in care).
233 But note the criticisms of this rule by Sach LJ in Salsbury v Woodland
[1970] 1 Q.B. 324 at 348.

234 (1912) 28 T.L.R. 494. See also comments of Denning LJ in Cassidy v

Ministry of Health [1951] 2 K.B. 343 at 365. But contrast Holliday v
National Telephone Co [1899] 2 Q.B. 392.

235 Apart from the fact that failing to take care is unlikely to boost my
employment prospects!

236 [1976] 1 W.L.R. 141 at 147. See also Lord Pearce in ICI v Shatwell
[1965] A.C. 656 at 685: “The doctrine of vicarious responsibility has not
grown from any very clear, logical or legal principle, but from social
convenience and rough justice”.

237 G. Williams, “Vicarious liability and the master’s indemnity” (1957) 20

M.L.R. 220 at 232. See also H. J. Laski, “The Basis of Vicarious Liability”
(1916) 26 Yale L.J. 105.

238 See P. S. Atiyah, Vicarious Liability in the Law of Torts (Butterworths,

1967), Ch.2.

239 See Lord Nicholls in Dubai Aluminium [2002] UKHL 48; [2003] 2
A.C. 366 at [21].

240 [2012] UKSC 56; [2013] 2 A.C. 1 at [35].

241 [2016] UKSC 10 at [20]–[21].

242 [2017] UKSC 60; [2018] A.C. 355, [59]–[63].

243 [2020] UKSC 13, overturning the Court of Appeal: [2018] EWCA Civ
1670.

244 [2020] UKSC 12.

245 Morrisons [2020] UKSC 12 at [26]. See also [24] per Lord Reed: “The
words ‘fairly and properly’ are not, therefore, intended as an invitation to
judges to decide cases according to their personal sense of justice”.
246 [2020] UKSC 12 at [31].

247 [2020] UKSC 13 at [16].

248 [2012] UKSC 56 at [87].

249 [2020] UKSC 12 at [23].

 8

Occupiers’ Liability

Introduction
8–001 An occupier of premises may be liable in tort to a claimant who,
whilst on those premises, suffers personal injury or property
damage because the premises are in a defective or dangerous
condition.1 As in a common law negligence action, the claimant
must prove the existence of a duty of care, breach of that duty,
causation, and that the loss suffered is not too remote.
Occupiers’ liability, therefore, may be thought of simply as an
aspect of the tort of negligence. The important difference,
however, is that in this area of the law the question of whether or
not a defendant owes a duty of care, and the question of the
standard of care required of him or her are answered by
reference to two statutes, namely the Occupiers’ Liability Act
1957 and the Occupiers’ Liability Act 1984. In summary, the
1957 Act regulates the duties owed by an occupier to “visitors”
to his or her premises, whilst the 1984 Act applies to “others”
who enter premises. Usually, these “others” will be trespassers.
This chapter examines both of these statutes in detail,
beginning with the Occupiers’ Liability Act 1957. Before
considering this Act, however, it is appropriate to give an outline
of the common law which prevailed before it was passed. The
old law relating to occupiers’ liability was complex and
uncertain. It is useful to have some understanding of the
 problems associated with the old law, in order to appreciate the
purpose of the modern legislation. Reference to the old law is
also necessary to explain some of the terminology which the
modern legislation employs.

The old law

8–002 Prior to the Occupiers’ Liability Act 1957, the common law had
distinguished between four categories of persons who entered
premises. Each category of entrant was owed a different
standard of care by the occupier. The distinctions between these
categories were extremely fine. The basic idea, however, was
that the greater the benefit which accrued to the occupier by the
person’s presence on the premises, the higher would be the
standard of care owed to that person. The four categories of
entrant recognised by the common law were as follows:

◗ (1) Contractual entrants

8–003 The highest standard of care was owed to persons who entered
premises in accordance with the terms of a contract made with
the occupier, for example guests staying in a hotel. The occupier
had a duty to see that the premises were as safe as reasonable
care and skill could make them for the purposes contemplated
by the contract.

◗ (2) Invitees
8–004 Invitees at common law were persons who entered premises to
pursue some “common interest” with the occupier, for example
customers entering the occupier’s shop. Here, the occupier was
obliged to use reasonable care to protect the invitee from
unusual dangers of which he or she knew or ought to have
known.2
 ◗ (3) Licensees
8–005 Where the entrant could not be said to be pursuing any
“common interest” with the occupier, but the occupier had
simply given his or her permission (express or implied) for the
entrant to be on the premises, the entrant was classified as a
licensee. Friends invited to dinner by an occupier, for example,
were classified as licensees at common law. Here, the occupier
merely had a duty to warn the licensee about any trap or
concealed danger on the premises of which he or she had actual
knowledge.

◗ (4) Trespassers
8–006 The lowest standard of care was owed to trespassers (i.e. those
entering without the permission of the occupier). Trespassers
generally entered premises at their own risk. The only duty
which an occupier had was a duty to refrain from any deliberate
act intended to cause bodily harm to the trespasser (firing a
shotgun, for example) or done with reckless disregard for the
presence of the trespasser (setting a man-trap, for example).3

The need for reform

8–007 The four categories of entrant described above were regarded by
the common law as exhaustive, so that all entrants had to be
classified as falling into one category or another. The case law,
as it developed, presented a very muddled picture. In particular,
the courts experienced difficulty in distinguishing between
invitees, who had a “common interest” with the occupier, and
licensees, who did not. The legalistic distinction between
invitees and licensees eventually appeared artificial and
unworkable. The need to revise the old rules prompted the
government to appoint a Law Reform Committee, whose report
was published in 1954.4 The committee recommended that the
fine distinctions under the old law should be abolished, in favour
 of a uniform standard of care owed to all lawful visitors to
premises.5 The tough attitude towards trespassers, however, was
maintained, and it was not until the Occupiers’ Liability Act
1984 that unlawful entrants were given statutory protection. The
committee’s recommendations were given legal force in the
Occupiers’ Liability Act 1957.

Occupiers’ Liability Act 1957

8–008 Under the Occupiers’ Liability Act 1957,6 an occupier owes a

single duty to all lawful visitors, irrespective of their purpose in
entering the premises. Thus, the Occupiers’ Liability Act 1957
states s.2(1):

“An occupier of premises owes the same

duty, the ‘common duty of care’, to all his
visitors. . .”

Section 2(2) goes on to define the “common duty of care”, and

the sections which follow set out various matters which are
relevant in deciding whether the common duty of care has been
discharged. Before we embark on a detailed analysis of those
sections, however, it is appropriate to make a number of general
observations.

The scope of the 1957 Act

 (1) The Act covers damage to property as well as
◗ personal injury

8–009 Like the common law which it replaced, the Act covers both
personal injury caused to a visitor and damage to his or her
property. The Act also applies in respect of damage to property
lawfully on the premises, even where that property does not
belong to a visitor.7 Thus, if a tile falls from the roof and
damages a visitor’s borrowed car parked on the premises, the
owner of the car may sue for that damage. The Act does not,
however, apply to property which is outside the boundaries of
the premises. Mocatta J, in AMF International Ltd v Magnet
Bowling Ltd,8 remarked that, where property was damaged,
there was no reason in principle why consequential economic
loss should not be recoverable.9

◗ (2) Liability under the Act may be limited by an

express term of a contract, or by a notice given to
visitors
8–010 It should be appreciated at the outset that, to a certain extent, the
Act allows an occupier to limit his or her liability to visitors. An
occupier can do this by displaying a notice on the premises, or,
where visitors enter under a contract, by including a term in that
contract which sets the standard of care he or she owes. These
matters are considered more fully towards the end of this
chapter.

◗ (3) The Act is thought to apply only to the

“occupancy duty”
8–011 It is unlikely that every careless act or omission which causes
loss to a visitor on an occupier’s premises will give rise to a
claim under the Act. Thus, if a visitor is walking up the
occupier’s drive and is injured by a carelessly driven car, he or
she will not sue under the Act, but in ordinary common law
negligence. This is because the duty of care he or she is owed
has nothing to do with the fact that the accident happened on the
occupier’s premises.
The old common law had distinguished between situations
where the claimant suffered loss because he or she fell foul of
some defect in, or dangerous object on, the premises (tripping
over a loose floorboard, for example, or being electrocuted by a
badly wired plug) and situations where the claimant’s loss was
caused by some activity carried out on the premises (the
claimant was knocked down by a car, for example). The former
situation was governed by the special rules of occupiers’
liability, which laid down the “occupancy duty”. This duty arose
where the claimant’s
loss could be said to result from the state of the premises. The
latter situation, however, was governed only by the ordinary
rules of negligence, which laid down the “activity duty”.
It is unclear whether this distinction has survived the 1957
Act. The wording of the Act does not make it clear whether the
Act regulates only the “occupancy duty”, or whether it also
regulates the “activity duty”, and the issue has been the subject
of academic debate. The problem is that there are two relevant
sections of the Act, each of which appears to give a con-flicting
answer to the question. Section 1(2) of the Act provides that the
Act shall “. . . regulate the nature of the duty imposed by law in
consequence of a person’s occupation or control of premises”.
This implies that the Act covers only the “occupancy duty”.
Section 1(1), on the other hand, provides that the Act shall apply
“. . . in respect of dangers due to the state of the premises or to
things done or omitted to be done on them”. This, then, implies
that the modern law of occupiers’ liability also covers situations
where the claimant’s loss is caused by a breach of the “activity
duty”.
Most academic commentary suggests that the 1957 Act
applies only to the “occupancy duty”.10 In other words, it covers
only those situations where the claimant’s loss is due to the
defective or dangerous state of the premises. It appears,
however, that where an activity on premises gives rise to a
 continuing source of danger (use of the premises for motor
racing, for example), the Act may apply.11 The true position
remains undecided by the courts because, whilst the debate may
be of academic interest, the principles applied in a common law
negligence action arising from a harmful activity on premises
are so similar to those applied under the 1957 Act that nothing
turns on the distinction between the “activity duty” and the
“occupancy duty” under the modern law.12
Having gained some appreciation of the general scope of the
Act, then, our next task must be to examine its precise wording.
It is this wording that provides the mechanism by which the
interest of an occupier, in maintaining the premises as he or she
wishes, is to be balanced against the safety of his or her visitors.
It has been said that, under the Act, an “occupier” of “premises”
owes a “common duty of care” to all his “visitors”. These key
terms require clarification.

Definition of “occupier”

8–012 Section 1(2) of the Act states that an “occupier” is simply a

person “who would at common law be treated as an occupier”.
We must therefore examine the relevant case law. What emerges
is that the courts have taken a broad approach, holding that a
person will be an “occupier”
if he or she has a sufficient degree of control over the state of the
premises. A person need not have a legal estate in land to be the
“occupier” of that land, nor need he or she have a right to
exclusive possession.13
The leading case is Wheat v E Lacon & Co Ltd.14 The
defendants, a brewery, owned a public house. They allowed the
publican and his wife, Mr and Mrs Richardson, to live in
accommodation above the pub, not as tenants, but as mere
licensees. The brewery had given Mrs Richardson permission to
take in paying guests in part of the upstairs accommodation,
access to which was gained by an outside staircase. The staircase
was dangerous because its handrail did not go all the way to the
bottom, and because it was unlit. One evening, the plaintiff’s
husband, who was a paying guest, fell down the staircase and
was fatally injured. The plaintiff sued the brewery under the
1957 Act, and the question arose whether the brewery were
“occupiers” of the private part of the building.
The House of Lords held that, in the circumstances, the
brewery had retained sufficient control over the upstairs part of
the premises to be regarded as occupiers. Although they had
granted Mr and Mrs Richardson a licence to occupy the upstairs
part of the premises, they had retained the right to access that
part themselves. This meant that they could still exercise some
control over the state of that part of the premises. Their
Lordships found that the publican, his wife and the brewery
were all “occupiers” under the Act. The standard of care
required of each, however, was defined by the extent to which
each had control over the premises. On the facts, neither the
Richardsons nor the brewery had fallen below their respective
standards of care. The short handrail did not by itself make the
staircase unreasonably hazardous, and they were not responsible
for a stranger having caused it to become unlit by removing a
light bulb.
Two important points, then, emerge from the decision in
Wheat v E Lacon & Co Ltd:
▮ there can be more than one occupier of premises; and
▮ where the owner of premises licenses others to occupy
those premises, but retains the right to enter the
premises, he or she remains an “occupier” for the
purposes of the Act. This is to be contrasted with a
situation where the owner grants a tenancy conferring
on others exclusive possession of the premises. Here,
the landlord will normally have given up control of the
premises, so that he or she cannot be regarded as an
occupier.

In all cases, the key question for the courts is not whether a
person is in actual occupation of the premises, but whether he or
she exercises control over the premises. This is clear from the
decision in Harris v Birkenhead Corp.15 The defendant was a
local authority which had made
a compulsory purchase order on a house. It then served on the
owner of the house, and on a tenant who occupied it, a notice of
entry under the Housing Acts, which entitled it to take
possession of the house within 14 days. The local authority did
not in fact take possession of the house after that time, and the
tenant remained there for many weeks. Eventually the tenant
departed, leaving the house uninhabited, but the local authority
took no steps to assert its possession of the house. A four and a
half year-old child entered the house through an unsecured door
and was injured when he fell from a second floor window.
In the Court of Appeal, the local authority argued that before
it could be regarded as the “occupier” of the house, there must
have been an actual or symbolic taking of possession of the
house on its behalf, and that its mere right to take possession
was insufficient. This argument was rejected. On the facts, the
Court of Appeal held that the local authority became the
occupier as soon as the premises were vacated. Although it
could not be said that in every case a person with an immediate
right to take possession of premises would be an “occupier”, in
these particular circumstances, actual physical possession of the
premises was not necessary before the local authority could be
regarded as having control of the premises.
Where an independent contractor enters premises to
undertake work, whether or not this contractor becomes an
occupier of the premises depends on the nature and scale of the
work being undertaken. Thus, a contractor undertaking a large
building development would become the occupier of the site,
whilst a decorator painting a house would not.16 Later in this
chapter we shall see that where a visitor suffers loss because of a
contractor’s negligent work, an occupier can sometimes escape
liability by arguing that he or she had delegated the work to a
contractor. It does not follow, however, that entrusting work to a
contractor automatically makes that contractor an occupier.
 Definition of “premises”
8–013 There is no explicit definition of “premises” in the Act. Section
1(3)(a), however, states that the Act regulates the obligations of
persons occupying or having control over “any fixed or
moveable structure, including any vessel, vehicle or aircraft”.
Case law has established that “premises” covers not only land
and buildings, but also such structures as lifts, ladders, diving
boards, scaffolding and even large digging machines.17

Definition of “visitor”
8–014 Section 1(2) of the Act provides that a “visitor”, under the Act,
is simply someone who would have been either an “invitee” or a
“licensee” at common law before the Act was passed. The
position of contractual entrants is governed by s.5 of the Act. To
a limited extent, an occupier is free to set his or her own
standard of care in relation to contractual entrants, but where he
or she does not do so, such entrants are treated in the same way
as visitors and are owed the “common duty of care”.18 As has
been said, the Act gives no protection to trespassers. It should
also be remembered, of course, that the Act has no application to
persons who are outside the premises.
Under the Act, the troublesome distinction between invitees
and licensees is replaced by a single test: has the occupier given
the entrant permission to be on the premises? In cases where the
occupier has expressly given permission to enter, the matter is
straightforward. In other cases, the law will sometimes say that
an occupier has given implied permission for a person to be on
the premises. In addition, there are certain rules which govern
the status of particular types of entrant. The issues which arise
may be considered under the following headings:

◗ Persons entering by authority of law

8–015 By s.2(6) of the Act, persons entering premises in the exercise of
a right conferred by law, for example firemen attending a fire, or
policemen executing a warrant, are treated as if they had been
given permission to enter by the occupier. Strictly speaking,
such cases are not cases of implied permission, but of deemed
permission, because these persons are treated as visitors even
where the occupier expressly states that he or she does not want
them on the premises.

◗ Persons exercising rights of way

8–016 Persons entering land in the exercise of a public19 or private20
right of way, or in the exercise of a statutory right to access land
for recreational purposes (conferred under the National Parks
and Access to the Countryside Act 1949, or the Countryside and
Rights of Way Act 2000) are not “visitors” under the Act.21
Persons exercising private rights of way are owed a duty under
the Occupiers’ Liability Act 1984, which is discussed later in
this chapter. Those exercising a public right of way, however, are
only owed the limited duty which had been established at
common law. Thus, the occupier is not under a duty to maintain
the natural features of public rights of way which run over his or
her land.22

◗ Implied permission
8–017 It is clear that a person who enters premises in order to
communicate with the occupier will be treated as having the
occupier’s implied permission to be on the premises. Thus, a
postman or other individual has implied permission to walk up
the occupier’s drive to use the letterbox, or to call at the front
door, unless he or she knows, or ought to know, that this is
expressly forbidden (for example, by a sign posted on the
gate).23
Much of the case law on implied permission, however, must
nowadays be seen in the context of the state of the common law
 when it developed. As has been noted, the common law was
harsh in its treatment of trespassers. Many judges felt that the
rules could produce injustice. They therefore sought to avoid the
rigours of the common law in hard cases by classifying
trespassers as implied licensees. This often entailed a strained
interpretation of the facts.
In Lowery v Walker,24 for example, the plaintiff was using a
short-cut across a farmer’s field when he was attacked by a
horse. The farmer knew that the short-cut had been regularly
used by the public for the past 35 years, and had protested about
this, although he had never brought legal proceedings. Despite
these protests, it was held that the farmer had given implied
permission for people to use the short-cut. The plaintiff could
therefore be classified as an implied licensee and was able to
succeed in his claim. Similarly, in Glasgow Corp v Taylor,25 a
council’s failure to fence off a poisonous plant near a children’s
playground made it liable in respect of a seven-year-old child
who died after eating berries from the plant. The berries looked
like cherries or large blackcurrants and were very alluring and
tempting to children. Even though the boy had no right to take
the berries, or even to approach the bush, and an adult doing so
might have been treated as a trespasser, the boy was treated as an
implied licensee.
Now that trespassers are afforded greater protection under
the Occupiers’ Liability Act 1984 than was the case at common
law, there is less need for the courts to resort to the idea of
implied permission to do justice in hard cases. The earlier
authorities, therefore, are unlikely to be followed unless the
court feels that, in a particularly meritorious case, even the
protection afforded by the Occupiers’ Liability Act 1984 would
be insufficient.

◗ Limitations on permission
8–018 The permission given by an occupier, whether express or
implied, may be limited in three ways. First, the occupier may
permit a person to be in some parts of the premises but not
others. Secondly, the occupier may permit the person to remain
on the premises only for a certain period of time. Thirdly, the
occupier may permit the person to be on the premises only
for certain purposes. It is clear that where a person enters
premises with permission, but that permission is subsequently
expressly revoked, the law will allow a reasonable time to leave
the premises, during which he or she will still be treated as a
visitor.26
Difficulties arise when visitors stray from the permitted area.
In Gould v McAuliffe,27 for example, a customer in a pub,
looking for an outside lavatory, wandered through an unlocked
gate into a private part of the premises where she was attacked
by a dog. The argument that she had become a trespasser was
rejected. It was held that where an occupier wishes to exclude a
visitor from an area into which visitors are likely to wander, he
or she must take reasonable steps to inform the visitor that the
area is out of bounds. On the facts, because there was no notice
informing the plaintiff that the area beyond the gate was private,
this had not been done. Whether it is necessary to post a notice
excluding visitors from a particular area will, of course, depend
on the facts of each case. Such a notice will not be necessary in
respect of a part of the premises to which no one would
reasonably expect a visitor to go.28
In determining whether or not a person is a visitor, it is
relevant to consider the purpose for which that person is
permitted to be on the premises. As Scrutton LJ put it, in The
Carlgarth29:

“When you invite a person into your house

to use the staircase, you do not invite him to
slide down the banisters.”

Thus, where a person is invited for one purpose (to sleep in a

bed) and starts to pursue an activity unrelated to that purpose
 (jump up and down on the mattress), that person may cease to be
a visitor, even though he or she has not strayed from the
permitted area. To understand why this is so, it must be
remembered that the Act treats as “visitors” people who were,
under the old law, licensees or invitees. A licence to be on
premises will almost always have implied conditions. When a
person breaches one of these conditions, he or she ceases to be a
licensee. It therefore follows that he or she ceases to be a
“visitor”. It should be noted that the permission to use the
premises for the purposes in question must be given by the
occupier.30 Permission given by someone else is not sufficient.

The “common duty of care”

8–019 Section 2(2) of the Act defines the “common duty of care” as
follows:

“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 or she is invited
or permitted by the occupier to be there.”

It should be noted that it is the visitor, rather than simply the

premises which must be reasonably safe. It follows that if the
occupier invites or permits, say, a blind man to come onto the
premises, he or she must take greater care for that visitor’s safety
than would be the case in relation to a sighted person.31 In this
regard, it should be noted that liability under the Act can arise
where an occupier merely fails to protect a visitor from a danger
on the premises. The occupier does not need to have created that
danger in order to be liable. Thus, the Act imposes liability for
 mere omissions in a way which, as we saw in Ch.2, is unusual in
English law. It imposes on an occupier a duty to his or her
visitor which is very different from the duty owed at common
law by a bystander to a stranger. It will be recalled that Lord
Keith, in Yuen Kun Yeu v Att-Gen of Hong Kong,32 made it clear
that there is no liability at common law “on the part of one who
sees another about to walk over a cliff with his head in the air,
and forbears to shout a warning”. This is because, although the
danger is foreseeable, there is insufficient “proximity”
(closeness of relationship) between the claimant and the
defendant. In cases of occupiers’ liability, however, the position
is different. The fact that the occupier has invited or permitted
the claimant to be on the premises creates the necessary degree
of proximity. Therefore, the occupier must protect the visitor
from danger, even though he or she has not caused the danger by
any positive act.

Discharging the common duty of care

8–020 In deciding whether or not the occupier is in breach of the

common duty of care, the courts will have regard to the same
general factors which would be considered in a common law
negligence action. These general factors were discussed in Ch.5.
They include the likelihood of a risk materialising, the
magnitude of the loss if the risk does materialise, and the cost
and practicality of taking precautions.33 In addition, however,
the Act expressly refers to a number of more specific factors
which are to be considered when deciding the question of breach
of duty. In particular, the Act contains a provision relating to
warnings, and another governing the extent to which an occupier
will be liable for dangers created by independent contractors.
These provisions are discussed later in the chapter. First, we
must examine the extent to which an occupier can rely on a
visitor to look after his or her own safety on the premises.
Section 2(3) of the Act provides that, in deciding whether the
common duty of care is discharged, it is relevant to consider “the
 degree of care, and of want of care, which would ordinarily be
looked for in such a visitor”. For good measure, however, that
subsection goes on to refer to two specific types of visitor—
children and professionals—and makes it clear what degree of
vigilance for their own safety an occupier should expect from
each type of visitor. It is convenient to deal with each type of
visitor in turn.

Children34

8–021 Section 2(3)(a) of the Act provides:

“an occupier must be prepared for children

to be less careful than adults.”

Children often fail to appreciate dangers that are obvious to

adults. Their natural curiosity often leads them into dangerous
situations. In discharging his or her duty of care, therefore, an
occupier must bear in mind that children tend to be attracted to
certain objects, unaware that they are dangerous. This, of course,
was what happened in Glasgow Corp v Taylor35 (discussed
above) where the poisonous berries, which looked like
blackcurrants, were said to be an “allurement” to small children.
Similarly, in Jolley v Sutton LBC,36 the council was held to be in
breach of its duty of care by allowing an old wooden boat, which
was an enticing play area for children, to be left abandoned on
its land. A 13-year-old boy (Jolley) and his friend had attempted
to repair the boat to take it to Cornwall to sail, and Jolley had
been injured when the boat, which had been jacked up, fell on
him. Overturning the Court of Appeal decision which had held
the activities of the boys too remote a consequence of breach,37
the House of Lords took the view that the courts should not
underestimate the ingenuity of children in finding unexpected
ways of doing mischief to themselves and others.38 On this
basis, their Lordships restored the view of the trial judge that the
type of accident and injury which occurred was reasonably
foreseeable in the context of teenage boys attracted to an
obviously abandoned boat.
The decision in Jolley, then, makes it clear that the courts
will apply the rules of occupiers’ liability generously towards
children, particularly in relation to serious personal injury.39
However, an occupier will not be liable for every action of a
child on his or her premises. This is especially true in the case of
very young children, for whom even the most innocuous objects
on premises may present a danger. An occupier cannot be
expected to ensure that his or her premises are as safe as a
nursery for any visiting toddler. If some provision were not
made in law to limit the scope of an occupier’s duty to very
young visitors, the occupier might be apt to exclude them from
the premises for fear of liability. Such a solution would not be
socially acceptable. The law therefore provides that an occupier
is entitled to assume that the behav-iour of very young children
will be supervised by a responsible adult. The leading case is
Phipps v Rochester Corp.40
In Phipps, the plaintiff was a five-year-old boy.
Accompanied by his sister, aged seven, he went out collecting
blackberries on a large open space and fell into a deep trench,
breaking his leg. The trench, which would have been an obvious
danger to an adult, had been dug by the defendants, who were
developing the site. Devlin J, after reviewing the relevant
authorities, concluded that where children of “tender years”
were concerned, an occupier was entitled to consider how a
prudent parent or guardian of the child should behave. As Devlin
J remarked:

“it would not be socially desirable if parents

were, as a matter of course, able to shift the
burden of looking after their children from
 their own shoulders to those of persons who
happen to have accessible bits of land.”41

Prudent adults would not have allowed two small children to

roam over the site unaccompanied. In the circumstances,
therefore, the occupiers of the site escaped liability. Their only
duty to very young children was to ensure that they were
reasonably safe on the site when accompanied by a responsible
adult, and on the facts, this duty had been discharged.
Whether or not an occupier is entitled to expect that very
young children on his or her premises will be accompanied by
an adult depends on the facts of any given case. Essentially, two
matters are relevant, namely the age of the child and the nature
of the premises. Thus, a prudent parent should realise that whilst
only very young children will be at risk in a playground, a
building site, such as that in Phipps, would present dangers to
older children if unaccompanied. It appears from the decision in
Simkiss v Rhondda BC,42 however, that an occupier is required
to take account of the social habits of the neighbourhood in
which his or her premises are situated. Thus, where a piece of
land becomes locally recognised as a playground for
unaccompanied small children, an occupier must ensure that
these children are reasonably safe.

Professional visitors

8–022 Section 2(3)(b) of the Act provides:

“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.”

This subsection gives statutory force to the position which had

been established at common law.43 An occupier may expect that
a skilled visitor, employed to undertake work on the premises,
will take appropriate precautions against risks ordinarily
associated with his or her work. The subsection does not, of
course, cover risks not normally associated with the job. Thus, in
Eden v West & Co44 the defendants were liable where a
carpenter removed a window and the brickwork above it
collapsed on him—the risk of this happening in a modern
property was extraordinary and the defendants ought therefore to
have warned him that the brickwork was not properly supported.
The leading case is Roles v Nathan.45 (This is also an
important case on warnings, discussed below.) Two chimney
sweeps had been engaged to clean the flue of a boiler and to seal
up some vent holes in the flue so that it would operate more
efficiently. The defendant’s heating engineer had repeatedly
warned the sweeps about the dangers of being overcome by
carbon monoxide fumes if they worked on the flue while the
boiler was lit. He gave evidence, however, that the sweeps had
been inclined to dismiss his warnings, taking the view that they
were the experts and could look after themselves. The sweeps
completed most of their work, telling the man in charge of the
boiler room that they would return to finish the job the following
day. In fact, the sweeps returned later that evening, by which
time the boiler had been lit, and were overcome by fumes while
working in the flue.
A majority of the Court of Appeal held that the occupiers
were not liable for the death of the sweeps. As Lord Denning
MR put it:
 “When a householder calls in a specialist to
deal with a defective installation on his
premises, he can reasonably expect the
specialist to appreciate and guard against
the dangers arising from the defect. The
householder is not bound to watch over him
to see that he comes to no harm.”46

This view accords with common sense—an occupier would not

receive a warm reception if he or she began to tell a specialist
contractor all about the usual risks involved in his or her job.
Therefore, since it would be inappropriate for the occupier to
give a warning of those risks, the occupier should not be liable if
the risks materialise. Both Harman LJ and Pearson LJ agreed
with Lord Denning’s statement of principle, although Pearson
LJ, who dissented, took a different view of the facts. On his
Lordship’s view, the risk of the boiler being lit was not a risk
which was “ordinarily incident” to the sweeps’ calling. Rather, it
was a special and unusual risk. This was shown by the fact that
the defendants had felt it necessary to give repeated warnings
about its occurrence.
Sometimes, professional visitors will suffer injury as a result
of a danger on the premises, even though they have exercised all
due care and skill in taking care of their own safety. In such
cases, the courts have held that the mere fact that the visitor is
possessed of special skill will not, by itself, entitle the occupier
to escape liability. The essential point to grasp is this: the fact
that the visitor has special skill does not mean that he or she has
voluntarily assumed the risks associated with the task, it simply
means that he or she is expected to take greater care than would
be taken by a lay person in relation to those risks. Thus, in Ogwo
v Taylor,47 a fireman injured whilst fighting a fire in a confined
space was able to recover from an occupier who had negligently
 started the fire on the premises. The House of Lords held that
whilst an occupier was entitled to expect that the fireman would
use his professional skill in tackling a fire, if, despite exercising
all due skill, the fireman suffered injury, the occupier would be
liable. (It should be noted that Ogwo v Taylor was decided on
the basis of common law negligence principles. The key finding
was that the occupier had put the fireman at risk by negligently
creating a danger on his premises.)

Giving a warning of the danger

8–023 Section 2(4)(a) of the Act provides that in deciding whether or

not an occupier has discharged the common duty of care, the fact
that he or she has warned visitors of the danger is a relevant
consideration. The subsection goes on to state, however, that:

“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.”

Thus, a distinction must be drawn between a mere warning of

the danger, which offers no assistance as to how to avoid the
danger, and a warning which enables the visitor to be reasonably
safe. Under the Act, only the latter type of warning will
completely discharge the common duty of care. Again, the
leading authority is Roles v Nathan,48 in which Lord Denning
MR explained the position as follows:
 “Supposing, for instance, that there was
only one way of getting into and out of
premises, and it was by a footbridge over a
stream which was rotten and dangerous.
According to [the old law] the occupier
could escape all liability to any visitor by
putting up a notice: ‘This bridge is
dangerous’, even though there was no other
way by which the visitor could get in or out,
and he had no option but to go over the
bridge. In such a case, s.2(4) makes it clear
that the occupier would nowadays be liable.
But if there were two footbridges, one of
which was rotten, and the other safe a
hundred yards away, the occupier could
still escape liability, even today, by putting
up a notice: ‘Do not use this footbridge. It is
dangerous. There is a safe one further
upstream’. Such a warning is sufficient
because it does enable the visitor to be
reasonably safe.”

The chimney sweeps in Roles v Nathan had been given clear

warnings of the danger by the defendant’s heating engineer.
According to Lord Denning MR, with whom Harman LJ agreed,
these warnings enabled the sweeps to be reasonably safe, by
making it clear that the danger could be avoided if they desisted
from working in the flue when the boiler was alight. Pearson LJ,
however, took a different view, holding that the warnings were
of little value to the sweeps, given that the defendant’s agents
had themselves ignored the advice of the heating engineer and
had lit the boiler before the sweeps had completed their work.
Not only must the warning tell the visitor what to do in order
to avoid the danger, it must be given in terms which are
comprehensible to the visitor. It is recognised that children do
not always give warnings the attention they deserve, so that an
occupier may be required to take other steps, such as the
erection of a barrier, to discharge the common duty of care.
A number of other points should be noted about s.2(4)(a).
First, the courts have made it clear that there is no duty to warn
irresponsible visitors against dangers which are perfectly
obvious. Lord Hoffmann in Tomlinson v Congleton BC argued
that:

”A duty to protect against obvious risks or

self-inflicted harm exists only in cases in
which there is no genuine and informed
choice . . . or some lack of capacity, such as
the inability of children to recognise
danger.”49

In English Heritage v Taylor,50 therefore, the key issue for the

court was whether allowing visitors to a castle to use an informal
path down a steep slope where there was a risk of falling from a
height into the moat was an obvious danger or not. The court
held that it was not an obvious danger and that there had been no
warning sign. On that basis, English Heritage were
found liable.51 In contrast, in Darby v National Trust52 where
the claimant had drowned in a pond of deep murky water, the
court found that there were no hidden dangers in the pond. The
risk of drowning in deep murky water was one which would
have been obvious to any adult who went into the pond. The
defendants were therefore not found to be under a duty to place
 notices around the pond warning of this risk. Similarly, in
Edwards v Sutton LBC,53 the Court of Appeal held that an
unfenced ornamental bridge with low parapets presented an
obvious danger and provision of side barriers or a warning
would not have been appropriate.
Secondly, s.2(4)(a) refers to a warning given by the
occupier.54 Strictly speaking, it must follow that a warning
given by someone other than the occupier is prima facie
insufficient to discharge the occupier’s duty of care, even if it
enables the visitor to be reasonably safe. This being said, a
warning given to a visitor by a third party will, of course, form
part of “all the circumstances of the case” and as such
(according to s.2(2) of the Act) will be a relevant consideration.
Thirdly, it should be noted that the words “without more” raise
the possibility that a warning which does not by itself enable the
visitor to be reasonably safe might be regarded as sufficient to
discharge the common duty of care when taken together with
some other factor in the case (the presence of a guard rail, for
example).
Finally, it should be noted that a sign stating that “visitors
enter at their own risk” is not a warning at all, but an attempt to
invoke the defence of voluntary assumption of risk. Similarly, a
sign declaring that “no responsibility is accepted for any loss or
damage on the premises” is not a warning, but an attempt to
exclude liability. These matters are discussed towards the end of
this chapter.

Entrusting work to independent

contractors

8–024 This chapter has set out the extent to which independent
contractors, who are possessed of special skill, can be expected
to look after their own safety while they are on the premises.
Here, we look at a different situation, namely where a visitor
(other than the independent contractor) suffers loss because of
the independent contractor’s negligence in carrying out work for
the occupier. The visitor’s loss may result from the manner in
which the contractors conduct themselves whilst on the premises
(the visitor trips over a toolbox left in a corridor), or it may
result from a defect in the premises left by poor workmanship
(the visitor falls down a staircase negligently erected by the
contractors). Under the doctrine of vicarious liability (discussed
in Ch.7) an employer is not normally responsible for the
negligent actions of independent contractors.
Can an occupier therefore escape all blame for dangers created
by independent contractors on the premises? The House of
Lords decision in Thomson v Cremin,55 in 1941, had suggested
that an occupier would usually remain personally responsible for
the shortcomings of contractors employed on the premises, but
this decision was criticised by the Law Reform Committee in
1954. The committee’s recommendations were given statutory
force in s.2(4)(b) of the Act.
In summary, s.2(4)(b) provides that where a visitor suffers
damage due to “the faulty execution of any work of
construction, maintenance or repair”56 by an independent
contractor, the occupier is not normally liable if, in all the
circumstances of the case:
▮ it was reasonable to entrust the work to an independent
contractor;
▮ the occupier took reasonable steps to satisfy himself or
herself that the contractor was competent; and
▮ the occupier took reasonable steps to satisfy himself or
herself that the work had been properly done.

The first of these requirements has posed few problems for the
courts, which appear to have taken the view that it will be
reasonable to entrust work to a contractor whenever that work is
of a type which is normally undertaken by contractors. As to the
second requirement, a contractor will usually be taken to be
competent unless the occupier is aware of facts which suggest
incompetence (faulty work carried out in the past, for example).
In some circumstances, however, it may be appropriate for an
occupier to check a contractor’s competence by seeing that he or
she is a member of a relevant trade association, holds relevant
qualifications, is suitably experienced and is insured. Such
circumstances arose in Bottomley v Todmorden Cricket Club,57
where the defendants were held liable for the activities of
independent contractors providing a fireworks display—the
hazardous nature of the activity placed the defendants under a
duty to take positive steps to check the competence of the
contractors, and, in particular, to check whether they were
insured. In Gwilliam v West Hertfordshire NHS Trust,58 the
defendant hospital had engaged a contractor to operate a “splat-
wall” at a fund-raising event. (A “splat-wall” is an amusement
whereby participants stick themselves to a wall with Velcro by
bouncing off a trampoline.) The hospital had selected the
contractor’s name from the phone book and had
paid him an extra £100 to operate the amusement, so as to
benefit from his public liability insurance. The claimant was
injured by the contractor’s negligence, and it turned out that his
public liability insurance had expired four days before the event.
In an action against the hospital, a majority of the Court of
Appeal held that, whilst the hospital had been under a duty to
inquire into the contractor’s insurance position, it would have
been unreasonable to expect them to actually check his
insurance certificate. Therefore, by accepting the contractor’s
assurances that he was insured, the hospital had discharged its
duty of care to the claimant.59
Some difficulty has arisen in deciding whether and when it
will be reasonable for an occupier to inspect a contractor’s work
personally, to see that it has been properly done. Two matters are
relevant, namely the nature of the work undertaken and the
character of the occupier. Thus, the more complex and technical
the work, the less reasonable it is for the occupier to inspect it in
person. Where, however, the occupier is a specialist company or
a local authority, a more detailed inspection may be called for
than would be required of a lay person. Two cases, both decided
 prior to the 1957 Act, illustrate the principles which the courts
will apply.
8–025 In Woodward v Mayor of Hastings,60 a pupil was injured
when he slipped on a snow-covered step at school. The local
authority was not able to escape liability by claiming that it had
delegated the task of cleaning the step to the school cleaner who,
it was argued, was an independent contractor.61 The cleaning of
the step was not a specialist task, and the danger was self-
evident. The occupiers therefore had a duty to inspect the
cleaner’s work to see that it had been properly done. This seems
a particularly harsh decision, but perhaps may be explained due
to the risk of danger to children on an icy day requiring the
school to check that such work was properly done, and the
courts’ sympathy towards child visitors.

In Haseldine v Daw,62 on the other hand, the plaintiff was fatally

injured when a lift in a block of flats fell to the bottom of its
shaft, due to the negligence of independent contractors
employed to repair the lift. It was held that the occupier had
discharged his duty to visitors by engaging an apparently
competent firm of engineers to maintain the lift. Because the
work carried out on the lift was of a technical nature, the
occupier could not be expected to ensure that it had been
properly done. It was reasonable for him to leave the
maintenance of the lift to an expert. Scott LJ observed that, if the
occupier were made liable in such circumstances, this would
effectively make him the insurer of the contractor’s
negligence.63 Such a decision would be inconsistent with the
principle discussed in Ch.1 that the law of tort operates most
efficiently when it places liability on the party who is able to
avoid the risk at least cost.
A few words must be said about the limits of the decision in
Haseldine v Daw. Clearly, it is authority for the proposition that
where the work in question involves complex or technical tasks,
the occupier cannot be expected personally to see whether these
tasks have been properly performed. It is far from certain,
however, that the decision will allow an occupier to wash his or
her hands of all responsibility simply by arguing that the work
requiring special skill has been delegated to a contractor.
Whatever may have been the position when the case was
decided, it must be remembered that the 1957 Act requires an
occupier to take reasonable steps to check the work. Thus, if
contractors were to remove a lift (a specialist task) but were to
leave the entrance to the shaft unguarded, it would be difficult
for the occupier to escape liability, because the danger would be
noticeable, even to a lay person. Where the occupier is a
commercial concern, and the work in question is especially
complex (such as the construction of a large building or ship),
the occupier’s duty to check each part of the work, as it is
completed, may be onerous. In some cases, he or she may even
have to engage independent experts to supervise the contractor’s
work.64
It is to be noted that s.2(4)(b) employs the past tense. It
requires an occupier to “satisfy himself . . . that the work had
been properly done”. It follows from this that the section does
not require an occupier to supervise a contractor’s working
practices on a day-to-day basis. However, an occupier may be
held in breach of his or her duty to supervise the contractor’s
activities, not by virtue of s.2(4)(b), but because of a general
breach of the “common duty of care”, which requires an
occupier to do what is reasonable “in all the circumstances of the
case”. Thus, an ordinary householder will not be expected to
supervise the technical aspects of a contractor’s day-to-day
activities,65 but may be under a duty to safeguard visitors against
clear dangers created by those activities.
It is clear from the House of Lords decision in Ferguson v
Welsh66 that an occupier has no general duty to supervise the
system of work used by a contractor so as to protect the
contractor’s employees from harm. Their Lordships stated that
in very exceptional cases, an occupier who becomes aware that
the contractor’s employees are evidently in danger might be
under a duty to ensure that dangerous working practices are
stopped. Lord Goff, however, doubted whether an ordinary
householder could really be expected to challenge the working
 practices of, for example, an electrician sent to work on his
premises, even if he or she knew that those working practices
were dangerous.67

Exclusion of liability

8–026 It was noted at the beginning of this chapter that an occupier

may limit or exclude his or her liability under the Act. This is
clear from the wording of s.2(1) of the Act, which imposes the
“common duty of care” on an occupier “except in so far as he is
free to and does extend, restrict, modify or exclude his duty . . .
by agreement or otherwise”. An occupier may exclude or limit
his or her liability either by displaying a notice on the premises,
or by an express term of a contract governing a visitor’s entry.
Both of these methods, however, are subject to the restrictions
on exclusion of liability contained in the Unfair Contract Terms
Act 1977 and Consumer Rights Act 2015. Before considering
these Acts, it is convenient to deal with each method of
exclusion in turn.

◗ (1) Displaying a notice on the premises

8–027 It has been noted that exclusion notices are conceptually distinct
from warning notices. Although it is not uncommon to see
notices which combine exclusion of liability with an element of
warning, in such cases, each element of the notice should be
treated separately.
The fact that the 1957 Act permits an occupier to exclude
liability by a notice is a reflec-tion of the position which had
been established under the common law. In Ashdown v Samuel
Williams & Sons Ltd,68 a licensee was injured while using a
short-cut over the defendants’ land on her way to work. The
defendants were not liable because they had posted notices on
the land stating that no person on the land would have any claim
against the defendants for any injury whatsoever (a classic
exclusion clause). The Court of Appeal held that, provided
 occupiers took reasonable steps to bring the exclusion of liability
to the attention of persons on the premises, they were free to
dictate their own terms of entry. The decision reflected the idea
that “an Englishman’s home is his castle”—it was based on the
assumption that if the law allowed an occupier to exclude a
person altogether from his or her premises, it followed that the
occupier would be entitled to attach whatever conditions he or
she liked to a person’s permission to enter.
In Ashdown, the conflict between the freedom of an occupier
to exclude liability and the right of a visitor to claim
compensation for injury was resolved in favour of the occupier.
Under modern law, however, this conflict is often resolved in
favour of the visitor. Thus, if the case were decided today, the
defendant would be unable to rely on the notice to exclude
liability for personal injury, because the notice would be void
under the Unfair Contract Terms Act 1977 s.2(1). The relevant
provisions of this Act are considered more fully below.

◗ (2) An express term of a contract

8–028 Where a visitor enters premises in accordance with a contract
governing his or her entry, occupiers may include in that
contract an express term which specifies the standard of care
owed to their visitor. This standard may be lower (or higher)
than the “common duty of care”.
Where the contract in question contains no express term
providing for a standard of care (or where it contains an express
term which is void under the Unfair Contract Terms Act 1977 or
Consumer Rights Act 2015, discussed below), s.5(1) of the Act
operates to imply into the contract the “common duty of care”.
Thus, an occupier cannot argue that there is an implied term in
the contract to the effect that the standard of care he or she owes
is lower than the standard in the 1957 Act. Conversely, in the
absence of an express term, the visitor cannot argue for the
existence of an implied term to the effect that he or she is owed a
higher contractual standard of care than the standard in the Act.
Thus, in Maguire v Sefton MBC69 the claimant contracted to use
 a leisure centre run by the defendants and was injured when one
of the exercise machines malfunctioned. The Court of Appeal
held that, since that contract was silent on the standard of care
owed, the trial judge had been wrong to imply into the contract a
strict term amounting to a warranty that the machine would be
safe to use—in the absence of an express term, the only standard
of care that could be implied was the standard demanded by the
1957 Act.

THE CONTRACT’S EFFECT ON THIRD PARTIES

8–029 It is important to note the effect of s.3 of the 1957 Act. The
wording of this section is rather complex, but its effect is simple.
The section deals with a situation where: (1) an occupier enters
into a contract with A, under which the occupier permits A to
use his or her premises, and (2) the contract contains an express
term setting a standard of care in relation to A, and (3) the
occupier agrees, by the terms of the contract, to let B enter the
premises (even though the occupier has no contract with B).
This situation may arise, for example, where a landlord occupier
lets a room to A on terms which allow B to visit him.
In such cases, s.3 provides that if the relevant term of the
contract sets a standard of care lower than the standard set in the
1957 Act, then that term does not apply to B. This is a
straightforward application of privity of contract. Instead, B is
owed the “common duty of care” under the Act. The section also
provides, however, that if the term in question sets a higher
standard of care than the Act demands, B is entitled to the
benefit of the term, unless the contract expressly provides to the
contrary. Thus, if a person, while visiting a tenant, suffers loss
because of some defect in a part of the building over which the
landlord retains occupational control (the stairway, for example),
he or she can sue the landlord irrespective of any exclusion
clause in the lease, but will also be able to sue if he or she
suffers injury because the landlord has not provided security
lighting as promised in the lease.

◗ The Unfair Contract Terms Act 1977

8–030 Despite its title, the Unfair Contract Terms Act (UCTA) does not
apply just to exclusion clauses in contracts, it also applies where
the defendant attempts to restrict his or her liability in tort by
displaying a notice when liability arises from the occupation of
premises used for business
purposes by the occupier. Unfair Contract Terms Act 1977 s.1(1)
(c) expressly states that the Act applies to notices excluding or
limiting the common duty of care under the 1957 Act. Unfair
Contract Terms Act 1977 s.2 provides that where the liability in
question is “business liability”, notices or contract terms which
attempt to exclude liability for personal injury or death are
void.70 Notices or contract terms which attempt to exclude
liability for other matters (damage to property, for example) are
valid only if they are “reasonable”.71
The main difficulty, here, is working out when UCTA
applies. First, it must be shown that the occupier is attempting to
exclude “business liability”. Section 1(3) of the Act defines
“business liability” as liability for the breach of an obligation
arising from “things done . . . in the course of a business72 . . . or
. . . from the occupation of premises used for business purposes
of the occupier”. Clearly, then, an ordinary householder, unless
he or she is using their house for business purposes, will not be
affected by the 1977 Act. Secondly, UCTA s.2(4) makes it clear
that the 1977 Act does not apply to “consumer notices”, that is,
notices which seek to exclude or restrict a trader’s liability to a
consumer,73 which are regulated by the Consumer Rights Act
2015. This means that even if the defendant is occupying
premises for business purposes, if the entrant is a “consumer”
then the 1977 Act will not apply. It is important, therefore, not
only to identify whether the defendant is a business, but whether
the claimant is a consumer or non-consumer.
The rather vague definition of “business liability” in the
1977 Act has given rise to uncertainty in cases where the
occupier used his or her land for a business purpose (farming or
forestry, for example) but allowed people to access that land for
a purpose unrelated to the business (to view an ancient
monument, for example). This uncertainty was resolved by the
Occupiers’ Liability Act 1984 s.2. That section amended the
definition of “business liability” to make it clear that in such
cases the 1977 Act does not generally apply. According to the
amended definition, liability to persons accessing premises for
“recreational or educational purposes” is not “business liability”
unless those persons are also accessing the premises for the
business purposes of the occupier. Thus, a farmer can exclude
liability to persons viewing an ancient monument on his land
(unless he or she charges them a fee). It should be noted,
however, that in such cases the occupier is only free to exclude
liability resulting from the dangerous or defective state of the
premises (i.e. liability for breach of the “occupancy duty”). The
occupier cannot exclude liability for breach of the “activity”
duty. Thus, if the visitor were hit by a negligently driven tractor,
the 1977 Act would apply to prohibit exclusion of liability.
It remains unclear how far the words “recreational . . .
purposes” can cover a situation where the occupier allows his or
her premises to be used for charity fund-raising events. It is
noteworthy that the word “charitable” is omitted from the
description of purposes for which exclusion of liability is
permitted. It is also noteworthy that the definition of “business”
in s.14 of
the 1977 Act includes activities which would not normally be
thought of as “business”, namely the activities of government
departments and local authorities. This suggests that the courts
would have little difficulty in extending the definition of
“business” to cover charitable activities. “Professional fund
raising”, where only a proportion of the proceeds are donated to
charity, is clearly a business activity, so the 1977 Act’s
prohibitions on excluding liability will apply. But do these
prohibitions also apply even in cases where the use of the
premises is wholly for a charitable purpose? The point is
undecided, although some assistance may be derived from the
pre-1977 decision in White v Blackmore.74 Here, the plaintiff
was killed because of defective barrier ropes at a charity motor-
racing event. A majority of the Court of Appeal held that the
organisers had effectively excluded liability by posting a notice
 outside the premises. The fact that the premises were being used
for a charitable purpose, however, forms no part of the ratio of
the case. Only Lord Denning MR (dissenting) refers to the point.
In his view, the court should not be “over-anxious” about
imposing liability on a charity where that liability is covered by
insurance.

◗ The Consumer Rights Act 2015

8–031 From October 2015, the Consumer Rights Act 2015 (CRA)
alone now deals with exclusion clauses in consumer contracts
and notices. The Act applies to notices seeking to exclude or
restrict liability to the extent that it (a) relates to rights or
obligations as between a trader and a consumer, or (b) purports
to exclude or restrict a trader’s liability to a consumer.75 A
“consumer” is a person acting for purposes that are wholly or
mainly outside that person’s trade, business, craft or profession.
In contrast, a “trader” is a person or company acting for
purposes relating to its trade, business, craft or profession.76 So
if my family and I visit a funfair and see a notice excluding
liability put up by the business running the funfair, the validity
of that notice would be governed by the 2015 Act, not the 1977
Act.
The CRA 2015 does have an equivalent provision to UCTA
1977 s.2(1). Section 65 provides:

”(1) A trader cannot by a term of a consumer

contract or by a consumer notice exclude
or restrict liability for death or personal
injury resulting from negligence.
(4) In this section“negligence”means the
breach of—
(a) any obligation to take reasonable care
or exercise reasonable skill in the
performance of a contract where the
 obligation arises from an express or
implied term of the contract,
(b) a common law duty to take
reasonable care or exercise
reasonable skill,
(c) the common duty of care imposed by
theOccupiers’ Liability Act 1957.”

For notices or contract terms which attempt to exclude liability

for other matters (damage to property, for example), the test is
not reasonableness (as under UCTA 1977 s.2(2)), but fairness. A
notice is unfair if, contrary to the requirement of good faith, it
causes a significant imbalance in the parties’ rights and
obligations to the detriment of the consumer.77 No mention is
made in the 2015 Act of the Occupiers’ Liability Act 1984. This
seems to be an oversight, but is unfortunate nevertheless.

A MINIMUM NON-EXCLUDABLE STANDARD OF

CARE?
8–032 In cases where the Unfair Contract Terms Act 1977 and
Consumer Rights Act 2015 do not prohibit exclusion of liability,
it is unclear whether the occupier is entitled to exclude liability
altogether, or whether he or she will always owe his or her
visitors some minimum standard of care, such as the lesser duty
owed to trespassers, discussed below. Certainly, the 1957 Act
does not entitle an occupier to exclude liability where he or she
would not have been allowed to do so under the pre-Act
common law. Thus, it has been suggested that there can be no
exclusion of the common duty of care in relation to persons who
enter premises under authority of law.78 It might also be argued
that a court should not allow an occupier ever to exclude the
duty of “common humanity”79 because, as a matter of policy,
this represents a minimum standard of care owed to all, and
should therefore be non-excludable. There is, however, no
authority to support this argument and, unlike the 1957 Act, the
 1984 Act does not mention whether an occupier is able to
modify or restrict the duty of care. The point remains undecided
therefore and, in the absence of case-law to the contrary, we
must conclude that no such minimum non-excludable standard
of care exists.80

Liability to Non-Visitors

8–033 We have seen that the 1957 Act applies only to “visitors”, but
that certain persons who enter premises are not “visitors”, either
because they were not invitees or licensees at common law, or
because the Act specifically excludes them from its scope. All of
these persons, however, with the exception of individuals
exercising a public right of way,81 are owed a duty under the
Occupiers’ Liability Act 1984.
The 1984 Act, then, applies to people who are on the
premises without the occupier’s permission. Usually, such
people are trespassers, although it should be noted that a person
who, for example, falls on to premises from other premises, is
not, technically, a trespasser, because the tort of trespass requires
that a defendant must intend to be on the land. It should also be
noted that, especially in the case of children, it is not true to say
that all trespassers are committing a moral wrong. People can
become trespassers by accident if they wander on to an
occupier’s land not realising they need permission to be there.
Sometimes, a person enters premises as a visitor, but
becomes a trespasser when he or she breaches some express or
implied condition of his or her licence to be there. Thus, a visitor
who strays from the permitted area, outstays his welcome, or
begins to pursue some purpose unauthorised by the occupier will
lose his protection under the 1957 Act and will be protected only
by the 1984 Act.
 The old law
8–034 In order to appreciate the scope of the 1984 Act, it is necessary
to refer to the position at common law before it was passed. This
is useful not only by way of background, but because the
reasoning of Lord Diplock in British Railways Board v
Herrington,82 the leading pre-Act case, has influenced the courts
when interpreting the Act’s provisions.
The law as it stood in 1929 was shortly stated by Lord
Hailsham in Robert Addie & Sons (Collieries) Ltd v
Dumbreck83:

“The trespasser comes on to the premises at

his own risk. An occupier . . . is liable only
where the injury is due to some wilful act
involving something more than the absence
of reasonable care. There must be some act
done with the deliberate intention of doing
harm to the trespasser, or at least some act
done with reckless disregard of the presence
of the trespasser.”

This approach reflected the idea that, as a matter of policy, an

occupier should not be bound to protect a wrongdoer who
violated his or her property rights by entering without
permission. Yet, the rule could produce some harsh results. In
Addie itself, for example, a child trespasser, playing in a field
owned by the colliery, got caught in the machinery and died. The
boy could not, as in Glasgow Corp v Taylor,84 be classified as an
implied licensee, because he had been repeatedly warned not to
go into the field. The colliery therefore escaped liability.
 In 1954, the Law Reform Committee, whose proposals
formed the basis of the 1957 Act, stated that although it felt that
the existing law relating to trespassers could be harsh when
applied to children, it could find no adequate way of providing
for child trespassers without imposing too great a burden on
occupiers.85 Trespassers were therefore omitted from the 1957
Act. In 1972, however, the law underwent a fundamental change
with the decision in British Railways Board v Herrington.86
In Herrington, a six-year-old boy climbed through a gap in a
fence beside an electrified railway line and was severely injured
when he came into contact with the live rail. The defendants
knew that children had been using the gap in the fence as a
short-cut, but had taken no steps to deter them. The House of
Lords held that the defendants were liable, observing that the
policy considerations which had formed the basis of the old law
on trespassers were no longer persuasive. Society’s attitude
towards trespassers had changed, so Addie was no longer good
law. Their Lordships held that occupiers owed a duty of
“common humanity” to trespassers. This was more than a duty
to refrain from causing deliberate harm, but lower than the duty
imposed by the 1957 Act. The precise scope of the duty,
however, was unclear, because each of the Law Lords appeared
to regard the matter slightly differently. In 1976, the Law
Commission reported that it could not extract from the decision
any single clear principle, and that legislation was required.87
Eventually, this came in the form of the Occupiers’ Liability Act
1984.

Occupiers’ Liability Act 1984

8–035
It is convenient to speak of the 1984 Act applying to
“trespassers”, because this covers the majority of cases,
although, as explained above, technically it can apply to other
people as well. In summary, where the Act provides that an
occupier owes a duty to a trespasser, the duty is to take
reasonable care to see that a trespasser does not suffer personal
injury on his or her
premises.88 No duty is owed in respect of a trespasser’s
property.89 According to s.1(3)(a)–(c), the duty in respect of
personal injury is owed if:
▮ the occupier is aware of the danger, or has reasonable
grounds to believe it exists;
▮ the occupier knows or has reasonable grounds to
believe that a trespasser is in the vicinity of the danger,
or may come into that vicinity; and
▮ the risk of personal injury is one against which, in all
the circumstances of the case, the occupier may be
expected to offer the trespasser some protection.

Section 1(4) provides that where an occupier does owe a duty of

care to a trespasser in respect of a risk, the duty is to take such
care as is reasonable in all the circumstances of the case to see
that the claimant does not suffer injury on the premises due to
this danger. An occupier may discharge his or her duty to
trespassers either by giving a warning of the danger, or by taking
other reasonable steps to discourage trespassers from
encountering the danger,90 for example by securing the premises
behind a locked gate. Note that, in contrast to the 1957 Act,
there is no requirement under s.1(5) that the warning must
enable the entrant to be reasonably safe. Thus, the duty can be
discharged by a notice posted on the premises which gives a
simple warning of the danger (for example “Danger–Rotten
Footbridge”). The notice need not inform trespassers how to use
the premises safely.
 In applying these provisions, the courts have been anxious
not to impose too onerous an obligation on occupiers. They have
often held that there is no liability, either because no duty is
owed under the Act, or because the duty has been discharged, or
because the claimant voluntarily assumed the risk and is the
author of his or her own misfortune. All three of these factors
found favour with the House of Lords in Tomlinson v Congleton
BC91 to produce a finding of no liability. It was noted in Ch.5
that the reasoning in this case gave rise to, and is reflected in, the
Compensation Act 2006 s.1. This provides that, in considering
whether a defendant is in breach of a duty of care, courts should
have regard to whether imposing liability might deter potential
defendants from carrying out desirable activities.

Tomlinson v Congleton BC

8–036 In Tomlinson, the defendant council was in charge of a piece of

recreational land on the site of a disused quarry. A lake had
formed in part of the old quarry, which attracted many visitors in
hot weather. The defendant council had placed notices around
the lake, reading: “Dangerous water: no swimming”, and had
employed rangers to warn visitors of the dangers of swimming
in the lake. However, visitors would frequently swim in the lake,
ignoring the notices, and were often rude to the rangers when
asked to get out of the water. Following a number of serious
incidents in which visitors nearly drowned, the council had
resolved to make the beaches of the lake less attractive by
dumping ballast on the shore to discolour the sand, and by
planting vegetation at the lakeside, but, owing to financial
constraints, this had not been done at the time of the claimant’s
accident. The claimant was an 18-year-old man, who entered the
water, and, from a standing position in the shallows, executed a
dive.92 He hit his head on the sandy bottom, suffering severe
injury which rendered him tetraplegic.
The House of Lords held that the risk of the claimant
suffering injury had not arisen from the “state of the premises, or
things done or omitted to be done on them” within the meaning
of the 1984 Act. Rather, it had arisen from the claimant’s own
mis-judgment in attempting to dive into shallow water. It
followed that the risk was not one against which the Act obliged
the council to offer him any protection. According to Lord
Hoffmann,93 there was “an important question of freedom at
stake” in the case. The Court of Appeal had held that the
council, having been aware of the number of accidents suffered
by irresponsible visitors swimming in the lake, was under a duty
to safeguard those visitors by implementing its resolution to
destroy the beaches. Lord Hoffmann pointed out, however, that
the majority of people at the lakeside were behaving quite
properly, enjoying themselves in a way which posed no risk to
themselves or to others, and continued:

“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.”94

Accordingly, the “social cost” involved in denying responsible

visitors access to recreational facilities should have been taken
into account in deciding whether it was reasonable for the
council to have destroyed the beaches in order to discourage
irresponsible visitors from harming themselves. In their
Lordships’ view, this “social cost” could not be justified.
The approach in Tomlinson was followed in Simonds v Isle
of Wight Council.95 Here, the claimant, a five-year-old child,
broke his arm when he fell from a swing near to a playing field
 being used for a school sports day. It had been argued that the
school was under a duty to
immobilise the swings, or at least to place a cordon around them
to discourage children from using them. In denying that the
school was under such a duty, Gross J, referring to Tomlinson,
pointed out that the result of a finding of liability might be that
pleasurable sporting events such as the one in question would
cease to be held, because of the high cost of liability insurance.

Applying the 1984 Act

8–037 The general principles the courts adopt in applying the Act are
adequately illustrated by the reasoning in Tomlinson. There are
few other noteworthy cases on the 1984 Act. This is largely
because, as Lord Steyn observed in Jolley v Sutton LBC,96 cases
on occupiers’ liability are “invariably very fact-sensitive”. In
other words, because the statutes (particularly the 1984 Act) are
framed in such broad terms, the question of whether or not they
produce liability in any given situation will depend heavily on
the particular factual circumstances of each case. One interesting
point of law, however, has arisen in respect of the words “has
reasonable grounds to believe” under s.1(3). The decision in
White v St Albans City and DC97 made it clear that where an
occupier erected a fence around the premises, this did not
necessarily mean that he or she had “reasonable grounds” to
expect trespassers in the vicinity, but uncertainty remained about
how the words should be interpreted.
In Herrington, Lord Diplock had expressed the view that no
duty to trespassers could arise unless an occupier had actual
knowledge of facts as to the condition of his or her land, and
actual knowledge of facts which suggested the likely presence of
trespassers. An occupier was under no duty to make inquiry as
to the state of the premises for the benefit of trespassers.98 Under
the 1984 Act, it was unclear whether this remained the position,
or whether the words “reasonable grounds to believe” meant, for
example, that an occupier who had no actual knowledge of a
dangerous object on the premises could be liable in
circumstances where a reasonable occupier ought to have known
about its presence. However, in Swain v Natui Ram Puri99 and
Ratcliff v McConnell,100 the Court of Appeal expressly endorsed
Lord Diplock’s views, suggesting that, on a proper construction
of the Act, an occupier must actually know the primary facts
(from which a reasonable occupier would conclude that there
was a danger, or a likelihood of trespassers) before he or she can
be liable. The judgment in Ratcliff also endorsed Lord Diplock’s
view that the financial resources of the particular occupier are
relevant in deciding what level of protection he or she can
reasonably be expected to offer to trespassers.
In Swain, a child trespasser had been seriously injured when,
having scaled a seven foot
fence and wall covered with barbed wire to reach a roof, he fell
through a skylight. It was argued that although the occupier did
not know of trespassers in the vicinity, he should have known
that a large unoccupied factory, adjacent to an inner-city council
estate where many children lived, would be bound to attract
child trespassers. The Court of Appeal rejected this view. A duty
would only arise under the 1984 Act when the occupier had
actual knowledge101 of the relevant facts (here, that children
would climb on the roof) or had known facts which gave
reasonable grounds for this belief (e.g. had known about gaps in
the barbed wire over the perimeter fence). Constructive
knowledge would not suffice.
This view is supported by the later case of Higgs v WH
Foster (t/a Avalon Coaches).102 Here, a policeman, investigating
a theft at night, had fallen into a pit on the defendant’s land used
for inspecting the undersides of his coaches and which was
usually covered. He was found to be a trespasser and the Court
held that, under s.1(3)(b), it was not enough that it was easy to
access the defendant’s land. There was nothing to attract
someone to the area nor which indicated an obvious short-cut for
a trespasser from one place to another. The mere risk that
someone might steal the defendant’s coaches did not suffice. On
this basis, there was no duty of care owed to the claimant—there
were no reasonable grounds to suggest that the claimant might
come into the vicinity of the uncovered pit late at night.
Equally in Donoghue v Folkestone Properties,103 the Court
found no liability towards a trespasser who had decided in late
December to dive from a slipway into the harbour after midnight
and had suffered serious injuries after hitting a grid pile some
two feet below the surface of the water. Applying s.1(3)(b), the
harbour owners had no reasonable grounds to believe trespassers
would seek to dive from the slipway into Folkestone Harbour
after midnight in mid-winter.
It should be noted that although the 1984 Act refers to
liability for “things done or omitted to be done” on premises,104
the decision in Revill v Newbery105 makes it clear that the Act
applies only to liability for the state of premises. It does not
regulate the “activity duty”. Thus, in considering whether the
defendant was liable for accidentally injuring a trespasser, when
firing a shotgun towards him intending to frighten him off, the
Court of Appeal held that the provisions of the 1984 Act were
not, strictly speaking, relevant, although they assisted greatly in
determining the nature of the duty owed at common law, which
was virtually identical to that owed under the Act.
Finally, it is worth remembering that, because the 1984 Act
imposes liability for “the state of the premises”,106 there can be
no liability in a situation where non-dangerous premises cause
injury simply because of the unorthodox way the trespasser has
chosen to use them.
(This, of course, was what happened in Tomlinson—the lake was
not dangerous per se.) The point is illustrated by Keown v
Coventry Healthcare NHS Trust.107 Here, an 11-year-old boy fell
while, in effect, using the underside of a fire escape as climbing
frame. The defendant hospital escaped liability. In the
circumstances, the boy had been aware of the danger, and in any
event, the risk arose not from the state of the fire escape (which
was just as one would expect it to be) but from the fact that the
boy had chosen to trespass on it in such an unusual way.
 Defences
8–038 The defences of voluntary assumption of risk and contributory
negligence will arise under the Occupiers’ Liability Act 1957
and the Occupiers’ Liability Act 1984. It is not a defence that the
claimant was trespassing illegally on the defendant’s land as this
would undermine the whole purpose of the 1984 Act. There is
no explicit reference to the Law Reform (Contributory
Negligence) Act 1945 in either the 1957 or the 1984 Act, which
is surprising, in that the matter was expressly mentioned in the
Law Reform Committee’s recommendations which led to the
passing of the 1957 Act.108 Nevertheless, the courts have
regularly applied the principle of contributory negligence in
deciding cases under both Acts.109 In contrast, the defence of
voluntary assumption of risk is expressly preserved in both
Acts110 and plays a significant role in occupiers’ liability cases
such as Ratcliff v McConnell.111 In Ratcliff, the occupiers of a
college swimming pool were not liable when a student trespasser
broke into the pool and dived head first into the water, suffering
severe injuries. The Court of Appeal held that the student had
voluntarily assumed the risk of his activities. He knew that the
pool was closed for the winter and had been partially drained,
and ought to have realised that it was dangerous to dive into
shallow water.
These defences, together with other defences, are discussed
further in Ch.16.

1 Liability of non-occupiers for defective premises, at common law and

under the Defective Premises Act 1972, is discussed in Ch.3.

2 See Indermaur v Dames (1866) L.R. 1 C.P. 274 per Willes J at 288.

3 Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358.

4 Occupiers’ Liability to Invitees, Licensees and Trespassers, Cmnd.9305

(1954).
5 Occupiers’ Liability to Invitees, Licensees and Trespassers, Cmnd.9305
(1954), paras 78(i) and (ii).

6 See, generally, D. Payne, “The Occupiers’ Liability Act” (1958) 21

M.L.R. 359.

7 s.1(3)(b).

8 [1968] 1 W.L.R. 1028.

9 [1968] 1 W.L.R. 1028 at 1049 (on the basis that the Act makes no attempt
to quantify or limit the damages recoverable).

10 A view endorsed by the Law Commission in Report No.75 Report on

Liability for Damage or Injury to Trespassers and Related Questions of
Occupiers’ Liability, Cmnd.6428 (1976), para.23, cited by Neill LJ in Revill
v Newbery [1996] 2 W.L.R. 239 at 245. See also Stephen-Brown LJ, obiter,
in Ogwo v Taylor [1988] A.C. 431 at 438.

11 Law Commission Report No.75 (above).

12 Several common law jurisdictions have, indeed, absorbed the occupiers’

liability rules within the general tort of negligence, see Australian Safeway
Stores v Zaluzna (1987) 162 C.L.R. 479 in Australia; Toh Siew Kee v Ho Ah
Lam Ferrocement (Pte) Ltd [2013] 3 S.L.R. 284 in Singapore.

13 Humphreys v Dreamland (Margate) Ltd (1930) 144 L.T. 529; Hartwell v

Grayson Rollo and Clover Docks Ltd [1947] K.B. 901.

14 [1966] A.C. 552. Compare Bailey v Armes [1999] E.G.C.S. 21 (no

occupation of a flat roof to which children gained access without the
defendants’ knowledge.)

15 [1976] 1 W.L.R. 279. See also Vodden v Gayton [2001] P.I.Q.R. P4

(where a private right of way ran over land, owners of the servient and
dominant tenement were both occupiers for the purposes of the 1984 Act).

16 Page v Read (1984) 134 N.L.J. 723.

17 See Haseldine v Daw [1941] 2 K.B. 343; Wheeler v Copas [1981] 3 All
E.R. 405; Ewa Perkowski v Wellington Corp [1959] A.C. 53; Bunker v
Charles Brand [1969] 2 Q.B. 480.

18 Occupiers’ Liability Act 1957 s.5(1).

19 Greenhalgh v British Railways Board [1969] 2 Q.B. 286; McGeown v

Northern Ireland Housing Executive [1995] 1 A.C. 233. See J. Murphy,
“Public Rights of Way and Private Law Wrongs” [1997] Conv. 362.

20 Holden v White [1982] 2 Q.B. 679.

21 Occupiers’ Liability Act 1957 s.1(4) (as amended by Countryside and

Rights of Way Act 2000 s.13).

22 This position is now reflected in the Occupiers’ Liability Act 1984

s.1(6A) (inserted by the Countryside and Rights of Way Act 2000). Persons
exercising rights of way conferred by the 2000 Act are owed no duty in
respect of dangers arising from natural features of the landscape or when
passing through walls, fences etc except when making proper use of gates
and stiles. The Marine and Coastal Access Act 2009 inserts s.1(6AA),
extending the provisions of s.1(6A) to coastal land.

23 Robson v Hallett [1967] 2 Q.B. 939.

24 [1911] A.C. 10.

25 [1922] 1 A.C. 44. Compare Edwards v Railway Executive [1952] A.C.

737.

26 Robson v Hallett [1967] 2 Q.B. 939; Kay v Hibbert [1977] Crim. L.R.
226; R. (on the application of Fullard) v Woking Magistrates [2005] EWHC
2922 (Admin).

27 [1941] 2 All E.R. 527 CA.

28 Mersey Docks and Harbour Board v Procter [1923] A.C. 253.

29 [1927] P. 93 at 110. For a real life scenario closely analogous to Scrutton
LJ’s example, see Geary v JD Wetherspoon Plc [2011] EWHC 1506 (QB).

30 See Occupiers’ Liability Act 1957 s.2(2), discussed below.

31 See, e.g. Atkins v Butlins Skyline Ltd [2006] 1 C.L. 510 (Taunton County
Court): the defendant holiday camp operators were liable to a blind visitor
who was trapped by closing lift doors that were safe for sighted visitors.

32 [1988] A.C. 175 at 192 (see Ch.2).

33 Cases therefore tend to turn on their own particular facts. For some
modern examples of various factual scenarios, see Wattleworth v Goodwood
Road Racing Co Ltd [2004] EWHC 140 (QB); [2004] P.I.Q.R. P25; Lewis v
Six Continents Plc [2005] EWCA Civ 1805; Cole v Davis-Gilbert [2007]
EWCA Civ 396; West Sussex CC v Pierce [2013] EWCA Civ 1230; [2014]
P.I.Q.R. P5.

34 See R. Kidner, “The Duty of Occupiers towards Children” (1988) 39

N.I.L.Q. 150.

35 [1922] 1 A.C. 44.

36 [2000] 1 W.L.R. 1082 HL; [1998] 1 W.L.R. 1546 CA.

37 On remoteness generally, see Ch.6.

38 Compare, however, the approach of the CA in Keown v Coventry

Healthcare NHS Trust [2006] 1 W.L.R. 953: where the danger is obvious to
a child, the court should not ignore a child’s choice to incur that danger just
because he is a child.

39 Justin Jolley had suffered serious spinal injuries rendering him

paraplegic.

40 [1955] 1 Q.B. 450.

41 [1955] 1 Q.B. 450 at 472.

42 (1983) 81 L.G.R. 460. See also Bourne Leisure Ltd (t/a British Holidays)
v Marsden [2009] EWCA Civ 671: owner of a holiday site under no
obligation to draw parents’ attention to precise location of a pond that was
an obvious danger to small children. Giving the parents a plan showing the
pond was sufficient.

43 See Christmas v General Cleaning Contractors [1952] 1 K.B. 141,

affirmed [1953] A.C. 180, and Bates v Parker [1953] 2 Q.B. 231.

44 [2002] EWCA Civ 991; [2003] P.I.Q.R. Q2.

45 [1963] 1 W.L.R. 1117.

46 [1963] 1 W.L.R. 1117 at 1123.

47 [1988] A.C. 431 HL, approving Salmon v Seafarer Restaurants Ltd

[1983] 1 W.L.R. 1264.

48 [1963] 1 W.L.R. 1117 at 1124.

49 [2003] UKHL 47; [2004] 1 A.C. 46 at [46].

50 [2016] EWCA Civ 448; [2016] P.I.Q.R. P14.

51 Subject to a defence of contributory negligence in that the visitor had

taken a risk of falling down the slope in using an informal path.

52 [2001] EWCA Civ 189. See also Poppleton v Trustees of the Portsmouth
Youth Activities Committee [2008] EWCA Civ 646; [2009] P.I.Q.R. P1 and
Evans v Kosmar Villa Holiday Plc [2007] EWCA Civ 1003; [2008] 1
W.L.R. 297.

53 [2016] EWCA Civ 1005; [2017] P.I.Q.R. P2. See also Singh v Cardiff
CC [2017] EWHC 1499 (QB) (no liability for unfenced open land adjacent
to footpath leading down to stream into which claimant fell).

54 In Roles v Nathan [1963] 1 W.L.R. 1117, this requirement was satisfied

because the heating engineer who gave the warnings was the defendant’s
agent.
55 Reported at [1953] 2 All E.R. 1185.

56 The courts have interpreted these words broadly. It was held in Ferguson
v Welsh [1987] 1 W.L.R. 1553, e.g. that the section is applicable to
demolition work, even though this is, of course, the complete antithesis of
“construction, maintenance and repair”.

57 [2003] EWCA Civ 1575, [2004] P.I.Q.R. P18.

58 [2002] EWCA Civ 1041; [2003] Q.B. 443. But see Naylor v Payling
[2004] EWCA Civ 560; [2004] P.I.Q.R. P36 (the duty to ensure that
contractors carry public liability insurance is not a general “free-standing”
duty. It only arises in special circumstances such as those in Bottomley and
Gwilliam, where the defendant is organising a one-off event and enquiries
about the contractor’s insurance position are a reasonable means of
assessing whether the contractor is likely to be competent).

59 Sedley LJ, whilst agreeing with the majority as to the result of the case,
thought that there should be no duty on the part of an occupier to check the
insurance position of contractors.

60 [1945] 1 K.B. 174.

61 The court in fact found that the cleaner was the agent of the local
authority rather than an independent contractor.

62 [1941] 2 K.B. 343.

63 [1941] 2 K.B. 343 at 356.

64 AMF International Ltd v Magnet Bowling Ltd [1968] 1 W.L.R. 1028.

Compare Gray v Fire Alarm Fabrication Services Ltd [2006] EWCA Civ
1496; [2007] I.C.R. 247.

65 Ferguson v Welsh [1987] 1 W.L.R. 1553 per Lord Goff at 1564; Green v
Fibreglass Ltd [1958] 2 Q.B. 245.

66 [1987] 1 W.L.R. 1553.

67 [1987] 1 W.L.R. 1553 at 1564.

68 [1957] 1 Q.B. 409.

69 [2006] EWCA Civ 316; [2006] 1 W.L.R. 2550.

70 s.2(1).

71 s.2(2). For the test of reasonableness, see s.11 and Sch.2.

72 “Business” includes the activities of professionals, government

departments and local authorities: s.14.

73 See Consumer Rights Act 2015 s.61(4).

74 [1972] 2 Q.B. 651.

75 s.61(4).

76 Both definitions are found in s.2 of the 2015 Act.

77 CRA 2015 s.62(6). See also s.62(7): Whether a notice is fair is to be

determined— (a)taking into account the nature of the subject matter of the
notice, and (b) by reference to all the circumstances existing when the rights
or obligations to which it relates arose and to the terms of any contract on
which it depends.

78 W. E. Peel and J. Goudkamp, Winfield & Jolowicz on Tort, 19th edn

(Sweet and Maxwell, 2014), 10–26.

79 See the House of Lords in British Railways Board v Herrington [1972]

A.C. 877.

80 For further discussion, see L. C. B. Gower, “A Tortfeasor’s Charter?”

(1956) 19 M.L.R. 532, M. A. Jones, “The Occupiers’ Liability Act 1984”
(1984) 47 M.L.R. 713 and R. A. Buckley, “The Occupiers’ Liability Act
1984. Has Herrington Survived?” [1984] Conv. 413.
81 McGeown v Northern Ireland Housing Executive [1995] 1 A.C. 233. As
to persons exercising the “right to roam” under the Countryside and Rights
of Way Act 2000, see Occupiers’ Liability Act 1984 s.1A. See M. Stevens-
Hoare and R. Higgins, “Roam free?” (2004) 154 N.L.J. 1846.

82 [1972] A.C. 877.

83 [1929] A.C. 358 at 365.

84 [1922] 1 A.C. 44.

85 Occupiers’ Liability to Invitees, Licensees and Trespassers, Cmnd.9305

(1954), para.80.

86 [1972] A.C. 877.

87 Law Commission Report No.75, Cmnd.6428 (1976).

88 s.1(4).

89 s.1(8), but see Tutton v Walter [1986] Q.B. 61.

90 s.1(5).

91 [2003] UKHL 47; [2004] 1 A.C. 46. See also Donoghue v Folkestone
Properties [2003] EWCA Civ 231; [2003] Q.B. 1008 and Rhind v Astbury
Water Park Ltd [2004] EWCA Civ 756.

92 There was some indecision as to whether he had become a trespasser by

so doing—it was “swimming” that was prohibited by the notices, not
entering the water.

93 Tomlinson v Congleton BC [2004] 1 A.C. 46 at 85.

94 [2004] 1 A.C. 46 at 85.

95 [2003] EWHC 2303 (QB); [2004] E.L.R. 59. See also Poppleton v
Trustees of the Portsmouth Youth Activities Committee [2008] EWCA Civ
646.
96 [2000] 1 W.L.R. 1082 at 1089.

97 The Times 12 March 1990. On the application of s.1(3) generally, see

Donoghue v Folkestone Properties [2003] EWCA Civ 231; [2003] Q.B.
1008 and Maloney v Torfaen CBC [2005] EWCA Civ 1762; [2006] P.I.Q.R.
P21.

98 [1972] A.C. 877 at 941.

99 [1996] P.I.Q.R. P442 CA.

100 [1999] 1 W.L.R. 670.

101 This would extend to “shut eye” knowledge, that is, facts which are
obvious but which the occupier chooses to ignore.

102 [2004] EWCA Civ 843.

103 [2003] EWCA Civ 231; [2003] Q.B. 1008.

104 s.1(1)(a).

105 [1996] 2 W.L.R. 239.

106 Occupiers’ Liability Act 1984 s.1(1)(a).

107 [2006] EWCA Civ 39; [2006] 1 W.L.R. 953. See also Siddorn v Patel
[2007] EWHC 1248 (QB) (no liability where the claimant danced on a flat
roof and fell through a skylight) and Kolasa v Ealing Hospital NHS Trust
[2015] EWHC 289 (QB) (no liability when drunken man taken to the A &
E department of a hospital climbed over a well-lit wall when the 30 foot
drop was obvious).

108 Occupiers’ Liability to Invitees, Licensees and Trespassers, Cmnd.9305

(1954) at para.78(ix).

109 See, e.g. Stone v Taffe [1974] 1 W.L.R. 1575, Bunker v Charles Brand
[1969] 2 Q.B. 480 and English Heritage v Taylor [2016] EWCA Civ 448
where damages were reduced by 50%. In Taylor, the court justified its
apportionment on the basis the defendant’s fault had been of long standing,
while the claimant’s fault in taking a steep informal path had been
momentary.

110 Occupiers’ Liability Act 1957 s.2(5) and Occupiers’ Liability Act 1984
s.1(6).

111 [1999] 1 W.L.R. 670.

 9

Strict Liability Statutes

9–001 This chapter will examine two forms of strict liability imposed
by statute: for defective products under the Consumer Protection
Act 1987 and for damage caused by animals under the Animals
Act 1971. In both cases, these forms of liability are in addition
to the existing common law. The first part of this chapter will
deal with the important provisions relating to defective products.
This will be followed by a brief discussion of the Animals Act
1971.

Consumer Protection Act 1987

Introduction
9–002 In this section, we will examine liability for defective products
in the law of torts, that is, products which are faulty and cause
damage to individual victims. At common law, this is simply
part of the tort of negligence, with which we should now be
familiar. It should not be forgotten that Donoghue v Stevenson1
involved an allegation that Mrs Donoghue’s ginger beer bottle
 contained a snail, or, in other words, that Mrs Donoghue had
been the victim of a defective product. The case is therefore not
only the classic example of the duty of care in negligence, but
also the classic example of liability for a defective product.
However, the common law has now been supplemented by the
enactment of the Consumer Protection Act 1987 Pt 1, which was
introduced to comply with EC Directive 85/3742 on liability for
defective products. The
aim of Pt 1 of the Act is to assist consumers in their claims
against manufacturers of defective products by rendering the
manufacturer (and associated parties) strictly liable, that is,
liable without the need to prove fault. Despite Brexit, the UK
government has indicated its firm intention to retain Pt 1 of the
Act subject to minor amendments.3
We shall proceed by considering, first of all, the position at
common law. This is of interest in highlighting why reform of
this area of law was necessary and, more significantly, in
understanding the position in law when the provisions of the
1987 Act do not apply. It is important to remember that the 1987
Act supplements the common law—it does not replace it.
Secondly, we shall examine the provisions of the 1987 Act and
the extent to which it imposes strict liability on manufacturers of
products and on associated parties.

The Common Law Position

9–003 Prior to Donoghue v Stevenson, tort law provided little

assistance to persons injured by a defective product. Most
claimants were forced to rely on contract law, provided, of
course, that they could establish the necessary contractual
relationship. There are a number of benefits in bringing a
contractual claim. First, the claimant is not required to show the
fault of the seller, but simply that the seller is in breach of a term
of the contract. The seller is therefore strictly liable for his or her
breach. Secondly, contract law has no problem in awarding
compensation for personal injury and property damage caused
by the supply of a defective product4 and will also award
compensation for the cost of replacing the defective product
itself. The buyer’s position is further improved by the existence
of implied terms. For example, under the Consumer Rights Act
2015, it is implied that, where the trader contracts to supply
goods to a consumer, the goods must be of satisfactory quality5
and be fit for their purpose.6 On this basis, the consumer can sue
for breach of contract if the goods fail to satisfy these terms.
There are, however, a number of disadvantages in bringing a
claim in contract law. First, there must be a term (express or
implied) in the contract which provides that the product should
not be defective. Secondly, subject to the provisions of the
Contract (Rights of Third Parties) Act 1999,7 the rules of privity
of contract only allow the parties to the contract to take
the benefit of such terms.8 Thirdly, the seller may exclude or
limit liability for breach, although this will be subject to the
provisions of the Consumer Rights Act 2015 and (for non-
consumers) the Unfair Contract Terms Act 1977. Fourthly,
although the chain of contracts between the manufacturer and
the buyer will ultimately pass liability back up the chain to the
manufacturer, this chain is easily broken, for example, by
exclusion clauses or the insolvency of one of the parties.
Liability may therefore fall arbitrarily on one party in the chain,
regardless of the fact that the fault is solely that of the
manufacturer.
As stated earlier, prior to 1932, tort law had a very limited
application to defective products. A manufacturer would only be
liable in tort if the product was classified as “dangerous” (for
example, dynamite) or was actually known to the manufacturer
to be dangerous, in which case he or she would then be obliged
to warn the product’s recipient of the danger. The distinction
between “dangerous” and “non-dangerous” products was not
particularly helpful and indeed made little sense. As Scrutton LJ
famously commented:

“Personally, I do not understand the

difference between a thing dangerous in
itself, as poison, and a thing not dangerous
as a class, but by negligent construction
dangerous as a particular thing. The latter,
if anything, seems the more dangerous of
the two; it is a wolf in sheep’s clothing
instead of an obvious wolf.”9

The courts’ reluctance to adopt a general principle of negligence

liability and their adherence to the “privity of contract fallacy”
(by which the contract between the manufacturer and the retailer
was deemed to obstruct any other form of liability in favour of
third parties)10 prevented the emergence of a general defective
product action in tort.
In Donoghue v Stevenson,11 the majority of the House of
Lords overturned the questionable distinction between
dangerous and non-dangerous chattels and discarded the “privity
of contract fallacy”. The court saw no reason why the same set
of facts should not give one person a right in contract and
another a concurrent right to sue in tort.12 It will be recalled that
the case concerned the decomposed remains of snail, alleged to
have been found in an opaque bottle of ginger beer that had been
bought by Mrs Donoghue’s friend. The existing rules of tort law
seemed to preclude Mrs Donoghue’s claim. A ginger beer bottle
is not dangerous in itself and it was not known to contain a
noxious substance. Mrs Donoghue had no contractual
relationship
with any of the parties and so could not rely on any implied
terms as to quality. Nevertheless, the majority of the House of
 Lords held that where a manufacturer sells goods in such a
manner that he intends them to reach the ultimate consumer in
the form in which they have left him, with no reasonable
possibility of intermediate examination, then the manufacturer
will be liable for the absence of reasonable care in
manufacturing the products.13
Three points may be noted about the decision in Donoghue v
Stevenson. First, no distinction is drawn between different types
of products. Logically, however, in assessing breach of duty (i.e.
whether the manufacturer has exercised reasonable care), greater
care would be required in the manufacture of explosives than in
the manufacture of ginger beer. Indeed, the standard of care
required for particularly dangerous products may be so high as
practically to amount to a guarantee of safety.14 Secondly, it
should be noted that the manufacturer must intend the goods to
reach the consumer intact. A reasonable possibility of
intermediate examination would appear to exclude liability.
Thirdly, the case deals with the manufacture of products and not
with design. Design defects in products are of particular
concern. Whereas a problem with manufacture may be limited to
a particular batch, a design defect will affect many more
products, thereby increasing the possibility of harm. We shall
have to consider how Donoghue v Stevenson15 applies to defects
in design and what protection it gives to potential claimants.

The scope of Donoghue v Stevenson

9–004 The burden will be on the claimant to satisfy the ordinary rules
of negligence, i.e. to establish a duty of care, breach, causation
and remoteness. Their application to defective product claims
will be discussed below.

◗ The duty of care

9–005 This is the ordinary common law duty of care, discussed in
Ch.2. It is not confined to the relationship between
 manufacturers and ultimate consumers. Makers of component
parts, repairers, fitters, erectors, assemblers and even distributors
may find themselves liable to the consumer for their failure to
exercise reasonable care in dealing with a product. Equally, the
range of claimants has extended beyond the ultimate consumer
to parties coming into contact with the product. In Stennett v
Hancock and Peters,16 for example, a decision which followed
shortly after Donoghue, the plaintiff suffered injury when part of
a wheel from a passing lorry flew off and struck her on the leg.
The lorry had recently been repaired by the second defendants,
who were found to have re-attached the wheel negligently. The
court rejected the claim against the owners of the lorry, but the
claim against the second defendants succeeded. Donoghue v
Stevenson was held to extend to repairers where a bystander had
suffered injury on the road as a result of their negligence.
Moreover, it is clear that the duty may extend beyond the
product itself to include its container, packaging, and directions
or instructions for use.17

◗ Breach
9–006 Whether the defendant has exercised reasonable care will
obviously depend on the particular facts of each case, to which
the general principles relating to breach stated in Ch.5 will be
applied. Obviously, once the manufacturer knows of the defect,
he or she will be negligent if production and marketing of the
unsafe product continues.18 It has been held that even when
using component parts, a manufacturer should exercise care in
purchasing suitable parts and should not simply assume that the
component part is sound.19 It is a more difficult question
whether the manufacturer’s duty extends to taking steps to recall
products found to be defective after the products have gone into
circulation. The best view, perhaps, is that the manufacturer may
find himself or herself liable for failing to recall products
already in circulation, particularly if the products have just
entered the market, and should recall the product line in question
as soon as practicable. As Sir Michael Ogden QC commented in
E. Hobbs v Baxenden Chemical Co20:

“. . .a manufacturer’s duty of care does not

end when the goods are sold. A
manufacturer, who realises that omitting to
warn past customers about something
might result in injury to them, must take
reasonable steps to attempt to warn them,
however lacking in negligence he may have
been at the time the goods were sold.”

Where, however, the customer becomes aware of the defect and

voluntarily chooses to use the product regardless, the Court of
Appeal in Howmet Ltd v Economy Devices Ltd21 held that the
customer will use the product at his or her own risk—the
manufacturer’s liability to the end user would be limited in
circumstances where the manufacturer has no control over who
would use it or how. The true cause of the accident in Howmet
was deemed to be not the defective product, but the failure of the
factory-owner to put in place a reasonable system to deal with
the malfunctioning product.
Breach will generally not cause the claimant particular
problems.22 Although there is some authority that the res ipsa
loquitur rule (see Ch.5) does not apply to defective products,23
the courts have shown themselves willing to infer the absence of
reasonable care from the fact a defect exists. For example, in
Grant v Australian Knitting Mills Ltd,24 Dr Grant claimed that
he had suffered a skin disease from wearing underpants
manufactured by the defendants, because they contained an
excess of sulphites. The fact that the manufacturers had
specifically adopted precautions against excess sulphite did not
assist them. Lord Wright inferred that, in such circumstances,
 the chemicals could only be present in the garment if someone
had been at fault. The plaintiff was not required to identify the
exact person responsible for the breach, or to specify what he or
she did wrong. The burden was therefore on the manufacturer to
rebut the inference of negligence with sufficient evidence. This
sort of approach lightens the claimant’s burden considerably. It
would, for example, have been very difficult for Mrs Donoghue
to specify exactly what was so wrong with the manufacturing
process that a snail could have entered a ginger beer bottle.
Equally, in Mason v Williams & Williams Ltd,25 the court was
prepared to infer negligence where a plaintiff had been injured
using a chisel which was too hard for its purpose. The chisel had
come straight from the manufacturers and the court was
prepared to find that the undue hardness must have been
produced by carelessness in the course of manufacture, rather
than by anything that had happened at the plaintiff’s place of
work. Finnemore J stated that showing that the chisel was
defective was “as far as any plaintiff can be expected to take his
case”.26 It should be noted, however, that his Lordship was
careful to distinguish this approach from the doctrine of res ipsa
loquitur. It should also be noted that the approach has only been
applied in relation to manufacturing defects and appears to have
little application to design defects.

◗ Causation and remoteness

9–007 The ordinary rules of negligence apply and reference should be
made to the principles outlined in Ch.6. The ordinary “but for”
test will apply. Note, however, that particularly in medical cases,
it may be difficult to differentiate between different possible
causes of the injury.

◗ The type of loss recoverable

9–008 In defective product cases, the type of loss recoverable is limited
by the same rules that apply in other negligence cases. A
claimant, therefore, may recover foreseeable personal injury and
property damage, but will not succeed in recovering pure
economic loss. In Murphy v Brentwood DC,27 the House of
Lords emphasised that the cost of replacing a defective product
will be clas-sified as pure economic loss and is therefore non-
recoverable. It was noted in Ch.3 that a claim for loss of profits
is unlikely to succeed unless that loss of profits is consequential
on property damage caused by the defective product supplied.28
Whilst the “complex structure theory” was discussed in Ch.3 in
relation to defective buildings,29 its relevance to defective
products generally must be considered here.30 Component parts
installed at the time of manufacture will be considered part of
the product supplied.31 In contrast, it appears that replacement
parts, such as a replacement wheel, will be regarded as a
separate product.32 The decision of the Court of Appeal in M/S
Aswan Engineering Establishment Co v Lupdine Ltd33 highlights
the difficulties of applying the complex structure idea to
products. The plaintiffs in this case had shipped a consignment
of a waterproofing compound (Lupguard) to Kuwait in plastic
pails. The pails, which had been selected by the sellers of the
compound, had collapsed in the high temperatures of Kuwait
with the result that the entire consignment had been lost. As the
seller of the compound was in liquidation, Aswan brought an
action against the manufacturers of the pails for the loss
suffered. The Court of Appeal dismissed the claim on the basis
that the loss was not reasonably foreseeable, but Lloyd LJ
expressed the provisional view that there was damage to “other
property”, namely the Lupguard, which would be recoverable
even though the compound had been purchased in the pails.34
Whilst finding such reasoning logical, Nicholls LJ expressed
reservations as to a rule which would impose liability on the
maker of a container—such as a bag, carton or bucket—for loss
of its contents.35 The authority of this case has, however, since
been questioned.36
 Particular problems relating to defective
products

◗ (1) What is a product?

9–009 In Donoghue v Stevenson, Lord Atkin restricted himself to
consideration of articles of common household use, where
everyone, including the manufacturer, would know that the
articles would be used by persons other than the actual ultimate
purchaser.37 The courts have subsequently been prepared to
interpret “product” quite broadly to include tombstones,38 hair
dye,39 industrial chemicals,40 lifts41 and motor cars.42

◗ (2) Has there been intermediate examination or

interference?
9–010 This is, in a sense, a question of causation. To find the defendant
liable, the court must be sat-isfied that he or she caused the
defect, and that it was not due to the fault of another party in the
supply chain (or even the claimant). In Grant v Australian
Knitting Mills Ltd,43 it was argued that the mere possibility that
the goods might be tampered with after they had left the factory
should enable the manufacturer to escape liability. The
defendants claimed that because the garments had been wrapped
in paper packets to allow shopkeepers to sell each garment
separately, there was a possibility of interference with the goods,
and this meant the defendants should not be liable. The Privy
Council dismissed this argument. Interference was a question of
fact, and here it was beyond question that the garment had
reached Dr Grant subject to the same defect as when it left the
manufacturer.
Where, however, there is a reasonable possibility or
probability44 of interference, the court will take a different line.
In Evans v Triplex Safety Glass Co Ltd,45 Mr Evans had bought
a car which had been fitted with a “Triplex Toughened Safety
Glass” windscreen. One year later, the windscreen shattered
whilst Mr Evans was driving the vehicle, injuring himself, his
wife and his son. In an action against the manufacturers of the
safety glass, Porter J held that Mr Evans had not given sufficient
evidence to satisfy the court that the manufacturers were at fault.
His Lordship suspected that the real fault lay with the fitting of
the windscreen into its frame. In
addition, Mr Evans had owned the car for a year before the
accident and either he or his supplier might reasonably have
inspected the windscreen prior to the accident.
The question of inspection or examination may be a difficult
one, particularly where one party in the contractual chain, other
than the manufacturer, has had the opportunity to examine the
product but chooses not to do so. There is no general obligation
at law on such parties to subject all goods to exhaustive
examination. The manufacturer will therefore remain liable
where he or she has no reason to contemplate that the defect will
be discovered before the product reaches the consumer. There
may be circumstances, however, when the manufacturer may
reasonably expect a third party to examine the product and, if
such examination would have revealed the defect, assert that it is
the third party’s failure to examine the product adequately
(rather than defective manufacture) which has caused the injury.
In such circumstances, it will be the third party and not the
manufacturer who is liable to the claimant.
This question did not arise in Donoghue. The ginger beer
bottle was opaque and had been sealed, so no-one could have
examined its contents prior to consumption. In Andrews v
Hopkinson,46 however, a second-hand car dealer, who did have
the opportunity to check cars for defects, was held liable for
failing to inspect his cars for obvious defects. In this case, which
involved a hire purchase agreement for a second-hand car, the
plaintiff brought an action against the dealer for injuries
resulting from an accident due to the defective steering
mechanism of the car. The car was around 18 years old and had
been in the dealer’s possession for a week. The court heard
evidence that the steering mechanism was a particular danger in
 an old car, which could have been discovered on inspection. In
such circumstances, McNair J was in no doubt that the defendant
was liable for failing to examine the vehicle, or at least for
failing to warn the claimant that no examination had been
carried out. Similarly, in Vacwell Engineering Co v BDH
Chemicals,47 a party supplying chemicals was expected to
inform himself about the potential hazards and warn the
recipient accordingly.
The real question is whether the defendant can reasonably
expect a third party or the consumer to undertake an inspection
in the circumstances. For example, in Griffiths v Arch
Engineering Co Ltd,48 a sub-contractor, who had hired a
portable grinding tool which was in a dangerous condition, was
not liable to an injured workman for failing to examine the tool.
It was clear that the tool had been hired for immediate use, and
because the plant hire company had no reason to suppose that an
examination would be carried out, they would be liable. The
defendant can secure his or her position by attaching a warning
to the product that it must be examined prior to use. This places
a duty on the third party to examine the product and, of course,
renders intermediate examination reasonably probable. By this
means, the seller of a dangerously defective car in Hurley v
Dyke,49 who had warned that the car was sold “as seen
and with all its faults”, avoided liability to a claimant, who had
been injured in a subsequent accident caused by the car’s
defective condition.

◗ (3) The manufacture/design distinction

9–011 The cases discussed so far have been concerned with
manufacturing defects where, due to a problem at the
manufacturing stage, the product contains a particular defect
which has injured the claimant. This is distinct from a design
defect, which arises from the very nature of the product itself.
The latter is obviously more potentially damaging. Whilst a bad
batch of goods will affect a number of consumers, a design
defect will affect every consumer of the product and may be
impossible to discover on inspection or examination. In
considering liability for defective goods, therefore, design
defects must be given particular attention.
The case law, however, is primarily concerned with
manufacturing defects. There are a number of reasons for this.
First, Donoghue, the main precedent in this area of law, concerns
a manufacturing defect. Secondly, and more fundamentally, it is
more difficult to show breach of duty and causation for design
defects. This presents particular problems for litigants. As
shown above, the courts are prepared to infer breach in respect
of manufacturing defects and this places the burden on the
defendant to rebut this inference by giving evidence that the
defect has been caused by the fault of another party, or that its
manufacturing system operates in a reasonable manner. The
burden on the defendant has been held to be close to strict
liability. In contrast, the same reasoning does not apply to design
defects. If a person develops cancer after taking drug X, the
claimant must establish not only fault by the manufacturer in
designing drug X, but that his cancer has been caused by drug X
and not other factors, for example, the claimant’s genetic
makeup, or environmental pollution. This is a far from easy task
and is rendered more difficult if the person is taking other drugs
or undertaking other medical treatment. The claimant will only
be able to obtain disclosure of the relevant design documentation
after he or she has commenced the claim and incurred
considerable costs. Without an admission of fault by the
manufacturer, or inside information, it will be difficult to bring a
claim in the first place. In contrast where a person bites into a
bar of chocolate and finds a lump of metal in it, the court will
infer that the metal can only be present due to the fault of
someone in the manufacturing process and, in the absence of
evidence of interference, or a duty to inspect, will turn to the
manufacturer to meet this claim.
The problems arising from design defects were only too
apparent in the thalidomide scandal of the 1960s and 1970s.50
Thalidomide was a drug used by mothers to counter morning
sickness, but which was subsequently found to have appalling
 side-effects, in that between 1959 and 1962 an estimated 10,000
children were born with physical deformities. This was a classic
example of a design defect. Yet, when the parents brought
claims in negligence, they experienced difficulty in showing that
the manufacturers had failed to
take reasonable care in producing the drug. The manufacturer’s
conduct is, as discussed in Ch.5, judged by reference to what
was reasonable at the time the product was put into circulation.51
The manufacturer will not be judged with hindsight if the
dreadful consequences were not foreseeable by the reasonable
manufacturer at the time the product was put in circulation.52

The need for change?

9–012 Whilst the common law had reached a fairly satisfactory

position in relation to manufacturing defects—with the courts
willing to infer negligence and adopt a flexible approach
towards liability–the thalidomide tragedy focused attention on
the problems litigants might experience in relation to design
defects. This led to demands for a change in the law. At this time
(the 1970s), the concept of strict liability as a means of ensuring
loss distribution and compensation was particularly fashionable
(see the Report of the Pearson Commission in 1978, discussed in
Ch.1). It was suggested that manufacturers should be strictly
liable for defects in their products for the following reasons:
▮ the manufacturer created the product and therefore the
hazard. Since this risk was created in the pursuit of
profit, it was reasonable to expect the manufacturer to
accept liability for the hazards caused;
▮ the manufacturer was best placed to insure against the
risk, and the price of insurance could be distributed via
the price of the product; and
▮ liability would give the manufacturer a greater incentive
to take safety precautions.
Such arguments are not without problems. For example, where
individuals have contents insurance for their personal property,
forcing manufacturers to take out insurance against product
liability would lead to double cover, which is economically
inefficient. The Law Commission in its 1977 Report, Liability
for Defective Products,53 suggested that this could be dealt with
by limiting strict liability to claims for personal injury and death,
but this has not been implemented. A manufacturer is also likely
to disagree fundamentally with the first argument which
arguably penalises the manufacturer’s initiative in placing a
product on the market which may have enormous social benefits
and responds to consumer choice.
Nevertheless, growing pressure for reform, combined with
European initiatives to harmonise the rules on defective products
in Member States, resulted in a change in the law: the EC
Directive 85/374 of 25 July 1985 (the Product Liability
Directive).54 This required Member States to bring into force,
within three years, changes in their national laws to comply with
the Directive.55 The UK, on 1 March 1988, brought into force
the Consumer Protection Act 1987 Pt 1. Section1(1) stated that:

“This Part shall have effect for the purpose

of making such provision as is necessary in
order to comply with the product liability
Directive and shall be construed
accordingly.”

This meant that, if the wording of the Act appeared to conflict

with the Directive, this con-flict should be resolved in favour of
the Directive and any dispute would be settled by the Court of
Justice of the European Union (CJEU). Post-Brexit, an amended
s.1(1) will read in the past tense: “This Part was enacted . . .”.56
It should be remembered, however, that leaving the EU does not
 mean that future case-law of the CJEU will not be considered as
persuasive authority, simply that it will not be binding on the
UK courts. It remains to be seen how far UK courts will
continue to consider EU case-law when applying this Part of the
Act.

Consumer Protection Act 1987

9–013 The Product Liability Directive, in its preamble, states:

“. . . liability without fault on the part of the

producer is the sole means of adequately
solving the problem, peculiar to our age of
increasing technicality, of a fair
apportionment of the risks inherent in
modern technological production.”

Consumer Protection Act 1987 Pt 1 (the Act) therefore seeks to

make the manufacturer of a product (and others dealing with it)
liable without proof of fault for personal injury and property
damage caused wholly or partly by a defect in a product. The
provisions of the Act and the way in which they operate are set
out below. It should be noted, however, that by granting the
manufacturer certain defences and failing to give a precise
definition of “defect”, the Act has led many to question how
“strict” the liability imposed by the Act actually is.57

Who can sue?

9–014 This obvious question is not dealt with expressly by the Act.
However, reading ss.2(1) and 5(1), it clearly allows litigants to
sue if they suffer damage as a result of a defective product.

Who is liable?

9–015 Reference should be made here to s.1(2) and s.2 generally. The
Act includes not only manufacturers (or “producers”) but
extends to own-branders and, until Brexit, parties importing
goods into the EU. Suppliers are not generally liable, except
under the special provisions of s.2(3). However, the Act does
not, of course, prevent a supplier from being sued for breach of
contract.

◗ (1) Producer—ss.1(2) and 2(2)(a)

9–016 Section 1(2) gives three different meanings for a “producer”.
The first and simplest is that of a manufacturer of a product.58 It
should be noted that a manufacturer of a component part of the
product is equally classified as a producer, so that if the product
fails due to a malfunction of a component part, both the
manufacturer of the final product and the manufacturer of the
component part will be liable.59
The second and third meanings relate to goods which have
not been manufactured. If the defendant has “won or abstracted”
the product60 (for example, mined coal), or has carried out an
industrial or other process on the goods to which the essential
characteristics of the goods are attributable61 (as in the case of
canned peas or frozen fish, for example), he or she will be
classified as a producer. This last category is not particularly
clear and leaves a number of important questions (such as what
are the “essential characteristics” of the goods) to the discretion
of the court. Those involved in packaging will not be affected
unless the packaging alters the essential characteristics of the
product.
 ◗ (2) Own-brander—s.2(2)(b)
9–017 Section 2(2)(b) states that liability may attach to:

“any person, who, by putting his name on

the product or using a trade mark or other
distinguishing mark in relation to the
product, has held himself out to be the
producer of the product.”

The important question here is whether the person has held

himself out as the producer. This will not be so in the case of a
product in a supermarket marked, for example, “made for
Sainsburys”. It is a more difficult question if the product is
marketed as “Sainsburys baked beans”—is Sainsburys claiming
to be the producer of the product or simply selling it at a
negotiated reduced price under its own label? The general view
is that unless a supermarket can be said to be holding itself out
as having produced the product, it will not satisfy this
category.62 This will obviously make it more difficult for the
consumer to identify who the actual manufacturer of the goods
really is, but s.2(3) below may assist.

◗ (3) Importer into EU (pre-Brexit); importer into

the UK (post-Brexit)—s.2(2)(c)
9–018 This provision seeks to save claimants the time and expense of
pursuing defendants outside the EU. Pre-Brexit, the subsection
provides that:

“any person who has imported the product

into a member State from a place outside
 the member States in order, in the course of
any business of his, to supply it to another”

will be liable. This provision is confined to imports into the EU.

It does not affect those who import from one EU country to
another, where liability will remain with the first importer.
Post-Brexit, it will be amended to cover “any person who
has imported the product into the United Kingdom in order, in
the course of any business of his, to supply it to another”.63
The product must be imported for supply “in the course of
any business of his” and so if person X imports a car from Japan
privately for his own use, he will not be liable under the Act to
any person who is injured when it explodes due to a defect in its
manufacture.

◗ (4) Supplier—s.2(3)
9–019 The supplier is not generally liable under the Act. However,
s.2(3) deals with the situation where the consumer has bought
defective goods which do not indicate the identity of the
producer.
Where damage has been caused wholly or partly by a defect in a
product, the supplier will be liable if:
▮ the claimant has requested the supplier to identify the
producer/own-brander or importer of the product;
▮ the request is made within a reasonable period after the
damage has occurred and at a time when it is not
reasonably practicable for the person making the
request to identify those persons; and
▮ the supplier fails within a reasonable period after
receiving the request either to comply with the request
or to identify the person who supplied the product to
him.
 The consumer can therefore trace the producer through the chain
of supply. The supplier will be able to pass on liability, provided,
of course, he or she has maintained proper records of his or her
dealings. It should be noted that the mere supply of the end
product does not mean that the supplier is deemed to have
supplied all the component parts.64 This means that the supplier
will not be liable for failing to identify the producers of all the
component parts.
Liability under the Act therefore extends beyond the
manufacturer, but it should be noted that it is nevertheless not as
wide as the common law, which extends to repairers, fitters,
erectors and assemblers.

What is a product?

9–020 This is defined by s.1(2) to include any goods65 or electricity

and includes a product which is comprised in another product,
whether by virtue of being a component part or raw material or
otherwise. From 4 December 2000, “product” includes all
primary agricultural products (that is, food sold in its raw state
such as meat or vegetables) and game. Although these products
were previously excluded from the Act,66 it became desirable in
the wake of the BSE crisis to include these products and “help
restore consumer confidence in the safety of agricultural
products”.67 Accordingly, following Directive 1999/34, the Act
was modified.68
Buildings are not covered by the Act, although individual
goods from which they are built (for example, bricks and beams)
are. The Act is additionally not intended to extend to pure
information, except in the case of printed instructions or
warnings for a product, which will render the producer (not the
printer) liable for errors or omissions in the instructions or
warnings which make the product unsafe. The Government
guidance on the Act69 indicates that in relation to computer
software supplied as an intrinsic part of a product, liability will
 rest on the producer of the product and not on the consultant
who designed the package.

What is a defect?

9–021 This is the key concept in the Act.70 The defendant is liable for
damage caused wholly or in part by a “defect” in a product.
Section 3 defines a defect as existing when “the safety71 of the
product is not such as persons generally are entitled to expect”.
A product may be unsafe because it is positively dangerous (e.g.
a badly wired electric fire likely to explode when it reaches a
certain temperature) or is less effective than expected (e.g. a
pacemaker which does not detect all heart problems). The
standard is set at what “persons generally are entitled to expect”.
This ambiguous phrase has led to some difficulty. It would
appear to include the expectations not only of consumers, but
also of the manufacturing community. Manufacturers, however,
are likely to have lower expectations than those of consumers,
who may view themselves as entitled to a product perfect in
every way, despite its low market price. The manufacturers’
view will inevitably reflect a cost/benefit analysis, whereby the
product is only “defective” if the costs in terms of harm to
consumers outweigh the utility of the product. It is not clear
from the section which form of reasoning a court should utilise
in deciding whether a product is “defective” under the Act.
Subsequent case law has, by reference to the wording of the
Directive and its preamble, specified that the standard is “the
safety which the public at large is entitled to expect”.72
This leads to a related question: what safety is the public at
large entitled to expect? For example, a knife, due to its very
nature, has an obvious risk of danger, but it nevertheless
provides a useful tool. Equally, a drug may have side-effects, but
may provide the sole means of curing a serious illness. It would
clearly be unrealistic if the public could legitimately expect to
be protected from any harm at all. Certain practical limits are
therefore necessary in applying the “public expectation” test.
 This application of this test will ultimately be determined by
the court. Section 3(2), does, however, provide that in assessing
whether a defect exists, the court should take all the
circumstances into account, including:
”(a) (i) the manner in which and purposes for which the
product has been marketed;
(ii) the get-up (or packaging) of the product;
(iii) the use of any mark (for example the ‘kite
mark’) in relation to the product;
(iv) any instructions for, or warnings with respect to
doing or refraining from doing anything with or
in relation to the product;
(b) what might reasonably be expected to be done with or
in relation to the product; and
(c) the time when the product was supplied by its producer
to another. It is irrelevant that products supplied after
that time are generally safer than the product supplied
to the claimant.”

Nevertheless, for many years, due to the absence of reported

cases, it was difficult to identify how this test would be applied
in practice. This position has improved since 1999 and a number
of reported cases now give valuable assistance in assessing the
meaning of “defect” under the Act. Initially, the courts had
adopted an approach similar to that used in negligence
(discussed in Ch.5). In Richardson v LRC Products,73 for
example, Mrs Richardson brought an unsuccessful action under
the Act when she became pregnant when a condom used by her
husband failed. In the absence of any convincing explanation for
its failure, the judge examined the care taken by the
manufacturer in producing the goods and noted that its standards
exceeded the relevant British Standard. It is difficult to reconcile
such concerns with a regime of strict liability. A better approach
would be to recognise that the public do not expect condoms to
be 100% effective and that, on this basis, the product could not
be said to be defective.
The Court of Appeal in Abouzaid v Mothercare (UK) Ltd,74
in its first full judgment on the Act, was critical of such fault-
based reasoning. In this case, a child of 12 had been injured
when attempting to fasten a sleeping bag manufactured by the
defendants to the back of a pushchair. The buckle on the elastic
fastenings had sprung back, hitting him in the eye. As a
result, the child suffered a significant loss of vision in his left
eye. The Court of Appeal adopted a strict interpretation of
“defect”. In examining the safety which the public at large is
entitled to expect, Pill LJ found that, although this was a
borderline case, the severe consequences of injury indicated that
the product was defective.75 It was irrelevant whether this defect
should have reasonably come to the manufacturer’s attention.
The fact that the court found that the defendants would not have
been liable in negligence highlighted the distinction between
fault-based liability and liability under the Act.
This distinction is further reinforced by the judgment of
Burton J in the leading case of A v National Blood Authority.76
This was a class action brought by over 100 claimants who had
been infected with the virus Hepatitis C through blood
transfusions which had used blood or blood products obtained
from infected donors. It was alleged that, although the risk of the
virus had been known since at least the 1970s, it was, at the time
of infection, impossible to detect. Screening for the virus was
available only from September 1991. On that basis, the
defendants argued that the most that the public could have
legitimately expected up to that date was that all reasonable
precautions would be carried out, not that the blood would be
100% clean. In the view of the judge, this was a blatant attempt
to re-introduce fault-based ideas which were contrary to the
purpose of the Directive. Section 3 would be confined to
relevant circumstances,77 and the steps taken by the
manufacturer to avoid the risk would not be relevant in a strict
liability regime. On this basis, “avoidability” of the harmful
 characteristic would be ignored,78 as would the impracticality,
cost or difficulty of taking precautionary measures. Burton J
equally refused to take account of the fact that the defendants
were obliged to supply blood to hospitals and patients as a
service to society. There was no necessary reason why a public
body should receive preferential treatment where a product was
unsafe.79 The public at large were entitled to expect that the
blood transfusion would be free from infection. There was no
publicity or information to make them consider otherwise.80

9–022 It is no longer clear, however, that the courts will continue to

follow the strict A approach to the defect test, at least in relation
to design defects. The Court of Appeal in Tesco Stores Ltd v
Pollard81 was prepared to accept that dishwasher powder with a
child resistant closure cap (CRC), which was less safe than that
specified in the British Standard certificate, was not
defective.82 In the view of Laws LJ, the public were only
entitled to expect that the bottle would be more difficult to open
than if it had an ordinary screw-top.83 The Court of Appeal
expressly rejected the argument that the Act effectively provides
a warranty of the safety of products by the producer.84 In Wilkes
v DePuy International Ltd,85 Hickinbottom J supported a move
away from the A approach, finding that safety should be
regarded as a relative concept. No medicinal product, he argued,
can be absolutely safe. While the test was still what persons
generally were entitled to expect, the question should not be
over-analysed. On this basis:

. . . however consumer expectations are

defined and gauged, there cannot be a
sensible expectation that any medicine or
medicinal product is entirely risk-free. As I
have described, the potential benefits
(including potential utility) of such a
 product have to be balanced against its
risks. . . Therefore, in considering whether
a product suffered from a defect, the court
must assess the appropriate level of safety,
exercising its judgment, and taking into
account the information and the
circumstances before it, whether or not an
actual or notional patient or patients, or
indeed other members of the public, would
in fact have considered each of those factors
and all of that information. 86

The case concerned a metal artificial hip which had fractured

three years after surgery and caused damage to the patient’s hip
joint. The patient sued the manufacturer, alleging a design
defect. Given the very low failure rate of the product, the
difficulty of avoiding fractures and the fact that it had complied
with all mandatory standards and regulatory requirements, no
such defect could be found.
This is a markedly different approach to A—notably in
accepting the validity of a risk/benefit analysis and comparing
the manufacturer’s conduct with that of regulatory requirements
rather than demanding a higher standard.87 Further the judge
stated that the question of avoidability, that is, whether and how
easily a risk might be avoided, may, in appropriate cases be
relevant (contrast with A above).88 It does reflect, however, the
approach seen in Pollard.89 There is at present a conflict of
approach between that stated in Wilkes and A and it remains to
be seen which will be followed (both are HIgh Court
decisions).90 It does seem clear that while the A approach is
harsh to manufacturers, it is also more straightfoward and
predictable for consumers. In aiming for flexibility, the Wilkes
approach is likely to be more fact-specific involving broader
 consideration of factors; many of which will be unknown to
consumers. If the Wilkes approach is followed, it is also likely to
take English law further away from the strict approach of the
European Court.91

9–023 It is uncontroversial, however, that the factors expressly

mentioned in s.3(2) will be of assistance. For example, the use
of warnings may provide a means to avoid liability. In Worsley v
Tambrands Ltd,92 the fact that the risk of toxic shock syndrome
had been mentioned on the packaging of the product, and in
detail in a leaflet which accompanied the product which the
purchaser was advised to read and keep, led to a finding of no
liability. It will be a question for the court whether the warning
is sufficient. In Worsley, for example, the claimant suffered a
near-fatal illness, but the risk of such an event was very small.
The courts are likely to be particularly demanding in relation to
products aimed at children or other vulnerable parties.
Further, s.3(2)(c) ensures that defendants are not discouraged
from making improvements in product safety. This subsection
prevents the claimant from arguing that the very act of
improving the product amounts to an admission that it was
defective in the past. The product is judged at the time that it is
supplied by the producer, not when it is received by the
claimant. On this basis, the producer will not be liable for
ordinary wear and tear to goods which may have lingered on the
shelves for months or even years. It will not protect the
producer, however, where safety expectations and the product
design have not changed in the intervening years.93

What damage?

9–024 Section 5(1) provides that death and personal injury94 are
covered by the Act. The Act is more restrictive, however, in
relation to property damage,95 and does not include pure
economic loss. This is consistent with the common law position,
which excludes liability for pure economic loss resulting from a
 defective product (set out in Ch.3). Section 5(2) excludes loss or
damage to the product itself and loss or damage to the whole or
any part of the final product which has been supplied with the
product as a component. On this basis, if the windscreen of a
vehicle shatters due to a defect and causes the vehicle to crash,
the claimant cannot sue for the cost of the windscreen or the
vehicle itself. If, however, the driver had purchased a
replacement tyre for the vehicle, which burst due to a defect and
caused the car to crash, the driver would be able to recover for
damage to the car. The tyre was not supplied with the vehicle
when purchased, and so recovery is not excluded by s.5(2).
Property claims are further excluded if the loss or damage
suffered, excluding interest, does not exceed £275 (s.5(4)). By
this means, the courts avoid having to consider very small
claims. Claims are also excluded if the property at the time it is
lost or damaged is not of a description ordinarily intended for
private use, occupation or consumption, and not intended to be
so used (s.5(3)).96 The Act therefore gives primary protection to
the consumer. Again, there will be definitional problems. For
example, if a lecturer buys a computer for use in his research,
but also for his family to use recreationally, can it be viewed as
property ordinarily intended for private use and intended to be
so used?
The UK Government chose not to implement an option in
the Directive to set a maximum level of damages for which a
defendant could be liable. Article 16(1) of the Directive states
that the producer’s total liability for damage resulting from death
or personal injury caused by the product and identical items with
the same defect may be limited to an amount not less than €70
million. This has only been implemented in a few countries such
as Germany, Spain and Portugal.

Defences

9–025 Section 4, or more specifically s.4(1)(e), of the Act has caused

the most controversy and has even led to a reference to the
 European Court of Justice challenging the UK’s
implementation of the Product Liability Directive. Section 4
gives the defendant six possible defences. It is important to
recognise that the mere existence of defences does not mean that
the Act does not impose strict liability on the defendant. The aim
of strict liability is simply to remove from the claimant the
burden of proving that the defendant has been at fault.
Let us examine the defences in turn.

◗ (a) The defect is attributable to compliance with a

requirement imposed by law
9–026 This is obviously necessary, because otherwise the defendant
would be torn between complying with two conflicting legal
provisions. However, compliance with a legal requirement will
only absolve a producer from liability if the defect was an
inevitable result of compliance.97

◗ (b) The defendants did not at any time supply the

product to another
9–027 This protects the defendants if they have not put the product in
circulation, for example, the product is stolen or a counterfeit
copy, and found to be defective. It should be noted, however,
that “supply” is defined quite generously under the Act.98

◗ (c) Supply by the defendants was not in course of

their business
9–028 Defendants can take advantage of this defence if the only supply
of the product was not in the course of their business and either:
▮ section 2(2) does not apply (i.e. they are only suppliers),
or
▮ they are within s.2(2) (i.e. they are producers, own-
branders or importers), but are not acting at the time
 with a view to profit.

This is somewhat confusing and is best illustrated by examples.

If I make a cake and sell it at the local craft fair, I am not acting
in the course of business, but I am a producer and acting
with a view to profit.99 I cannot therefore use the defence. If,
however, I wish to get rid of my old car and sell it to my
neighbour for £300, I am not acting in the course of business and
I am not a producer, own-brander or importer and so can rely on
the defence if the car proves to be defective. It is irrelevant
whether I have profited from the transaction or not.

◗ (d) The defect did not exist in the product at the

relevant time, i.e. when it was put into circulation100
9–029 This makes the simple point that if the defect is due to wear and
tear resulting from use of the product after the product has been
put into circulation, the defendant will not be liable. As a
defence, the burden will be on the defendant to establish this.
The defence was raised in Piper v JRI (Manufacturing) Ltd.101
Here, the claimant had undergone a total hip replacement
operation. Unfortunately, after an apparently successful
operation, the prosthesis implanted into his right hip sheared in
two. Piper alleged that the prosthesis was defective. However,
the manufacturer alleged that the defect had not existed when
the product had been supplied to the hospital. The Court of
Appeal found that, on the evidence, the manufacturer had
discharged the burden of proving the defence by showing that
any defect would have been picked up by their inspection
system.

◗ (e) The development risk defence

9–030 This defence is optional to Member States (see art.15(1)(b)),
although it has generally been implemented within the EU.102 Its
implementation in English law has, however, proved
controversial.103 Section 4(1)(e) provides a defence where:

“. . .the state of scientific and technical

knowledge at the relevant time was not such
that a producer of products of the same
description

as the product in question might be

expected to have discovered the defect if it
had existed in his products while they were
under his control.”

This may be contrasted with the wording of art.7(e) of the

Directive, which the Act seeks to transpose into English law:

“. . .the state of scientific and technical

knowledge at the time when [the producer]
put the product into circulation was not
such as to enable the existence of the defect
to be discovered.”

At first sight, there appears to be a substantive difference

between the two provisions. Whilst the Directive suggests that
the producer must establish, objectively, that the knowledge
available at the time of circulation would not have alerted the
defendant to the particular risk, s.4(1)(e) appears more generous.
Its wording suggests that the producer need only show that a
“reasonable producer”, i.e. another producer in the same market,
would not have known of the risks in question. Such a test is
 reminiscent of the Bolam test for breach of duty, discussed in
Ch.5, and is hardly indicative of strict liability on the producer.
Indeed, it seems to suggest simply that the defendant will not be
liable if he or she can demonstrate that he or she has exercised
the care of a “reasonable producer” in the market in assessing
the risks associated with the product.104
The possible conflict between these two provisions was
examined by the European Court of Justice in European
Commission v United Kingdom.105 The European Commission
had initiated infringement proceedings against the UK in April
1989, alleging that the Act did not properly transpose the
Directive into English law, as required by art.19 of the Directive.
It was argued that s.4(1)(e) was broader than the defence in
art.7(e). The European Court of Justice rejected this claim. It
held that art.7(e) imposed an objective test on the producer as to
the state of scientific and technical knowledge at the time the
product was put in circulation, which would include the most
advanced level of knowledge in the relevant field. The producer
would be presumed to possess such knowledge, and it was not a
question of the producer’s subjective state of knowledge or the
particular practices and safety standards of the producer’s
industrial sector. However, the court was not prepared to go so
far as to presume that the producer would be acquainted with all
relevant scientific knowledge at the time the product was put
into circulation. It approved the view of Advocate General
Tesauro that the knowledge in question must be accessible. It
would thus be unfair to expect the producer to be familiar with
research carried out by an academic in Manchuria who
published in a local scientific journal in Chinese, which was not
circulated outside the boundaries of the region. If the relevant
scientific research
is accessible, however, it will not be a valid excuse to argue that
it represents an isolated opinion: the producer is expected to
keep note of, and consider, all relevant research.

9–031 In the view of the court, there was no clear indication that s.4(1)
(e) was inconsistent with a proper interpretation of the Directive.
Whilst the section could be interpreted in a broader sense, the
court held that its wording did not suggest that the availability of
the defence depended on the subjective knowledge of the
producer. There was, in any event, no English decision which
indicated that the English courts would interpret s.4(1)(e) in a
way which would conflict with their duty, stated in s.1(1) of the
Act, to construe the Act in accordance with the Directive. The
Advocate General suggested that, in this light, the Commission’s
application had been “overhasty, to say the least”.
One might consider that, due to the absence of case law,
English law had a fortunate escape, but the legacy of this case is
that, in future, s.4(1)(e) will be interpreted in a manner
consistent with the comments of the European Court of Justice
in this case. Indeed, in the leading case of A v National Blood
Authority,106 Burton J referred not to the sections of the Act, but
to the Directive itself, in considering this defence. It is clear
from this decision that the courts will, in future, adopt a strict
approach to this defence and reject any approach based on fault.
As stated above, A v National Blood Authority concerned a
class action by over 100 claimants who had been infected with
Hepatitis C through blood transfusions. At the time of infection,
the relevant defendants had been aware of the risk of the disease
but did not possess the requisite technology to identify infected
blood until a later date. They therefore sought to rely on the
“development risk” defence on the basis that the state of
scientific and technical knowledge was such that the existence of
the defect in the product itself was undetectable. Burton J
adopted a firm line. The defendants did know of the possible
existence of a defect in blood generally. Their absence of
knowledge related to the ability to devise a test to identify which
blood was infected. In such circumstances, it would be
inconsistent with the purpose of the Directive if the producer,
knowing of a risk, continued to supply the product without
liability simply because he or she could not identify in which of
his products the defect would occur:
 “If there is a known risk, i.e. the existence
of the defect is known or should have been
known in the light of . . . accessible
information, then the producer continues to
produce and supply at his own risk. It
would, in my judgment, be inconsistent
with the purpose of the directive if a
producer, in the case of a known risk,
continues to supply products simply
because, and despite the fact that, he is
unable to identify in which if any of his
products that defect will occur or recur.”107

This firm line was also adopted by the Court of Appeal in

Abouzaid v Mothercare (UK) Ltd.108 It had been argued that
since the defendants had been unaware of the potential problems
with the buckle fastening, and no record of any comparable
incident had been recorded by the Department of Trade and
Industry accident database, the state of scientific and technical
knowledge did not indicate a problem at the relevant time. The
Court of Appeal gave this argument short shrift. The defence
was present to deal with technical advances, not to deal with
problems which no-one had thought about. A simple practical
test would have identified how a buckle would spring back if
extended. Equally, Pill LJ doubted whether a DTI database fell
within the category of “scientific and technical knowledge”.109
The strict line taken in these cases would seem finally to
allay fears that s.4(1)(e) has reintroduced negligence into the Act
with a reversed burden of proof on the manufacturer.

◗ (f) The defect was a defect in a finished product

(X) in which the product in question had been
 comprised AND was wholly attributable to the design
of X or to compliance with the producer of X’s
instructions
9–032 This protects the defendant who has supplied a component part
of a product, and risks being found to be jointly and severally
liable, under s.2(5), when a defect is found in the finished
product. It is essentially a denial of causation: my product has no
causal link with the injury caused to the claimant. The defence is
somewhat complicated and best illustrated by an example. A
instructs B to supply tyres which are suitable for a family car,
which A decides would be ideal in constructing his new racing
car. A is wrong, and the tyres burst at 100 mph, causing A to
crash. B will be able to rely on this defence to deny liability. If,
however, B was aware of the purpose for which A was
purchasing the tyres (for which they were clearly deficient), it is
likely that B would be liable in negligence for failing to warn A
that they were not suitable for racing cars. Equally, if the tyres
burst not because they were used for the wrong purpose, but
because they were defectively manufactured, the defence would
not apply. The defect must be wholly attributable to A’s conduct
and the burden will be on the component producer to prove this
to the court.

Contributory negligence

9–033 Section 6(4) ensures that the principle of contributory

negligence is also available to the defendant.110 This may appear
somewhat odd. The defendant is liable without proof of fault,
but the claimant’s damages may be reduced if the claimant’s
fault has increased the damage
suffered by him or her. Law Reform (Contributory Negligence)
Act 1945 s.1(1) states that the defence applies “where any
person suffers damage as the result partly of his own fault and
partly of the fault of any other person”, but “fault” is interpreted
broadly by s.4 of that Act to include any “act or omission which
 gives rise to a liability in tort”. The defendant, if liable, is
therefore presumed to be at “fault”, and the claimant’s actual
fault is balanced against the responsibility of the defendant. This
again gives rise to concern as to the intrusion of fault into a strict
liability statute. It should also be noted that the claimant’s
contributory negligence, for example in using a product in an
unreasonable way, may indicate that the product is not defective,
in any event, under the criteria set under s.3(2) (see, in
particular, s.3(2)(b)).

Exclusion clauses

9–034 In view of the aim of the Act to protect claimants from injury
due to defective products, s.7 provides that such claims “shall
not be limited or excluded by any contract term, by any notice or
by any other provision”. This avoids the technicalities of the
Unfair Contract Terms Act 1977 and Consumer Rights Act 2015
Pt 2 and sends a clear message to defendants that exclusion
clauses are not an adequate response to potential liability.

Limitation periods: s.11A of the Limitation

Act 1980
9–035 The limitation period indicates the time period within which a
claimant must bring a claim. If a claim is brought after this
period, however good the claim, the courts will refuse to allow
the claim to proceed. By this means, the courts avoid dealing
with stale claims and claimants are encouraged to act promptly
when the evidence is fresh. Section 11A of the Limitation Act
1980 sets a specific limitation period for defective product
actions. In relation to claims for personal injury or property loss,
the claim must be brought within three years from the date on
which the cause of action accrued.111 The cause of action will
accrue either when the damage is caused or, if later, when the
damage is reasonably discoverable112 by the claimant.
 Section 11A(3) provides that an action under Pt 1 of the
1987 Act shall not be brought after the expiration of the period
of ten years from the time the product was put into
circulation.113 This long-stop provision will serve to protect
defendants from claims in respect of design defects which come
to light long after products have been in circulation.
A series of cases (the O’Byrne litigation) have highlighted
tensions between the application of the Limitation Act and the
application of the long-stop provision which derives from the
Directive. Declan O’Byrne had been vaccinated in 1992 and
subsequently suffered severe brain damage. It was alleged that
the vaccine was defective. An action had mistakenly been
brought against the defendant’s English subsidiary. Realising the
mistake, the claimant applied to substitute as defendant the
parent company and manufacturer of the vaccine (Limitation
Act 1980 s.35, granting a discretion to the court to substitute a
new party). However, the s.11A(3) ten year long-stop period had
expired by this stage. The English High Court, at the request of
both parties, made a preliminary reference to the European
Court of Justice (ECJ) asking how to deal with this. In O’Byrne
v SanofiPasteur MSD Ltd,114 the ECJ made two rulings. First, it
found that in determining the ten year period after the product
was put into circulation, time would start for the purposes of
s.11A(3) “when [the product] leaves the production process
operated by the producer and enters a marketing process in the
form in which it is offered to the public in order to be used or
consumed”.115 Secondly, and perhaps most importantly, the
question of the substitution of parties after the ten year long-stop
was left to the national court to decide, but with a proviso:

“it is as a rule for national law to determine

the conditions in accordance with which
one party may be substituted for another in
the context of such an action. A national
court . . . must, however, ensure that due
 regard is had to the personal scope of
Directive 85/374, as established by articles 1
and 3 thereof.”116

The matter was then referred back to the English court.

This less than straightforward statement resulted in a second
reference to the European Court of Justice in 2008.117 The ECJ
was asked, bluntly, did the Directive permit the substitution of
one defendant for another after the expiry of the ten year long-
stop period? The Grand Chamber in 2009118 held that where
national legislation allowed for substitution of parties, it should
not be applied in a way which permitted the producer to be sued
after the expiry of the limitation period even though the action
had been begun within time, albeit against the wrong defendant.
It did accept, however, that where the proceedings had been
issued within time against a wholly-owned subsidiary of the
producer, the Product Liability Directive did not prevent the
national court from substituting the producer for the subsidiary if
it found that the putting into circulation of the product had been
determined by the producer.
Applying this ruling, the Supreme Court in O’Byrne v
Aventis Pasteur MSD Ltd119 held in 2010 that a new party could
not be substituted in this case, despite the fact that the
manufacturer
wholly-owned its English subsidiary. The ECJ’s core ruling had
been that a national rule allowing substitution should not be
invoked against a producer after expiry of the ten year period.
The exception for wholly-owned subsidiaries was interpreted
narrowly to indicate a situation where, as a matter of fact, a
distribution subsidiary was so closely involved with the parent
producer that they could, in effect, also be regarded as a
producer. This was not the case here. O’Byrne, therefore, finally
lost his battle for compensation some 18 years after the
vaccination had taken place. Applying s.11A(3) is not, therefore,
always a straightforward exercise!
 Causation and remoteness
9–036 There are no specific rules in the Act and so the ordinary rules
described in Ch.6 of this book will apply. The Act gives the
claimant no further assistance in what, as stated earlier, may be a
difficult task, particularly in cases of illness and disease.120 This
was illustrated in X v Schering Health Care Ltd121 in relation to
the third generation oral contraceptive pill. In a trial lasting three
months and hearing the conflicting evidence of ten experts,
Mackay J concluded, in a judgment of 200 pages, that there was
insufficient evidential basis to establish that an increased risk of
cardio-vascular injury was caused by the product. On this basis,
there was therefore no need to examine the law under the Act.122

Assessment of the Impact of the

Act
Continuing practical problems

9–037 Whilst it took almost 12 years from the introduction of the Act
for a claimant to bring a successful claim,123 the two important
cases of Abouzaid and A have done much to allay fears that the
Act provided little addition to the common law.124 The ruling of
the European Court of Justice in European Commission v United
Kingdom125 has proved a significant milestone in affirming the
objectives of the Directive and its goal in providing consumer
protection. Nevertheless, as seen in the cases discussed above,
litigation will often prove an expensive and lengthy process,
particularly if complex medical evidence is involved. Further,
the claimant receives no assistance in proving causation, which
 may be an onerous task. The claimant’s position is moreover
weakened by the strict time limits on his or her action. It is
entirely probable that it would take more than 10 years for
certain injuries resulting from design defects to become
apparent, and yet the long-stop provision bars the litigant’s claim
absolutely. Miller and Goldberg further question whether the
Thalidomide victims would, in fact, have recovered if an action
had been possible under Pt 1 of the 1987 Act in view of the
development risk defence and suggest that the victims would
have had to identify accessible information that it was necessary
to test the drug on pregnant animals.126

Standard and non-standard products

9–038 In A, Burton J drew a distinction between two categories of

product—standard and non-standard. “Standard” products are
those which perform as the producer intends. Any defect will
thus show up in every product produced. A “non-standard”
product, in contrast, is a rogue product, which differs from the
normal product manufactured for use by the public, for example,
a chocolate bar containing a piece of metal. Where a product is
“non-standard”, Burton J noted that it will be easier to establish
that it is defective unless it can be shown that the public have
accepted its non-standard nature (for example, due to warnings,
its presentation or publicity). In the judge’s view, infected blood
fell into the “non-standard” category.127 It differed from the
norm intended for use by the public. Further, the public (unlike
the medical profession) had not been aware of the risk of
Hepatitis C and could not be said to have accepted its non-
standard nature. In contrast, a standard product will raise more
complex issues. The courts will be forced to consider, and take
expert evidence on, the relevant factors under s.3(2) and the
nature of comparable products in the market (and their price) to
ascertain the product’s safety for foreseeable use.
This distinction, however, has not really caught on and
reference is still made to manufacturing and design defects.
 Academics have questioned its merits and what it positively
contributes to our understanding of this area of law,128 although
it has been defended recently as “fundamental to the analysis of
the defectiveness issue in strict product liability regimes”.129 In
Wilkes v DePuy International Ltd,130 the Court described the
distinction as “unnecessary and undesirable”, having no basis in
the Directive nor the Act. In the judge’s view, it acts as a
distraction from the real exercise facing the court: consideration
of the appropriate level of safety taking into account all relevant
circumstances. It remains to be seen whether this strikes the
death knell of the distinction—as indicated above, A and Wilkes
are both first instance decision so neither overrules the other.

Use of settlements

9–039 It is likely to remain the case that most litigation under the 1987
Act will be settled out of court. There are still a limited number
of reported cases to be found and a 2018 survey identified that
most European product liability claims between 2000 and 2016
were actually settled out of Court.131 46% of cases were settled
in direct negotiation, 32% in Court, 15% through alternative
dispute settlement mechanisms, and 7% were resolved through
other means such as through the insurer of the responsible party.
It is difficult, however, to obtain reliable data, particularly as
settlements will frequently require the parties not to publicise the
terms of the agreement.
In contrast, in the US, the Consumer Product Safety Act s.37
(codified at 15 USC ss.2051−2089) obliges producers to
announce cases involving defective products and notify the
Consumer Product Safety Commission (CPSC).132 If the product
which has allegedly caused death or grievous bodily injury is the
subject of at least three civil cases in a two-year period,
producers (and importers as well) have to notify the Commission
of the circumstances of the case as soon as the cases have been
settled, either by a ruling in favour of the claimant, or as the
 result of an out of court agreement.133 There is no equivalent
provision in the UK. Arguably, it would be in the public interest
for greater information to be available on such settlements,
which would enable a clearer assessment to be made of the
impact of the Act on UK law. Certainly, it would assist the
European Commission in its review of the operation of the
Product Liability Directive within the EU. Such measures,
however, are likely to be opposed by manufacturers, who are far
from willing to allow their competitors access to such
information.

Breach of Statutory Duty

9–040 Consumer Protection Act 1987 Pt II provides for the Secretary

of State to make safety regulations prescribing rules as to design,
manufacture and packaging of certain classes of goods. This
replaced earlier legislation in the Consumer Safety Act 1978.
Although breach of such regulations generally incurs only
criminal liability, s.41 expressly provides that an individual
injured by a defect in a product resulting from breach of safety
regulations has an action for breach of statutory duty. This
provides a further option for litigants, although it should be
noted that the regulations only cover a limited class of goods.134

Reform of the Product Liability

Directive135
9–041 Leaving the EU does not signify that it is not of interest to
consider what lessons might be learnt from the implementation
of the Product Liability Directive in other European States. The
European Commission is required to undertake a review of the
Product Liability Directive every five years.136 In July 1999, it
published a Green Paper on Liability for Defective Products,137
in which it outlined the Commission’s proposals to consult
interested parties to assess the impact of the Directive on victims
and on the sectors of the economy concerned, and to reflect on
the need for reform. In particular, it sought views on:
▮ the burden of proof imposed on victims;
▮ the operation of the “development risks” defence;
▮ the existence of minimum and maximum values for
claims and their justification;
▮ the ten-year longstop and the effects of a possible
modification of this;
▮ assessment of the insurability of risks deriving from
defective production;
▮ improved information on the settlement of cases
concerning defective products;
▮ the supplier’s liability; and
▮ the type of goods and damage covered.

In its report of January 2001,138 the Commission resolved that in

view of the belated transposition of the Directive in certain
countries,139 the possibility given to the Member States to apply
their own national law, and the lack of available data, it would
not recommend any change to the Directive.140 Nevertheless, the
Commission resolved actively to seek further information for
future reforms. This included setting up a study to analyse and
compare the practical effects of the different systems applicable
in EU Member States regarding the procedural aspects of claims
for defective products,141 and launching a study into the
economic impact of the development risk defence.142 In 2006
and 2011, further reviews took place.143 The latest review took
place in 2018.144 Here the Commission recognised the
challenges to product liability that arise due to the greater
technological sophistication of products (digitisation, the
Internet of Things, artificial intelligence and cybersecurity) and
by specific products such as pharmaceuticals. While concluding
that the Directive continues to be an adequate tool, the
Commission identi-fied the need to provide greater clarification
for key concepts such as “product”, “producer”, “defect”,
“damage” and of the burden of proof. The aim is to draw up
comprehensive guidance on how to apply the Directive today.145
All the reports have noted the tension which exists between
the expectations of consumer groups, producers and insurers,
whose viewpoints naturally conflict. In general, consumers
would like more protection at a lower cost. Producers and
insurers, however, continue to
express concern that over-zealous product liability will slow
down innovation and discourage the development of new
products, whilst making insurance premiums unduly high.
It is clear that product liability will continue to be provoke
debates, both inside and outside the EU. It is also evident that
interpreting the meaning of key concepts such as “defect” is a
problem not only in the UK but throughout the whole of Europe.
The 2018 European Commission report also highlights the
likelihood that the meaning of “product” is likely to arise in
future case-law. We know it includes blood, surgical implants,
vaccines, even dishwasher powder containers from the cases
above, but new technology brings new challenges in how we
assess the “defectiveness” of smart fridges and what exactly is
the “product” in question?
 Animals Act 1971

9–042 The last part of this chapter will look briefly at the liability
imposed by the Animals Act 1971. This was brought in to
replace the rather complicated existing common law provisions
which imposed strict liability on those responsible for wild and
domestic animals.146 The Act imposes strict liability for damage
caused by animals under the care of another. It should be noted
that the Act applies in addition to ordinary common law
principles. Therefore, an owner of a dog may still find himself or
herself liable under occupiers’ liability for injuries caused (see
Ch.8),147 liable in nuisance (for example, for the smell caused by
his or her pigs: see Ch.10)148 or liable in trespass (for example,
for allowing hounds to stray onto another’s land: see Ch.11).149
Owners may equally find themselves liable under the ordinary
rules of negligence where they have failed to exercise reasonable
care to prevent their pet causing foreseeable harm to another.150
The main provisions of the 1971 Act are set out below. It
will not deal with liability for
injuries committed by dogs to livestock (s.3),151 liability for
damage caused by straying livestock (s.4),152 or liability for
damage caused by horses to land when on any land in England
without lawful authority (s.4A),153 which are not generally
considered in tort courses.

Dangerous/non-dangerous species
9–043 The fundamental distinction in the Act is between wild animals
(or dangerous species) and domestic animals (non-dangerous
species). For example, a tiger will be classified as the former, a
cat the latter. Different provisions apply according to the
classification of the animal in question. Liability will be
 imposed on the “keeper” of the animal in both cases. “Keeper”
is defined in s.6(3) as the owner of the animal, someone who has
it in his possession, or the head of a household where a minor
under 16 owns or possesses the animal.154

◗ Dangerous species
9–044 These are defined in s.6(2) of the Act.

“A dangerous species155 is a species—

(a) which is not commonly domesticated in
the British Islands; and
(b) whose fully grown animals normally
have such characteristics that they are
likely, unless restrained, to cause
severe damage or that any damage
they may cause is likely to be severe.”

This will therefore include animals such as tigers, elephants156

and lions. As noted in the leading case of Mirvahedy v
Henley,157 cases will generally arise in the context of escapes
from circuses
or zoos. Section 2(1) provides that the keeper of the dangerous
animal will be strictly liable for any damage caused by such an
animal, subject to the defences outlined below. Liability will be
regardless of fault and irrespective of any awareness of the
animal’s dangerous propensities. This appears to be entirely
sensible. It is no excuse that your pet tiger escaped despite your
reasonable efforts to fence it in. The risk of injury lies firmly on
the keeper of any such animal.

◗ Non-dangerous species
9–045 This is rather more complicated. It concerns domesticated
animals, e.g. dogs, horses and cattle, and here liability is limited
to circumstances where the keeper knows of the danger and that
severe injury is likely to arise due to the particular
characteristics of the animal. Section 2(2) sets three conditions
for liability which must all be satisfied:

“(a) the damage is of a kind which the

animal, unless restrained, was likely to
cause or which, if caused by the
animal, was likely to be severe; and
(b) the likelihood of the damage or of its
being severe was due to characteristics
of the animal which are not normally
found in animals of the same species or
are not normally so found except at
particular times or in particular
circumstances; and
(c) those characteristics were known to
that keeper or were at any time known
to a person who at that time had
charge of the animal as that keeper’s
servant or, where that keeper is the
head of a household, were known to
another keeper of the animal who is a
member of that household and under
the age of sixteen.”

The courts will generally consider each matter in turn. The first
two conditions set an objective test. First of all, was the type of
damage foreseeable? This has two limbs: either there is a
likelihood of damage if the animal is not restrained or, if the
animal causes any damage, it is likely that the damage will be
severe. “Likely” has been interpreted as “to be reasonably
expected”.158 It does not require probability, but equally a mere
possibility will not suffice. Secondly, did the relevant
characteristic of the animal cause the harm suffered? The third
condition is subjective: did the keeper know of this
characteristic? This requires actual knowledge of the potential
danger by the keeper.159 It does not, however, require the keeper
to have actual knowledge of
the particular circumstances in which the injury arose. It is
enough that the keeper knows that animals of the relevant
species would behave in that way in those circumstances.160
The application of these conditions has caused problems in
practice, largely due to their wording, which has been described
as giving rise to “several difficulties”,161 “remarkably
opaque”,162 “somewhat tortuous”,163 “grotesque”164 and
“inept”.165 The real difficulty arises in interpreting s.2(2)(b). The
first limb is fairly straightforward: you will be liable if your
animal has characteristics which other animals of the same
species do not possess, for example, it is more vicious than
usual. These have been called “permanent characteristics”.166
The second limb deals with “temporary characteristics” and
has been described by the House of Lords itself as “ambiguous”
and “opaque”. It contains a double negative: characteristics not
normally found except at particular times or in particular
circumstances. Does this mean:
▮ Normal characteristics which arise at particular times or
in particular circumstances?
▮ Abnormal characteristics which only manifest
themselves at particular times?

The House of Lords in the leading case of Mirvahedy v

Henley167 by a bare majority (3:2) chose the first explanation.
On this basis, normal characteristics which only manifest
themselves at particular times or on particular occasions might
give rise to liability if the other two conditions are met. As Lord
 Nicholls indicated, as a matter of social policy, the choice is
between placing the burden of liability on those who care for the
animals and undertake any associated risks or forcing the public
in general to accept that animals inevitably bring with them a
risk of injury.168 In adopting a broad interpretation of s.2(2)(b),
the majority ensured that it would be easier in future to bring a
claim under the 1971 Act without the necessity to show that the
animal at that time was acting abnormally.

9–046 The case itself concerned a car accident caused by an alarmed

horse bolting onto a busy dual carriageway. Mirvahedy suffered
serious personal injuries and his car was badly damaged. The
owners of the horse had taken reasonable care to fence in the
horse and were not found to be liable on the basis of common
law negligence. The case rested on the interpretation of s.2(2) of
the Act. It was accepted that there was nothing abnormal in a
horse bolting when frightened. It was entirely normal.169
However, a horse would only bolt in particular circumstances,
here where it had been terrified by some unknown event into
escaping. The owners of the horse would therefore be strictly
liable for the damage caused.
In reaching its decision, the majority affirmed the approach
taken in two earlier Court of Appeal decisions in Cummings v
Grainger170 and Curtis v Betts.171 In Cummings, the plaintiff
was attacked and seriously injured by an untrained Alsatian
guard dog let loose in the defendant’s scrap yard. But for certain
defences discussed below, the plaintiff would have succeeded in
her claim under the second limb of s.2(2)(b). This was not a
ferocious dog possessed of characteristics not normally
possessed by Alsatians, but just a typical guard dog which would
be likely to attack any intruder into its territory. This was enough
to establish the second limb.
Equally, in Curtis v Betts,172 a bull mastiff named Max
attacked a ten-year-old child in the street while being transferred
from the defendants’ house to a Land Rover to be taken to the
local park for exercise. The judge found that bull mastiffs173
have a tendency to react fiercely at particular times and in
particular circumstances, namely when defending the boundaries
of what they regard as their own territory. Slade LJ remarked
that:

“The mere fact that a particular animal

shared its potentially dangerous
characteristics with other animals of the
same species will not preclude the
satisfaction of requirement (b) if on the
particular facts the likelihood of damage
was attributable to characteristics normally
found in animals of the same species at
times or in circumstances corresponding
with those in which the damage actually
occurred.”174

On this basis where an animal is only aggressive in particular

circumstances, for example, a dog guarding its territory or, if a
bitch, when it has a litter of pups,175 the keeper may be found
liable under s.2(2). Equally, in Welsh v Stokes,176 a “sensible”
horse with no history of misbehaviour
which reared up and threw its rider could be regarded as
displaying a normal characteristic (rearing as a reaction to fear)
in the particular circumstances of the case. However, the mere
fact that a horse is heavy and capable of inflicting serious
damage to a vehicle is not a characteristic giving rise to liability
under s.2(2)(b).177 As Sedley LJ indicated in Clark v Bowlt,178
the Act does not aim to render the keepers of domesticated
animals routinely liable for damage. Some particular
characteristic must be relied upon.
 Defences

9–047 As we saw in relation to the Consumer Protection Act 1987,

strict liability does not prevent defences arising. Indeed, Ormrod
LJ suggested in Cummings v Grainger that in a strict liability
situation, defences provide an important means of ensuring fair
treatment on both parties and, on this basis, they should not be
whittled away.179 These are listed primarily in s.5 of the Act,
although s.10 does provide a defence of contributory negligence.

◗ (i) Fault of the victim

9–048 Section 5(1) provides that the keeper will not be liable where the
damage suffered is due wholly to the fault of the person
suffering it, for example the claimant is bitten by a dog he has
just kicked.

◗ (ii) Voluntary acceptance of risk

9–049 Section 5(2) provides that the keeper will not be liable under s.2
where the victim has voluntarily accepted the risk of injury or
damage,180 that is, the victim has fully appreciated the risk and
nevertheless exposed himself to it.181 There is some possible
overlap with s.5(1). For example, a person who tries to escape
despite being warned that a police dog will be released may be
found to be at fault and to have voluntarily accepted the risk of
being bitten.182 Commentators have noted that recent cases have
focused on the extent to which defendants can rely on this
defence to counteract the strict liability provisions of the Act.183
In Turnbull v Warrener,184 an experienced horsewoman had
fallen off her horse when it had reacted badly to a “bitless”
bridle used for the first time. The court found that she knew of,
and had accepted, that there was a small chance of an adverse
 reaction by the horse. On this basis, a s.5(2) defence was made
out. Goldsmith v Patchcott185 also involved an experienced
horsewoman falling from her horse, but this time she argued that
while it was foreseeable that a horse might buck or rear when
startled or alarmed, here the horse had bucked and reared far
more aggressively than she had anticipated. The Court of Appeal
nevertheless found the s.5(2) defence made out. Having known
and accepted the risk of such a reaction, the fact the horse
reacted more violently than expected was irrelevant. It was not a
requirement of s.5(2) that the claimant should foresee the precise
degree of energy with which the horse engage in the
“characteristic” behaviour complained about under s.2(2) of the
Act.

◗ (iii) The victim is a trespasser

9–050 Section 5(3) is divided into two limbs. Under the first limb, the
keeper will not be liable for any damage caused by an animal
kept on the premises to a trespasser if it is proved that the animal
was not kept there for the protection of persons or property. If it
is kept there for protection, the keeper will not be liable if it is
kept for a purpose which is not unreasonable.
The operation of these defences is illustrated in Cummings v
Granger.186 Here, the plaintiff had been bitten when entering a
scrap yard at night as a trespasser. Here, the Court of Appeal
found s.2(2) to be satisfied, but that the defendant had good
defences under s.5(2) and 5(3). Section 5(1) was not satisfied as
the incident had not solely been due to the plaintiff’s fault.
However, she had known that there was a fierce guard dog in the
yard and could be taken to have knowingly accepted the risk of
injury, satisfying s.5(2). Further it was held that a defence
existed under s.5(3) as well:

“Old scrap and bits of spares for motor

cars are fair game in most parts of the
 country to anybody who is minded to steal
that kind of thing. I do not think that it was
in the least unreasonable to keep a guard
dog in the yard.”187

Conclusion

9–051 As a result of Mirvahedy, it will be easier to establish liability

under the 1971 Act. The judges in the 2012 Court of Appeal
decision in Turnbull v Warrener expressed concern at this result:
“I cannot help but express my concern about the way that the
law has developed”.188 Maurice Kay LJ in that case also
mentioned with approval the consultation process launched by
Department for Environment, Food and Rural Affairs in March
2009 which sought to amend s.2(2) of the Act, while noting that
it had not borne “statutory fruit”.189 Commentators remain
pessimistic on the likelihood of immediate change, suggesting
that reform at this stage is only likely to come via a Private
Member’s Bill.190 The clear message, therefore, is that owning a
pet is not only a privilege, but a potential basis for liability.

1 [1932] A.C. 562.

2 Directive 85/374 on the approximation of the laws, regulations and

administrative provisions of the Member States concerning liability for
defective products [1985] OJ L210/29.

3 The Product Safety and Metrology etc. (Amendment etc.) (EU Exit)
Regulations 2019 (SI 2019/696) reg.6

4 Subject of course to the rules of remoteness stated in Hadley v Baxendale

(1854) 9 Ex 341. See Grant v Australian Knitting Mills Ltd [1936] A.C. 85
where the plaintiff sued the retailer under the contract of sale for the skin
disease he suffered as a result of the defective state of the product sold.

5 Consumer Rights Act 2015 s.9.

6 Consumer Rights Act 2015 s.10.

7 s.1(1) provides that a third party may be able to enforce a term of a

contract in his or her own right if either (a) the contract expressly provides
for this or (b) the parties intend by a term of the contract to confer a benefit
on him or her. The third party must be expressly identified in the contract
by name, as a member of a class or as
answering a particular description: s.1(3). These requirements will limit the number of possible
claims under the Act.

8 Unless, of course, the purchaser sues for his or her own loss, which
includes that arising from the injury of a third party. e.g. in Frost v
Aylesbury Dairy [1905] 1 K.B. 608, the purchaser sued to recover the
expenses to which he had been put by the illness and death of his wife due
to typhoid fever caught from the milk supplied by the defendants.

9 Hodge & Sons v Anglo-American Oil Co (1922) 12 Lloyd’s Rep. 183 at

187.

10 See Winterbottom v Wright (1842) 10 M. & W. 109; 152 E.R. 402,

discussed in Ch.2.

11 [1932] A.C. 562.

12 [1932] A.C. 562 per Lord Macmillan at 610.

13 [1932] A.C. 562 per Lord Atkin at 599. Contrast Lord Buckmaster’s
strong dissenting judgment at 577–8.

14 [1932] A.C. 562 per Lord Macmillan at 612.

15 [1932] A.C. 562.

16 [1939] 2 All E.R. 578. See also Haseldine v Daw [1941] 2 K.B. 343
where a visitor using a lift in a block of flats was allowed to sue the
repairers of the lift when the lift fell to the bottom of its shaft.

17 Watson v Buckley, Osborne, Garrett & Co [1940] 1 All E.R. 174.

18 Wright v Dunlop Rubber Co Ltd (1972) 13 K.I.R. 255 at 272.

19 Winward v TVR Engineering [1986] B.T.L.C. 366.

20 [1992] 1 Lloyd’s Rep. 54 at 65. See also Hamble Fisheries Ltd v L

Gardner & Sons Ltd [1999] 2 Lloyd’s Rep. 1 at 9 per Mummery LJ; Hollis
v Dow Corning (1996) 129 D.L.R. (4th) 609; Carroll v Fearon [1998]
P.I.Q.R. P416.

21 [2016] EWCA Civ 847; 168 Con. L.R. 27.

22 The particular situation of defective equipment in the workplace should

be noted. While at common law, employers will not be found negligent for
supplying defective tools if they have taken reasonable care to purchase the
tools from a reputable supplier (Davie v New Merton Board Mills Ltd
[1959] A.C. 604), the Employer’s Liability (Defective Equipment) Act
1969 imposes strict liability on employers providing defective equipment
for the purposes of their business. See, further, Ch.7.

23 Lord Macmillan in Donoghue v Stevenson [1932] A.C. 562 at 622:

“There is no presumption of negligence in such a case at present, nor is
there any justification for applying the maxim res ipsa loquitur”.

24 [1936] A.C. 85 at 101. See also Carroll v Fearon [1998] P.I.Q.R. P416.

25 [1955] 1 W.L.R. 549. See also Hill v Crowe [1978] 1 All E.R. 812.

26 [1955] 1 W.L.R. 549 at 552.

27 [1991] 1 A.C. 398; [1990] 2 All E.R. 908.

28 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] Q.B.
27 CA.
29 See D & F Estates v Church Commissioners [1989] A.C. 177.

30 See A. Tettenborn, “Components and product liability: damage to ‘other

property’” [2000] L.M.C.L.Q. 338.

31 See, e.g. The Rebecca Elaine (Hamble Fisheries Ltd v L Gardner & Sons
Ltd) [1999] 2 Lloyd’s Rep. 1 (defective pistons in an engine where the
manufacturer of the engine was sued) cf. Nitrigin Eireann Teoranta v Inco
Alloys [1992] 1 W.L.R. 498, May J.

32 See M/S Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1

W.L.R. 1 at 21.

33 [1987] 1 W.L.R. 1.

34 Fox LJ in agreement.

35 [1987] 1 W.L.R. 1 at 29.

36 See Mance LJ in Bacardi-Martini Beverages Ltd v Thomas Hardy

Packaging Ltd [2002] EWCA Civ 549; [2002] 2 Lloyd’s Rep 379 at [18],
who doubted the authority of this case in that it preceded Murphy v
Brentwood DC and “occurred when the star of Junior Books Ltd v Veitchi
Co Ltd [1983] 1 A.C. 520 was still high in the sky”.

37 [1932] A.C. 562 at 583.

38 Brown v Cotterill (1934) 51 T.L.R. 21.

39 Watson v Buckley, Osborne, Garrett & Co [1940] 1 All E.R. 174.

40 Vacwell Engineering Co v BDH Chemicals [1971] 1 Q.B. 88.

41 Haseldine v Daw [1941] 2 K.B. 343.

42 Andrews v Hopkinson [1957] 1 Q.B. 229 at 237.

43 [1936] A.C. 85.

44 Goddard LJ in Haseldine v Daw [1941] 2 K.B. 343 at 376 suggested that
the word “probability” is more accurate. In that case, the engineers
repairing the lift could not have reasonably contemplated any immediate
inspection and so owed a duty to any person who, in the ordinary course of
events, would be expected to make use of the thing repaired.

45 [1936] 1 All E.R. 283.

46 [1957] 1 Q.B. 229 at 237. See also White v Warwick [1953] 1 W.L.R.
1285; Griffiths v Arch Engineering Co Ltd [1968] 3 All E.R. 217.

47 [1971] 1 Q.B. 88.

48 [1968] 3 All E.R. 217.

49 [1979] R.T.R. 265 HL. See also Kubach v Hollands [1937] 3 All E.R.
907.

50 Discussed by Teff and Munro in H. Teff and C. Munro, Thalidomide: the

legal aftermath (Saxon House, 1976).

51 See Roe v Ministry of Health [1954] 2 Q.B. 66 at 84: “We must not look
at the 1947 accident with 1954 spectacles”.

52 The legal issues were never decided as the thalidomide litigation was
settled.

53 Report No.82, Cmnd.6831.

54 Directive 85/374 on the approximation of the laws, regulations and

administrative provisions of the Member States concerning liability for
defective products [1985] OJ L210/29.

55 Directive 85/374 art.19.

56 The Product Safety and Metrology etc. (Amendment etc.) (EU Exit)
Regulations 2019 (SI 2019/696) reg.6.
57 See, e.g. J. Stapleton, “Products liability reform—real or illusory?”
(1986) 6 OJLS 392 and Product Liability (Butterworths, 1994) and C.
Newdick, “The future of negligence in product liability” (1987) 103 L.Q.R.
288. For general reference, see D. Fairgrieve and R.S. Goldberg, Product
Liability, 3rd edn (OUP, 2020).

58 Consumer Protection Act 1987 s.1(2)(a).

59 Consumer Protection Act 1987 s.2(5). Liability is “joint and several”.

This is discussed in Ch.17.

60 Consumer Protection Act 1987 s.1(2)(b).

61 Consumer Protection Act 1987 s.1(2)(c).

62 For a contrary view, see F. Dias Simões, “Private labels and products
liability: hypermarkets as apparent producers” [2013] Jur. Rev. 469.

63 The Product Safety and Metrology etc. (Amendment etc.) (EU Exit)
Regulations 2019 (SI 2019/696) reg.6.

64 Consumer Protection Act 1987 s.1(3).

65 Consumer Protection Act 1987 s.45(1) defines “goods” to include

substances, growing crops and things comprised in land by virtue of being
attached to it and any ship, aircraft or vehicle. It does not seem to include
the land itself.

66 Article 15(1)(a) of the 1985 Directive rendered it optional to include

primary agricultural produce and game within the definition of “product”.
Solely Greece, France, Luxembourg, Finland, Sweden and Austria (with
respect to GMOs) chose to include such products.

67 Recital 5 to Directive 1999/34 on the approximation of the laws,

regulations and administrative provisions of the Member States concerning
liability for defective products [1999] OJ L141/20. The BSE crisis related
to a disease found in cattle (commonly known as “mad cow” disease) which
led to fears that victims suffering from the brain disease vCJD had been
infected by eating meat from BSE infected cattle.

68 See Consumer Protection Act 1987 (Product Liability) (Modification)

Order 2000 (SI 2000/2771). Unfortunately, no corresponding alteration has
been made to the definition of “producer” in s.1(2), although agriculture
will no doubt often involve some form of “industrial process”.

69 Guide to the Consumer Protection Act 1987 (HMSO, 2001), p.5.

70 See A. Stoppa, “The concept of defectiveness in the Consumer

Protection Act 1987: a critical analysis” (1992) 12 L.S. 210.

71 “Safety” is defined to include safety with respect to products comprised

in that product and safety in the context of risks of damage to property, as
well as in the context of risks of death and personal injury: s.3(1).

72 See Abouzaid v Mothercare (UK) Ltd [2000] All E.R. (D) 2436 The
Times 20 February 2001, where Pill LJ relied on Recital 6 to the Directive,
and A v National Blood Authority [2001] 3 All E.R. 289 at 334: “the court
will act as . . . the appointed representative of the public at large”.

73 [2000] Lloyd’s Rep. Med. 280. See also Worsley v Tambrands Ltd
[2000] P.I.Q.R. P95 (toxic shock syndrome resulting from use of tampon),
the highly questionable decision of Foster v Biosil (2001) 59 B.M.L.R. 178
(CC (Central London)) (ruptured breast implant) and Sam B v McDonald’s
Restaurants Ltd [2002] EWHC 490 (QBD) (spillage of hot drinks). See R.
Freeman [2001] J.P.I.L. 26.

74 [2000] All E.R. (D) 2436 The Times 20 February 2001 CA, also known
as the “Cosytoes” case.

75 “Members of the public were entitled to expect better from the

appellants”: at [27].

76 [2001] 3 All E.R. 289. Comment: C. Hodges, “Compensating patients”

(2001) 117 L.Q.R. 528; G. Howells and M. Mildred, “Infected blood: defect
and discoverability. A first exposition of the EC Product Liability
Directive” (2002) 65 M.L.R. 95.

77 This is not obvious from the wording of s.3(2), which states that “all the
circumstances shall be taken into account”: see C. Hodges (2001) 117
L.Q.R. 528, 530.

78 “Indeed . . . had it been intended that it would be included as a

derogation from, or at any rate a palliation of [the purpose of the Directive]
then it would certainly have been mentioned”: [2001] 3 All E.R. 289 at 336.

79 [2001] 3 All E.R. 289 at 318.

80 Burton J questioned at 338 whether, in any event, even express warnings

would have been sufficient or whether they would have been ruled out as an
attempt to exclude or limit liability which, under s.7, is not permitted.

81 [2006] EWCA Civ 393; (2006) 150 S.J.L.B. 537.

82 For criticism, see M. Mildred [2006] J.P.I. Law C130, who argues that
there may be good common sense grounds for tying the public expectation
test to that of the British Standard. Contrast Palmer v Palmer [2006]
EWHC 1284 (QBD (Admin)): “Klunk Klip” device, which introduced slack
into seat-belts to make them more comfortable, was defective.

83 [2006] EWCA Civ 393 at [18].

84 [2006] EWCA Civ 393 at [17] per Laws LJ.

85 [2016] EWHC 3096 (QB); [2018] Q.B. 627.

86 [2016] EWHC 3096(QB) at [65] and [72].

87 Nolan, however, has sought to reconcile the two approaches: (2018) 134
L.Q.R. 176.

88 [2016] EWHC 3096(QB) at [85] (obiter).

89 Cited with approval in [54]. The judge, however, had “substantial
difficulties” with some of the reasoning in A.

90 Gee v DePuy International Ltd [2018] EWHC 1208 (QB) preferred the
Wilkes approach. Eisler, in contrast, argues that “Wilkes deconstructs the
most well-established framework while advancing no helpful alternative”:
[2017] C.L.J. 233, 234.

91 See Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt (C-

503/13 & C-504/13) [2015] 3 C.M.L.R. 6: in relation to medical care
(including the insertion of medical devices such as pacemakers), due to the
particularly vulnerable situation of patients, the safety requirements which
such patients were entitled to expect were particularly high. More
controversially where such products belonging to the same group or
forming part of the same production series had a potential defect, it was
possible to classify as defective all the products in that group or series
without the need to show that the specific product in question was
defective. See D. Fairgrieve and M. Pilgerstorfer (2017) 28 E.B.L. Rev 879.

92 [2000] P.I.Q.R. P95. See also Buckley v Henkel Ltd unreported 25

November 2013 Liverpool CC,) where the claimant suffered an allergic
reaction to hair dye: no liability where clear from the instructions that there
was a risk of an allergic reaction, and a number of warnings and precautions
were highlighted. The court also found that in the case of hair dyes
generally there will arguably be a greater awareness of risk given that the
very nature of hair dye involves a chemical process.

93 See Abouzaid v Mothercare (UK) Ltd [2000] All E.R. (D) 2436 The
Times 20 February 2001.

94 Consumer Protection Act 1987 s.45(1) defines “personal injury” to

include any disease and any other impairment of a person’s physical or
mental condition.

95 Which includes damage to land: Consumer Protection Act 1987 s.5(1).

96 See Renfrew Golf Club v Motocaddy Ltd [2016] CSIH 57; 2016 S.L.T.
781: no recovery for fire to golf clubhouse caused by electric golf trolley
going on fire. The clubhouse, although owned by members of the club, was
not property ordinarily intended for private use or occupation. It was
materially a commercial concern used by its 700 members and other
members of the public.

97 Guide to the Consumer Protection Act 1987 (HMSO, 2001).

98 “Supply” is defined in Consumer Protection Act 1987 s.46 to include

selling, hiring out or lending goods, entering into a hire-purchase agreement
to furnish the goods, the performance of any contract for work and
materials to furnish the goods or even giving the goods as a prize or
otherwise making a gift of the goods.

99 Query the situation if I sold it at the school fête for charity.

100 Consumer Protection Act 1987 s.4(2) defines the “relevant time” to
signify (a) if the defendant is within s.2(2), the time when he supplied the
product to another, or (b) if the defendant is not within s.2(2) (for example,
a supplier), the time when the product was last supplied by a person to
whom s.2(2) does apply.

101 [2006] EWCA Civ 1344; (2006) 92 B.M.L.R. 141.

102 Except in Finland and Luxembourg. Spain excludes the defence for
food and medicinal products and France excludes the defence for products
derived from the human body. Germany has permitted liability for
development risks in the area of pharmaceutical products since 1978.

103 The UK’s implementation of the defence may be contrasted with the
view of the Law Commission, in their 1977 report, Liability for Defective
Products No.82, Cmnd.6831 para.105, that if the product was found to be
defective, in the light of the thalidomide case, the injured person should be
compensated by the producer however careful the producer had been. The
report of the Royal Commission on Civil Liability and Compensation for
Personal Injury, Cmnd.7054 (1978), Vol.1 para.1259 also recommended
that the defence should not be allowed.
104 This provoked a considerable academic debate: see, e.g. J. Stapleton,
Product Liability (Butterworths, 1994) and C. Newdick, “The development
risk defence of the Consumer Protection Act 1987” [1988] C.L.J. 455.

105 [1997] All E.R. (EC) 481; [1997] 3 C.M.L.R. 923. Comment: C.
Hodges, “Development risks: unanswered questions” (1998) 61 M.L.R.
560.

106 [2001] 3 All E.R. 289. Comment: C. Hodges (2001) 117 L.Q.R. 528;
G. Howells and M. Mildred (2002) 65 M.L.R. 95.

107 [2001] 3 All E.R. 289 at 340.

108 [2000] All E.R. (D) 2436 The Times 20 February 2001.

109 [2000] All E.R. (D) 2436 The Times 20 February 2001 at [29].

110 Consumer Protection Act 1987 s.6 also renders the Fatal Accidents Act
1976 and the Congenital Disabilities (Civil Liability) Act 1976 applicable.

111 Consumer Protection Act 1987 s.11A(4).

112 The date of knowledge is defined in Limitation Act 1980 s.14.

113 There is no provision to extend this, in contrast to negligently caused

death and personal injury: Limitation Act 1980 s.33(1A). Section 11A(3)
also applies regardless of the provisions for extension of time due to fraud,
concealment or mistake (see s.32(4A)) or disability (see s.28(7)(a)) in the
Limitation Act 1980.

114 (C127/04) [2006] 1 W.L.R. 1606 ECJ.

115 (C127/04) [2006] 1 W.L.R. 1606 ECJ at [27]–[29]. The term “put into
circulation” was not defined in the Directive as it was considered self-
explanatory. As this rather unclear definition indicates, this is far from the
case.

116 (C127/04) [2006] 1 W.L.R. 1606 ECJ at [39].

117 OB v Aventis Pasteur [2008] UKHL 34; [2008] 3 C.M.L.R. 10.

118 (C-358/08) O’Byrne v Aventis Pasteur SA [2010] 1 W.L.R. 1375.

119 [2010] UKSC 23; [2010] 1 W.L.R. 1412, reversing Court of Appeal in
[2007] EWCA Civ 966.

120 There is, however, evidence of some willingness by the courts to infer
causation by a process of eliminating non-causes as in Ide v ATB Sales Ltd
[2008] EWCA Civ 424 where two alternative explanations for the cause of
Mr Ide’s accident had been put before the court. The court indicated that the
question was whether, having eliminated all of the causes of the loss but
one, the remaining cause had on the balance of probabilities caused the
damage sustained.

121 [2002] EWHC 1420 (QB); (2003) 70 B.M.L.R. 88. Comment: M.

Mildred [2002] J.P.I.L. 428 and A. McAdams (2002) 146 S.J. 900.

122 Recent guidance from the European Court states that national courts
have to ensure that the evidence adduced is sufficiently serious, specific and
consistent to warrant the conclusion that a defect in the product appeared to
be the most plausible explanation for the occurrence of the damage: W v
SanofiPasteur MSD (C-621/15) [2018] 1 C.M.L.R. 16.

123 The first edn of this book in 2000 noted only one reported case which
was directly in point: European Commission v United Kingdom [1997] 3
C.M.L.R. 923.

124 See E. Deards and C. Twigg-Flesner, “The Consumer Protection Act

1987: proof at last that it is protecting consumers?” (2001) 10 Nott L.J. 1.

125 [1997] All E.R. (EC) 481; [1997] 3 C.M.L.R. 923, discussed above.

126 C. J. Miller and R. S. Goldberg, Product Liability, 2nd edn (Oxford,

2004), p.520. See also C. Johnston [2012] J.P.I. Law 1, 15–16.

127 Burton J in [2001] 3 All E.R. 289 at 337 rejected the view that blood
with a risk of virus could be treated as a “standard” product as too
“philosophical”.

128 See G. Howells and M. Mildred (2002) 65 M.L.R. 95, 101. For a more
positive view, see J. Eisler [2017] C.L.J. 233.

129 D. Nolan, “Strict product liability for design defects” (2018) 134
L.Q.R. 176.

130 [2016] EWHC 3096 (QB); [2018] Q.B. 627, paras.90–96.

131 Commission Staff Working Document, Evaluation of Council Directive

85/374/EEC (SWD(2018)157). The percentages listed in the text are based
on the responses to the open public consultation and are averages across 28
Member States.

132 This is an independent federal regulatory agency created in 1972 to

“protect the public against unreasonable risks of injuries and deaths
associated with consumer products”. It covers about 15,000 types of
consumer products used in home, schools and recreation, but does not
regulate on-road motor vehicles, boats, aircraft, cosmetics, pesticides,
alcohol, tobacco, firearms and medical devices. See www.cpsc.gov/ [1
August 2020].

133 See 15 USC s.2084, “Information reporting”.

134 See Consumer Protection Act 1987 s.11(7).

135 Details of European Commission documents on defective products may

be found at http://ec.europa.eu/growth/single-market/goods/free-movement-
sectors/liability-defective-products_en [Accessed 1 August 2020].

136 The Commission has to report regularly to the Community institutions

on the state of the application of the Directive. Article 21 of the Directive
stipulates that it must report every five years on the general application of
the Directive. Articles 15(3) and 16(2) stipulate that it must report every 10
years after notification of the Directive on development risks and financial
limits.
137 COM (1999) 396, final.

138 COM (2000) 893, final.

139 e.g. France only implemented the Directive on 23 May 1998 (see Act
Nos 389–98 of 19 May 1998). Its legislation was successfully challenged
twice by the European Commission for failing to implement the Directive
correctly: see EC Commission v France (C-52/00) [2002] E.C.R. I-3827
and EC Commission v France (C-177/04) [2006] E.C.R. I-2461. The final
amended provisions now constitute the French Civil Code arts 1245 to
1245–17. See P. Shears, “The EU Product Liability Directive—twenty years
on” [2007] J.B.L. 884.

140 This is the second report of the Commission. In its first report of
December 1995 (COM (1995) 617, final), the Commission concluded that,
on the basis of the limited information available as to the operation of the
Directive, it was not appropriate to submit any proposals for amendments.

141 Lovells, Product liability in the European Union (2003).

142 F. Rosselli, Analysis of the economic impact of the development risk

clause as provided by Directive 85/374/EEC on liability for defective
products (2004).

143 Third Report and Fourth Report on the application of Council

Directive 85/374, COM (2006) 496 final and COM (2011) 547 final. For a
critical assessment of the Third Report, see D. Fairgrieve and G. Howells
(2007) 70 M.L.R. 962.

144 Fifth Report on the application of Council Directive 85/374 COM

(2018) 246 final (see https://eur-lex.europa.eu/legal-content/en/TXT/?
uri=CELEX%3A52018DC0246 [Accessed 1 August 2020]). The
Commission did not receive any complaints or launch any infringement
proceedings during the 2011–2017 reporting period.

145 For comment, see D. Fairgrieve [2019] J.P.I. Law 33.

146 Note the 1967 Report of the Law Commission, Civil Liability for
Animals (Law Com No.13) on which the Act is based and the classic work
of P. M. North, The Modern Law of Animals (Butterworths, 1972). For
modern law, see P. North, Civil Liability for Animals (OUP, 2012). For the
background to the Act, see R. Bagshaw, “The Animals Act 1971” in T. T.
Arvind and J. Steele (eds), Tort Law and the Legislature (Hart, 2012).

147 See Gould v McAuliffe [1941] 1 All E.R. 515.

148 See Wheeler v JJ Saunders Ltd [1996] Ch.19. Note also Leeman v
Montague [1936] 2 All E.R. 1677.

149 See League against Cruel Sports v Scott [1986] Q.B. 240 (owner
responsible for the damage caused if he or she intended animals to enter the
claimant’s land or, knowing that there was a real risk that they would enter,
failed to take reasonable care to prevent their entry.)

150 See Fardon v Harcourt-Rivington (1932) 146 L.T. 391 HL, Draper v
Hodder [1971] 2 Q.B. 556 and Whippey v Jones [2009] EWCA Civ 452. A
further action may lie for a compensatory award from the Criminal Injuries
Compensation Authority if the victim can establish that a criminal offence
has taken place: see Re C [CICA: Liability: 2002] 3 December 2002;
[2003] 7 C.L.10 (horses straying onto the highway amounting to a criminal
offence under the Highways Act 1980 s.155).

151 See also Animals Act 1971 ss.5(4) and 9.

152 See also Animals Act 1971 ss.5(5), 5(6), 7 and 8.

153 See also Animals Act 1971 ss.5(5A), 5(6) and 7A- 7C.

154 It should be noted that there may be more than one keeper: see Flack v
Hudson [2001] Q.B. 698 where an action was brought on behalf of the
person with possession of the horse against its owner. The Court of Appeal
held that there was nothing in the Act to prevent one keeper suing another.
See also Animals Act 1971 s.6(4): “Where an animal is taken into and kept
in possession for the purpose of preventing it from causing damage or of
restoring it to its owner, a person is not a keeper of it by virtue only of that
possession”.

155 “Species” includes sub-species and variety: Animals Act 1971 s.11.

156 See Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1 (Devlin J) in
which it was held to be irrelevant that the elephant in question was a trained
circus animal rather than a wild animal. See also Filburn v People’s Palace
and Aquarium Co (1890) L.R. 25 Q.B.D. 258.

157 [2003] UKHL 16; [2003] 2 A.C. 491 at [13] per Lord Walker.

158 Lord Scott in Mirvahedy v Henley at [95]; Freeman v Higher Park

Farm [2008] EWCA Civ 1185; [2009] P.I.Q.R. P6 at [33]. See also Neill LJ
in Smith v Ainger The Times 5 June 1990: “such as might happen” and
“such as might well happen”.

159 It is not enough that the keeper ought to have known of the danger: see
Hunt v Wallis [1994] P.I.Q.R. P128.

160 See Welsh v Stokes [2007] EWCA Civ 796; [2008] 1 W.L.R. 1224 at
[71] per Dyson LJ. Contrast McKenny v Foster (t/a Foster Partnership)
[2008] EWCA Civ 173 (escape by “extraordinarily agitated” cow in a
manner which was not a normal characteristic of breed and was not known
to defendant).

161 Lord Denning MR in Cummings v Grainger [1977] Q.B. 397 at 404.

162 Ormrod LJ in Cummings v Grainger [1977] Q.B. 397 at 407.

163 Slade LJ in Curtis v Betts [1990] 1 W.L.R. 459 at 462.

164 Maurice Kay LJ in Turnbull v Warrener [2012] EWCA Civ 412; [2012]
P.I.Q.R. P16 at [4].

165 Nourse LJ in Curtis v Betts [1990] 1 W.L.R. 459 at 468.

166 See Stuart-Smith LJ in Curtis v Betts [1990] 1 W.L.R. 459 at 469.

167 [2003] 2 A.C. 491. Comment: K. Amirthalingam (2003) 119 L.Q.R.
563.

168 [2003] 2 A.C. 491 at [6], although his Lordship indicated that where
the law in question was governed by statute, such policy decisions must be
deemed to have been dealt with by Parliament and it was not for the courts
to intervene.

169 “Normal” is defined in the later case of Welsh v Stokes [2007] EWCA
Civ 796; [2008] 1 W.L.R. 1224 as “conforming to type”, that is, behaving in
the same manner as any other type of animal of the species. Dyson LJ
advised at [46] that the best evidence of such a characteristic is that it is
usually found in such animals.

170 [1977] Q.B. 397.

171 [1990] 1 W.L.R. 459.

172 [1990] 1 W.L.R. 459.

173 The species here is treated as that of a “bull mastiff” rather than dogs in
general. See also Hunt v Wallis [1994] P.I.Q.R. P128 (comparison with
other border collies). From the case law, this only seems to apply to breeds
of dogs (except mongrels: Smith v Ainger The Times 5 June 1990). Other
animals are treated generally, e.g. horses.

174 [1990] 1 W.L.R. 459 at 464.

175 See Barnes v Lucille Ltd [1907] L.T.R. 680.

176 [2007] EWCA Civ 796. See also Collings v Home Office [2006] 12
C.L. 22 (the fact that the dog, which bit its handler, was in pain, was a
circumstance within s.2(2)(b)) and more recently Williams v Hawkes [2017]
EWCA Civ 1846 (escaping steer running onto the road in a panic had acted
in accordance with Charolais cattle’s propensity to behave unpredictably to
averse stimuli) .
177 Clark v Bowlt [2006] EWCA Civ 978; [2007] P.I.Q.R. P12: no liability
when Chance, a 600 lb horse, moved and hit the front nearside of Clark’s
car. See also Lord Nicholls in Mirvahedy v Henley [2003] 2 A.C. 491 at
[46].

178 [2006] EWCA Civ 978; [2007] P.I.Q.R. P12 at [24].

179 [1977] Q.B. 397 at 407.

180 Note also Animals Act 1971 s.6(5): “Where a person employed as a
servant by a keeper of an animal incurs a risk incidental to his employment
he shall not be treated as accepting it voluntarily”.

181 Cummings v Grainger [1977] Q.B. 397 at 410; Freeman v Higher Park
Farm [2008] EWCA Civ 1185; [2009] P.I.Q.R. P6 at [48].

182 See Dhesi v Chief Constable of West Midlands The Times 9 May 2000.

183 See B. Compton and J. Hand, “The Animals Act 1971—the statutory
defences to strict liability” [2012] J.P.I. Law 18.

184 [2012] EWCA Civ 412; [2012] P.I.Q.R. P16.

185 [2012] EWCA Civ 183; [2012] P.I.Q.R. P11. See also Bodey v Hall
[2011] EWHC 2162 (QB).

186 [1977] Q.B. 397.

187 Ormrod LJ at [1977] Q.B. 397 at 408. This is now subject to the Guard
Dogs Act 1975 s.1, which regulates the use of guard dogs.

188 Lewison LJ at [2012] EWCA Civ 412 at [43] with whom Stanley
Burnton LJ agreed.

189 [2012] EWCA Civ 412 at [24]. For ongoing criticism of s.2, see Davis
L.J. in Williams v Hawkes [2017] EWCA Civ 1846 at [4].

190 P. North, Civil Liability for Animals (OUP, 2012), p.60.

 10

Nuisance and the Rule in

Rylands v Fletcher

Introduction
10–001 So far, this book has primarily focused on torts which seek to
protect the individual from the negligent infliction of harm. The
only exception has been liability under certain statutes which, as
discussed in Ch.9, impose a form of strict liability on the
producer of a defective product or the keeper of an animal. This
chapter will consider the torts of nuisance and the rule in
Rylands v Fletcher.1 These torts have a different role from that
discussed in earlier chapters. Private nuisance, for example,
seeks to protect the claimant’s ability to use and enjoy his or her
land freely without undue interference by the defendant. Here,
fault plays only a limited role. The main concern of the courts is
to protect the claimant’s rights in land. This chapter will
examine the rules governing the different types of nuisance
recognised at law, the tensions between them, and their
relationship with the rule in Rylands v Fletcher—which deals
only with isolated cases of interference with the claimant’s land.
It will also consider the impact of the House of Lords’
judgments in Hunter v Canary Wharf Ltd2 and Transco Plc v
Stockport MBC,3 which have had a dramatic effect on the law of
private nuisance and the rule in Rylands v Fletcher. This is a
 developing area of law, impacting on the lives of ordinary
individuals and the protection of the environment as a whole.4
The ongoing role of these torts,
and their difficult relationship with negligence, will be discussed
in this chapter. The chapter begins by considering the role of
nuisance in the law of torts, before considering liability under
the rule in Rylands v Fletcher.

Nuisance

10–002 There are three main types of nuisance, which should be

distinguished:
▮ Private nuisance.
▮ Public nuisance.
▮ Statutory nuisance.

Private nuisance is generally defined as an “unlawful

interference with a person’s use or enjoyment of land, or some
right over, or in connection with it”.5 Consideration of this tort
will form the main body of this chapter. Public nuisance, in
contrast, is both a crime and a tort. An individual can bring an
action where he or she has suffered particular harm from a
nuisance which has materially affected the reasonable comfort
and convenience of life of a sufficiently large number of citizens
who come within the sphere or neighbourhood of its operation.
Although the courts frequently draw comparisons between
private and public nuisance, they are in reality, very different
torts, which seek to protect different interests. Whilst private
nuisance seeks to protect private rights, public nuisance is
primarily a crime, and acts as a general measure of public
 protection. Whilst the claimant may seek in his or her Statement
of Case to allege that both torts have been committed,6 it is
important to recognise that in character, they have little in
common bar their name.
Both private and public nuisance are distinct from statutory
nuisances, which are nuisances which operate by virtue of
particular statutes. The best example perhaps is that of the
Environmental Protection Act 1990 Pt III, which is primarily
concerned with matters of public health. As statutory nuisances
are unlikely even to provide a claim for breach of statutory
duty,7 they are not dealt with in this book. Readers are advised to
consult specialist texts.8

Private Nuisance

10–003 There are three main forms of private nuisance:

▮ Physical injury to land (for example, by flooding or
noxious fumes).
▮ Substantial interference with the enjoyment of land (for
example smells, dust and noise).
▮ Encroachment on a neighbour’s land (for example, by
spreading roots or overhanging branches).9 This is of
minor significance but will be considered further in the
section on remedies.

While these are merely examples of private nuisance, they do

cover most cases. 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. A fourth form of nuisance
 exists which is generally discussed in works on land law, namely
where the defendant has interfered with a particular proprietary
right the claimant possesses over the land, for example a right of
way. Such interference is generally treated by analogy to
trespass, in that provided a substantial degree of interference can
be shown, the tort will be actionable per se (without proof of
damage).10 By this means, the claimant’s rights over land are
vindicated, although where the right in question is simply a right
to support, damage must be shown.11
The main distinction drawn by the courts is between physical
damage to property and interference with one’s enjoyment of
land or personal comfort. Put simply, the courts are more willing
to find a nuisance where physical damage to property has been
caused. Mere personal discomfort will be treated with latitude
unless the interference is such that it is “materially interfering
with the ordinary comfort physically of human existence, not
merely according to elegant or dainty modes and habits of
living”.12 On this basis, loss of a view from one’s property is a
loss of “elegant” living and not such as to interfere with the
ordinary comfort of human existence.13 So, while the courts are
willing to protect the claimant’s personal comfort, they are more
willing to protect the claimant’s property. Thus, there is clear
House of Lords authority that matters such as the nature of the
locality will not be relevant where there has been material injury
to property.14

What amounts to a private nuisance?

10–004 It must be self-evident that not every interference with the

claimant’s use and enjoyment of land can amount to a private
nuisance. For example, I enjoy playing the piano, but of
necessity must practise. Can my neighbour complain (a) because
I play at all; or (b) because he or she enjoys fine music and the
sound of my bad playing is unbearable? If either of the above
were actionable, I would be severely limited in my ability to
play the piano. My neighbour would be given the power to veto
 my choice of activity. However, if in a fit of enthusiasm, I decide
to practice my scales between 2.00am and 4.00am every
morning, my neighbour would appear to have legitimate grounds
for complaint.15 The tort of nuisance must balance my rights
against those of my neighbour. Whilst it may be easy to say that
noxious fumes which destroy every plant in my garden should
be actionable, it is far more difficult to weigh up the complaints
of a resident in an industrial area that lorries travelling to a
factory cause noise and dust which affect his or her property.
The test is one of “reasonable user”, balancing the interest of the
defendant to use his or her land as is legally permitted against
the conflicting interest of the claimant to have quiet enjoyment
of his or her land. The ordinary use of your home will not
amount to a nuisance, even if it discomforts your neighbour due
to poor soundproofing or insulation.16 As Lord Wright stated in
the leading case of Sedleigh-Denfield v O’Callaghan17:

“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.”

“Reasonable user”
10–005 The first point to stress is that this is not a standard of reasonable
care as in negligence. The rule is one of give and take. I do not
expect my neighbours to be perfect or to exist in hermit-like
silence and isolation, but neither do I expect my neighbours to
use their property in such a way as to render my existence
unbearable: I therefore expect them to use it reasonably.
However, as in negligence, what is “unreasonable” is difficult to
define. It does not require that the defendant’s actions must be
deliberate. Equally, it is clearly established that, in nuisance,
 the defendant’s use of land can be “unreasonable” even though
he or she has taken all reasonable care to prevent the nuisance
occurring.18 The courts’ approach is therefore results-based: is
the result of the defendant’s conduct such that it is likely to
cause unreasonable interference with the claimant’s use or
enjoyment of land? It is not a question of blaming the defendant,
but of protecting the claimant’s interest. The question is simply
what, objectively, a normal person would find it reasonable to
have to put up with.19 There is, predictably, no set formula for
determining what results are unreasonable. It is possible to list a
number of circumstances which are clearly relevant to the
courts’ decisions in particular cases, the answer will vary
according to the circumstances of each case.

Factors determining reasonable user

10–006 The following factors are considered in turn below:

▮ The nature of the locality.
▮ The duration and frequency of the defendant’s conduct.
▮ The utility of the defendant’s conduct.
▮ Abnormal sensitivity of the claimant.
▮ Malice on the part of the defendant.

◗ (1) The nature of the locality

10–007 As stated above, this is not relevant where material physical
damage has been suffered by the claimant. Where the claimant
has suffered personal discomfort and inconvenience, however, it
is relevant. The classic quotation is that of Thesiger LJ in
Sturges v Bridgman: “What would be a nuisance in Belgrave
Square would not necessarily be so in Bermondsey”.20
Therefore, in considering whether noise from a local factory
causes a nuisance to local residents, the courts will examine the
nature of the locality, and if it is an industrial area, will be less
likely to find an actionable nuisance.
The nature of the locality may change over time from
industrial to residential, and therefore the courts must have
regard to the locality as it is today. Change may happen
naturally, or may be due to deliberate development of the
locality, as seen with the development of the London Docklands,
which was classified as an urban development area. Indeed, in
Gillingham BC v Medway (Chatham) Dock Co Ltd,21 Buckley J
held that planning permission to develop a disused naval
dockyard as a 24-hour commercial dock had changed the
character of the neigh-bourhood. Local residents therefore could
not complain about the serious disruption caused to them by its
operation. More recently, the Supreme Court in Coventry v
Lawrence22 reviewed the extent to which planning permission
might change the character of the neighbourhood where the
defendants had long-standing planning permission to build a
speedway racing stadium and later permission for a motocross
track. Lawrence, who had moved into the area in 2006, alleged
that there was a noise nuisance. The Supreme Court overturned
the decision of the Court of Appeal that the grant of planning
permission had by itself changed the nature of the locality. It
would be wrong in principle if, through the grant of planning
permission, a planning authority would be able to deprive a
property-owner of a right to object to what would otherwise be a
nuisance, without providing her with compensation. While
planning permission could be relevant in, for example,
indicating acceptable levels of noise in the neighbourhood and
(see para. 10– 065) in determining the appropriate remedy, the
decision whether the activity causes a nuisance or not is for the
court, not the planning authority. Giving the leading judgment,
Lord Neuberger found that in relation to claims for loss of
amenity in nuisance, “the mere fact that the activity which is
said to give rise to the nuisance has the benefit of planning
permission is normally of no assistance to the defendant in a
claim”.23 It should be remembered, therefore, that planning
 permission is not a defence to nuisance. Where planning
permission was given to expand a pig farm adjacent to holiday
accommodation, this did not change the nature of the locality,
and so did not excuse the nuisance caused to the plaintiffs by the
smell of the pigs.24 Equally, planning permission granted to a
landfill site did not prevent local residents from successfully
claiming for the amenity loss caused by an odour nuisance.25

◗ (2) Duration and frequency

10–008 It is a matter of common sense that the claimant will have to
endure some inconvenience in his or her enjoyment of land.
What is unreasonable is when it occurs frequently and for long
periods of time.26 Therefore, my neighbour undertaking DIY on
Sunday morning must be endured, but my neighbour drilling for
24 hours, or every day between midnight and 2.00am, is
unreasonable.
Again, the courts will use a largely common-sense approach
to this factor. In De Keyser’s Royal Hotel Ltd v Spicer Bros
Ltd,27 the court was willing to grant an injunction for a
temporary interference when it consisted of pile-driving in the
middle of the night, but confined the injunction to forbidding
work between 10.00pm and 6.30am. An action for physical
damage to property is likely to succeed even where the nuisance
is temporary, but in such a case the court will only award
damages rather than an injunction. In Crown River Cruises Ltd v
Kimbolton Fireworks Ltd,28 the plaintiffs’ vessels had suffered
substantial fire damage caused by falling debris from a fireworks
display to celebrate the fiftieth anniversary of the Battle of
Britain. The display had only lasted about 20 minutes, but it was
found to be inevitable that debris, some of it hot and burning,
would fall on nearby property of a potentially flammable nature.
The plaintiffs were therefore awarded damages.
Much ink has been spilt analysing whether an isolated
escape can amount to an actionable nuisance. It is true that it is
easier to obtain an injunction where the interference is
 continuous or recurrent, but this does not necessarily exclude an
isolated escape of sufficient gravity. The court in SCM (United
Kingdom) Ltd v WJ Whittal & Son Ltd29 accepted that such
liability could arise where the plaintiff was affected by the state
of the defendant’s land or activities upon it, but excluded
liability for a single negligent act, which it held would only
found an action in negligence. Isolated escapes may, of course,
be actionable in any event under the rule in Rylands v Fletcher,
which will be considered later in this chapter, provided the
damage suffered is reasonably foreseeable. It is a question, then,
of the degree of interference—where an isolated act causes
physical damage to property, the courts will generally look for
negligence.30

◗ (3) Utility of the defendant’s conduct

10–009 This is not generally 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 has
been argued, however, that it should influence the court in
exercising its equitable jurisdiction whether to grant an
injunction, and will therefore be considered further in the section
on remedies.31

◗ (4) Abnormal sensitivity

10–010 The result of the defendant’s conduct must be such as to
unreasonably affect the ordinary citizen. Discomfort resulting
from personal sensitivity to noise or heat which would not affect
the ordinary citizen will not found an action in nuisance. The
leading case is Robinson v Kilvert,32 where the defendant
operated a business in the lower part of a building, which
required hot and dry air. As a result, the temperature of the floor
of the plaintiff’s premises above rose to 80°F, which diminished
the value of the brown paper stored there. The heat was not such
as to affect ordinary paper or to cause discomfort to the
 plaintiff’s workforce. The Court of Appeal refused the plaintiff
damages. He had undertaken an exceptionally delicate trade and
had not shown an actionable nuisance. This must be correct. It
cannot be just to impose a burden on the defendant to
compensate all claimants for interference, no matter how
sensitive they are. This would unduly interfere with the
defendant’s own freedom to enjoy his or her property. It should
be noted, however, that once an actionable nuisance is shown,
the claimant may recover the full extent of his or her losses,
even where they result from interference with an exceptionally
delicate use of the land.33

10–011 Yet it may be difficult to determine what we would now regard

as “unduly sensitive”. It is clear that a person who cannot stand
any noise or odours is more sensitive than normal. Does this
extend, however, to interference with TV reception or wifi?
Unfortunately, there are dicta suggesting exactly that. The root
of the problem lies with the decision of Buckley J in Bridlington
Relay v Yorkshire Electricity Board.34 The court in that case was
unimpressed with the claim of a company, which relayed sound
and television broadcasts, that its business would be interfered
with by the erection of two pylons within 250 feet of its mast.
Buckley J refused an injunction because the defendants had
given an assurance that the interference could be remedied, but
his Lordship went further and doubted whether interference with
a primarily recreational activity could ever found an actionable
nuisance. This decision has been dismissed as out-of-date,35 and
Buckley J expressly stated that he was not laying down an
absolute rule. Nevertheless, the House of Lords in Hunter v
Canary Wharf Ltd36 gave no clear indication as to whether the
case would be decided differently today.
More recently, in Network Rail Infrastructure Ltd v Morris
(t/a Soundstar Studio),37 however, the Court of Appeal adopted
a more considered approach. Here the claimant was complaining
about electromagnetic interference from a section of Railtrack’s
signalling system to the music created by electric guitars in his
 recording studio. The court recognised that, although this might
have been dismissed as “extra-sensitive” in the past, the use of
electric and electronic equipment was now a feature of modern
life. It thus focused on what was reasonable in the circumstances
of the case. Buxton LJ also went further to question the
continued utility of Robinson v Kilvert when loss, in any event,
must be reasonably foreseeable to be actionable in nuisance (see
Remoteness below). It is submitted that the concept of abnormal
sensitivity is still helpful in indicating when an actionable
nuisance will arise, but that the courts should refer to
contemporary standards when judging what is an extra-sensitive
use of land.

◗ (5) Malice
10–012 In assessing whether the defendant’s use of his or her land is
reasonable, regard will be had to his or her frame of mind.
This can be criticised for judging the defendant’s conduct,
which is not the role of nuisance, but there seems good
authority for the fact that malice will encourage the courts to
find an unreasonable user. The case of Christie v Davey38 is
the leading authority. The plaintiff was a music teacher who
gave lessons at her home. The defendant, her neighbour, found
the noise irritating and chose to express his displeasure by
knocking on the party wall, beating trays, whistling and
shrieking. The plaintiff succeeded in her claim for an
injunction. North J held that:

“. . . 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.”39
Christie was followed in Hollywood Silver Fox Farm Ltd v
Emmett,40 where Macnaghten J granted an injunction against a
defendant who had deliberately fired guns on his own land near
its boundary with the plaintiffs’ land. The plaintiffs carried on
the business of breeding silver foxes on their land, and evidence
was given that the discharge of guns during breeding time would
frighten the vixens leading them to refuse to breed, miscarry, or
kill their young. Although the use of land for breeding foxes was
obviously sensitive, the presence of malice was sufficient to
overcome this objection.
Such authority should be contrasted with that of the House
of Lords in Bradford Corp v Pickles.41 The defendant had
deliberately drained his own land, with the intention of
diminishing the water supply leading into the plaintiffs’ land,
and thereby forcing them to purchase his land. The House of
Lords did not, however, grant an injunction, and refused to take
note of the alleged malice of the defendant. This decision can
nevertheless be distinguished from Christie in a number of
ways. First, the plaintiffs in Bradford had no right
to receive the water, and therefore no right had been interfered
with on which to found the nuisance. Secondly, at least from the
laissez-faire perspective of the nineteenth century, the defendant
had done no more than exercise his right to appropriate or divert
underground water to obtain a better deal from the plaintiffs.
Could this really be regarded as malicious?
Malice will therefore be considered relevant by the courts in
applying the test of “reasonable user”. Caution should be
adopted, however, towards comments in the leading case of
Hunter v Canary Wharf Ltd (see below)42 by Lord Cooke, who
suggested that malicious erection of a structure for the purpose
of interfering with television reception should be actionable in
nuisance. These comments were based on Lord Cooke’s
minority belief that the interference caused by building the
Canary Wharf tower was actionable, but could be justified on
the ordinary principles of give and take. On this basis, malice (as
in Christie) would be capable of converting a reasonable user
into an unreasonable user. This was not, however, the majority
 view. On the majority view, as seen above, the claimant has no
right to complain in such circumstances. The appropriate
analogy would therefore be that of Bradford Corp v Pickles: the
defendant had a right to build the tower; the claimant had no
right which had been interfered with, and so malice would be
irrelevant.

Who can sue?

10–013 The aim of private nuisance is to protect the claimant’s use and
enjoyment of land. It is therefore logical that the claimant must
have some land which has been unreasonably interfered with.
The more difficult question is: what link must the claimant have
with the land? Does the law of tort demand an interest in land, as
defined by property law, or simply some substantial link with the
land? The traditional view was that an interest in land had to be
shown. In Malone v Laskey,43 the Court of Appeal refused the
plaintiff’s action for damages for personal injury when
vibrations emitted from the defendant’s premises caused an iron
bracket supporting a cistern to fall upon her. She was a mere
licensee without any interest in land, and so had no cause of
action.
This position was challenged, however, by Dillon LJ in
Khorasandjian v Bush.44 In this case, Miss Khorasandjian had
been subjected to a campaign of harassment by a former
boyfriend, for which he had spent some time in prison. She
sought an injunction to prevent him “harassing, pestering or
communicating” with her, particularly by means of persistent
and unwanted telephone calls to her mother’s home where she
lived. Miss Khorasandjian, in common with Mrs Malone, had no
proprietary interest in the home, but Dillon LJ held that “the
court has at times to reconsider earlier decisions in the light of
changed social conditions” and therefore supported her claim in
private nuisance.
Khorasandjian was in turn rejected by the majority of the
House of Lords in the leading case of Hunter v Canary Wharf
Ltd.45 In this case, a number of local residents, who included
homeowners, their families and other licensees, had complained
about the Canary Wharf tower, which forms part of the
Docklands development in London. The tower is nearly 250
metres in height and over 50 metres square, with a metallic
surface, and, when erected, was found to interfere with the
television reception of neighbouring homes. Two preliminary
questions arose:
▮ Did an actionable nuisance exist?
The House of Lords held that the interference with
television reception by the erection of a building did not
amount to an actionable nuisance. It was held, by analogy
to cases which refused liability for blocking a view,46 that
the defendants were free to build what they wanted on
their land, subject to planning controls and proprietary
restrictions, such as easements, over the land. Complaints
could thus only be made at the planning stage and not by
means of the tort of private nuisance.47 The Court of
Appeal recently approved this view, rejecting the
argument that erecting a viewing platform which allowed
visitors to the Tate Gallery to look into glass-fronted flats
nearby could amount to a private nuisance.48
▮ If an actionable nuisance existed, who could sue?
Their Lordships reasserted the traditional view stated in
Malone v Laskey49 and held that only claimants with an
interest in land or exclusive possession could bring an
action for nuisance. In the words of Lord Goff: “. . . on
the authorities as they stand, an action in private nuisance
will only lie at the suit of a person who has a right to the
land”.50 This represented a return to the historical roots of
private nuisance as a tort to land. It also meant that it
would be easier for anyone creating a nuisance to
ascertain who to deal with if trying to settle any potential
claim. In so doing, the majority of the House of Lords
(Lord Cooke dissenting) rejected the opportunity given in
 Khorasandjian to develop the tort to protect the personal
interests of anyone occupying the land.

◗ Rights in the land

10–014 These were defined by the House of Lords in Hunter as
consisting of interests in land or exclusive possession. On this
basis, if you are a landowner, tenant, grantee of an easement or
profit à prendre, or simply have a right to exclusive possession
of the land, you may sue, but any lesser right will not suffice.
This division was justified by Lord Hoffmann in Hunter:

“Exclusive possession distinguishes an

occupier who may in due course acquire
title under the Limitation Act 1980 from a
mere trespasser. It distinguishes a tenant
holding a leasehold estate from a mere
licensee. Exclusive possession de jure or de
facto, now or in the future, is the bedrock of
English land law.”51

The importance of exclusive possession may be seen in the

Court of Appeal decision in Pemberton v Southwark LBC.52 In
this case, a “tolerated trespasser”, that is a former secure tenant,
against whom an order for possession had been obtained but
suspended whilst she continued to occupy the property and pay
rent,53 was allowed to sue for nuisance when her flat became
infested with cockroaches. As stated by Roch LJ:

“Possession or occupation by the tolerated

trespasser may be precarious, but it is not
 wrongful and it is exclusive . . . In those
circumstances, in my judgment, the
tolerated trespasser does have a sufficient
interest in the premises to sustain an action
in nuisance.”54

You will not be able to claim, however, if you are simply a

member of the landowner’s family, a guest, lodger or employee.
This does not, of course, stop you seeking alternative remedies
in negligence, occupiers’ liability, or resorting to the Protection
from Harassment Act 1997 (which will be discussed further in
Ch.11) providing you can satisfy the necessary requirements to
establish liability.

◗ Losses incurred prior to acquisition of a right to

land
10–015 It should be noted that, provided the nuisance is continuing,
there is authority that the claimant may sue for his or her losses
even if they began prior to acquisition of the premises. In
Masters v Brent LBC,55 Talbot J held that the plaintiff was able
to recover the losses incurred by him in
remedying damage caused by encroaching tree roots, which
caused subsidence to the house he had recently acquired. He
could show a continuing actionable nuisance and so could
recover the total cost of the works necessary to remedy the
damage caused by the tree roots to the property. In Delaware
Mansions Ltd v Westminster City Council,56 the House of Lords
approved this approach. Here, the roots of a tree on council land
had caused damage to an adjoining building. Although most of
the damage had occurred prior to the claimant’s purchase of the
property, their Lordships found that where there was a
continuing nuisance of which the defendant knew or should have
known, the purchaser would be able to recover reasonable
 remedial expenditure. The claimant was thus able to recover the
cost of underpinning works which amounted to over £570,000. It
should be noted that in both Masters and Delaware, there was no
possibility of double recovery. Where, for example, the previous
owner has incurred some remedial expenditure, a court would
apportion the damages awarded between the two parties.

◗ Landlords
10–016 A landlord whose property is leased retains only a “reversionary
interest” in the premises, namely his or her right to possession at
the end of the term of the lease. The landlord can only sue where
the nuisance has harmed this interest in a permanent way, i.e. the
value of the property will be diminished when the landlord
comes back into possession.57 Examples include vibrations
which affect the structure of the property, and nuisances where
there is a risk of the perpetrator gaining a legal right to commit
the nuisance by prescription (see below). In contrast, the
landlord cannot sue if the interference is of a temporary nature,
such as noise or smoke which is unlikely to have any permanent
effect on the land. In these circumstances, the action can only be
brought by the tenant. The landlord can do nothing if the tenant
decides instead to leave, or demands a decrease in rent.

◗ The Human Rights Act 1998

10–017 It has been questioned whether the test in Hunter v Canary
Wharf confining the right to sue to those with rights to land is
compatible with the Human Rights Act 1998. For example,
Professor Wright in the first edition of her book, Tort Law and
Human Rights, suggested that:

“it is time for English law to move beyond

the straitjacket of the forms of action, so
 that the boundaries of private nuisance are
determined by the link with one’s home.”58

As explained in Ch.1, HRA 1998 s.6 provides that it is unlawful

for a public authority to act in a way which is incompatible with
a Convention right and the term “public authority” includes the
courts themselves. On this basis, the courts must also take
account of the rights established in the Convention and the case
law of the Strasbourg court when relevant.59 The issue here is
the European Convention on Human Rights art.8(1). This states
that “Everyone has the right to respect for his private and family
life, his home and his correspondence”.60 This has been
interpreted by the European Court of Human Rights in a broad
sense, permitting parties without rights in the home to sue.61 For
example, in Khatun v United Kingdom62—an appeal from part
of the Hunter litigation in which the applicants had complained
of dust arising from construction of the Limehouse Link Road—
the European Commission of Human Rights found that:

“in domestic proceedings, a distinction was

made between those applicants with a
proprietary interest in the land and those
without such an interest. For the purposes
of Article 8 (art.8) of the Convention, there
is no such distinction. ‘Home’ is an
autonomous concept which does not depend
on classification under domestic law.
Whether or not a particular habitation
constitutes a ‘home’ . . . will depend on the
factual circumstances, namely, the existence
of sufficient and continuous links.”63
This suggests that in a suitable case, a court would be able to
challenge the limitation in Hunter in favour of a test based on a
sufficient link with the land. In McKenna v British Aluminium
Ltd,64 for example, Neuberger J in a striking-out decision was
prepared to contemplate such a move. Here, over 30 children
from a number of households had brought actions for private
nuisance and under the rule in Rylands v Fletcher, alleging that
emissions and noise from the defendants’ neighbouring factory
had caused them mental distress, physical harm and an invasion
of privacy. The judge rejected the defendants’ argument that
their claims should be struck out unless they could point to a
proprietary right.

“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.”65

Over 15 years later, however, the rule in Hunter remains. The

evident intention of the House of Lords in Hunter was to
provide a straightforward rule which sets out the boundaries of
the tort and facilitates negotiated settlements of claims. It
should also be noted that art.8 is a qualified right and
interference may, under art.8.2, be justified on the basis that it
is:
 “necessary in a democratic society in the
interests of national security, public safety
or the economic well-being of the country,
for the prevention of disorder or crime, for
the protection of health or morals, or for
the protection of the rights and freedoms of
others.”

On the facts of Khatun, the Commission ruled that the

defendants’ activities could be justified as pursuing a legitimate
and important aim, given the importance of the public interest in
developing the Docklands area of London and the limited
interference to the applicants’ homes.66 The proposed change
would have altered the fundamental character of the tort.
Despite the implementation of the Human Rights Act 1998,
Hunter remains good law. The Court of Appeal in the recent
case of Fearn v Board of Trustees of the Tate Gallery67
confirmed that “overlaying the common law tort of private
nuisance with art.8 would significantly distort the tort in some
important respects.”68 Private nuisance being a property tort,
mere licensees, said the Court, should have no cause of action
despite the fact that art.8 is not limited in this way. It seems that
the death knell for McKenna has finally been struck.

Who can be sued?

10–018 The most obvious defendant is the person who created the
nuisance. This is not contentious, but it is important to recognise
that the liability of the creator of the nuisance is not dependent
on occupation of the land. Even if the defendant no longer
occupies the land, and cannot therefore abate (or “stop”) any
nuisance, he or she may still be liable.69 However, if the creator
 cannot be traced or it is not financially viable to sue the creator,
a number of other defendants exist:
▮ the occupier of the land; and
▮ the landlord.

We deal with each of these potential defendants in turn.

◗ (1) The occupier of the land

10–019 The occupier may find himself or herself liable for nuisances
occurring during the period of occupancy even where he or she
is not the creator. This will occur in four particular instances.

(I) THE OCCUPIER EXERCISES CONTROL OVER

THE CREATOR
10–020 The occupier will be liable for a nuisance created by its
employees in the course of their employment (under the
principles discussed in Ch.7), which will extend to independent
contractors where the duty not to create a nuisance is non-
delegable. Liability for independent contractors has caused some
problems, and the concept of a non-delegable duty has been
interpreted broadly. In Matania v National Provincial Bank,70
the occupier of two floors of a building brought an action for
nuisance against the occupier of the first floor in respect of the
dust and noise caused by the work of his independent
contractors. The Court of Appeal held that the employer in such
circumstances is liable for the damage occasioned by its
independent contractors when their operations, by their very
nature, involve a risk of damage to the claimant.

(II) THE OCCUPIER HAS ADOPTED OR

CONTINUED A NUISANCE CREATED BY A
TRESPASSER
10–021 Here, the defendant is rendered liable for his or her omissions in
failing to deal with a nuisance created by a trespasser. Liability
is, however, far from strict. The defendant is only liable if he or
 she (i) adopts the nuisance, i.e. uses the state of affairs for his or
her purposes or (ii) continues the nuisance, i.e. with actual or
presumed knowledge of the nuisance, fails to take reasonably
prompt and efficient steps to abate it. The same rule applies to
private and public nuisance.71 The leading case is the House of
Lords decision of Sedleigh-Denfield v O’Callaghan.72 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 steps to abate it.
The rule can be justified as one of good sense and
convenience. The occupier is best placed to deal with the
nuisance, and the House of Lords rejected the idea that it was
enough to give the claimant the right to enter on to the land to
abate the nuisance. The Court of Appeal has more recently
decided that there is no relevant distinction between a nuisance
caused by the state of the property and one caused by the
activities of trespassers upon it. Therefore, in Page Motors Ltd v
Epsom and Ewell BC,73 the local authority was found liable for
failing to take reasonable steps to evict travellers whose
activities had been harming the plaintiffs’ businesses.

(III) THE OCCUPIER HAS ADOPTED OR

CONTINUED A NUISANCE CREATED BY AN ACT
OF NATURE
10–022 Until Goldman v Hargrave,74 the courts had drawn a distinction
between nuisances created by third parties and those resulting
from acts of nature. Occupiers were under no duty to abate the
latter, although they would have to allow their neighbours
reasonable access to abate the nuisance. The Privy Council in
 Goldman refused to maintain this distinction, and held that the
House of Lords decision in Sedleigh-Denfield should be applied
equally to situations where the nuisance had been created by an
act of nature. In Goldman, a 100 feet high redgum tree, growing
in the centre of the defendant’s land, was struck by lightning and
caught fire. The defendant quite properly cut down the tree, but
left it to burn itself out when he could have simply eliminated
any risk of fire by dousing the smouldering sections of the tree
with water. The wind later picked up and rekindled the fire,
which spread, causing damage to the plaintiff’s land. In a
significant judgment, Lord Wilberforce held that the defendant
was liable for not acting against the foreseeable risk of fire.
The Court of Appeal approved Lord Wilberforce’s judgment
in Leakey v National Trust.75 In this case, it was found that there
was no valid distinction between an act of nature affecting
something on the land and one deriving from the state of the
land itself. In 1976, an exceptionally dry summer, followed by a
very wet autumn, had led to subsidence of a hill above the
plaintiffs’ properties, causing damage to the properties. There
was evidence that the defendants had been aware of this
potential problem, indeed they had been warned by the
plaintiffs,
but had refused to act. The Court of Appeal held that they were
liable. Megaw LJ found that it would be a “grievous blot on the
law”76 if the law did not impose liability on the defendants in
such circumstances.

THE MEASURED DUTY OF CARE

10–023 In finding liability in Goldman, Lord Wilberforce, however,
made it clear that the defendant’s conduct should be judged in
the light of his or her resources and ability to act in the
circumstances:

“The law must take account of the fact that

the occupier on whom the duty is cast has,
 ex hypothesi, had this hazard thrust upon
him through no seeking or fault of his own.
His interest, and his resources, whether
physical or material, may be of a very
modest character either in relation to the
magnitude of the hazard, or as compared
with those of his threatened neighbour. A
rule which required of him in such
unsought circumstances in his neighbour’s
interest a physical effort of which he is not
capable, or an excessive expenditure of
money, would be unenforceable or unjust . .
. In such situations the standard ought to be
to require of the occupier what it is
reasonable to expect of him in his individual
circumstances.”77

Where, therefore, the defendant is poor, and abatement will

require vast expense, the defendant will not be considered
liable.78 Equally, less will be expected of the infirm than of the
able-bodied. This subjective approach would seem to extend to
situations where the occupier is liable for the act of a trespasser
or for a failure to support his or her neighbour’s land. In Page
Motors Ltd v Epsom and Ewell BC,79 for example, the Court of
Appeal applied and extended the test to include consideration of
the particular character of the defendant. In that case, the
defendant was a local authority. The court, in deciding whether
it had failed to take reasonable steps, therefore considered the
responsibilities of the local authority to the public at large, for
example, for the problems likely to be produced by moving the
travellers to another site in the borough. Whilst this would
justify it acting more slowly than a private individual, permitting
the nuisance to continue for five years was clearly excessive.
Equally, in
Holbeck Hall Hotel Ltd v Scarborough BC (No.2),80 the Court of
Appeal applied the test to a local authority sued for loss of
support. Here, a massive landslip in 1993 had led to the collapse
of part of the four star Holbeck Hall Hotel, which was situated at
the top of a cliff overlooking the North Sea. As a result, the hotel
had to be demolished. The hoteliers sued the local council,
which owned the land forming the undercliff between the hotel
and the sea, for loss of support, claiming that they should have
taken measures to prevent the damage caused. The council had
been aware of the danger of landslips due to marine erosion, and
had undertaken works in the past, but had not foreseen a landslip
of this magnitude. The Court of Appeal rejected the claim. The
Wilberforce test would apply to claims for loss of support,81 but
the council could not be found liable for failing to undertake
measures which only a geological expert could have identified
as necessary. The defendant would thus not be liable where he or
she was unable to foresee the extent of the loss suffered. In any
event, even if the loss had been foreseeable, in view of the
extensive and expensive nature of the works necessary:

“the scope of the duty may be limited to

warning neighbours of such risk as they
were aware of or ought to have foreseen
and sharing such information as they had
acquired relating to it.”82

This subjective test may be contrasted with the objective

standard of care adopted in negligence (discussed in Ch.5). We
may also note the more restrictive test of remoteness employed
in Holbeck Hall which requires foreseability of the extent of the
loss suffered in comparison to the more generous Wagon Mound
 test discussed in Ch.6. The test is confined, however, to
circumstances in which the defendant has not created the
nuisance.
One final point of comparison may be drawn between
Sedleigh-Denfield liability, and the duty of care imposed on
landowners in negligence for omissions discussed in Ch.2. It
will be recalled that in Smith v Littlewoods,83 the occupier was
held not to be liable to adjoining occupiers for the acts of
vandals who had set fire to a derelict cinema on its land. The
court held
that the occupier would not be responsible where it was no more
than a merely foreseeable possibility that trespassers would gain
access to land and cause damage to the property of neighbouring
owners.84

(IV) THE CREATOR IS THE OCCUPIER’S

PREDECESSOR IN TITLE
10–024 Liability in this context is limited. It can only arise where the
nuisance was created by a predecessor in title to the occupier
and the occupier knew or ought reasonably to know of the
existence of the nuisance.85 In this sense, it strongly resembles
the Sedleigh-Denfield principle. Although there is no authority
that the subjective standard of care applies, it would be illogical
not to apply it in such a case.

◗ (2) The landlord

10–025 On the grant of a lease, the tenant will be in possession and will
be liable for any nuisance he or she creates. However, there may
be circumstances where an alternative action lies against the
landlord. There are three main situations where this may occur.

(I) WHERE THE LANDLORD PARTICIPATES

DIRECTLY IN THE COMMISSION OF OR
AUTHORISES THE NUISANCE86
10–026 The Supreme Court in Coventry v Lawrence (No.2) confirmed
that the landlord will be liable for nuisance if he/she has actively
and directly participated in the commission of the nuisance, or
let the property in circumstances where there was a very high
degree of probability that the letting would result in the
nuisance.87 The fact that a landlord had done nothing to stop or
discourage the nuisance would not be considered to amount to
participation. In so doing, it approved the view of Lord Millett in
Southwark LBC v Mills:

“It is not enough for [landlords] to be

aware of the nuisance and take no steps to
prevent it. They must either participate
directly in the commission of the nuisance
or they must be taken to have author-ised it
by letting the property.”88

Much, therefore, will turn on the facts. The courts will examine,
in particular, the purpose for which the premises are let. In Tetley
v Chitty,89 for example, the local authority had let
a parcel of its land in a residential area to a go-kart club, in the
full knowledge that the club intended to use and develop the
land for go-karting. The local residents complained, however, at
the noise which came from the track. The court found the local
authority liable for the nuisance. The noise was the natural and
necessary consequence of that activity, and by granting a lease
for this purpose, the authority had given express or at least
implied consent to the nuisance. In contrast, in Coventry (No.2),
the court found no question of the landlords having authorised
the nuisance in this case (noise from a speedway racing stadium
and motocross track). The nuisance could not be said to be
inevitable, or nearly certain, consequence of the letting to the
tenants of the premises, the stadium and the track.
Landlord liability equally did not lie in Smith v Scott90 and
Mowan v Wandsworth LBC.91 In Smith, a dwelling house had
 been let to a family known by the landlord to be likely to cause a
nuisance. The tenants proceeded to cause damage to the
neighbouring property of an elderly couple and caused such a
nuisance that the couple were obliged to leave their home and
seek other accommodation. The landlord had inserted in the
tenancy agreement a clause expressly prohibiting the committing
of a nuisance. The insertion of this covenant was found to
counter any arguments of implied authorisation. It could not be
said on the facts that the nuisance was a necessary consequence
of the letting. Lord Neuberger warned in Coventry (No.2),
however, that if, at the time the lease was granted, a nuisance
was inevitable, or close to inevitable, a landlord could not
escape liability by simply including a covenant against nuisance
in the lease.92
In Mowan v Wandsworth LBC,93 the Court of Appeal also
struck out a claim against the council on the basis that it could
not be said to have authorised the conduct of a tenant suffering
from a mental disorder, who lived above the home of the
claimant. Reasonable foresight of the nuisance was not sufficient
to impose liability on the landlord.
This would seem to let the landlord off fairly easily.94 In
Smith v Scott, for example, it was obvious that the tenants would
not respect this clause, but foresight was not enough to establish
liability. In reality, the courts are being asked to deal with
difficult social problems through the imperfect medium of the
tort of private nuisance. Issues such as anti-social behaviour and
care in the community cannot realistically be dealt with by the
courts alone. This provides little consolation, however, to those
suffering as a result of these problems.95

10–027 The law differs, however, where the person creating the nuisance
is not a tenant, but a licensee, i.e. not paying rent, but on land
with the permission of the “licensor”. In Lippiatt v South
Gloucestershire CC,96 the Court of Appeal was prepared to find
a licensor liable for the acts of licensees on its property. In this
case, travellers allowed onto the council’s land had undertaken a
number of acts which harmed the land of neighbouring farmers.
Such activities included frequent acts of trespass, stealing
timber, gates and fences, dumping rubbish and damaging crops.
The local authority was found liable for failing to exercise its
powers to evict travellers from its land at an earlier stage. More
recently, in Cocking v Eacott,97 the Court of Appeal rejected the
argument that licensors should be treated in the same way as
landlords where, as here, it was a question of a mother allowing
her daughter to stay in residential property on a bare licence.
Licensors would be treated in law in the same way as occupiers
(see paras 10–020–10–024 above). On this basis, the mother
would be liable in nuisance if found to have adopted or
continued the nuisance.
Lippiatt and Cocking highlight that the key distinguishing
factor between the liability of landlords and licensors is that of
possession and control. The licensor, unlike the landlord, has a
right to immediate possession and licensees may be evicted
more easily than tenants. The licensor is also in a position in law
and in fact to control the property. It is deemed irrelevant that
the licensor’s control is over land and not over the licensee him
or herself.
One may question whether such a distinction is fair and
always clear, particularly in relation to residential property.98 It
will in practice be far more difficult to bring a claim against a
landlord than a licensor. The justification that the claimant may
sue the tenant directly, whilst he or she may have difficulties
pursuing a licensee, ignores the potential difficulties in obtaining
a remedy against a particular tenant (for example, in Mowan, the
court was not convinced that an injunction would be awarded
against a person suffering from a mental disorder).99 It might be
argued that the underlying issue—to what extent can private
nuisance deal with the issues arising from problem
tenants/occupants?—is equally applicable whether the nuisance
is created under a lease or licence. This is not, however, the
position of the law.

(II) THE LANDLORD KNEW OR OUGHT TO HAVE

KNOWN OF THE NUISANCE BEFORE LETTING
10–028 There is authority that where the nuisance consists of lack of
repair, the landlord cannot avoid liability by simply inserting
into the lease a covenant that the tenant must undertake the
repairs. As Sachs LJ commented in Brew Bros Ltd v Snax (Ross)
Ltd100:

“As regards nuisance of which [the

landlord] knew at the date of the lease, the
duty similarly arises by reason of his
control before that date. Once the liability
attaches I can find no rational reason why it
should as regards third parties be shuffled
off merely by signing a document which as
between owner and tenant casts on the
latter the burden of executing remedial
work. The duty of the owner is to ensure
that the nuisance causes no injury, not
merely to get someone else’s promise to take
the requisite steps to abate it.”

(III) THE LANDLORD COVENANTED TO REPAIR,

OR HAS A RIGHT TO ENTER TO REPAIR
10–029 This may be express or implied.101 Liability is based on the fact
that the landlord has retained a degree of control over the
condition of the premises. One particular example of implied
retention of control is through the Landlord and Tenant Act 1985
ss.11 and 12. If a dwelling house is let for a term of less than
seven years, there is an implied and non-excludable covenant to
keep in repair the structure and exterior of the house and certain
installations for the supply of water, gas, sanitation and
electricity. This is supplemented by negligence liability under
the Defective Premises Act 1972 s.4. Section 4(1) provides that:
 “Where premises are let under a tenancy
which puts on the landlord an obligation to
the tenant for the maintenance or repair of
the premises, the landlord owes to all
persons who might reasonably be expected
to be affected by defects in the state of the
premises a duty to take such care as is
reasonable in all the circumstances to see
that they are reasonably safe from personal
injury or from damage to their property
caused by the relevant defect.”102

This duty is owed only if the landlord knows of the defect

(whether as the result of being noti-fied by the tenant or
otherwise) or ought in all the circumstances to have known of
the relevant defect.103 A defect cannot be a “relevant defect”
unless it also amounts to a failure to repair. As the courts have
clarified, it is a duty to repair, not a statutory warranty that the
premises are reasonably safe.104

Must the nuisance emanate from the

defendant’s land?
10–030 Lord Goff commented in Hunter v Canary Wharf Ltd that the
nuisance would generally arise from something emanating from
the defendant’s land.105 He did, however, recognise that there
were exceptions to this rule. Injunctions have been granted
against brothels and “sex centres”, where the complaint has been
about the presence of prostitutes and clients visiting the
premises, rather than an “emanation” from the land.106 Some
confusion has been caused, however, by the case of Hussain v
Lancaster CC.107 Here, the claimants were shopkeepers in a
council housing estate, who had been subjected to racial
harassment and vandalism by other council tenants. Some
individuals were prosecuted, but a total of 106 people had been
involved in these actions. The Court of Appeal rejected a claim
for nuisance on the basis that while the actions of the tenants
unquestionably interfered with the claimants’ enjoyment of their
land, they did not involve the use of the defendants’ land and so
fell outside the scope of the tort. As explained in the subsequent
decision of Lippiatt v South Gloucestershire CC,108 Hussain
concerned individual acts by perpetrators who just happened to
live in council property. Their conduct was in no sense linked to,
nor did it emanate from, their homes. In contrast, in Lippiatt, the
court held that the land on which the travellers resided had been
used as a “launching pad” for repeated acts of damage, and so
the council would be liable. Whilst Evans LJ suggested that
there had thus been an “emanation” in Lippiatt—namely the
travellers themselves—Staughton LJ was less convinced:

“It seems to me that there is not a great

difference in such a case whether the
offending act of the defendant takes place
on his land, or on the public road outside
his gate. But we need not rule on that
today.”109

Despite Hussain, we can conclude that a nuisance will generally

emanate from the defendant’s land, but there is no real authority
to render it an absolute requirement.

Relevant defences
10–031 There are a number of defences which apply to an action for
nuisance. The general defences of voluntary assumption of risk
and contributory negligence apply but will be discussed in more
detail in Ch.16. It should be noted that although the Law Reform
(Contributory Negligence) Act
1945 does not expressly mention nuisance, its provisions are
generally accepted to apply. We confine our examination here to
defences which are peculiar to nuisance. These are:
▮ Statutory authority.
▮ 20 years’ prescription.
▮ Inevitable accident.
▮ Act of a stranger.

The most significant defence is that of statutory authority.

◗ (1) Statutory authority

10–032 Many nuisances are caused by activities undertaken by local
authorities or other bodies acting under statutory powers. If their
actions are within the scope of the statute (or intra vires), they
are authorised by Act of Parliament and cannot be challenged by
the courts. Parliament is presumed to have considered the
competing interests, and to have determined which is to prevail
in the public interest and whether or not compensation is to be
paid to those adversely affected. It is important to distinguish
this defence from planning permission, by which the applicant is
given permission to construct a particular building.110 This does
not mean that his or her actions have been authorised by
Parliament. Planning permission is, at most, a matter to be
considered in identifying the nature of the locality of the
nuisance. The question here is very different: does the defendant
have statutory authority to commit the nuisance?
The vital question, then, is whether the operations causing
the alleged nuisance are within the authority given by statute.
Generally, this will be the case if the statute expressly or by
necessary implication authorises the nuisance, or the nuisance is
the inevitable consequence of the performance of the authorised
operations. The leading case on statutory authority is Allen v
Gulf Oil Refining Ltd.111 Gulf Oil had obtained its own private
Act of Parliament to authorise its expansion in Milford Haven,
South Wales. The Act provided specifically for the acquisition of
all necessary land and the construction of a refinery, but no
express provision was made for the use and operation of the
refinery once it had been built. Local residents complained about
the noise and vibrations emitted by the refinery and Allen was
brought as a test case. The House of Lords took the question to
be one essentially of statutory construction. Was the nuisance
authorised, expressly or implicitly, by the relevant statute? If so,
the defendant would not be liable. The burden was, however, on
the defendant to satisfy the court that this was in fact so.
The court held, by a majority of four to one, that the operation of
the refinery was implicitly authorised by the Act, the nuisances
were inevitable, and so Gulf Oil had a good defence to the
plaintiffs’ action. The plaintiffs would only have a remedy to the
extent to which any nuisance exceeded the statutory immunity.
The nuisance will not be inevitable if it has been caused by
the negligence of the defendant. “Negligence” here is used in a
special sense to mean a failure by the undertaker to carry out the
work and conduct the operation with all reasonable regard and
care for the interests of other persons.112 It should be noted that
an inevitable nuisance, even when committed without
negligence, is unlikely to be considered authorised if the statute
contains a “nuisance clause” providing that nothing in the Act
shall exonerate the undertaker from liability for the nuisance.113
Equally, if the defendant has a choice how to exercise a statutory
power, and chooses an option which creates a nuisance when
there are other options which would not have raised such
problems, it is unlikely to be found to be authorised.114
The Human Rights Act 1998 may, additionally, have some
impact on this defence. Section 3(1) of the Act provides that:
 “So far as it is possible to do so, primary
legislation and subordinate legislation must
be read and given effect in a way which is
compatible with the convention rights.”

It is possible that conduct authorised by statute may conflict

with an individual’s rights, for example, in relation to art.8 (right
to private and family life). The House of Lords’ decision in
Ghaidan v Godin-Mendoza115 indicates that the courts do
possess broad interpretative powers to avoid all such conflicts
without resorting to a declaration of incompatibility under s.4 of
the Act.

◗ (2) 20 years’ prescription

10–033 Prescription provides a means by which the defendant obtains a
legal right to act in a certain way, which would ordinarily be
contrary to the law, due to the passage of time. In this context, it
will be a valid defence for the defendant to show that the
nuisance complained of had interfered with the claimant’s
interest in land for more than 20 years. The defendant must,
however, be able to show at least 20 years’ uninterrupted
enjoyment as of right, that is, not by force,
stealth or with the permission of the owner. If objections are
made but the activity carries on regardless, prescription cannot
be established.116
It should be noted, however, that this applies only to private
nuisance. It does not apply to public nuisance, on the basis that
length of time should not legitimise a crime. The period is
judged carefully, because the law does not easily diminish
property rights. Time will only run when the nuisance is known
by the claimant to affect his or her interests and can be objected
to. The difficulties faced in successfully relying on this defence
were shown in Sturges v Bridgman.117 In this case, a
 confectioner had used large pestles and mortars at the back of
his premises for more than 20 years. His premises were adjacent
to the garden of a doctor, who made no complaint until he
decided to build a consulting room at the end of his garden.
Then, for the first time, he became aware that the noise and
vibration materially interfered with the pursuit of his practice.
The court granted the doctor an injunction, despite the fact that
the noise and vibrations had existed for over 20 years and that he
had chosen to build in his garden in the full knowledge of the
defendant’s operations (it was no defence that the plaintiff came
to the nuisance—see below). Here, the nuisance only became
actionable when the doctor had built and started to use his new
consulting room. On this basis, the nuisance in Sturges had not
been actionable for more than 20 years so prescription was not a
defence.

◗ (3) Inevitable accident

10–034 The defence of inevitable accident is based on the fact that the
damage suffered by the claimant occurred despite the exercise of
all reasonable care by the defendant. On this basis, this defence
can only be relevant to torts where the exercise of reasonable
care is necessary for liability and is essentially an argument that
the defendant was not in breach. It therefore plays a minimal
role in the tort of nuisance and is only relevant where liability is
dependent upon proof of negligence.

◗ (4) Act of a stranger

10–035 This defence is subject to the principle in Sedleigh-Denfield v
O’Callaghan.118 Reference should therefore be made to the
earlier part of this chapter.

Ineffective defences

10–036
 The following are defences which have been rejected by the
courts:
▮ The claimant came to the nuisance.
▮ The defendant’s conduct has social utility.
▮ Jus tertii.
▮ The nuisance is due to many.

◗ (1) Coming to the nuisance

10–037 It is a well-established rule that the claimant may sue even
though the nuisance was, to his or her knowledge, in existence
before he or she arrived at the premises. By upholding such a
rule, the courts clearly favour the right of the claimant to enjoy
his or her land freely. The claimant is able to attack the status
quo on the basis of his or her own personal interests, despite the
fact it may result in the closing down of established businesses
or put an end to activities which benefit the community as a
whole. The classic case is that of Bliss v Hall,119 in which the
defendant’s business of manufacturing candles gave off
offensive smells. It was no defence to the plaintiff’s action that
the business had already been in existence for three years before
the plaintiff moved in nearby. In more recent times, the rule has
been criticised as being unduly favourable to the claimant. In
Miller v Jackson,120 the defendants had used a cricket ground for
over 70 years. In 1972, the land to the north of the cricket
ground was sold to developers, who built a line of semi-detached
houses there. The plaintiffs bought one of these properties and
complained that despite the fence around the ground (which was
increased in height in 1975) cricket balls had been struck into
their garden or against their house on a number of occasions.
The Court of Appeal was sympathetic to the club. If the
plaintiffs were granted an injunction, the club would be closed
down at the instigation of parties who had chosen to move to a
property adjoining a cricket club. Nevertheless, the majority
 held that Sturges v Bridgman121 was still good law, and they
were bound to hold that it was not a good defence that the
plaintiffs had come to the nuisance. As Geoffrey Lane LJ
explained, “. . . it is not for this court as I see it to alter a rule
which has stood for so long”.122 This did not prevent the
majority ruling that it would not be equitable to award an
injunction in such circumstances, thereby confining the
plaintiffs’ remedy to an award of damages. The Supreme Court
in Coventry
v Lawrence123 did, however, suggest that in cases where the
complaint relates to discomfort, it may be necessary to review
this position where it is only because the claimant has changed
the use of, or built on, her land that the defendant’s pre-existing
activity is claimed to have become a nuisance. This, it argued,
was consistent with the principle of “give and take” between
neighbours. This case will be discussed further in the section on
remedies below.

◗ (2) Utility
10–038 The courts will not accept a defence that the nuisance caused by
the defendant has a benefit to the public at large. This is a further
example of the law’s support for the property rights of the
individual, as is clearly seen in the case of Adams v Ursell.124
The defendant ran a fried fish shop in a residential part of a
street. The court granted an injunction restraining the defendant
from carrying on his fried fish business on the premises, and
rejected the argument that the closure of the shop would cause
great hardship to the defendant and to his customers, for whom
it was a cheap source of nourishment.

◗ (3) Jus Tertii

10–039 This rests on the allegation that a third party has a better title to
the affected land than the claimant, and that the third party
should therefore be bringing the action. It has been rejected in a
 number of cases.125 It seems correct that where the claimant
must show an interest in land or right to exclusive possession,
this should be sufficient to found his or her claim.

◗ (4) Due to many

10–040 It is no excuse that the defendant was simply one of many
causing the nuisance in question. This will be so even if his or
her actions in isolation would not amount to a nuisance. In
Lambton v Mellish,126 the plaintiff sought an injunction against
two rival businessmen who operated merry-go-rounds
accompanied by music on their premises. The combined noise
was found to be “maddening”. Chitty J was not prepared to
excuse one of the defendants on the basis that his contribution to
the noise was slight:

“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.”127

Again, this seems to be a rule of convenience in favour of the

claimant, although it may be justified on the basis that the
defendant’s conduct should be considered in the light of all the
surrounding circumstances, including the conduct of others.
Therefore, an act which would have been reasonable in isolation
may, in the light of all the circumstances, amount to an
unreasonable interference with the claimant’s use and enjoyment
of land.
 Relationship between Private
Nuisance and Other Torts

10–041 It is important to distinguish private nuisance from other torts,

such as negligence and trespass, which are commonly claimed in
the same action. The relationship between private and public
nuisance has already been dealt with above (see para.10–002).

The relationship between private nuisance

and negligence128
10–042 This has caused the most controversy over the years, primarily
due to a number of cases which focus on negligence in
determining whether the defendant has committed an actionable
nuisance. The clearest example of this is the group of cases on
continuing or adopting a nuisance. In Goldman v Hargrave,129
Lord Wilberforce remarked that:

“The present case is one where liability, if it

exists, rests upon negligence and nothing
else; whether it falls within or overlaps the
boundaries of nuisance is a question of
classification which need not here be
resolved.”

However, Megaw LJ in Leakey v National Trust130 described the

claim as one in nuisance, and, as stated earlier, such cases are
distinct from ordinary claims in negligence in that (a) they
impose liability for an omission, and (b) they impose a
subjective standard of care.
The accepted position is that the two torts are conceptually
distinct, and this was empha-sised by the House of Lords in
Hunter v Canary Wharf Ltd131 and Cambridge Water Co v
Eastern Counties Leather Plc.132 The central concept of private
nuisance is that of “reasonable user”. This is distinct from
negligence. There is clear authority that the defendant may be
liable in spite of exercising reasonable care and skill.133 As
stated above, the concept of reasonable user is results-based: is
the result of the defendant’s conduct such that the claimant
suffers unreasonable interference with the use and enjoyment of
his or her property? This is a very different approach from that
in negligence. For example, the classic case of negligence is that
of a road traffic accident caused by the negligent driving of a
motorist. The court does not consider the degree of injury
suffered by the particular claimant, and weigh this against the
right of the particular motorist to drive his or her car without
restriction. Rather, it draws on case law which has established
that the motorist owes a duty of care to pedestrians and other
road-users, and ascertains whether he or she has driven below
the standard of the ordinary reasonable driver, thereby causing
the accident.
A further distinction is that while negligence primarily
protects against personal injury, private nuisance seeks to protect
interests in land. This is forcefully stated by the majority of the
House of Lords in Hunter. The role of private nuisance is to
remedy undue interference with rights in land—therefore the
only parties who can sue are those with an interest in land or
exclusive possession which has been interfered with. Their
Lordships, in Hunter and Transco, went further, suggesting that
only negligence was capable of protecting against personal
injury, as this is not the concern of private nuisance. The
implications of this will be considered further in para.10–068.
It is clear, therefore, that while the torts overlap, and the fact
that the defendant’s actions were committed negligently may
encourage a court to find liability, the torts are distinct. This is
 not to deny that the growth of negligence in the twentieth
century has influenced the development of the older tort of
private nuisance. This influence may be seen in relation to the
rules relating to the continuation or adoption of a nuisance (see
above) where an occupier may be found liable for failing to take
reasonable steps to abate the nuisance on land. Equally, the rules
of remoteness set out in The Wagon Mound (No.1)134 are
common to negligence, private and public nuisance.135 This
does not signify, however, that the courts will not continue to
distinguish between the two different torts.

The relationship between private nuisance

and trespass to land

10–043 Both torts have the common aim of protecting those with an
interest in or exclusive possession of land. Trespass to land will
be discussed in more detail in our next chapter: Ch.11. For the
moment, it should be noted that trespass involves an intentional
and direct act which interferes with the land. It is actionable
without proof of damage. In contrast, nuisance involves an
indirect act which is only actionable on proof of damage. The
distinction is historical, and results from the old rigid forms of
action, which required that a claim had to be made in a certain
form or not at all. Although the forms of action were abolished
in the nineteenth century, the distinction between direct and
indirect forms of interference with land persists. The distinction
may be illustrated by the following classic example: I throw a
log onto your land—this is a direct interference and therefore I
am liable in trespass even if it does not cause you injury or
property damage. (Obviously more compensation will be
recovered if it crashes through your greenhouse!) Alternatively, I
pile up some logs on my land and one of them rolls off the pile
and onto your land. Here, the interference is indirect and it will
only be actionable in nuisance if you can show that it has caused
some injury to your rights in the land.
 Public Nuisance136

10–044 It is important, before examining the rule in Rylands v Fletcher,

to give an overview of the tort of public nuisance. Public
nuisance has a minor role to play in the law of torts – its role has
been largely overtaken by statute—and so the aim of this section
will be to give the reader a general idea of its impact rather than
a detailed discussion of its application. The classic definition
may be found in Romer LJ’s judgment in Att-Gen v PYA
Quarries Ltd137:

“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
neigh-bourhood’; 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.”

It is not necessary to show that every member of the class has

been affected, but the nuisance must be shown to injure a
representative cross-section of the class.
More recently, the House of Lords in R. v Rimmington;
Goldstein138 examined the application of public nuisance in
modern law. In Rimmington, the defendant had sent over 500
racially abusive letters and packages to different individuals all
over the country. In Goldstein, the defendant, as a joke, had sent
 an envelope containing salt to a friend, which backfired
completely when it leaked out in the postal sorting office and
triggered an anthrax scare. Neither defendant was found guilty
of public nuisance. In the first case, their Lordships emphasised
that a section of the community must be affected.139 It was not
enough to inconvenience selected individuals. Mr Goldstein was
equally not guilty of a public nuisance where it could not be
shown that he knew or reasonably should have known that a
public nuisance would occur as a consequence of his actions.140
As Lord Denning remarked in Southport Corp v Esso
Petroleum Co Ltd,141 “the term ‘public nuisance’ covers a
multitude of sins, great and small”. The tort has indeed been
used to deal with a variety of situations including pollution from
oil and silt, pigeon droppings, bogus bomb alerts, pirate radio
broadcasting and raves. Its most common use, however, is in
relation to claims for unreasonable interference with the
claimant’s use of the highway. Obviously, in such cases, it will
be difficult to bring a claim in private nuisance unless the
interference affects the use and enjoyment of the claimant’s land,
and here the complaint will generally relate to the claimant’s
right to pass along the highway.

Obstructions on the highway

10–045 While complaints as to the condition of the highway itself will

now largely be covered by the Highways Act 1980, the claimant
may wish to bring an action relating to unreasonable
obstructions on the highway. As noted in Dymond v Pearce,142
some obstructions are inevitable. It is generally acceptable for
vehicles to stop on the highway to deliver goods or to park in a
lay-by, but a prima facie nuisance would be created where a
vehicle is left for a considerable period without any valid
justification. Equally, whilst it is reasonable for a person to put
up scaffolding for works on his or her house which obstructs the
highway on a temporary basis, a nuisance would be created if
the erection of the scaffolding was unreasonable in size or
 duration.143 It is a matter of degree. It is still unclear whether
fault is necessary to
establish that the obstruction is unreasonable. Certainly, the
majority in Dymond were prepared to contemplate liability
where an action for negligence would fail, despite statements to
the contrary in The Wagon Mound (No.2).144 Lord Denning MR
attempted a compromise in Southport Corp v Esso Petroleum Co
Ltd145 by suggesting that for public nuisance, unlike negligence,
once the nuisance was proved, the legal burden would fall on the
defendant who caused it to justify or excuse himself or herself.
This would serve to keep the torts logically distinct, but as the
House of Lords on appeal did not deal with this matter, the view
of Lord Denning MR is not authoritative. The courts still
experience difficulty in separating the question whether there is
a nuisance (i.e. an unreasonable obstruction of the highway)
from the question of fault.

Projections over the highway

10–046 There is further confusion whether fault is relevant when the

claimant’s injuries are caused by an object projecting onto the
highway from the defendant’s land. In Tarry v Ashton,146 an
occupier had been found liable when a heavy lamp, attached to
the front of his building on the Strand, fell on a passer-by. The
occupier was held to owe a positive, continuing and non-
delegable duty to keep the premises in repair so as not to
prejudice the public. In Noble v Harrison,147 however, the court
held that the defendant could only be liable if he or she knew, or
should have known, of the circumstances which caused the
injury. Here, a branch of a beech tree growing on the defendant’s
land, which overhung the highway, had suddenly broken and
damaged the plaintiff’s vehicle. The fracture had been due to a
latent defect which could not have been detected by reasonable
and careful inspection. Rowlatt J held that the defendant was not
liable and distinguished the earlier decision of Tarry v Ashton148
on the basis that it applied to artificial rather than natural
objects.
The Court of Appeal in Wringe v Cohen149 continued to
follow Tarry as imposing a rule of strict liability in respect of
artificial structures projecting onto the highway:

“. . .if, owing to want of repair, premises on

a highway become dangerous and,
therefore, a nuisance and a passer-by or an
adjoining owner suffers damage by their
collapse, the occupier, or owner if he has
undertaken the duty of repair, is
answerable whether he knew or ought to
have known of the danger or not.”

This line of authority was followed by the Court of Appeal in

Mint v Good.150 As a result of these decisions, the courts apply
different rules depending on whether the projection onto the
highway is artificial or natural. This distinction is difficult to
justify on principle, but, as may be seen above, owes more to the
court’s willingness in Noble to distinguish a line of authority it
preferred not to follow.
However, in practice, the distinction between the different
rules is not great. The court in Wringe v Cohen recognised two
defences which had been mentioned by Blackburn J in Tarry: (i)
where the danger had been caused by the unseen act of a
trespasser, and (ii) where the damage is due to a “secret and
unobservable operation of nature” (a latent defect) of which the
occupier does not know or ought not to have known. Such
defences largely undermine the idea of strict liability for
projections on the highway and clearly inject an element of fault.
Here, once again, we can observe the influence of negligence on
the development of the tort of nuisance. It should also be noted
 that the Court of Appeal in Salsbury v Woodland151 refused to
extend Tarry to work undertaken near the highway in
circumstances where, if care was not taken, injury to passers-by
might be caused. The court held that no such category of strict
liability existed, and that the ordinary rules of negligence would
apply. The occupier would, however, have been strictly liable for
the actions of his independent contractors if the work had been
inherently dangerous (see our earlier discussion of this point
under Private Nuisance, at para.10–20).

Particular damage

10–047 It is not enough for the claimant to show that he or she is a

member of the class whose reasonable comfort and convenience
has been materially affected by the defendant. To bring an action
in tort, the claimant must show that he or she has suffered
“special” or “particular” damage in excess of that suffered by the
public at large.152 This is largely a measure to limit the number
of claims and avoid the defendant being deluged with claims
from every member of the class affected. Such special damage
must be direct and substantial and includes personal injury,
property damage, loss of custom or business and, it is claimed,
delay and inconvenience. The latter category is contentious, and
it has been suggested that the claimant must also show pecuniary
loss due to the delay.153 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). This is
seldom used. Alternatively, the local authority may be persuaded
to exercise its power under the Local Government Act 1972
s.222 to bring proceedings for an injunction when it considers it
“expedient for the promotion or protection of the interests of the
inhabitants of their area”.154
 The Rule in Rylands v Fletcher

10–048 So far, we have considered the way in which nuisance protects

the claimant’s ability to exercise his or her rights over land
without undue interference by the defendant. In this section, we
consider a particular cause of action which protects an occupier
against interference due to an isolated escape from his or her
neighbour’s land. The particular rules relating to this cause of
action, and its relationship with nuisance, will be considered
below. First, let us examine the case which provides both the
principle and the name for this cause of action: Rylands v
Fletcher.155
The defendant was a millowner, who 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 coalmine 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.
Although the independent contractors had clearly been
negligent in failing to ensure that the mine shafts were blocked
off securely, the plaintiff’s action was against the millowner. The
millowner had not been shown to be negligent. The plaintiff also
faced the added obstacle that the courts had severe doubts
whether an isolated escape, as opposed to a continuous state of
affairs, could found an action in nuisance. This did not prevent
his action succeeding. The case was finally resolved at 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 was approved by the House of Lords, although Lord Cairns

added the term “non-natural user” in explaining the principle.

What is the significance of Rylands v

Fletcher?
10–049 This has caused some controversy. Blackburn J reasoned by
analogy to existing examples of liability, such as cattle trespass
and nuisance, and clearly did not believe himself to be laying
down any new principle of law. Liability under the rule is
therefore closely related to these torts. However, in the first part
of the twentieth century, Rylands v Fletcher liability developed
as a separate “rule” with its own requirements, which will be
outlined below. It has been suggested that the rule can be
explained as a decision to impose strict liability on persons
conducting ultra-hazardous activities. Certainly, this idea has
received support in the US. The US Restatement (3d) on Torts—
Liability for Physical and Emotional Harm imposes strict
liability for abnormally dangerous activities,156 when:
 “(1) the activity creates a foreseeable and
highly significant risk of physical harm
even when reasonable care is exercised by
all actors; and (2) the activity is not one of
common usage.”157

This idea was not, however, accepted in England. The Law

Commission, in its 1970 Report, Civil Liability for Dangerous
Things and Activities,158 expressed doubts as to its usefulness,
finding that any benefits provided by its relative simplicity and
flexibility would be outweighed by difficulties in application.
The House of Lords sounded the death-knell for strict liability
for ultra-hazardous activities in Read v Lyons,159 where their
Lordships clearly rejected this as an explanation of Rylands v
Fletcher liability. (This case is discussed below). Lord Goff in
Cambridge Water Co v Eastern Counties Leather Plc took the
view that, as a general rule, strict liability for operations of high
risk would be more appropriately imposed by statute than the
courts and that, in any event, Read v Lyons served to preclude
any such development.160
A further suggestion has been that the rule should be
absorbed into the law of negligence. Whilst this may seem an
odd suggestion, the High Court of Australia in Burnie Port
Authority v General Jones161 decided exactly that in 1984. The
court held, by a majority of five to two, that
the occupier was liable for fire damage caused by the negligence
of his independent contractors under the ordinary rules of
negligence. The reasoning in this case, which relied heavily on
the concept of non-delegable duties of care, is somewhat
strained and, despite the growing influence of negligence in the
twentieth century, has received little support in England.
The English courts have questioned, however, the
relationship between the rule in Rylands v Fletcher and private
 nuisance. Lord Goff in Cambridge Water,162 relying on
historical analysis,163 commented that:

“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.”

◗ Transco and the role of Rylands in modern society

10–050 The 2003 House of Lords ruling in Transco Plc v Stockport
MBC164 confirmed that the rule should be treated as a sub-
species of private nuisance.165 In this case, their Lordships took
the opportunity to review the scope and application in modern
conditions of the rule in Rylands v Fletcher. It therefore provides
helpful guidance as to the future application of this tort. In
particular, the court:
▮ rejected the suggestion that it should be absorbed into
the tort of negligence or fault-based principles, as in
Australia and Scotland166;
▮ rejected the suggestion of a more generous application
of the rule. Their Lordships favoured a more restrictive
approach, confining the rule 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; and
▮ clarified that only those with rights to land could sue.
This decision ends a long period of speculation as to the
relationship between this tort and private nuisance. It serves also
to emphasise the residuary role of the rule in modern society
where
statutes and regulations largely cover the area of dangerous
escapes which the rule once covered e.g. the discharge of water
is now regulated by the Water Industry Act 1991 s.209.167 The
Court of Appeal in Stannard v Gore168 also clarified that the
Transco restrictive approach would apply to cases involving fire,
which would no longer be regarded as a particular category of
the tort.169 On this basis, liability would be very rare in that it
would only arise if the defendant had brought fire onto his land
and it had escaped. This was not the case when an electrical fault
led to a fire which had ignited a large number of tyres stored on
the defendants’ premises and which had subsequently spread to
and destroyed Gore’s property. Tyres were not an exceptionally
dangerous thing to bring onto land. Nor was their storage a non-
natural use of land. Indeed, it had been the fire, not the tyres
which had escaped. On this basis, it could not be said that the
defendant had brought the fire onto the land. While occupiers
might find themselves liable for collecting combustible material
on their land where they had failed to take reasonable
precautions to prevent it catching fire or to prevent any fire
spreading, this was a question for fault-based liability and not
liability under the rule in Rylands v Fletcher.170 Commentators
have noted that Stannard provides a further restriction to an
already narrow rule.171 It remains to be seen, following such a
review, how useful such a limited claim will now be. Lord
Hoffmann commented in Transco that he was not surprised “that
counsel could not find a reported case since the second world
war in which anyone had succeeded in a claim under the
rule”.172

Liability under the rule in Rylands v

Fletcher
10–051 There are four requirements which must be established for the
claimant to sue under the rule. The first two derive from
Blackburn J’s statement of principle. The third derives from
Lord Cairns in the House of Lords. The fourth requirement,
namely foreseeability of the kind of damage suffered, is of more
recent origin and comes from the leading judgment of Lord Goff
in Cambridge Water Co v Eastern Counties Leather Plc.173

◗ (1) The defendant brings on his lands for his own

purposes something likely to do mischief
10–052 This requires a voluntary act of bringing something on the
land.174 What is “likely to do mischief” is an interesting
question. In Rylands itself, water was held to be within this
category, and other case law has referred to electricity, oil,
noxious fumes and even a flagpole or a fairground ride.
This requirement seems to have been toughened up since
Transco. Lord Bingham remarked that:

“I do not think the mischief or danger test

should be at all easily satisfied. 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.”175

This again will serve to restrict the application of the rule.

 ◗ (2) If it escapes
10–053 Proof of an actual escape of the thing brought onto land is
vital.176 Ward LJ in Stannard v Gore remarked that at the very
heart of the rule is the desire to protect against the exceptional
danger or mischief that will be caused if there is an escape from
the defendant’s land.177 The classic case is that of the House of
Lords in Read v Lyons,178 where their Lordships took the
opportunity to review the law and establish clear rules of
liability. In the case itself, an inspector of munitions had been
injured by an explosion of a shell whilst inspecting the
defendants’ munitions factory. Their Lordships held that there
had not been an “escape” within the rule. An escape would only
occur when the object moved from the defendant’s premises to a
place which was outside his occupation or control.
There is some debate whether an intentional release of an
object is capable of being regarded as an “escape”. Taylor J in
Rigby v Chief Constable of Northamptonshire179 held that
trespass would seem to be the correct action for the intentional
and direct infliction of harm. However, this was questioned by
Potter J in Crown River Cruises Ltd v Kimbolton Fireworks
Ltd,180 at least where the intentional release was not deliberately
aimed in the direction of the claimant, or with the intention of
impinging on his or her property. With respect, Taylor J’s view is
probably more consistent with the traditional division between
nuisance and trespass, and with Lord Goff’s return to the
traditional view of these torts in Cambridge Water and Hunter v
Canary Wharf.

◗ (3) Non-natural user

10–054 Blackburn J in Rylands v Fletcher referred to the defendant
bringing onto the property something “which was not naturally
there”, which Lord Cairns in the House of Lords interpreted as a
“non-natural use”. On this basis, thistledown, blowing from the
defendant’s land onto the plaintiff’s land, has been held not to
found an action.181 Over time, however, the “non-natural” use
requirement came to be interpreted as “non-ordinary” use, so as
to limit the application of the rule in Rylands v Fletcher. In
Rickards v Lothian,182 Lord Moulton defined “non-natural” as
“some special use bringing with it increased dangers to others”.
This would exclude, in his view, uses which were for the general
benefit of the community. On this basis, uses such as domestic
water, electricity and gas supplies could be regarded as a
“natural” use of land. “Natural user” has even controversially
been extended to the manufacture of explosives during war-
time,183 although this was doubted in Transco.184 This has not,
however, made the test easier to interpret; Viscount Simon
commenting in Read v Lyons,

“I confess to finding this test of ‘non-

natural’ user (or of bringing on the land
what was not ‘naturally there’, which is not
the same test) difficult to apply.”185

The meaning of “non-natural user” must now be viewed in

the light of Lord Goff’s comments in Cambridge Water Co v
Eastern Counties Leather Plc186 and the House of Lords ruling
in Transco Plc v Stockport MBC.187 Lord Goff remarked in
Cambridge Water that “the storage of substantial quantities of
chemicals on industrial premises should be regarded as an
almost classic case of non-natural use”.188 His Lordship held
that this was regardless of any ben-efit the factory may give to
the public by means of increased employment (thereby
criticising the “general benefit of the community” section of
Lord Moulton’s test). Equally, his Lordship refused to accept
that storing chemicals in industrial premises might be regarded
as an “ordinary” use of such premises.
 The House of Lords in Transco approved Lord Goff’s
judgment, while restating the test again. The rule should, in the
words of Lord Bingham, be confined to cases where the
defendant’s use of the land is shown to be extraordinary and
unusual.189 On this basis, his Lordship believed that the term
“ordinary use” might be clearer than “natural use”.190 The case
itself was concerned with whether the storage of water in pipes
was a “non-natural” use of the land. Stockport MBC were the
owners of a block of flats and an adjacent disused railway
embankment. A water pipe serving the flats had leaked and the
water had percolated to the surface and onward into the
embankment through a crack in the ground. There was no
evidence that this was due to negligence. The embankment
collapsed as a result of having become saturated with water, and
the void left by the collapse exposed a high pressure gas main
owned by British Gas (now Transco). The claimants wisely
acted promptly to prevent a potential fracture of the pipe,
incurring costs of around £94,000.
The House of Lords agreed with the Court of Appeal that the
provision of a water supply to a block of flats by means of a
connecting pipe was a natural/ordinary use of land. This is
consistent with prior authority and indeed it would have been
odd to regard having a water supply as raising any special
hazard. All five judges argued that Rylands v Fletcher would
only apply to some use which was extraordinary and unusual
according to contemporary standards.191 This clearly did not
exist on the facts. Lord Hoffmann suggested that:

“A useful guide in deciding whether the

risk has been created by a ‘non-natural’
user of land is therefore to ask whether the
damage which eventuated was something
against which the occupier could
 reasonably be expected to have insured
himself.”192

While this can only be a rule of thumb,193 it offers at least some

assistance in determining this aspect of the test.

◗ (4) Foreseeability of damage of the relevant type

10–055 This requirement comes from the review undertaken by the
House of Lords of liability under the rule in Cambridge Water
Co v Eastern Counties Leather Plc.194 In this case, the
defendants had used a chemical called perchloroethene (PCE)
for degreasing pelts at their tannery. There were regular
spillages, which gradually seeped into and built up under the
land. The chemical seepage was such that it contaminated the
plaintiffs’ water supply 1.3 miles away, forcing them to find
another source at a cost of nearly £1 million. The plaintiffs sued
in negligence, nuisance and under the rule in Rylands v Fletcher.
By the time the case reached the House of Lords, only liability
under the latter head was in issue.
The House of Lords held that the defendants were not liable.
It was not foreseeable to the skilled person that quantities of
chemical would cause damage to the plaintiffs’ water, and
foreseeability of damage was a requirement of liability under the
rule in Rylands v Fletcher.195 Lord Goff justified his conclusion
by analogy to nuisance, and by reference to Blackburn J’s
statement of principle in Rylands itself, namely that the rule
referred to “anything likely to do mischief if it escapes”.
There has been some discussion as to how far this test of
foreseeability goes. Must the escape also be foreseeable?
Although Lord Goff’s judgment is not entirely clear, the best
view is that the escape need not be foreseeable. As Lord Goff
commented:
 “the principle is one of strict liability in the
sense that the defendant may be held liable
notwithstanding that he has exercised all
due care to prevent the escape from
occurring.”196

Lord Hoffmann in Transco confirmed that Rylands v Fletcher

established that, in a case to which the rule applies, the
defendant will be liable even if he could not reasonably have
foreseen the escape.197
Lord Goff also considered the position in relation to the
continuing contamination by PCE. The problem had been
identified. Could the defendants be liable for such ongoing
damage now it was clearly foreseeable? His Lordship found this
argument to be ill-founded. The chemical was now beyond the
control of the defendants, and to impose liability would be to
adopt a stricter position than that adopted in nuisance or
negligence.

Who can sue?

10–056 Before the House of Lords’ decision in Transco, it had been
unclear in light of Cambridge Water and Hunter whether it was
necessary to have an interest in land or exclusive possession to
sue, as required for private nuisance. Non-occupiers had in the
past recovered damages under this head198; although this line of
authority had been criticised in the leading case of Read v
Lyons.199 Yet, in view of Lord Goff’s comment in Cambridge
Water that the focus of both torts is the same—namely the
protection of rights to land—logically, only claimants with a
right to land should be able to sue.200 Transco confirms the force
 of Lord Goff’s logic: only parties with rights over land may
bring an action under the rule in Rylands v Fletcher.

Who can be sued?

10–057 The occupier of land will be liable if he or she satisfies the

requirements for establishing the tort. Therefore, if you have
accumulated the mischief which has escaped etc, you may be
liable. There is clear authority that licensees may be sued.201
Indeed, in Rylands itself, although the millowner was treated as
the owner of the land, on the facts of the case, the millowner had
built the reservoir to serve his mill on land belonging to a certain
Lord Wilton (with his Lordship’s permission) and was therefore
strictly only a licensee.

Defences
10–058 There are a number of relevant defences:
▮ Claimant’s default.
▮ Unforeseeable act of a stranger.
▮ Act of God.
▮ Statutory authority.
▮ Consent.

The first three derive from the judgment of Blackburn J in

Rylands.

◗ (1) Claimant’s default

10–059 It is a valid defence that the escape was due wholly or partially
to the claimant’s fault. In Ponting v Noakes,202 the plaintiff’s
horse had died when it had reached over the fence and eaten
 leaves from a poisonous tree on the defendant’s land. The
defendant was not found to be liable when the harm suffered
was due to the horse’s own conduct. (There had equally been no
“escape”). Reference should also be made to the Law Reform
(Contributory Negligence) Act 1945 s.1.

◗ (2) Unforeseeable act of stranger

10–060 This is a well-established defence. In Box v Jubb,203 the court
again faced the consequences of a reservoir overflowing onto the
plaintiff’s land, but this time the defendant was not liable. The
overflow had been due to the actions of another neighbouring
reservoir owner, over which the defendant had no control, and of
which he had no knowledge. In such circumstances, the
defendant was not held liable for the flooding.
This approach was followed in Rickards v Lothian.204 Here,
the plaintiff’s premises had been flooded due to a continuous
overflow of water from a sink on the top floor of the building.
The overflow had been caused by a water tap being turned on
full, and the wastepipe plugged, by the deliberate act of a third
party. The defendant escaped liability as he could not reasonably
have known of the act so as to prevent it.
The act of the third party must be unforeseeable. If the
defendant should have foreseen the intervention, the defence
will not be established. For example, in North Western Utilities
Ltd v London Guarantee Co,205 it was held to be foreseeable that
works undertaken by a third party
near the defendants’ gas mains might damage their mains and
require remedial work. It was therefore no defence to claim that
the gas leak, which caused the fire destroying the plaintiff’s
hotel, was due to damage to the mains by the acts of a third
party. The defendants had left the matter to chance, and this was
not sufficient to excuse them from liability.
Three points of contention remain. First, and simplest, there
has been some debate as to who is a “stranger”. It obviously
includes trespassers, but it has been suggested that it should also
include licensees over whom the defendant does not exercise
 control, in order to keep liability within reasonable bounds. This
view received support in Ribee v Norrie.206 Here, Miss Ribee,
described as a sprightly 70-year-old lady, suffered property
damage and personal injury when her home caught fire.207 The
fire had started in an adjoining property which had been divided
into bedsit accommodation. It was suspected that the fire had
been caused by one of the occupants leaving a smouldering
cigarette on the settee in the common area. The Court of Appeal
held the landlord of the hostel liable. On the facts, his plea of act
of stranger was rejected. He could have exercised some control
over the persons occupying the hostel, for example, by putting
up notices prohibiting smoking, and could have foreseen such an
accident occurring. It could not be said that the fire was due to
the unforeseeable act of a stranger.
Secondly, it is unclear whether the defence applies to the
negligent act of a third party. It would seem that, as a matter of
logic, the defence should not be defeated on proof that the third
party did not act intentionally. The real emphasis should be on
whether the defendant should have been able to foresee, and
therefore react to, the actions of the third party. This takes us to
our third problem. The formulation of this defence is sounding
more and more like an action for negligence. Defendants will
not be liable if they can show that they did not foresee, or should
not have foreseen, the actions of the third party. Street on
Torts208 has gone so far as to say that the cases are more in line
with the principles of negligence, rather than Rylands, liability
and should be regarded as authority for the question whether
there has been a negligent failure to control the unforeseeable
harmful acts of a third party. This, perhaps, is to take conceptual
neatness a step too far. Undoubtedly, negligence principles have
influenced the development of the rule as much as they have
influenced nuisance, but it is still conceptually distinct.

◗ (3) Act of God

10–061 This defence is, due to the advances in modern technology and
science, 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. So far, there has been only one successful English
case,
which was decided in 1876. In Nichols v Marsland,209 the
defendant had some ornamental pools on his land, which
contained large quantities of water. These pools had been formed
by damming up with artificial banks a natural stream which
flowed through his property. Due to extraordinary rainfall, the
banks broke down, and the rush of escaping water carried away
four bridges. The Court of Appeal held that the defendant should
not be held liable for an extraordinary act of nature which could
not have been reasonably anticipated.
A stricter view was taken in Greenock Corp v Caledonian
210
Ry, in which the court was critical of the approach taken by
the court in Nichols. In this case, a concrete paddling pool for
children had been constructed by the local authority in the bed of
a stream, requiring the course of the stream to be altered. Again,
there was an extraordinary level of rainfall, which caused the
stream to overflow at the pool. Due to the construction of the
pool, water which would have otherwise flowed down stream
flowed down a public street. The House of Lords held that such
an event did not qualify as an act of God.
In view of Greenock, it is most unlikely that the defence
would succeed today. However, it is possible that a situation
may exist where modern precautions against exceptional natural
conditions were defeated (for example, an earthquake in a
London suburb) and the defence might come into play, but such
circumstances would be very rare indeed.

◗ (4) Statutory authority

10–062 Again, this defence is important, and the approach is the same as
that taken in nuisance (see above). It will therefore be a question
of construction in each case. The courts will examine whether
the breach of the rule in Rylands v Fletcher was authorised by
 the statute in question. In Green v Chelsea Waterworks Co,211
the defendants, who were under a statutory duty to maintain a
continuous supply of water, were not liable when, in the absence
of negligence, the water main burst, damaging the plaintiff’s
premises, horse and stock. However, the defendants were liable
for a burst water main in Charing Cross Electricity Supply Co v
Hydraulic Power Co.212 Here, the defendants were operating
under a statutory power to supply water for industrial purposes.
These powers were subject to a “nuisance clause”, which
provided that nothing in the Act should exonerate the
undertakers from liability for nuisance. On this basis, the
defendants remained liable even in the absence of negligence.
The Court of Appeal in Dunne v North Western Gas
Board213 sought to clarify the different treatment of statutory
duties and powers. In this case, there was a series of 46
explosions of coal gas in Liverpool, which resulted when a water
main had leaked and water had washed away the soil supporting
a gas main. The plaintiffs sued both the Gas Board and the
Corporation which was responsible for the water main. The Gas
Board had a statutory duty to supply gas and it had, in the
absence of negligence, a good defence of statutory authority.
The Corporation, in contrast, only acted under a statutory power.
Here, unlike Charing Cross, the Act did not contain a nuisance
clause, and so the Corporation would not be liable in the absence
of negligence.
The House of Lords in Transco emphasised the significance
of this defence in limiting the application of the rule by
excluding claims for high risk activities arising from work
conducted under statutory authority.214

◗ (5) Consent
10–063 This may be express or implied. Consent will be implied where
the escape results from something maintained for the common
benefit, for example, in a block of flats, from the guttering, or
from common utilities such as water, gas or electricity. The
 tenant in such circumstances is assumed to forego any rights
against the landlord, due to the benefit he or she gains, provided
the escape occurs without negligence.215

Remedies

10–064 There are three main remedies:

▮ Injunctions.
▮ Abatement.
▮ Damages.

The main remedy for nuisance is the injunction. Where liability

lies under the rule in Rylands v Fletcher, the escape has usually
occurred, and the damage has already been caused, so the
claimant will be seeking damages. Remedies will be discussed
generally in Ch.17, but this section will examine their particular
application in relation to nuisance and the rule in Rylands v
Fletcher. It will also consider the possibility of a claimant
recovering under the Human Rights Act 1998.

◗ (1) Injunctions
10–065 As will be discussed further in Ch.17, an injunction is an
equitable and therefore a discretionary remedy. As a remedy, it is
well suited to nuisance, because it can be adapted to meet the
balance of competing interests. The courts are generally willing
to grant an injunction, unless there are exceptional
circumstances which mean that damages are seen as the most
appropriate remedy. In such circumstances, damages are said to
be given “in lieu of” (instead of) an injunction. Whilst the Senior
Courts Act 1981 s.50 is the section governing this matter, the
leading case is that of Shelfer v City of London Electric Lighting
Co.216 In this case, A.L. Smith LJ laid down the four conditions
which would lead a court to grant damages in lieu of an
injunction:
▮ where the injury to the claimant’s legal rights is small;
▮ where the injury is capable of being estimated in
money;
▮ where the injury can be adequately compensated by a
small money payment; and
▮ where it would be oppressive to the defendant to grant
an injunction.

In the case itself, the court granted an injunction against

vibrations and noise caused by the defendant’s machinery, even
though the result would deprive many of its customers of
electricity. The courts are unwilling to allow a defendant
essentially to buy the right to commit the nuisance by paying
damages to the claimant.217
The exercise of the discretion to award an injunction was
discussed by the Court of Appeal in Miller v Jackson218 and
Kennaway v Thompson.219 In the former case, the majority of
the court held that an injunction was inappropriate, on the basis
that the public interest in cricket should prevail (Lord Denning
MR) and that the plaintiffs had knowingly bought the property in
the knowledge that a nuisance would be likely to occur
(Cumming-Bruce LJ). Damages were therefore awarded.220 In
Kennaway, Lawton LJ held that the relevant authority remained
that of Shelfer, which did not support either proposition.
Accordingly, the plaintiff would be awarded an injunction
against power boat racing on a nearby lake, regardless of any
public interest in power boat racing, and regardless of the fact
that she had chosen to build a house near the lake
 in the knowledge that some racing took place.221 Nevertheless,
the injunction was awarded on terms. The court used its
discretion to stipulate a strict timetable for international, national
and club events, thereby allowing the racing to continue in a
limited form. By such means, and also by using their power to
suspend the injunction to give the defendant the opportunity to
remedy the nuisance, the courts recognise and balance the
competing rights of the litigants.222
The Supreme Court recently in Coventry v Lawrence223
reviewed the application of the Shelfer test and argued that it
should not be applied mechanically. It found that the time had
come to signal a move away from the strict criteria derived from
Shelfer, particularly where an injunction would have serious
consequences for third parties, such as employees of the
defendant’s business, or, in the case itself, members of the public
using or enjoying a speedway racing stadium. While the court
accepted that claimants would still be prima facie entitled to an
injunction to restrain the defendant from committing a nuisance
in the future, it held that it was important not to fetter the
discretion of judges. The court was, in particular, critical of
recent decisions where judges had been too ready to grant
injunctions without considering whether to award damages
instead.224 On this basis, the existence of planning permission
would be a relevant consideration at the remedy stage: the fact
that an activity benefitted the community might be a factor in
favour of refusing an injunction and compensating the claimant
in damages.225 This suggests that a more flexible approach
towards the award of damages and/or an injunction will now be
adopted.

◗ (2) Abatement
10–066 This is a form of self-help, by which claimants intervene
themselves to stop the nuisance. Generally, the courts are
reluctant to encourage such actions. Claimants who wish to take
the law into their own hands must do so at their peril and run the
 risk of countervailing claims for trespass and conversion.
Generally, however, it is an acceptable response towards
encroaching roots and branches, where it would make little
sense to go to court.226 For example, in Delaware Mansions Ltd
v Westminster City Council,227 discussed at para.10–015, the
House of Lords accepted that the claimant company was entitled
to recover the costs which had been incurred in remedying a
continuing nuisance caused to its property by tree roots when the
defendant council had refused its request that the tree be
removed. Even in the face of such obvious nuisances, however,
claimants proceed at their own risk and their actions must be no
more than necessary to abate the nuisance. Lord Cooke also
warned against imposing
unreasonable burdens on local authorities to pay for remedial
works and advised that “as a general proposition, I think that the
defendant is entitled to notice and a reasonable opportunity of
abatement before liability for remedial expenditure can arise”.228
The claimant should therefore take care not to enter his or her
neighbour’s land, and give notice if entry is necessary, except in
an emergency. Any branches or roots which have been lopped
off remain the neigh-bour’s property and if they are kept, the
claimant may be held liable for conversion (civil theft).
Abatement, therefore, is a remedy of limited utility.

◗ (3) Damages
10–067 All of the three heads of liability discussed in this chapter
become actionable only on proof of damage.229 In the recent
case of Network Rail Infrastructure Ltd v Williams,230 the Court
of Appeal indicated that, for private nuisance, this can take the
form of physical or tangible damage to property or simply
interference with the utility and amenity value of the claimant’s
property. In this case, an infestation of Japanese knotweed had
spread from the defendants’ land to that of the claimants. This
particularly invasive weed carries with it the risk of future
physical damage to buildings and is costly to remove. The Court
 held that it was a “natural hazard”, affecting the owner’s ability
fully to use and enjoy the land, and therefore a classic example
of an interference with the amenity value of the land.231 Special
damage must of course be proved for an individual to claim a
remedy for public nuisance.

◗ Personal injury
10–068 Public nuisance, as discussed above, protects the individual who,
as a member of the public, has suffered particular damage due to
the defendant’s actions. Any damages award will therefore cover
personal injury, damage to property, loss of custom, and perhaps
even particular inconvenience caused to the individual. Private
nuisance and the rule in Rylands v Fletcher, in contrast, are
aimed specifically at protecting the interests of claimants with
rights to land. They therefore award damages for the diminution
in the value of the land, or lesser enjoyment of the use of land or
its fixtures. On this basis, this would seem to exclude damages
for personal injury. Professor Newark, in an article cited by Lord
Goff in Cambridge Water and Hunter, explained that the land
merely provided the setting for the injury, and therefore there
was no
special reason for distinguishing personal injury caused by a
nuisance from other cases of personal injury to which the
ordinary rules of negligence apply.232
This view has been followed by the leading authorities on
private nuisance and the rule in Rylands v Fletcher, namely
Hunter v Canary Wharf Ltd233 and Transco Plc v Stockport
MBC,234 although the issue was not strictly in point in either
case. The majority in Hunter held that only those with an
interest in land or exclusive possession could sue in private
nuisance, and Lords Lloyd and Hoffmann expressly stated that
compensation should not be awarded for personal injury, as it
represents harm to the person, not the land. This view was also
taken by the House of Lords in Transco, despite mixed authority
in the past where damages for personal injury had been awarded
under the rule in Rylands v Fletcher,235 although not without
challenge.236 Lord Bingham 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.”237 This
position was confirmed by Dyson LJ in Corby Group Litigation
Claimants v Corby BC238 who distinguished public from private
nuisance. Only public nuisance—a tort seeking to protect against
unlawful acts or omissions which endanger the life, safety,
health, property or comfort of the public (and which says
nothing about enjoyment of land)—will permit damages for
personal injury to be recovered. The torts are distinct, and the
rights created by them different.239
As a result of Hunter v Canary Wharf and Transco,
therefore, damages for private nuisance are awarded for the
injury to the land, not the person. Personal injury will be
protected by the torts of negligence, public nuisance and by
claims under the Protection from Harassment Act 1997.240 It is
important not to confuse claims for personal injury, however,
with the private nuisance concept of “personal discomfort”,
which is related to the diminished utility of the land. Bone v
Seale241 illustrates this distinction. Here, damages were awarded
to compensate for the personal discomfort caused by smells
from an adjacent pig farm. The award represented the
diminished utility value of the land “suffering” from the smells.
Such an award could be made
even in the absence of evidence that the value of land had
diminished, and irrespective of the number of people affected
and any injury the smell may have caused them.
It may be questioned, however, whether this distinction is
entirely convincing. It is hard to persuade the average “man or
woman in the street” that damages are awarded not for their
twitching nostrils, but for the “suffering” of the land on which
they are standing. Equally, if such “suffering” cannot always be
converted into market loss (i.e. diminution of value of the land),
it is difficult to say on what basis such damages are awarded, if
not on a personal basis. Lords Lloyd and Hoffmann suggested
that the loss is one of “loss of amenity”. This was recognised by
the House of Lords in the contract law case of Ruxley
Electronics and Construction Ltd v Forsyth.242 In this case, Mr
Forsyth had contracted for a swimming pool of a certain depth,
and this had not been provided, although this did not diminish
the actual value of the pool. The House of Lords in Ruxley
approved the trial judge’s award of damages for loss of amenity
in such a case. It is not clear, however, that this case in reality
establishes a principle under which damages can be assessed
independently of the personality of the occupants of land. Lord
Mustill clearly supported the award of amenity damages on the
basis that the consumer’s subjective preference, expressed in the
contract, had not been satisfied. Indeed, the exact status of the
case in contract law remains uncertain. Doubts may also be
expressed in relation to the treatment of this issue by the Court
of Appeal in Dobson v Thames Water Utilities Ltd.243 Here the
court ruled that in the case of a transitory nuisance caused by
odours and mosquitoes from a sewage treatment works, which
did not affect the market value of the land, damages should be
assessed by taking account of the actual experiences of the
people in occupation of the property. On this basis, an
unoccupied house awaiting renovation would receive only
nominal damages, while damages for a family home would be
assessed on the experiences of the family members. This, the
court insisted, was entirely consistent with awarding damages
for injury to land; it simply represented a means of placing a
value on this loss. This ruling is difficult to reconcile with the
statement of Lord Hoffmann in Hunter that “damages cannot be
increased by the fact that the interests in the land are divided;
still less according to the number of persons residing on the
premises”.244 It also suggests that a family of four will recover
more damages than the old widowed lady next door, who suffers
exactly the same interference with land. Further, it might be
questioned why actual occupation is necessary to assess amenity
loss when the courts use hypotheticals to assess loss on a regular
basis. Dobson highlights the difficulties of conceiving of
“personal discomfort” as an injury to land and, in so doing,
 raises questions as to the degree to which the “personal” element
can be removed from the equation.

◗ Economic loss
10–069 In Hunter, Lord Hoffmann recognised that loss of profits was
recoverable as consequential loss when it resulted from the
claimant’s inability to use the land for the purposes of his or her
business.245 Recovery of such losses has been accepted in a
number of cases. For example, in Andreae v Selfridge & Co
Ltd246 the owner of a hotel was allowed to recover damages for
the loss of custom suffered by her business due to noise and dust
caused by the defendants’ construction work. Equally, in Jan de
Nul (UK) Ltd v AXA Royale Belge SA (Formerly NV Royale
Belge),247 the Court of Appeal permitted the Hampshire Wildlife
Trust to recover over £100,000 for an investigation into silting
of feeding grounds at the head of an estuary. Although the report
had indicated no long-term damage would occur, the court found
that it had acted reasonably in commissioning such a report and
the cost of the survey was consequential on physical interference
with its property rights.

◗ Damage to chattels
10–070 By chattels, we mean personal property which happens to be on
the land. One would expect that if the courts are reluctant to
award damages for personal injuries, they would be equally
reluctant to award damages for loss of chattels. If you cannot
recover for your own broken leg, it would seem incongruous if
you could recover for the broken leg of your poodle. Certainly,
this is the view of Professor Newark in his much-cited article.248
Unfortunately, this point is not dealt with in Hunter, except by
Lord Hoffmann, who supports a continuing right to sue for
damage to chattels and livestock in nuisance as consequential
loss. There is clear authority in support of this position. In
Halsey v Esso Petroleum Co Ltd,249 damage to laundry hanging
 in the garden was deemed actionable in private nuisance and
under the rule in Rylands v Fletcher. Equally, damage to the
paintwork of the plaintiff’s car on the highway was held to be
actionable in public nuisance and under the rule in Rylands v
Fletcher.
Whilst the position seems difficult to justify, it may, perhaps,
be explained if we consider the practical impact of not allowing
recovery for damage to chattels. For example, a farmer
complains that the defendant emits noxious fumes over his land.
These fumes have ruined his crops and trees, and harmed the
health of his livestock. If only damage to land is recoverable, the
farmer will only be awarded damages for his crops and the
trees.250 Yet, these are simply alternative means of farming one’s
land, and why should the law draw an arbitrary distinction
between the different modes of farming?

◗ Remoteness
10–071 Damages under private nuisance, public nuisance and the rule in
Rylands v Fletcher are all subject to the test set out in The
Wagon Mound (No.1),251 namely that the defendant is only
liable for damages of a type which can be reasonably foreseen.
Reference should be made here to Ch.6. Lord Reid, in The
Wagon Mound (No.2), held foreseeability to be an essential
element in determining liability in both public and private
nuisance: “It would not be right to discriminate between
different cases of nuisance”.252 In Cambridge Water, Lord Goff
clarified that the Wagon Mound test would apply to the rule in
Rylands v Fletcher. The reader should therefore ignore
Blackburn J’s statement, in the case itself, that the defendant will
be liable for all the natural consequences of the escape.

The Human Rights Act 1998

10–072 The case of Marcic v Thames Water Utilities Ltd253 provides a

useful illustration of the potential for the Act to supplement and
change the law of nuisance, but also of the reluctance of the
courts to overwhelm public bodies with excessive liability. Peter
Marcic brought a claim against his statutory water and sewage
undertaker, Thames Water Utilities Ltd (TWUL), complaining of
its failure since 1992 to prevent persistent external flooding and
back flow of foul water from its sewer system into his home at
times of heavy rain. Although it was reasonably practicable for
TWUL to prevent the flooding, it had refused to do so. Under its
then scheme of priorities, there was no prospect of such works
being undertaken in the foreseeable future. After nine years,
Marcic turned to law and brought this action for damage to his
property in nuisance and under the 1998 Act.
Although his claim in private nuisance was rejected at first
instance as contrary to existing authority, Judge Havery QC had
approved the claim under the Human Rights Act 1998 founded
on infringement of the claimant’s rights to private and family
life (under art.8) and peaceful enjoyment of his possessions
(art.1 of Protocol 1).254 TWUL was a public authority under s.6
of the Act, and the case law of the European Court of Human
Rights supported use of art.8 and art.1 of Protocol 1 in this
context.255 Although both art.8 and art.1 of Protocol 1 are
qualified rights—the court must consider “the protection of the
rights and freedoms of
others”256 and “the public interest”257—in view of the frequent
flooding of Marcic’s property and TWUL’s unsatisfactory
system of prioritisation, the judge supported Marcic’s claim
under the Act.
The Court of Appeal, in supporting Marcic’s claim in private
nuisance, rendered any claim under the Act unnecessary. Section
8(3) of the Act provides that:

“No award of damages is to be made unless,

taking account of all the circumstances of
the case, including–(a) any other relief or
remedy granted, or order made, in relation
 to the act in question (by that or any other
court) . . . the court is satisfied that the
award is necessary to afford just
satisfaction to the person in whose favour it
is made.”

Nevertheless, the Court of Appeal supported the reasoning of the

first instance judge. The court suggested that even if the court
had decided that a fair balance had been struck between the
competing interests of Marcic and TWUL’s other customers, the
defendant might, in any event, be required to pay compensation
to ensure that one person did not bear an unreasonable
burden.258
The Court of Appeal ruling in Marcic was applied by
Buckley J in Dennis v Ministry of Defence.259 This case
involved a claim for compensation by Mr and Mrs Dennis
whose property was adjacent to an RAF base and who had
suffered deafening noise due to the flying of Harrier jets over
their land. Although the court again found a nuisance at common
law, it held that the noise and the resultant reduction in the value
of the estate did amount to a breach of the Dennis’s rights under
art.8 and art.1 of Protocol 1, although any breach would be
balanced by the state’s interest in national security and the cost
and inconvenience of uprooting a military base. Nevertheless,
the court saw no reason why the Dennis’s should bear the cost of
this disturbance alone and that damages of £950,000 would have
been payable under the Act to cover the period until 2012 when
Harrier training was expected to be phased out. This sum was
thus awarded for common law nuisance.
When Marcic reached the House of Lords, the award in
Dennis of £950,000 and the potential liability of Thames Water
for £1 billion if it compensated every customer in Marcic’s
position260 did not go unnoticed. Their Lordships rejected
liability either at common law or under
the Act. Parliament, under the Water Industry Act 1991, had
established a comprehensive statutory scheme of regulation in
which an independent regulator would seek to balance the
competing interests of the parties involved. Where a statute
contains its own compensation scheme, it is a matter of
construction for the court to determine whether Parliament
intended a common law claim to exist alongside the statutory
remedy.261 The House held that, in this case, liability in nuisance
would be inconsistent with the statutory scheme. Further, given
the need to balance competing interests and the availability of
judicial review, the scheme was in any event compatible with
art.8 and art.1 of Protocol 1 of the Convention. Following the
European Court of Human Rights decision in Hatton v United
Kingdom,262 which confirmed the margin of appreciation given
to States in matters of general policy, the House found that the
scheme did strike a reasonable balance: “Parliament acted well
within its bounds as policy maker.”263
The reluctance of the House in Marcic to intervene on the
basis of the Human Rights Act 1998 is particularly notable in
view of its criticism of TWUL’s treatment of Mr Marcic. Such
concerns, however, did not persuade the House of Lords to
support his claim.264 The subsequent Court of Appeal decision
in Dobson v Thames Water Utilities Ltd265 offers a further
indication of the reluctance of the English courts to award
damages under the HRA 1998 in addition to those awarded in
private nuisance. In this case (discussed above at para.10–068),
the court took the view that the claims of residents with rights
over land would most probably be satis-fied by the award of
damages in private nuisance without any need for additional
damages under the Act.266 For a claimant with no right over land
(for example, a child living with her parents who could only sue
for breach of her art.8 rights), the court suggested that the claim
would be satisfied by a declaration that her rights had been
violated under the Act. Her loss would be covered by the
damages award to the property owner in private nuisance which
would reflect the impact of the nuisance on the entire household.
 It seems an understatement to remark that following Marcic and
Dobson, the HRA 1998 has not had the impact on nuisance
claims which had been anticipated by some commentators at the
time the Act came into force.

Conclusion

10–073 The House of Lords’ decisions in Hunter v Canary Wharf

Ltd,267 Cambridge Water Co v Eastern Counties Leather Plc268
and Transco Plc v Stockport MBC269 have shed new light on the
nature of the torts of private nuisance and Rylands v Fletcher
liability. In so doing, the House of Lords clearly distinguished
these torts from the tort of negligence, examined earlier in this
book, although in practice the dividing line is not so clear.
Nevertheless, these decisions are highly significant in indicating
the future development of these torts, and their importance
should not be underestimated. In contrast, public nuisance plays
a limited role in tort law, and should be noted primarily in
connection with obstruction of the highway, although it is the
only tort in this chapter which protects against personal injury.
The next chapter will examine the tort of trespass in its many
forms: trespass to the person, goods and land. In considering
trespass to land, readers should note the discussion in this
chapter of its relationship with private nuisance.

1 (1865) 3 H. & C. 774 (Court of Exchequer); (1866) 1 L.R. 1 Ex. 265

(Court of Exchequer Chamber); (1868) L.R. 3 H.L. 330 (House of Lords).

2 [1997] A.C. 655.

3 [2003] UKHL 61; [2004] 2 A.C. 1. See also Cambridge Water Co v

Eastern Counties Leather Plc [1994] 2 A.C. 264.

4 There is, of course, a limit to what the private action of nuisance or

Rylands v Fletcher liability can do to protect the environment and such
protection is perhaps more efficiently dealt with on a national or
international level by legislation in favour of the public at large.

5 W.E. Peel and J. Goudkamp, Winfield & Jolowicz on Torts, 19th edn
(Sweet and Maxwell, 2014), para.15–08. P. H. Winfield, “Nuisance as a
tort” (1930–32) 4 C.L.J. 189, 190.

6 See, e.g. Halsey v Esso Petroleum [1961] 1 W.L.R. 683.

7 Issa v Hackney LBC [1997] 1 W.L.R. 956.

8 See, e.g. S. Bell et al, Environmental Law, 9th edn (OUP, 2017).

9 See Lemmon v Webb [1895] A.C. 1, Delaware Mansions Ltd v

Westminster City Council [2001] UKHL 55; [2002] 1 A.C. 321 and LE
Jones (Insurance Brokers) Ltd v Portsmouth CC [2002] EWCA Civ 1723;
[2003] 1 W.L.R. 427. The rules of causation are the same as for negligence:
did the tree roots materially contribute to the damage? (Loftus-Brigham v
Ealing LBC [2003] EWCA Civ 1490; 103 Con. L.R. 102).

10 Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch.343.

11 Midland Bank v Bardgrove Property Services [1992] 37 E.G. 126.

12 Sir Knight-Bruce VC in Walter v Selfe (1851) 20 L.J. Ch. 433 at 435.

13 Aldred’s Case (1610) 9 Co. Rep. 57b.

14 St Helen’s Smelting Co v Tipping (1865) 11 H.L.C. 642 at 651.

15 The neighbour might in practice prefer to rely on the procedures under

the Environmental Protection Act 1990 Pt III, ss.79–80 (duty on the local
authority to abate a statutory nuisance where, inter alia, noise is prejudicial
to health or a nuisance) and, if available, under the Noise Act 1996 (duty on
local authorities to investigate complaints of excessive levels of noise from
a dwelling house at night). See, further, texts on environmental law and F.
McManus “Noise nuisance in the United Kingdom—a very British
solution” (2000) 20 L.S. 264.
16 Southwark LBC v Mills; Baxter v Camden LBC (No.2) [2001] 1 A.C. 1;
approving Court of Appeal in Baxter v Camden LBC (No.2) [1999] 1 All
E.R. 237. See J. O’Sullivan, “Nuisance, local authorities and neighbours
from hell” [2000] C.L.J. 11.

17 [1940] A.C. 880 at 903.

18 Rapier v London Tramways Co [1893] 2 Ch.588.

19 Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2013] Q.B. 455
at [72] per Carnwath LJ. Note also his Lordship’s comments in Coventry v
Lawrence [2014] UKSC 13; [2014] A.C. 822 at [179]–[180].

20 (1879) 11 Ch.D. 852 at 865. See also Veale J in Halsey v Esso Petroleum
[1961] 1 W.L.R. 683 and Miller v Jackson [1977] Q.B. 966 at 986. For a
discussion of the justifications for the locality principle, see S. Steel, “The
locality principle in private nuisance” (2017) 76 C.L.J. 145.

21 [1993] Q.B. 343.

22 [2014] UKSC 13; [2014] A.C. 822.

23 [2014] UKSC 13 at [94]. On this basis, Lord Neuberger stated that any
argument to the contrary in Gillingham [1993] Q.B. 343 could not stand:
[99]. His Lordship did accept, however, that there may be an exceptional
case in which planning permission will be a consideration in assessing
liability: [138].

24 Wheeler v JJ Saunders Ltd [1996] Ch.19.

25 Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2013] Q.B. 455
(overturning Coulson J at first instance who had argued that acting within
statutory permits in the absence of negligence was evidence of reasonable
user). Comment: M. Lee, “Nuisance and regulation in the Court of Appeal”
[2013] J.P.E.L. 277.

26 See Andreae v Selfridge [1938] Ch.1 at 5–6 per Lord Greene MR.

27 (1914) 30 T.L.R. 257.

28 [1996] 2 Lloyd’s Rep. 533.

29 [1970] 1 W.L.R. 1017 at 1031—point not considered on appeal [1971] 1

Q.B. 337. See also British Celanese v Hunt [1969] 1 W.L.R. 959 at 969
(liability for the way in which metal foil was stored on land) and Colour
Quest Ltd v Total Downstream UK Plc [2009] EWHC 540 (Comm); [2009]
2 Lloyd’s Rep. 1 at [421].

30 Northumbrian Water Ltd v Sir Robert McAlpine [2014] EWCA Civ 685.

31 See, further, M. Lee, “The public interest in private nuisance: Collectives

and communities in tort” [2015] C.L.J. 329.

32 (1889) 41 Ch.D. 88. See also Heath v Mayor of Brighton (1908) 98 L.T.
718.

33 McKinnon Industries Ltd v Walker (1951) 3 D.L.R. 577 at 581 PC

34 [1965] Ch.436.

35 See Nor-Video Services v Ontario Hydro (1978) 84 D.L.R. (3d) 221.

36 [1997] A.C. 655.

37 [2004] EWCA Civ 172; [2004] Env. L.R. 41.

38 [1893] 1 Ch.316.

39 [1893] 1 Ch.316 at 327.

40 [1936] 2 K.B. 468.

41 [1895] A.C. 587.

42 [1997] A.C. 677.

43 [1907] 2 K.B. 141. See also Read v Lyons [1947] A.C. 156 at 183.
44 [1993] Q.B. 727 at 735, relying on the Canadian case of Motherwell v
Motherwell (1976) 73 D.L.R. (3d) 62.

45 [1997] A.C. 677.

46 See Dalton v Angus (1881) 6 App Cas 740.

47 However, in Hunter [1997] A.C. 655, due to the fact that the Secretary
of State for the Environment had designated the area an enterprise zone,
planning permission was deemed to have been granted for any form of
development and no application for permission had to be made.

48 Fearn v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104:
“the planning system is, I think, a far more appropriate form of control,
from the point of view of both the developer and the public” per Sir Terence
Etherton MR at [82].

49 [1907] 2 K.B. 141.

50 [1997] A.C. 677 at 692, relying heavily on the classic article of

Professor Newark, “The Boundaries of Nuisance” (1949) 65 L.Q.R. 480.

51 [1997] A.C. 655 at 703.

52 [2000] 1 W.L.R. 1672 (leave to appeal denied by the House of Lords:

[2001] 1 W.L.R. 538).

53 The term comes from Burrows v Brent LBC [1996] 1 W.L.R. 1448.

54 [2000] 1 W.L.R. 1672 at 1682.

55 [1978] Q.B. 841, although the close connection between the former
owner (the plaintiff’s father) and the plaintiff had placed doubt on the scope
of this decision.

56 [2001] UKHL 55; [2002] 1 A.C. 321. Comment: B. Parker [2002] C.L.J.
260.

57 See Jones v Llanrwst UDC [1911] 1 Ch.393 at 404.

58 J. Wright, Tort Law and Human Rights (Hart, 2001), p.194. For latest
edition see: J. Wright, Tort Law and Human Rights, 2nd edn (Hart, 2017).

59 See HRA 1998 s.2.

60 See HRA 1998 Sch.1 Pt 1.

61 See, e.g. H. Fenwick and R. Edwards, Fenwick on Civil Liberties &

Human Rights, 5th edn (Routledge-Cavendish, 2016).

62 (38387/97) (1998) 26 E.H.R.R. CD 212. The applicants complained that

the work disrupted their rights under art.8 (home and family life) and art.14
(discrimination on the grounds of poverty in that due to the low value of
their homes, any diminution of the market value was minimal).

63 (1998) 26 E.H.R.R. CD 212 at 215.

64 [2002] Env LR 30, Birmingham District Registry.

65 Neuberger J left open the question whether the common law should be
extended by reference to the law of nuisance, the rule in Rylands v Fletcher,
negligence or a common law tort analogous to nuisance.

66 The Commission additionally rejected the claim under art.14, on the

basis that there were no other persons in “relevantly” similar situations to
the applicants.

67 [2020] EWCA Civ 104.

68 [2020] EWCA Civ 104 at [91].

69 See Thompson v Gibson (1841) 7 M. & W. 456; 151 E.R. 845.

70 [1936] 2 All E.R. 633. See also Bower v Peate (1876) 1 Q.B.D. 321 and
Spicer v Smee [1946] 1 All E.R. 489.

71 See Att-Gen v Tod Heatley [1897] 1 Ch.560, R. v Shorrock [1994] Q.B.

279 (liability for rave held on defendant’s field) and Wandsworth LBC v
Railtrack Plc [2001] EWCA Civ 1236; [2002] Q.B. 756 (Railtrack liable
for failing to abate public nuisance caused by pigeons roosting under its
railway bridge). It is not clear, however, whether the measured duty of care
(see below) applies to public nuisance. Wandsworth states the law in
objective terms and states that nothing in the later authorities should throw
doubt on the law as stated in Tod Heatley in 1897. However, it also found
that Railtrack had the means to abate the nuisance and, in view of its small
cost of £9,000, liability would have been found in any event.

72 [1940] A.C. 880.

73 (1982) 80 L.G.R. 337. See also Cocking v Eacott [2016] EWCA Civ
140; [2016] Q.B. 1080.

74 [1967] 1 A.C. 645.

75 [1980] Q.B. 485. For a recent application, see Network Rail

Infrastructure Ltd v Williams [2018] EWCA Civ 1514; [2019] Q.B. 601
(infestation by Japanese knotweed diminishing amenity value of
neighbouring land).

76 [1980] Q.B. 485 at 524. See also Bybrook Barn Garden Centre Ltd v
Kent County Council [2001] Env L.R. 30 CA and Green v Lord
Somerleyton [2003] EWCA Civ 198; [2004] 1 P. & C.R. 33 (applied to
naturally flowing water). The House of Lords in Marcic v Thames Water
Utilities Ltd [2003] UKHL 66; [2004] 2 A.C. 42, however, distinguished an
ordinary occupier of land from statutory occupiers where the law of
nuisance must be careful not to impose obligations inconsistent with the
statutory scheme under which they operate.

77 [1967] 1 A.C. 645 at 663.

78 Although contrast Abbahall Ltd v Smee [2002] EWCA Civ 1831; [2003]
1 W.L.R. 1472, (no allowance made for elderly flat-owner reliant on state
benefits), although this may be distinguished on its facts—common sense
and justice indicated that cost of repairs to communal roof should be shared
equally amongst flat-owners.

79 (1982) 80 L.G.R. 337.

80 [2000] Q.B. 836. Comment: M.P. Thompson, “Coastal erosion and
collapsing hotels” [2001] Conv 177 and C.A. Hopkins, “Slipping into
uncertainty” [2000] C.L.J. 438. Applied to loss of support when wall
between adjoining properties collapsed in Ward v Coope [2015] EWCA Civ
30; [2015] 1 W.L.R. 4081 (measured duties of care on both sides).

81 Thereby overturning previous authority which indicated that there was

no positive duty in such circumstances to provide support: Sack v Jones
[1925] Ch. 235; Macpherson v London Passenger Transport Board (1946)
175 L.T. 279. Holbeck Hall was applied in Rees v Skerrett [2001] EWCA
Civ 760; [2001] 1 W.L.R. 1541 where the owner of a terraced house had,
when demolishing the house, failed to take reasonable steps to protect the
party wall where it was reasonably foreseeable that, if not properly
weatherproofed, the wall would suffer damage.

82 See Stuart-Smith LJ [2000] Q.B. 836 at 863. See also Lambert v Barratt
Homes Ltd [2010] EWCA Civ 681; [2010] 33 E.G. 72 where the court
expressly recognised that most local authorities operate under a degree of
financial pressure and held that the measured duty of care involved, here,
only a duty to co-operate in a solution which involved the construction of
suitable drainage.

83 [1987] A.C. 241. See B. S. Markesinis, “Negligence, nuisance and

affirmative duties of action” (1989) 105 L.Q.R. 104.

84 See Lord Griffiths [1987] A.C. 241 at 251.

85 St Anne’s Well Brewery Co v Roberts (1928) 140 L.T. 1; Wilkins v

Leighton [1932] 2 Ch.106.

86 See Harris v James (1876) 45 L.J.Q.B. 545.

87 [2014] UKSC 46; [2015] A.C. 106.

88 [2001] 1 A.C. 1 at 22 per Lord Millett, relying on Malzy v Eichholz

[1916] 2 K.B. 308 (for criticism, see I. Loveland [2005] J.P.L. 405).

89 [1986] 1 All E.R. 663.

90 [1973] Ch.314.

91 (2001) 33 H.L.R. 56.

92 [2014] UKSC 46 at [17].

93 (2001) 33 H.L.R. 56.

94 See M. Davey, “Neighbours in law” [2001] Conv 31 and J. Morgan,

“Nuisance and the unruly tenant” [2001] C.L.J. 382.

95 See S. Bright and C. Bakalis, “Anti-social behaviour: Local authority

responsibility and the voice of the victim” [2003] C.L.J. 305.

96 [2000] Q.B. 51.

97 [2016] EWCA Civ 140; [2016] Q.B. 1080. See R. Hickey, “Possession,
control and a licensor’s liability for nuisance” [2016] Conv. 296.

98 The distinction is blurred, for example, in cases such as Chartered Trust

Plc v Davies (1998) 76 P. & C.R. 396, where a landlord was found liable for
continuing the nuisance where it had retained control over the common
parts in which the nuisance created by its tenant had taken place. For the
lease/licence divide, see Street v Mountford [1985] A.C. 809; Bruton v
London & Quadrant Housing Trust [2000] 1 A.C. 406.

99 See Wookey v Wookey [1991] Fam 121.

100 [1970] 1 Q.B. 612 at 638–9. Contrast, however, the principle of caveat
lessee whereby the tenant cannot sue the landlord for nuisance on the basis
that, on taking a lease of the property, he or she takes the property as he or
she finds it: Baxter v Camden LBC (No.2) [2001] Q.B. 1.

101 See Mint v Good [1951] 1 K.B. 517.

102 “Relevant defect” is defined in Defective Premises Act 1972 s.4(3). See
Dodd v Raebarn Estates Ltd [2017] EWCA Civ 439; [2017] H.L.R. 34. For
a recent application of s.4, see Rogerson v Bolsover DC [2019] EWCA Civ
226; [2019] 2 W.L.R. 1199.
103 Defective Premises Act 1972 s.4(2). See also s.4(4), which extends the
duty to situations where the landlord has reserved the right to enter the
premises to carry out any description of maintenance or repair of the
premises.

104 Alker v Collingwood Housing Assoc [2007] EWCA Civ 343; [2007] 1
W.L.R. 2230.

105 [1997] A.C. 655 at 685–686.

106 Laws v Florinplace [1981] 1 All E.R. 659, Thompson-Schwab v

Costaki [1956] 1 All E.R. 652 and Church of Jesus Christ of the Latter-Day
Saints v Price [2004] EWHC 3245 (QB).

107 [2000] Q.B. 1.

108 [2000] Q.B. 51.

109 [2000] Q.B. 51 at 65.

110 As emphasised by the Court of Appeal in Barr v Biffa Waste Services

Ltd [2012] EWCA Civ 312; [2013] Q.B. 455.

111 [1981] A.C. 1001.

112 See Wildtree Hotels Ltd v Harrow LBC [2001] 2 A.C. 1 at 13 per Lord
Hoffmann.

113 See Department of Transport v NW Water Authority [1983] 3 W.L.R.

105 at 109, approved [1984] A.C. 336 at 359. This only applies to statutory
powers and will not apply to statutory duties.

114 Metropolitan Asylum District v Hill (1881) 6 App. Cas. 193.

115 [2004] UKHL 30; [2004] 2 A.C. 557 (Millett dissenting): interpretation
of the Rent Act 1977 Sch.1 para.2 to comply with arts 8 and 14. See also R.
v A (No.2) [2001] UKHL 25; [2002] 1 A.C. 45 (interpretation of Youth
Justice and Criminal Evidence Act 1999 s.41(3) to comply with art.6), and
A. Kavanagh, “The role of parliamentary intention in adjudication under the
Human Rights Act 1998” (2006) 26 O.J.L.S. 179.

116 Coventry v Lawrence [2014] UKSC 13 at [31], Peires v Bickerton’s

Aerodromes Ltd [2016] EWHC 560 (Ch); [2016] Env. L.R. 27 at [87].

117 (1879) 11 Ch.D. 852.

118 [1940] A.C. 880.

119 (1838) 4 Bing. N.C. 183 at 185; 132 E.R. 758 at 759.

120 [1977] Q.B. 966.

121 (1879) 11 Ch.D. 852.

122 [1977] Q.B. 966 at 987.

123 [2014] UKSC 13 at [58] (although this point was obiter).

124 [1913] 1 Ch.269.

125 See, e.g. Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch.343.

126 [1894] 3 Ch.163.

127 [1894] 3 Ch.163 at 166.

128 See C. Gearty, “The place of private nuisance in a modern law of torts”
(1989) 48 C.L.J. 211; M. Lee, “What is private nuisance?” (2003) 119
L.Q.R. 298; A. Beever, The Law of Private Nuisance (Hart, 2013), Chs 7
and 8.

129 [1967] 1 A.C. 645 at 657. Consider, also, defences such as act of
stranger (paras 10–035 and 10–060).

130 [1980] Q.B. 485.

131 [1997] A.C. 655.

132 [1994] 2 A.C. 264.

133 Rapier v London Tramways Co [1893] 2 Ch. 588.

134 [1961] A.C. 388.

135 See The Wagon Mound (No.2) [1967] 1 A.C. 617. See below.

136 See J. Spencer, “Public nuisance—A critical examination” [1989]

C.L.J. 55, who, at 59, describes it as “a ragbag of odds and ends”.

137 [1957] 2 Q.B. 169 at 184. See also Denning LJ at 190–191.

138 [2005] UKHL 63; [2006] 1 A.C. 459. Although these are criminal
cases, Lord Bingham expressly stated that the ingredients of public
nuisance as a crime or a tort were the same: at [7].

139 “A core element of the crime of public nuisance is that the defendant’s
act should affect the community, a section of the public, rather than simply
individuals”: Lord Rodger [2005] UKHL 63; [2006] 1 A.C. 459 at [47]. See
also DPP v Fearon [2010] EWHC 340 (Admin): single act of soliciting not
a public nuisance.

140 Following R. v Shorrock [1994] Q.B. 279.

141 [1954] 2 Q.B. 182 at 196.

142 [1972] 1 All E.R. 1142.

143 Harper v Haden [1933] Ch.298.

144 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] 1 A.C.
617.

145 [1954] 2 Q.B. 182 at 197.

146 (1876) 1 Q.B.D. 314.

147 [1926] 2 K.B. 332.

148 (1876) 1 Q.B.D. 314.

149 [1940] 1 K.B. 229 at 233.

150 [1951] 1 K.B. 517.

151 [1970] 1 Q.B. 324 at 345, CA.

152 See G. Kodilinye, “Public nuisance and particular damage in the

modern law” (1986) 2 L.S. 182.

153 See Winterbottom v Lord Derby (1867) L.R. 2 Ex. 316 at 321–322.

154 See, e.g. Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] A.C.
754. In Wandsworth LBC v Railtrack Plc [2001] EWCA Civ 1236; [2002]
Q.B. 756, the local authority was able to complain about the damage caused
by pigeons roosting under the defendant’s railway bridge under Local
Government Act 1972 s.222 and, because the nuisance affected those using
the highway when passing under the bridge, by virtue of the Highways Act
1980 s.130. There is no obstacle to the local authority bringing an action
under both provisions in highway cases: Nottingham City Council v Zain
[2001] EWCA Civ 1248; [2002] 1 W.L.R. 607.

155 (1865) 3 H. & C. 774 (Court of Exchequer); (1866) 1 L.R. 1 Ex. 265
(Court of Exchequer Chamber); (1868) L.R. 3 H.L. 330 (House of Lords).

156 § 20(b) (2010), replacing para.519 of the Second Restatement. See,

generally, K. N. Hylton, “The Theory of Tort Doctrine and the Restatement
(Third) of Torts” (2001) 54 Vanderbilt Law Review 1413 and K. W. Simons,
“The Restatement Third of Torts and Traditional Strict Liability: Robust
Rationales, Slender Doctrines” (2009) 44 Wake Forest Law Review 1355.

157 This is a modification of para.520 of the Second Restatement.

158 Law Commission Report No.32 (1970), Pt III. However, the idea did
receive some support in the report of the Pearson Commission in 1978
(Report of the Royal Commission on Civil Liability and Compensation for
Personal Injury, Cmnd.7054 (1978), Vol.1 Ch.31 para.1651) which
recommended a statutory scheme making the controller of any listed
dangerous thing or activity strictly liable for death or personal injury
resulting from its malfunction. As discussed in Ch.1, the broad views of the
Pearson Commission on liability have never been adopted in this country.

159 [1947] A.C. 156 at 167, 181, 186 (liability rejected in respect of a high
explosive shell which exploded and injured a munitions inspector).

160 [1994] 2 A.C. 264 at 305.

161 (1994) 120 A.L.R. 42. For a discussion of the case, see R.F.V. Heuston
and R.A. Buckley, “The return of Rylands v Fletcher” (1994) 110 L.Q.R.
506.

162 [1994] 2 A.C. 264 at 306.

163 Particularly, the article of F. H. Newark, “The Boundaries of Nuisance”

(1949) 65 L.Q.R. 480.

164 [2003] UKHL 61; [2004] 2 A.C. 1.

165 For criticism, see D. Nolan, “The distinctiveness of Rylands v Fletcher”

(2005) 121 L.Q.R. 421 (who favours abolition of the rule) and J. Murphy,
“The merits of Rylands v Fletcher” (2004) 24 O.J.L.S. 643 (who defends
the rule (at 669) as “a useful residual mechanism for securing
environmental protection by individuals affected by harmful escapes from
polluting heavyweight industrialists”).

166 See RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985
S.L.T. 214.

167 See also Environmental Protection Act 1990 s.73(6) (pollution by

escape of waste) and Nuclear Installations Act 1965 s.7 (radio-active
matter).

168 [2012] EWCA Civ 1248; [2014] Q.B. 1.

169 The Court of Appeal thus resolved ongoing doubt whether liability for
the escape of a fire was covered by the rule in Rylands v Fletcher or under a
parallel rule of the common law: see Musgrove v Pandelis [1919] 2 K.B. 43
and H&N Emanuel v Greater London Council [1971] 2 All E.R. 835 at 839
per Lord Denning MR For a historical overview, see A. Ogus, “Vagaries in
liability for the escape of fire” (1969) 28 C.L.J. 104. Musgrove v Pandelis
was distinguished as a fact-sensitive case which would be resolved
differently today.

170 Consider, e.g. Goldman v Hargrave [1967] 1 A.C. 645 (failure to take
reasonable steps to extinguish fire). Negligence had not been found on the
facts of the case.

171 S. Tofaris, “Rylands v Fletcher restricted further” [2013] C.L.J. 11.

172 [2003] UKHL 61; [2004] 2 A.C. 1 at [39].

173 [1994] 2 A.C. 264.

174 The rule does not apply, therefore, to the escape of stythe gas as a
naturally occurring phenomenon of mining: Willis v Derwentside DC
[2013] EWHC 738 (Ch); [2013] Env. L.R. 31 at [45].

175 [2003] UKHL 61; [2004] 2 A.C. 1 at [10] (emphasis added).

176 See Stannard v Gore [2012] EWCA Civ 1248. On this basis logically a
complaint about vibrations should be brought in private nuisance, not
Rylands v Fletcher, because vibrations are not the thing brought onto the
site even though they could be said to “escape”: see Lindsay v Berkeley
Homes (Capital) Plc [2018] EWHC 2042 (TCC).

177 [2012] EWCA Civ 1248 at [61].

178 [1947] A.C. 156.

179 [1985] 2 All E.R. 985 at 996.

180 [1996] 2 Lloyd’s Rep. 533.

181 Giles v Walker (1890) 24 Q.B.D. 656.

182 [1913] A.C. 263 at 280.

183 Read v Lyons [1947] A.C. 156 at 174, 176. In contrast, keeping a car
was “non-natural” in 1919: Musgrove v Pandelis [1919] 2 K.B. 43.

184 See Lords Bingham [2003] UKHL 61; [2004] 2 A.C. 1 at [11] and
Walker at [105]. Note also criticism of this decision by Lord Goff in
Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 A.C. 264 at
308 and contrast Rainham Chemical Works v Belvedere Fish Guano Co
[1921] 2 A.C. 465 where the manufacture of explosives during the First
World War was regarded as “non-natural”.

185 [1947] A.C. 156 at 166. See also F. H. Newark, “Non-natural user and
Rylands v Fletcher” (1961) 24 M.L.R. 557, 571: “the result as applied in
the modern cases is, we believe, one which would have surprised Lord
Cairns and astounded Blackburn.”

186 [1994] 2 A.C. 264.

187 [2003] UKHL 61; [2004] 2 A.C. 1.

188 [1994] 2 A.C. 264 at 309.

189 [2003] UKHL 61 at [11]. His Lordship warned, however, against a too
inflexible approach. A use might be extraordinary and unusual at one time
or place, but not so at another.

190 Lord Hoffmann, however, remained concerned that the term “ordinary”
was too vague, preferring risk-based analysis: [2003] UKHL 61 at [37].

191 Lord Walker [2003] UKHL 61 at [103] remarked that “It is the
extraordinary risk to neighbouring property, if an escape occurs, which
makes the land use ‘special’ for the purposes of the principle in Rylands v
Fletcher.”

192 [2003] UKHL 61 at [46].

193 Lord Hobhouse in his speech highlighted that insurance against risks is
not always cheap and accessible and its availablity is dependant on the
insurance market: [2003] UKHL 61 at [60].

194 [1994] 2 A.C. 264.

195 See also Savage v Fairclough [2000] Env L.R. 183 CA where pollution
of a private water supply, which had arisen due to nitrate contamination
from a neighbour’s farm, was not considered foreseeable by a “hypothetical
good farmer” running a farm such as the one in question. Note also
Hamilton v Papakura DC [2002] UKPC 9, where the Privy Council held
that damage caused to crops due to the presence of a herbicide in the town
water supply (which remained fit for human consumption) did not lead to
foreseeable loss.

196 [1994] 2 A.C. 264 at 302.

197 [2003] UKHL 61 at [33].

198 See, e.g. dicta in Shiffman v Order of the Hospital of St John of

Jerusalem [1936] 1 All E.R. 557 (although decided on negligence) and
Perry v Kendricks Transport Ltd [1956] 1 W.L.R. 85 at 92.

199 [1947] A.C. 156 at 173 (per Lord Macmillan) and at 186 (per Lord
Uthwatt). See also Widgery J in Weller & Co v Foot and Mouth Disease
Research Institute [1966] 1 Q.B. 569 at 588.

200 Such reasoning convinced Neuberger J in McKenna v British

Aluminium Ltd [2002] Env. L.R. 30.

201 See Rainham Chemical Works v Belvedere Fish Guano Co [1921] 2

A.C. 465 at 479 per Lord Sumner, who cited Eastern and South African
Telegraph Co v Cape Town Tramways Cos Ltd [1902] A.C. 381 at 392;
Midwood v Manchester Corp [1905] 2 K. B. 597; Charing Cross Electricity
Supply Co v Hydraulic Power Company [1914] 3 K. B. 772.

202 [1894] 2 Q.B. 281.

203 (1879) 4 Ex. D. 76.

204 [1913] A.C. 263. See also Perry v Kendricks Transport Ltd [1956] 1
W.L.R. 85.

205 [1936] A.C. 108.

206 [2001] P.I.Q.R. P8.

207 She was saved, we are told, by her heroic spaniel, which jumped on her
bed and whimpered until she awoke!

208 C. Witting, Street on Torts, 15th edn (OUP, 2018) pp.466–467.

209 (1876) 2 Ex. D. 1.

210 [1917] A.C. 556.

211 (1894) 70 L.T. 547.

212 [1914] 3 K.B. 772.

213 [1964] 2 Q.B. 806 at 833–837.

214 See Lord Hoffmann [2003] UKHL 61; [2004] 2 A.C. 1 at [31].

215 Kiddle v City Business Properties Ltd [1942] 1 K.B. 269 at 274. See
also Carstairs v Taylor (1871) L.R. 6 Ex. 217. See L. Kadirgamar [1973]
Conv. 179.

216 [1895] 1 Ch.287.

217 See Lindley LJ [1895] 1 Ch.287 at 315–316.

218 [1977] Q.B. 966.

219 [1981] Q.B. 88. See R. A. Buckley, “Injunctions and the public
interest” (1981) 44 M.L.R. 212. On the need for flexibility in applying
remedies in nuisance, see M. Lee, “Tort law and regulation” [2011] J.P.L.
986.
220 See also Dennis v Ministry of Defence [2003] EWHC 793 (QB); [2003]
Env L.R.34: damages appropriate when contrary to public interest to
prevent RAF flying Harrier jets from its base. This was justified as
consistent with developing human rights case law.

221 Although it had increased in volume and noise beyond tolerable levels
in subsequent years.

222 See S. Tromans, “Nuisance—Prevention or Payment” (1982) 41 C.L.J.

87, 93–95, who argues for greater use of damages awards.

223 [2014] UKSC 13; [2014] A.C. 822.

224 e.g. in Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15; [2009] 3
All E.R. 249.

225 [2014] UKSC 13 at [125].

226 See Lemmon v Webb [1895] A.C. 1.

227 [2001] UKHL 55; [2002] 1 A.C. 321.

228 [2001] UKHL 55; [2002] 1 A.C. 321 at [34]. But see Kirk v Brent LBC
[2005] EWCA Civ 1701; [2006] Env. L.R. D7 where the Court of Appeal
questioned whether this was an absolute rule and refused to strike out a
claim where no notice had been given for substantial works until four years
after the event and it could be argued that the local authority were put on
notice by the fact that similar damage had been caused to other nearby
property.

229 Although the courts are sometimes generous in finding damage for
certain types of private nuisance, e.g. interference with certain easements.

230 [2018] EWCA Civ 1514; [2019] Q.B. 601. Comment: S. Steel, “The
gist of private nuisance” (2019) 135 L.Q.R. 192.

231 [2018] EWCA Civ 1514 at [55].

232 (1949) 65 L.Q.R. 480 at 489.

233 [1997] A.C. 655. Followed by Vukelic v Hammersmith and Fulham
LBC [2003] EWHC 188 (QB (TCC)).

234 [2003] UKHL 61; [2004] 2 A.C. 1.

235 Hale v Jennings [1938] 1 All E.R. 579; Shiffman v Order of the
Hospital of St John of Jerusalem [1936] 1 All E.R. 557 (although decided
on negligence) and Perry v Kendricks Transport Ltd [1956] 1 W.L.R. 85 at
92.

236 See Read v Lyons [1947] A.C. 156.

237 [2004] 2 A.C. 1 at [9]. See also Lord Hoffmann at [35].

238 [2008] EWCA Civ 463; [2009] Q.B. 335. Comment: M. Lee, “Personal
injury, public nuisance, and environmental regulation” (2009) 20 K.L.J.
129.

239 [2008] EWCA Civ 463 at [27]–[30]. There is, however, no reason why
claimants cannot raise both torts in litigation; they are not mutually
exclusive.

240 See e.g. Jones v Ruth [2011] EWCA Civ 804; [2012] 1 W.L.R. 1495
where, in a private nuisance claim, the claimant succeeded in her claim for
personal injury damages under the 1997 Act.

241 [1975] 1 All E.R. 787. See also Raymond v Young [2015] EWCA Civ
456; [2015] H.L.R. 41: no separate award of damages for inconvenience
and distress caused by the nuisance when substantial damages already
awarded for diminution in value as such sum was likely to include loss of
amenity. Courts should seek to avoid double recovery in this context.

242 [1996] A.C. 344.

243 [2009] EWCA Civ 28; [2009] 3 All E.R. 319. Comment: S. Tofaris
[2009] C.L.J. 273.

244 [1997] A.C. 655 at 707.

245 [1997] A.C. 655 at 706.

246 [1938] Ch.1. See, also, Lawton J in British Celanese v Hunt [1969] 1
W.L.R. 959.

247 [2002] EWCA Civ 209; [2002] 1 Lloyd’s Rep. 583.

248 (1949) 65 L.Q.R. 480 at 490.

249 [1961] 2 All E.R. 145.

250 Crops and trees are, of course, treated as part of the land in question.

251 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd
[1961] A.C. 388 at 427.

252 The Wagon Mound (No.2) (Overseas Tankship (UK) Ltd v Miller
Steamship Co Pty) [1967] 1 A.C. 617 at 640.

253 [2003] UKHL 66; [2004] 2 A.C. 42.

254 Where there is a demonstrable and significant fall in the value of the
property, without proper compensation, this amounts to a partial
expropriation: see S v France (1990) 65 D. & R. 250 at 261. See D.
Anderson, “Compensation for interference with property” [1999]
E.H.R.L.R. 543.

255 The court relying on Baggs v UK (1987) 9 E.H.R.R. 235, (a case of

nuisance by noise from Heathrow airport affecting the applicant’s
enjoyment of his home); S v France (1990) 65 D. & R. 250 (effect of
nuclear power station near home); Guerra v Italy (1998) 26 E.H.R.R. 357
(toxic emissions from factory); Lopez Ostra v Spain (1994) 20 E.H.R.R.
277 (fumes and smells from waste treatment plant).

256 Article 8 para.2: “except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others”.
257 Article 1 Protocol 1.

258 [2002] Q.B. 929 CA. See S v France (1990) 65 D. & R. 250 at 263 and
James v United Kingdom (A/98) (1986) 8 E.H.R.R. 123 at [54]: “under the
legal systems of the contracting states, the taking of property in the public
interest without payment of compensation is treated as justifiable only in
exceptional circumstances”.

259 [2003] EWHC 793 (QB); [2003] Env L.R.34. Followed by Andrews v
Reading BC (No.2) [2005] EWHC 256 (QB); [2006] R.V.R. 56 (£2,000 for
noise arising from new traffic scheme).

260 In the financial year 1999–2000, the profits of the whole group (of
which TWUL formed only a part) amounted to only £344 million after tax.

261 See, recently, Southern Gas Networks Plc v Thames Water Utilities Ltd
[2018] EWCA Civ 33; [2018] 1 W.L.R. 5977 (common law negligence
claim permitted where nothing within the statutory scheme suggested
Parliament did not intend there to be two different schemes in play).

262 (36022/97) (2003) 37 E.H.R.R. 28.

263 [2003] UKHL 66; [2004] 2 A.C. 42 HL at [43]. See also Arscott v Coal
Authority [2004] EWCA Civ 892; [2005] Env. L.R. 6 (common enemy
defence to flooding reached a fair balance between interests of person
affected and general public and was Convention-compliant). This defence
permits the occupier of land to use or develop it so as to prevent
floodwaters coming on to the land without being liable if flood water which
would have entered the land consequently damages that of another. Contrast
Giacomelli v Italy (59909/00) (2007) 45 E.H.R.R. 38; Fadeyeva v Russia
(55723/00) (2007) 45 E.H.R.R. 10.

264 Although Lord Hoffmann noted that Thames Water had agreed with the
Regulator in 2002 to free 250 properties (including that of Marcic) from the
risk of external flooding.

265 [2009] EWCA Civ 28; [2009] 3 All E.R. 319.

266 Relying on the HRA 1998 s.8(3).

267 [1997] A.C. 655.

268 [1994] 2 A.C. 264.

269 [2003] UKHL 61; [2004] 2 A.C. 1.

 11

Trespass

Introduction
11–001 The tort of trespass is one of the oldest torts in English law. In
modern law, it takes three forms—trespass to the person, to land
and to goods. All three torts have the same characteristics: they
must be committed intentionally, cause direct and immediate
harm and are actionable per se, i.e. without proof of damage.
Although these three criteria have not always been followed—
for example in the past, the courts have been willing to impose
liability for trespass to the person where the tort has been
committed negligently1—they are generally followed today.
They serve to distinguish trespass from other actions, such as
negligence and nuisance, which were traditionally called
“actions on the case” and deal with indirect harm.
It is important to recognise that the tort of trespass operates
in a different manner from torts such as nuisance and
negligence. These torts, which we have already looked at,
compensate the claimant for damage incurred unintentionally or
indirectly, and act as a form of loss-spreading. The aim of
trespass, however, is to vindicate the claimant’s right to be free
from interference either to his or her person, property or goods.
On this basis, the torts are actionable per se. Damage is not the
trigger for compensation. It is the wrongful actions of the
defendant in interfering with a recognised legal interest
 possessed by the claimant which trigger compensation. Of
course, in awarding damages the courts will examine whether
any loss or damage has been suffered. They will generally only
award nominal damages in trespass to land or goods if no
damage exists, but the existence of aggravated and
exemplary/punitive damages2 in these fields highlights the
willingness of the courts to acknowledge the importance of
protecting these interests in modern society.
The tort of trespass does, however, have a close connection
with other areas of law. Trespass to the person, in dealing with
interference with the person in terms of personal integrity
and freedom of movement, bears a close relationship with
criminal law and the offences found in the Offences against the
Person Act 1861.3 Trespass to land, in contrast, deals with
interference with the claimant’s possession of land and therefore
bears a close relationship with the tort of private nuisance,
discussed in the previous chapter. Trespass to goods is also very
closely connected to the tort of conversion (civil theft). The
significance of this will be discussed below.
This chapter will concentrate on trespass to the person and
trespass to land which are the topics most likely to be covered in
a tort unit. Trespass to goods will be dealt with briefly at the end
of the chapter.

Trespass to the Person

11–002 As stated above, trespass to the person protects the claimant

against interference with his or her person. This may be
attempted by means of assault, battery or false imprisonment.
These torts possess the classic “trespass” characteristics in that
they must be committed intentionally, by direct and immediate
actions and are actionable without proof of damage.4 To the
reader, these torts are perhaps better recognised as criminal
offences and indeed, the defendant will normally face criminal,
rather than civil, charges for such actions. There are a number of
reasons for this. First of all, the police will usually be called in,
which makes criminal proceedings more likely. Secondly, the
claimant may not wish the pressure of further civil proceedings
brought at his or her own instigation (and cost) when the
defendant may not have the means to satisfy judgment. Thirdly,
the criminal courts now possess at least some means of awarding
compensation to a victim of crime,5 and victims may also
recover under the Criminal Injuries Compensation Scheme6
which is a national fund, granting compensation for personal
injury caused by crimes of violence. The Scheme will award
compensation to any person who has sustained personal injury
directly attributable to a crime of violence or to the apprehension
of an offender or the prevention of an offence. Such
compensation is unlikely to be as high as that awarded in a
successful tort action, but is undoubtedly an easier option for the
victim.
A tort action will generally be motivated by more than just a
desire for compensation. It may be pursued to highlight a refusal
of the Director of Public Prosecutions to bring a criminal
prosecution7 or in the face of an unsuccessful prosecution. As
the burden of proof is lower in
the civil courts, the claimant may succeed in proving his or her
case on the balance of probabilities where the prosecutor has
failed to prove the allegations in a criminal court beyond
reasonable doubt. In the US case concerning O.J. Simpson, for
example, the defendant, an ex-football star and celebrity, was
found not guilty of the murder of his ex-wife and her lover, but
was nevertheless subsequently found liable to pay damages by a
civil court.8 A tort action may also be brought to highlight abuse
of power by public bodies such as the police, and a successful
claimant may have his or her point reinforced by an award of
exemplary damages.9 In seeking to gain compensation where
 criminal proceedings have failed, litigants should note the
limitations in the Offences against the Person Act 1861 ss.44
and 45.10 These sections relate to assault and battery charges
heard in the magistrates’ courts.11 Section 45 provides that
where a summary hearing brought by or on behalf of the party
aggrieved has been held and has ended, after a hearing on the
merits, either with a certificate of dismissal,12 or with the
accused being convicted and fined or imprisoned, civil
proceedings for the same cause will be barred.13 As most
criminal offences, save the most serious, are tried in the
magistrates’ court, this in practice limits the situations in which
the victim can sue for compensation in tort.
Most cases are therefore decided by the criminal courts and
for this reason, the civil courts will often reason by analogy to
criminal cases. Criminal cases will be used, where appropriate,
to illustrate the likely treatment of a tort claim. Criminal law
authorities, however, should be treated with caution. They are
not authority in the law of tort and can therefore only be treated
as guidance. Proper regard must be had to the differing concerns
of criminal law (which are largely punitive) and trespass to the
person (which protects the personal integrity and right to self-
determination of the claimant). This section of the chapter will
examine battery, assault and false imprisonment in turn.

Battery

11–003 This has a number of components. Force must be applied

intentionally by immediate and direct means to another
individual. This can vary from the most minor contact with the
claimant, such
as an unwanted peck on the cheek, to a violent blow in the chest.
Because the tort is actionable without proof of damage, both
types of battery render the defendant liable to pay damages. The
requirements of battery are examined below.
 ◗ (1) It must be intentional
11–004 This means that the act of force must be voluntary. For example,
Y has not committed a battery if X grasps his arm and pulls it to
strike Z. Intention relates only to the action of the defendant. It
is not necessary that the defendant intends the consequences of
his or her actions. On this basis, the defendant will be liable for
all the consequences flowing from the tort, whether or not they
are foreseeable.14 Equally, if I intend to hit A and instead hit B, I
commit a battery against B.15 This rule, which is essentially one
of convenience, has been explained as the concept of
“transferred intent”.
The tort may be committed even if the original action was
unintentional, if the defendant at some point intends to apply
force. For example, in Fagan v Metropolitan Police
Commissioner,16 the defendant unintentionally stopped his car
on a policeman’s foot. At this stage, no tort had been committed.
However, by deliberately failing to move until the police officer
had shouted “Get off my foot” several times, he committed a
battery. It seems likely that, as in criminal law, recklessness in
the use of force is sufficient to establish intent in battery.17

◗ (2) It must be direct

11–005 It is a basic requirement of any trespass that the injury must be
direct. If the injury is indirect, the claimant must find another
basis for recovery. However, this requirement has been
interpreted flexibly. In the eighteenth century case of Scott v
Shepherd,18 for example, the defendant was found liable for
battery when he had thrown a lighted squib into a market place.
This was despite the fact that the squib had been thrown on by
two stallholders, to protect themselves and their wares, before it
had exploded in the face of Scott. The majority of the court
found the battery to be sufficiently direct. Equally, in DPP v K,19
the force was considered sufficiently
 immediate and direct where a schoolboy had poured some
concentrated sulphuric acid, stolen from a chemistry lesson, into
a hand-dryer which was later used by another pupil with horrific
results. The court held that the boy had known full well that he
had created a dangerous situation, but had nevertheless taken the
risk of injury to another. It was no excuse that he had panicked
and had intended to remove the acid as soon as he was able.

◗ (3) Immediate force

11–006 The tort of battery applies to any form of bodily contact. This
causes a potential problem. If applied literally, it would cover all
forms of contact. For example, A would commit a battery by
tapping B on the shoulder to get his attention. It would clearly be
a nonsense if an actionable battery was committed in such
circumstances, and the law would, in effect, provide a charter for
vexatious litigants to sue. Whilst this is common sense, the
courts have experienced difficulties in finding a theoretical basis
on which to draw a line between actionable batteries and
ordinary social contact. Lord Holt CJ’s comments in Cole v
Turner20 have been cited, where his Lordship held that “the least
touching of another in anger is a battery”. On this basis, the
Court of Appeal in Wilson v Pringle21 held that battery must be
committed with “hostile” intent. On the facts of the case, a boy
had suffered serious injury due to the antics of a fellow pupil.
The defence alleged that the defendant had merely pulled the
schoolbag off the schoolboy’s shoulder, which had led him to
fall on the ground and injure himself. The court held that
liability depended on whether the pupil’s actions had been
“hostile” and not simply a schoolboy prank. It can be questioned
whether this is helpful. What is hostile to one person may seem
quite the opposite to another. For example, should an over-
enthusiastic slap on the back or a surgeon’s mistaken amputation
of a leg be regarded as non-hostile and therefore not a battery?
Even if an objective interpretation is adopted, it simply seems to
mean that the reasonable person would view the action as
contrary to the ordinary rules of social conduct. If this is so, then
the view of Robert Goff LJ in Collins v Wilcock22 is preferable.
His Lordship took the entirely sensible view that instead of
adopting complicated legal rules based on implied consent to the
battery, or hostile intent, the law should just exclude liability for
conduct generally acceptable in the ordinary conduct of daily
life—a view which he reiterated in Re F23:

“. . .a broader exception has been created to

allow for the exigencies of everyday life:
jostling in a street or some other crowded
place, social contact at parties and such
like. This exception has been said to be
founded on implied consent, since those
who go about in public places, or go to
parties, may be taken to have impliedly
consented

to bodily contact of this kind. Today this

rationalization can be regarded as artificial:
and, in particular, it is difficult to impute
consent to those who, by reason of their
youth or mental disorder, are unable to give
their consent. For this reason I consider it
more appropriate to regard such cases as
falling within a general exception
embracing all physical contact which is
generally acceptable in the ordinary
conduct of everyday life.”

Assault
11–007 This tort protects the claimant in fear of battery. Where the
defendant’s actions cause the claimant reasonably to apprehend
the direct and immediate infliction of force on him or her, the
tort is committed. It is important to stress first of all that this is
distinct from the popular meaning of “assault”, which in tort
equates with the tort of battery. So, if I point a gun at you, I have
only committed an assault. It is irrelevant that the gun is
unloaded—you do not know that, and have every reason to
apprehend a battery.24 Only when I shoot the gun and hit you
have I committed a battery. If my aim is poor and I miss, only an
assault has been committed.
The requirements of assault are as follows:

◗ (1) Reasonable apprehension of harm

11–008 The key to assault is the reasonable apprehension of harm. If I
creep up and strike you from behind without your knowledge, I
have only committed a battery. It is only assault if you are aware
of my approach. Equally, if you are lucky enough to be saved
from physical harm by the intervention of a third party, or if I
change my mind, I have only committed an assault. In Stephens
v Myers,25 for example, the plaintiff was threatened with
violence whilst attempting to expel the defendant from a parish
meeting. The defendant had approached the plaintiff threatening
violence, but, due to the intervention of the churchwarden, was
liable only for assault. Passive obstruction, however, such as that
seen in Innes v Wylie,26 where a policeman stopped the plaintiff
from entering a room, will not amount to assault. If the human
obstruction is passive, like a door or a wall preventing entry, the
claimant has no reason to anticipate the direct and immediate
infliction of force, so the defendant cannot be liable. The test of
reasonable apprehension is an objective one. It is irrelevant
whether the particular claimant was actually in fear, or could
have defended himself or herself successfully.

◗ (2) It must be intentional

11–009 This is a basic requirement of the tort and here signifies that the
defendant intended the claimant to apprehend reasonable force
would be used or was reckless as to the consequences of his or
her actions.27

◗ (3) It must be immediate and direct

11–010 This is really part of the test of reasonable apprehension. If the
claimant can see that the defendant is not in a position to inflict
immediate and direct harm on the claimant, then the claimant
has nothing to fear and so the defendant is not liable for assault.
Therefore, if I threaten you with violence as I am passing you in
a train, I have not committed assault. More controversially, in
Thomas v National Union of Mineworkers (South Wales Area),28
striking miners, who hurled insults at working miners who had
been transported into work in vehicles, were not held liable for
assault, because the vehicles had been protected by a police
cordon.

CAN WORDS AMOUNT TO AN ASSAULT?

11–011 There is old authority that words by themselves cannot amount
to an assault.29 This may now be challenged in the light of the
House of Lords case of R. v Ireland.30 Here, three women had
been harassed by Ireland. He was alleged to have made repeated
telephone calls to them, generally at night, during which he
remained silent. The women suffered psychiatric illness as a
result. The House of Lords rejected the proposition that an
assault could never be committed by words as unrealistic and
indefensible. Liability would in fact depend on whether the
claimant, in the circumstances before the court, reasonably
believed that the oral threat could be carried out in the
sufficiently near future to qualify as an immediate threat of
personal violence. On the facts, the court was prepared to accept
that silence would be capable of giving rise to such fears. This
seems sensible and it is to be hoped that although the decision
was made in criminal law, it will be applied by analogy to tort
law. Whilst the old saying goes that “sticks and stones may
 break my bones, but words will never hurt me”, this seems to
require an unduly high level of courage from the reasonable
person. Few amongst us would not experience fear if telephoned
by a stalker. As recognised by the court in R. v Ireland, whilst
the recipient of the call may have no knowledge of the stalker’s
whereabouts, the fear lies with the knowledge that the stalker, in
contrast, may know exactly where the recipient is at the time of
the call.
Conversely, it has long been accepted that words may
negative an assault. In the classic case of Tuberville v Savage,31
the defendant placed his hand on his sword and stated that “If it
were not assize time, I would not take such language from you”.
It was assize time and so, in reality, the defendant was stating
that he did not intend to strike the plaintiff. This must be
distinguished from a conditional threat, where the claimant is
merely given an option to avoid violence. It was no excuse for
the highwayman to claim that his victims had a viable
alternative option when he stated “stand and deliver, your money
or your life!” On this basis, in Read v Coker,32 the defendant
was liable for assault when he and his servants threatened to
break the plaintiff’s neck unless he left the defendant’s
workshop.

False imprisonment

11–012 This tort is concerned with the claimant’s right to freedom of

movement. A complete restriction of this freedom, unless it is
expressly or impliedly authorised by the law, will render the
defendant liable. It is necessary to exclude conduct expressly or
impliedly authorised by the law from this tort in view of the
custodial powers of the state and the powers of the police force,
provided, of course, these bodies act within the powers given
them by law. It is no excuse that the defendant had wrongfully
assumed in good faith that he had a legal right to detain the
claimant.33 In this sense, false imprisonment is a strict liability
tort. It is not the conduct of the defendant which is judged, but
the injury to the claimant. “False” simply means wrongful.
Equally, “imprisonment” does not require the defendant to put
the claimant in prison, but will extend to any actions which
deprive the claimant of his or her freedom of movement. It
should be noted that it need not be shown that force has been
used.
One question which has arisen is this: where A has given
orders to B to restrain C, is A or B liable for false
imprisonment? Generally, the actor (here B) will be liable,
unless B exercises no discretion in the matter and is forced to
obey the instructions of A. An example of this may be found in
Austin v Dowling.34 Here, a police inspector had refused to take
the responsibility for arresting the plaintiff on a charge made by
the defendant’s wife, but finally did arrest the plaintiff when the
defendant signed the charge sheet. It was held that the defendant
was liable for false imprisonment. In modern times, however,
the courts have taken the view that the police, as professionals,
are expected to exercise their own judgment and not simply
follow the instructions of others. This view formed part of the
reasoning of the Court of Appeal in
Davidson v Chief Constable of North Wales,35 where a store
detective had given evidence to the police which led to the arrest
of Davidson for shoplifting. Davidson and a friend were
detained by the police for two hours before it became clear that
the store detective’s suspicions were unfounded. Davidson sued
the store detective for false imprisonment. The Court of Appeal
held that no action lay against the store detective where she had
merely given information to the police, who could act as they
saw fit. Only if the detective had been the instigator, promoter
and active inciter of the action would the detective be liable.
The requirements of false imprisonment are examined
below:

◗ (1) A complete restriction of the claimant’s

freedom of movement
11–013 This requirement refers to any actions which restrict the
claimant’s freedom of movement in every direction. In Walker v
Commissioner of Police of the Metropolis,36 the Court of Appeal
made it clear that confining an individual in a doorway for
however short a time (here a few seconds) without lawful
authority would amount to a false imprisonment. As Tomlinson
LJ commented, “a fundamental constitutional principle is at
stake. The detention was indeed trivial, but that can and should
be reflected in the measure of damages and does not render
lawful that which was unlawful”.37
The requirement is not satisfied, however, if the claimant is
able to move in one direction. For example, in Bird v Jones,38
the plaintiff had insisted on passing along the public footway on
Hammersmith Bridge in London, which the defendants had
partially enclosed without due permission. The plaintiff had
climbed over a fence erected by the defendants to close off the
footway on one side of the bridge, but was prevented from
moving along the footway by the defendants. He was told that
he might go back and use the public footway on the other side of
the bridge, but the plaintiff would not do so. The court held that
the defendants were not liable for false imprisonment. They had
not imposed a complete restriction on the plaintiff’s freedom of
movement.
The Supreme Court most recently held that:

“[t]he essence of imprisonment is being

made to stay in a particular place by
another person. The methods which might
be used to keep a person there are many
and various.”39

They include physical barriers, guards or threats of force or

of legal process. In Jalloh, the Home Office had imposed a
curfew condition requiring him to remain at home every night,
backed by an electronic tag and the threat of criminal
prosecution if the curfew was breached. Unfortunately, the
Home Office had no legal authority to do this and Jalloh
successfully sued for false imprisonment. The Court held that
the idea that the claimant was a free agent, able to come and go
as he pleased, was “completely unreal.”40 It was irrelevant that
Jalloh had not been put in prison and, indeed, could have
physically left his home, given the threat of serious legal
consequences if he did so.41
Such a restriction will generally involve a positive act.
Trespass is concerned with intentional, immediate and direct
actions, not omissions. On this basis, an omission or refusal to
release the claimant from confinement will not amount to false
imprisonment, unless the claimant has a legal right to be
released and the defendant is under a positive obligation to
release the claimant. The majority of the Court of Appeal in
Iqbal v Prison Officers Assoc42 thus held that the claimant, who
was confined to his cell as a result of a prison officers’ strike,
could not sue for false imprisonment. Their omission to act—in
refusing to let him out of his cell—did not entail liability. The
claimant was legally detained and the officers were under no
duty to the prisoner to release him (their duty was to their
employer).43 Lord Neuberger MR did suggest, however, that a
deliberate and dishonest refusal to unlock the cells might give
rise to a claim for misfeasance in public office.44
The issue of confinement remains a question of fact. If the
claimant is able to return in the same direction in which he or
she came, or is given reasonable means of escape, the defendant
will not be liable. The means of escape must be reasonable—a
rope left by the window of a seven storey building will clearly
not suffice. This question did, however, divide the House of
Lords in R. v Bournewood Community and Mental Health NHS
Trust Ex p. L.45 The majority found that a mentally disordered
patient who had been placed voluntarily in an unlocked ward
and showed no desire to leave had not been detained, despite the
 fact that the hospital gave evidence that he had been sedated and
would have been detained compulsorily had he sought to leave.
Lord Steyn, however, dissented, remarking that, “The suggestion
that L was free to go is a fairy tale”.46 The European Court of
Human Rights in 200547 found unanimously that the applicant
had been deprived of his liberty, contrary to art.5.1 of the
Convention. The Strasbourg Court noted, however, that the
House of Lords had considered the question solely on the basis
of false imprisonment,48 rather than in terms of art.5.1, and the
criteria for assessing domestic
and Convention issues were different.49 Lady Hale in Jalloh
suggested, however, that the broader view of imprisonment used
in that case made the decision of the narrow majority in
Bournewood difficult to justify.50

11–014 It is a matter of contention whether a reasonable means of

escape exists when the defendant imposes conditions on the
manner in which visitors leave his or her premises. There is
authority that, provided the conditions are reasonable, the
defendant is not liable if he or she refuses to allow the claimant
to leave until these conditions are satisfied. In Robinson v
Balmain Ferry Co Ltd,51 for example, the plaintiff had
contracted to enter the defendants’ wharf to catch a ferry boat to
cross the river. For reasons of efficiency, the fee of one penny
was paid on one side of the river, on entering and exiting the
wharf. Having a 20 minute wait for the next boat, the plaintiff
changed his mind and tried to exit the wharf. He refused to pay
the stipulated charge of one penny to leave the wharf, as
required by a notice above the turnstile. The defendants refused
to let him leave until the charge was paid. In an action for false
imprisonment, the Privy Council held that a penny charge was a
reasonable condition for leaving by a route different from the
one stipulated in the contract:
 “There is no law requiring the defendants
to make the exit from their premises
gratuitous to people who come there upon a
definite contract which involves their
leaving the wharf by another way.”52

This approach was taken a step further by the House of Lords’

decision five years later in Herd v Weardale Steel, Coal and
Coke Co Ltd.53 Here, a miner had refused to do certain work, on
the basis that it was dangerous, and had demanded to be taken to
the surface before the end of his shift. His employer refused.
Their Lordships held that the employer was not liable for false
imprisonment. The miner had voluntarily entered the mine under
a contract of employment and was deemed to have impliedly
consented that he would not be brought to the surface until the
end of the shift.
These cases involve a worrying invasion of the civil liberties
of those involved.54 However, there is clearly a line to be drawn.
As Viscount Haldane pointed out in Herd, a claimant cannot
expect to be able to stop an express train because he or she now
wishes to get off the train. The traveller consents to a restriction
on his or her freedom of movement for the duration of the
journey. If this consent is withdrawn, logically he or she should
be permitted to alight at the
first reasonable opportunity, which will usually be the next
designated stop. It does not entail a right to stop the train
immediately. On this basis, the miner in Herd quite rightly
limited his claim for false imprisonment to the period during
which the lift was available to take him out of the mine. It is
when the defendant refuses to allow the claimant to leave in
such circumstances that a claim for false imprisonment should
lie.
 Robinson may, however, be defended on the basis that the
plaintiff’s restraint was not complete, as he could have crossed
the river (subject to a query as to whether this is reasonable).
Herd is more difficult to defend. It is difficult to see the decision
as anything but a harsh ruling in favour of an employer’s rights
over his employees. It is scarcely legitimate to suggest
imprisonment as a reasonable response to the employee’s breach
of contract. A better explanation of Herd (and certainly one
more palatable to modern industrial relations) is to view it as an
omission case; an interpretation supported by the Court of
Appeal in Iqbal (above).

◗ It is unnecessary to show the claimant knew of

the imprisonment
11–015 Here the point is simply that the tort protects the claimant’s
freedom of movement, because it is a recognised interest the
legal system wishes to protect. Proof of damage is not required,
and so it is not necessary that the claimant has suffered from the
knowledge of his or her false imprisonment. Grainger v Hill55
established that the tort exists even if the claimant is too ill to
move, and in Meering’s case,56 the Court of Appeal held that the
tort can be committed even where the claimant does not know
that he or she is being detained. In this case, the plaintiff had
been suspected of stealing from his employer, the defendants,
and so he had been asked to accompany two of his employer’s
private police force to the company’s office. He had agreed and
waited as instructed in the waiting room. Unknown to the
plaintiff, the two policemen remained nearby and had been
instructed not to let him leave the waiting room until the
Metropolitan Police arrived. He later sued for false
imprisonment. The court held that the tort had been committed
as soon as the defendant was under the control of the
defendants’ police. Atkin LJ stated the legal position:
 “It appears to me that a person could be
imprisoned without his knowing it. I think a
person can be imprisoned while he is asleep,
while he is in a state of drunkenness, while
he is unconscious, and while he is a lunatic .
. . Of course the damages might be
diminished and would be affected by the
question whether he was conscious of it or
not.”57

This is a strong statement, indicating the courts’ disapproval of

any unjustified and complete restriction on the claimant’s
freedom of movement.58 As Lord Griffiths commented in
Murray v Ministry of Defence59:

“. . .the law attaches supreme importance to

the liberty of the individual and if he suffers
a wrongful interference with that liberty it
should remain actionable even without
proof of special damage.”

◗ (2) Without legal authorisation

11–016 The burden of proof lies on the defendant to justify the
lawfulness of the arrest and the claimant is only required to
show that he or she has been denied freedom of movement. On
this basis, this requirement should be treated as a defence to be
established by the defendant and will be so treated in a later
 section, below. Again, we can see that the rule seeks to protect
the civil liberties of the claimant.

The Rule in Wilkinson v

Downton

11–017 In all three torts above, the three characteristics of a trespass

action are apparent: intentional acts, which directly harm the
claimant, and which are actionable without proof of harm. This
does not include intentional harm which has been indirectly
caused. This gap is filled by the so-called rule in Wilkinson v
Downton. Like the rule in Rylands v Fletcher seen in the
previous chapter, the rule is named after its leading case, where
the relevant legal principles were set out. In Wilkinson v
Downton60 the defendant falsely told the plaintiff that her
husband had been involved in an accident in which he had been
seriously injured. The defendant later claimed that it had been a
practical joke, but the shock suffered by the plaintiff as a result
led her to suffer weeks of illness. She sued the defendant for
damages. His actions had been
intentional, but the harm had been indirect. Nevertheless, Wright
J held that where the defendant had wilfully undertaken an act
calculated to cause physical harm to the plaintiff, there was a
good cause of action. It is clear, however, that, unlike trespass,
harm must be proved.
The case was applied by the Court of Appeal in Janvier v
Sweeney.61 In this case, a private detective had pretended to be a
police officer, and, in order to obtain access to her employer’s
correspondence, had threatened the plaintiff that she was in
danger of arrest for association with a German spy (her fiancé
was German). The plaintiff suffered psychiatric illness as a
result, and was allowed to recover damages under the rule in
Wilkinson v Downton.
However, despite such a rapid start, and the potential breadth
of the rule, it has not been much relied upon by the courts, due
to the increasing role of the tort of negligence in recent times. It
was resurrected by the Court of Appeal in the 1993 case of
Khorasandjian v Bush62 to deal with the problem of harassment.
In the absence of a tort of harassment,63 the court resorted to
existing tortious actions (private nuisance and the rule in
Wilkinson v Downton) to protect a young woman who had been
suffering from a campaign of harassment undertaken by a
former boyfriend. The rule was relied upon by the court to
support the grant of an injunction against the defendant for
wilful actions calculated to cause physical harm to the plaintiff.
But one problem existed. In both Wilkinson and Janvier, the
plaintiffs had suffered physical or psychiatric injury. In contrast,
in Khorasandjian, the plaintiff had merely suffered from stress.
Nevertheless, Dillon LJ took a broad approach. His Lordship
held that there was “an obvious risk that the cumulative effect of
continued and unrestrained further harassment such as she has
undergone would cause [psychiatric] illness”,64 which would
suffice for a quia timet injunction (an injunction given to prevent
an apprehended tort).
The courts have subsequently disapproved of such a broad
approach. Harassment is now dealt with specifically by means of
the Protection from Harassment Act 1997 (see below). In Hunter
v Canary Wharf,65 the House of Lords found that, in view of the
Act, the decision in Khorasandjian granting the plaintiff a
remedy in private nuisance should be overruled. Whilst their
Lordships did not overturn the alternative ground for the
decision based on the rule in Wilkinson v Downton, Lord
Hoffmann in the later decision of Wainwright v Home Office66
favoured a narrower interpretation of the law. Whilst expressly
questioning the continued need for this tort, he was reluctant to
see it extended beyond claims for indirectly inflicted physical
and recognised psychiatric injury. The view of the court was
clearly that, in view of the
expansion of the tort of negligence to cover claims for
psychiatric illness since 1901,67 this tort was effectively
defunct.68
This view must now be re-examined in the light of the
Supreme Court decision in OPO v Rhodes.69 In this case, the
court unanimously rejected the argument that the rule would
support a claim made on behalf of the 12 year old autistic son of
James Rhodes to restrain the publication of his father’s semi-
autobiographical book. The book described Rhodes’ traumatic
upbringing and it was argued that publication would constitute
wilful conduct likely to cause the son psychiatric harm if he read
it. In so doing, the court clarified the nature of the rule in
Wilkinson v Downton and confirmed that it was still alive and
well. To succeed, a claimant must establish three elements:
▮ the conduct element (words or conduct directed towards
the claimant for which there is no justification or
reasonable excuse);
▮ the mental element (wilful); and
▮ the consequence element (physical harm or recognised
psychiatric illness).

There was no arguable case on the facts that the claimant could
establish either the conduct or the mental element in this case.
Recklessness would not satisfy the mental element: “to hold that
the necessary mental element is intention to cause physical harm
or severe mental or emotional distress strikes a just balance”.70
Rhodes was applied in C v WH.71 Here, a former Vice
Principal of a special educational needs school was found liable
under the rule in Wilkinson v Downton for the grooming and
sexual abuse of a 16-year-old female student including the
exchange of explicit texts. While the mental element of the
action required that the claimant establish that the defendant
 intended to cause severe mental or emotional distress to the girl,
the obvious consequences of the actions of the defendant in
grooming a vulnerable pupil in a special school some 39 years
younger than himself signified that the perpetrator could not
realistically say that those consequences were unintended. It was
obvious that the relationship would, in the end, cause C harm,
which it in fact did.

Trespass to the Person:

Defences

11–018 Defences generally are dealt with in Ch.16. This section will
highlight the defences which are of particular importance in
actions for trespass to the person.

(1) Consent
11–019 This is an obvious defence. If I expressly consent to contact or
implicitly lead the defendant to believe that I am consenting, I
cannot later sue the defendant. It would be highly inconvenient
if no such rule existed. On this basis, hospitals can ensure that
they commit no torts against patients whilst operating by asking
them to sign consent forms. Equally, a patient who presents his
or her arm for an injection is clearly consenting to the infliction
of immediate and direct force on their person. Team sports
similarly rely on the ability of the individual to consent to the
rough and tumble which may ensue (but not, of course, to a
violent blow by an opposing team member contrary to the rules
of the game). In this way, the self-determination of the
individual is protected.
 The consent must, of course, be real and not induced by
fraud, misrepresentation or duress. So, in R. v Williams,72 the
defendant, a singing tutor, was liable in battery for sexually
assaulting a naive plaintiff who had been falsely informed that
this would improve her voice. The traditional rule is that the
fraud must go to the very nature and quality of the act or to the
identity of the assailant, and that fraud as to the effect and
consequences of the act is not deemed sufficient to nullify
consent.73 It is submitted that this may lead to unduly harsh
results in practice. The criminal court in R. v Dica74 held that
this distinction would not apply to the offence of unlawful
infliction of grievous bodily harm under the Offences Against
the Person Act 1861 s.20. Here, Dica had had unprotected sexual
intercourse with the complainants without informing them that
he knew himself to be HIV positive. They were later found to be
infected with the HIV virus. The Court of Appeal held that
although there was consent to the act of intercourse, his conduct
amounted to an offence under s.20.75 It remains unclear whether
what is essentially a claim for fraud as to the risk of infection
would give rise to civil liability.
It is not necessary in English law for the claimant to be
aware of all the relevant facts in giving his or her consent.
Nevertheless, the recent Supreme Court decision in Montgomery
v Lanarkshire Health Board76 held that doctors are under a duty
to take reasonable care to ensure that patients are aware of any
material risks involved in any recommended treatment, and of
any reasonable alternative or variant treatments. This decision
indicates that the courts are looking for “informed consent”, at
least in the context of negligence claims. Material risks are those
to which, in the circumstances of the particular case, a
reasonable person in the patient’s position would be likely to
attach significance OR those to which the doctor is or should
reasonably be aware that this particular patient would be likely
to attach significance. This does not, however, signify that
doctors have to disclose every possible alternative treatment,
regardless of its feasibility.77 Provided, therefore, the patient is
 informed in broad terms of the nature of the procedure to be
undertaken and of any material risks which would affect the
judgment of a reasonable patient,78 real consent is given. If the
claimant believes the information given is deficient, the remedy
lies in the tort of negligence, not trespass to the person.79
One peculiar aspect of consent is that for trespass to the
person, but not, it should be noted, for trespass to land, the
burden is on the claimant to prove absence of consent.
Generally, the burden is on the defendant to establish any
defences. This suggests that in trespass to the person, consent is
not a defence at all. Rather, absence of consent is part of the
cause of action to be proved on the balance of probabilities by
the claimant. At first instance, in Freeman v Home Office
(No.2),80 McCowan J held that the burden of proof was on the
claimant, because the tort consists of a trespass against the will
of the party. In practice, however, the issue of consent will
usually be raised by the defendant and is therefore generally
treated as a defence.

◗ Refusal of consent
11–020 It seems logical that if I have a right to consent to a trespass to
my person, I have a corresponding right to refuse consent to
such actions. But whilst it is clearly desirable that I have the
right to refuse consent to your violent actions, it is more
contentious when I wish to refuse to consent to life-saving
medical treatment. The idea of self-determination implies that
the doctor should not be allowed to overrule my express wishes,
even with my best interests at heart. Therefore, if a Jehovah’s
Witness clearly states that, because of her religious beliefs, she
is not prepared to authorise a blood transfusion, the doctor will
commit a battery if he administers blood against her will.81
It has been held that an adult of sound mind and full
understanding should be able to
decide to refuse treatment, even if the treatment is necessary to
save his or her life or even, controversially, that of her unborn
child.82 Capacity will be presumed unless shown otherwise.83
Only where there is doubt as to the patient’s free will and
capacity will no trespass take place. For example, in Re T
(Adult: Refusal of Treatment),84 a patient had refused a blood
transfusion, following a road traffic accident and subsequent
Caesarian section to deliver her premature baby. She was not a
Jehovah’s Witness, but had been brought up by her mother, who
was a devout Witness, to believe that blood transfusions were
wrong. Her refusal followed time alone with her mother. It was
held that in the light of her illness, the incomplete information
she had been given, and the perceived influence of her mother,
the doctors had acted lawfully in the circumstances in giving her
a transfusion. This case shows how narrow the line between
autonomy and lack of capacity may sometimes be.
This does not mean that a patient suffering from some
mental disability cannot refuse consent. The question remains
one of capacity. In Re JT (Adult: refusal of medical treatment),85
the patient had a learning disability which in the past had been
associated with extremely severe behavioural disturbance. She
was being detained under the Mental Health Act 1983. Wall J
held that, nevertheless, she was capable of comprehending and
retaining the information given, believing it, and making a
choice in the light of it.86 She was therefore competent to refuse
the renal dialysis necessary to keep her alive. These cases will
never be easy to decide, but the courts are reluctant to deny the
right of the individual to retain self-determination over his or her
body.
Difficult problems arise in determining the extent to which a
child may be able to refuse to give consent to medical
treatment.87 In relation to consent, the Family Law Reform Act
1969 s.8(1) permits children of 16 and over to consent to
surgical, medical or dental treatment without the consent of a
parent or guardian. In relation to children below 16, the House
of Lords in Gillick v West Norfolk AHA88 held by a majority that
a child below 16 is capable of giving valid consent, provided
 that the child is of sufficient intelligence and understanding to
appreciate
what is proposed. This is regardless of the feelings of his or her
parents. However, this is not the same as giving the child a right
to refuse consent. In Re W,89 W was a girl of 16 who was
suffering from anorexia nervosa. She opposed the local
authority’s decision to move her to a unit specialising in the
treatment of eating disorders. The Court of Appeal held that
even if the child is 16 or over, or “Gillick competent”, a parent
or guardian may nevertheless consent on the minor’s behalf. The
court warned doctors to listen to the objections of minors, whose
views would increase in importance according to the age and
maturity of the minor, but held that such objections would not be
an absolute bar to treatment. In any event, the court has an
inherent jurisdiction to intervene to protect minors irrespective
of their wishes. This allows the court to intervene and overrule a
minor’s objection to treatment.
In the case of younger children, parental consent will suffice
for general medical treatment. Even where the parents refuse
consent, the court’s inherent power may be invoked to ensure the
child receives the appropriate treatment.90 In the case of Re C,91
Wilson J overruled parental objections to HIV testing of their
baby girl. The mother was HIV positive and the child had a 20
to 25% chance of infection. Whilst the court was prepared to
accord great importance to the wishes of her parents, the
arguments in favour of testing the baby were overwhelming.
This view was approved by the Court of Appeal,92 in which
Butler-Sloss LJ emphasised that the welfare of the child was the
paramount concern of the court.

◗ Limits to consent
11–021 Criminal law has refused to accept the defence of consent where
the defendant has inflicted bodily harm on the claimant: “. . . it
is not in the public interest that people should try to cause, or
should cause, each other actual bodily harm for no good
reason”.93 The House of Lords decision in R. v Brown,94 which
found a group of sado-masochists liable for acts of violence in
which they had willingly and enthusiastically participated, was
challenged in the European Court of
Human Rights. The Strasbourg court held that the decision was
not contrary to the European Convention on Human Rights art.8,
which grants everyone a right to respect for their private and
family life.95 The UK Government was permitted under art.8.2
to take measures necessary to protect its citizens from personal
injury and its response had not been disproportionate to the need
in question. The same approach has been adopted towards
terminally ill patients who, unable to act due to their disability,
wish to seek the assistance of another to commit suicide. In
Pretty v United Kingdom,96 Diane Pretty had sought an
undertaking from the Director of Public Prosecutions that her
husband would not be prosecuted under the Suicide Act 1961 for
helping her to commit suicide. She was suffering from motor
neurone disease and wished to avoid the extremely distressing
and undignified final stages of the disease. The DPP refused her
request. The European Court of Human Rights found that this
refusal did not conflict with Mrs Pretty’s human rights. Limiting
her right to self-determination might interfere with her rights
under art.8, but this could be justified as “necessary in a
democratic society”97 due to the need to safeguard life and
protect the weak and vulnerable in society, who might be
exploited by permitting assisted suicide. Whilst there was no
evidence to suggest that Mrs Pretty fell into this category, this
broader social goal was found to justify the DPP’s position.98
It remains an open question whether such policy arguments
will extend to tort. Much no doubt will depend on the nature of
the injury inflicted: is the claimant consenting to a tattoo, ear-
piercing, or serious physical injury? Lord Denning MR, in
Murphy v Culhane,99 suggested that a defence of voluntary
assumption of risk (or volenti non fit injuria, see Ch.16) might
still apply, for example where a burglar had taken upon himself
the risk that the householder might defend his or her property,
 but there is little real authority on this point, and a court is
unlikely to wish to be seen to condone disproportionate physical
injury.

(2) Necessity

11–022 This is a limited defence. It allows the defendant to intervene to

prevent greater harm to the public,100 a third party, the defendant
or the claimant. The courts are careful to keep
this defence within strict bounds and generally the defendant
must act reasonably in all the circumstances. This defence solves
a particular practical problem experienced by the emergency
services. If a patient is brought into the accident and emergency
section of a hospital unconscious, or is mentally ill and
incapable of consenting, when can the medical practitioners
involved be certain that their intervention is legal? It would be
absurd and discriminatory if they were permitted to refuse to
treat such patients in the absence of express evidence of consent.
This problem was addressed by the House of Lords in Re F; F v
West Berkshire Health Authority.101 Lord Goff held that the
doctors may intervene in the best interests of the patient where:
(a) it is necessary to act in circumstances where it is not
practicable to communicate with the patient; and (b) the action
taken is such as a reasonable person would in all the
circumstances take. On this basis, where a patient is unconscious
but otherwise competent and not known to object to the
treatment, treatment may be legally justified. Where the
incapacity is temporary, the doctor should do no more than is
reasonably required in the best interests of the patient before he
or she recovers consciousness.
The situation where the incapacity is permanent, for example
where the patient is in a permanent coma or permanently
mentally ill, is more difficult. In Re F itself, an application was
made to the court to authorise a sterilisation operation on a
woman of 36, with a mental age between five and six years old,
who was clearly incapable of consenting to the operation. The
House of Lords held that treatment would be justified if it would
be in the patient’s best interests and would be endorsed by a
reasonable body of medical opinion. Where a number of
reasonably suitable treatments were available, treatment should,
however, be determined according to the best interests of the
patient, taking into account broader ethical, social, moral and
welfare considerations.102 On this basis, hospitals would be
permitted to undertake treatment necessary to preserve the life,
health and wellbeing of the patient and this might extend beyond
surgical operations or substantial treatment to include routine
medical and dental treatment, provided it was in the best
interests of the patient. Their Lordships held in Re F (Lord
Griffiths dissenting) that the law should not require judicial
approval to be sought on each occasion treatment was given,
although they felt it would be “highly desirable” to seek judicial
approval for operations such as sterilisations.
The Mental Capacity Act 2005 now deals with situations
involving individuals of 16 or over who are unable to make
decisions for themselves.103 For the first time, there is a
statutory
definition of capacity (ss.1–3). Section 1(2) provides for a
presumption of capacity: a person is assumed to have capacity
unless it is established otherwise. Sections 4 to 6 provide for
care or treatment (within limits) of a person without capacity
provided, before doing the act, reasonable steps are taken to
establish the patient lacks capacity in relation to the matter in
question and it is reasonably believed that the patient lacks
capacity and the act is in the patient’s best interests.104 These
sections are said to codify existing common law rules and so the
preexisting law set out in Re F remains relevant. One leading
commentator has commented that:

“it is likely that in substance the outcomes

of decisions about medical treatment made
in the ‘best interests’ of incompetent adults
 will differ little from the common law
approach that the courts have developed
over the last 20 years or so.”105

A good example of the dilemmas involved in such decisions is

found in the well-known case of Airedale NHS v Bland.106 This
involved another victim of the tragic Hillsborough disaster
discussed in Ch.4. Tony Bland had been in a persistent
vegetative state (PVS) for three and a half years following
injuries suffered by him at the match, which had caused him to
suffer irreversible brain damage. He continued to breathe
unaided and his digestion continued to function, but he could not
see, hear, taste, smell or communicate in any way. He was given
no prospect of recovery. The doctors, with the support of his
parents, applied to the court to withhold all life-sustaining
treatment. Lord Goff, in the House of Lords, applied the
principles stated in Re F. His Lordship held that there was no
absolute rule that a patient’s life had to be prolonged by
treatment or care regardless of all the circumstances and the
quality of the patient’s life. Treatment could be withdrawn if the
patient had no hope of recovery and a reasonable medical
practitioner would hold that it was not in the patient’s best
interests to prolong the patient’s life. If an adult of full
understanding has the right to withhold consent to medical
treatment due to his right to self-determination, his Lordship
held that it would be inconsistent if there was no corresponding
rule to deal with the refusal of consent where the patient is
incapable of indicating his wishes.
One might criticise the court’s distinction between a doctor
actively taking life (i.e. euthanasia, which is prohibited) and one
in which the doctor discontinues life-saving treatment (which is
allowed provided that the court’s approval is sought). In the
latter case, the
patient is allowed to die of his or her pre-existing condition,
which the court classifies as an omission for which the doctors
 will not be judged responsible. Yet, in both cases the doctor may
be acting in the best interests of the patient to relieve the
patient’s condition, and indeed, the latter option will generally
result in the patient starving to death or dying from infection,
which is a far from dignified end. In NHS Trust A v M,107 the
court was asked to consider whether discontinuance of treatment
did, in fact, violate art.2 (right to life) and art.3 (right not to
suffer degrading treatment) of the European Convention on
Human Rights. The court held that, generally, art.2 would
require a deliberate act, not an omission, by someone acting on
behalf of the state, which results in death. Where treatment has
been discontinued in the best interests of a patient, in accordance
with the views of a respectable body of medical opinion, the
state’s positive obligations under art.2 were discharged. Equally,
there was no violation of art.3. It could not in any event be
invoked where the patient was unable to experience pain and
was unaware of the nature of the treatment. The court thus
approved Lord Goff’s distinction in Re F as convention-
compatible. Such rulings may be seen as a compromise: the
judiciary avoids ruling on the controversial question of
euthanasia but provides patients and their families with a limited
remedy in extremely distressing circumstances.

(3) Self-defence

11–023 As a defence, the burden of proof lies on the defendant.108 There

is a clear analogy with criminal law where the Criminal Law Act
1967 s.3 provides that a person has the right to use “such force
as is reasonable in the circumstances in the prevention of
crime”.109 There are two limbs to the test. The defendant’s force
must be reasonable and not out of proportion to force exerted
against him or her. It must also be based on an honest and, in
contrast to criminal law, reasonable belief that the claimant will
be attacked by the defendant.110 In judging what is reasonable,
the court will consider all the circumstances of the case,
 including the fact that the action may have had to be taken in the
heat of the moment.111
This will be a question of fact. In Lane v Holloway,112 where
an elderly plaintiff had struck the young defendant on the
shoulder during an argument, and the defendant had responded
with an extremely severe blow to the plaintiff’s eye, the
defendant was held liable. The blow in the circumstances was
out of proportion to the plaintiff’s actions. This may be
contrasted with Cross v Kirkby.113 Here a farmer, who had been
struck by a hunt saboteur with a baseball bat, wrestled the bat
from him and struck a single blow to the head which,
unfortunately, caused him serious injuries. In finding self-
defence, the Court of Appeal took into account the anguish of
the moment in assessing whether this was an excessive and
disproportionate response to the threat posed, and held that the
law did not require the defendant to measure the violence to be
deployed with mathematical precision. It should be noted that
the right to defend oneself in self-defence extends to defence of
one’s spouse, and, if the analogy with s.3 of the Criminal Law
Act 1967 is correct, to defence of others.

(4) Provocation

11–024 The general view, stated in Lane v Holloway,114 is that

provocation is not a valid defence. It may reduce or extinguish
the claimant’s entitlement to exemplary damages, but will not
reduce ordinary compensatory damages. This was followed by
May LJ in Barnes v Nayer115 where the court held that
prolonged abuse and threats from a neighbouring family were
insufficient provocation to justify the defendant attacking the
mother with a machete. Lord Denning, in Murphy v Culhane,116
modified his view in Lane, holding that it could reduce the
compensatory measure where the victim is at least partly
responsible for the damage suffered. This seems questionable
and is really an argument for reducing the damages for
 contributory negligence (see below). It is submitted that the
view in Lane is to be preferred.

(5) Contributory negligence

11–025 In Murphy v Culhane,117 Lord Denning had suggested that the

principles of contributory negligence would also apply to
battery. In that case, Murphy was alleged to have been part of a
gang which had set out to attack Culhane. Murphy had been
killed when Culhane struck him on the head with a plank. Lord
Denning saw no reason why the deceased’s fault should not
result in a reduction in his widow’s damages under the Law
Reform (Contributory) Negligence Act 1945 ss.1(1) and 4.
Lord Rodger in Standard Chartered Bank v Pakistan
National Shipping Corp (No.2),118 however, raised doubts
whether this line of authority, in fact, reflected the common law
position. The Court of Appeal in Co-operative Group Ltd v
Pritchard119 confirmed that contributory negligence would not
be a defence to battery. “Fault”, as defined by s.4 of the 1945
Act, signifies:

“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.”

The first part of this definition applies to the defendant, i.e. it

must be a claim giving rise to liability in tort (here battery). The
second half relates to the claimant’s position prior to the Act and
whether at common law there would have been a defence of
“contributory negligence” in these circumstances. Evidence
showed that there had been no case before 1945 which had
 applied such a defence in the case of an “intentional tort” such
as battery. On this basis, in common with the tort of
fraud/deceit,120 contributory negligence is not a defence to the
tort of trespass to the person. Smith LJ, however, in Co-
operative Group Ltd v Pritchard did express regret at this result.
While accepting that it was correct at law, his Lordship argued
that it would be in the interests of justice to require that
apportionment should be available in cases of battery where the
claimant had been at fault and this had been one of the causes of
his injury. A change to that effect would, however, require the
intervention of Parliament.

(6) Lawful authority

11–026 This defence is generally applied in relation to false

imprisonment where the defendants have specific statutory
authority to deprive the claimant of his or her complete freedom
of movement. It should be noted that even the European
Convention on Human Rights art.5, which gives a right to
liberty and security and which, under the Human Rights 1998,
can now be enforced against public authorities such as the
police, recognises that this will be limited in accordance with
procedures prescribed by law.121 This is obviously an important
defence—without it our criminal justice system would fall apart.
Prison Act 1952 s.12(1) authorises the imprisonment of persons
sentenced to imprisonment or committed to prison on remand
pending trial.
Equally, a lawful arrest will not render a police officer or citizen liable for
false
imprisonment. 122 Reference should be made here to the
provisions of the Police and Criminal Evidence Act 1984,
particularly ss.24, 24A and 28. Readers are advised to consult
specialist texts for detailed study of the requirements of a lawful
arrest.123 Basically, a police officer may legally arrest a person
under a warrant. Section 24124 makes provision for a police
officer to arrest an individual without a warrant if the individual
is about to commit an offence, is in the act of committing an
offence, or if he or she has reasonable grounds for suspecting the
individual to be about to commit an offence or in the act of
committing such an offence. These powers of summary arrest
are, however, subject to s.24(5): the constable must have
reasonable grounds for believing that for one of the listed
specific reasons, e.g. to prevent physical injury or damage to
property, it is necessary to arrest the person in question.
A different regime applies to private individuals undertaking
a “citizen’s arrest”. Section 24A(1)125 states that a person, other
than a constable, may arrest without a warrant a person in the act
of, or whom he has reasonable grounds for suspecting to be in
the act of, committing an indictable offence (that is, an offence
which may be put before a judge and jury, not before a
magistrate).126 If the indictable offence has already been
committed, s.24A(2) extends the power of arrest to anyone
guilty of the offence or whom he or she has reasonable grounds
for suspecting guilty of it. However, for s.24A(2), unlike
s.24A(1), an offence must actually be committed.127 As was the
case prior to the introduction of s.24A, private individuals will
not be protected from civil liability if they arrest someone under
the mistaken belief that an offence has been committed.128 There
are also two further conditions to avoid a claim in tort for false
imprisonment or battery.129 First, the person making the arrest
must have reasonable grounds for believing that one of the four
conditions listed in s.24A(4) render it necessary to arrest the
person in question. Secondly, it must appear to the person
making the arrest that it is not reasonably practicable for a
constable to make the arrest instead. The four conditions are as
follows:
▮ to prevent the person causing physical injury to himself
or others;
▮ to prevent the person suffering physical injury;
 ▮ to prevent the person causing loss or damage to
property; or
▮ to prevent the person making off before a constable can
assume responsibility for him.

As one commentator has stated,130 this is likely to deter all but

the foolhardy from exercising their citizen’s right of arrest. Few
citizens will be aware which offences are indictable and s.24A
limits the situations generally when such a right may be
exercised. These provisions are much narrower than those
applicable to police constables and there is a clear risk that the
unwary will find themselves liable in tort.
Finally, reference should also be made to the Criminal Law
Act 1967 s.3 (and Criminal Justice and Immigration Act 2008
s.76), which allows a person to use such force as is reasonable in
the circumstances to prevent crime or in effecting or assisting in
the lawful arrest of offenders, suspected offenders or persons
unlawfully at large. There are also common law powers to
intervene and take reasonable steps to prevent breaches of the
peace.131

Can Trespass to the Person be

Committed Negligently?

11–027 As stated in the introduction, early authority does seem to

indicate the existence of a tort of negligent trespass to the
person. It is doubtful, however, whether this tort has survived
the growth and dominance of the tort of negligence outlined in
earlier chapters of this book. Nevertheless, Diplock J in Fowler
v Lanning132 did not rule out the existence of such a tort. In this
case, his Lordship held that a pleading which simply stated that
“the defendant shot the plaintiff” disclosed no cause of action.
The plaintiff should have pleaded either intention or negligence
on the part of the defendant and if negligence was alleged, the
burden of proof generally lay on the plaintiff. Diplock J
therefore left open the question whether the plaintiff could have
brought an action for negligent trespass to the person.
Lord Denning, in Letang v Cooper,133 was perhaps
predictably more forthright. Here, the plaintiff had suffered
injuries when the defendant had driven over her legs whilst she
was
sunbathing outside a hotel on a piece of grass which was used as
a car park. Her obvious course of action would have been to sue
in negligence, but due to the three-year limitation period for
personal injuries, she was out of time. She therefore tried to
claim within the six-year limitation period allocated for trespass,
by framing her case as one of unintentional trespass to the
person. The Court of Appeal rejected her claim, drawing a
distinction between intentional and unintentional trespass to the
person. Although Diplock LJ was more cautious, suggesting that
it was irrelevant whether the tort was described as unintentional
trespass or negligence, Denning LJ refused to accept the
existence of a tort of unintentional trespass:

“. . .when the injury is not inflicted

intentionally but negligently, I would say
the only cause of action is negligence and
not trespass.”134

If this is correct, then any claims for injury to the person which
are not intentional must be brought in negligence. This does not
seem to involve a dramatic step. It is difficult to see, in any
event, why negligent conduct should be actionable without proof
of damage. The courts then will not allow a claimant to plead
 negligent trespass to gain an advantage over a straightforward
negligence claim. Lord Denning’s view also consolidates the
position of trespass in the law of torts as a tort seeking to
compensate for intentional conduct which unduly interferes with
the personal integrity and autonomy of the individual.
Before moving on to consider trespass to land, there are two
further related torts which should be considered. Harassment has
been discussed above, and the next section will outline the
provisions of the Protection from Harassment Act 1997, which
are likely to be relevant to litigants considering an action for
intentional injury by another. Equally, malicious prosecution,
although not a form of trespass and only actionable on proof of
damage, is frequently pleaded in common with false
imprisonment and it is therefore convenient to consider its
operation in this chapter.

Protection from Harassment

Act 1997

11–028 At common law, harassment was not a recognised tort135 and

litigants were forced to frame their claims in trespass or
nuisance.136 However, the Protection from Harassment Act 1997
s.3 creates a statutory tort of harassment. Yet, despite the
importance of this provision, it has been
the criminal provisions of the Act which have received the most
attention due to a rise in the number of reported incidents of
harassment, notably through social media.137

What is “harassment”?
11–029 “Harassment” is described in s.1(1) as a course of conduct which
amounts to harassment of another, and which the defendant
knows or ought to know amounts to harassment of the other.
Section 1(1A), added under the Serious Organised Crime and
Police Act 2005 to counteract animal rights extremists, now also
provides that

“A person must not pursue a course of

conduct—
(a) which involves harassment of two or
more persons, and
(b) which he knows or ought to know
involves harassment of those persons,
and
(c) by which he intends to persuade any
person (whether or not one of those
mentioned above)–
(i) not to do something that he is
entitled or required to do, or
(ii) to do something that he is not
under any obligation to do.”

This seeks to prohibit intimidating conduct which prevents

people going about their lawful business.
Section 1(2) further provides that the defendant ought to
know that his or her conduct amounts to or involves harassment
if a reasonable person in possession of the same information
would think the course of conduct amounted to or involved
harassment of the other. This is an objective test. The court will
not take account of any mental disorder from which the
defendant is suffering, or any other characteristics, as this would
substantially lessen the protection given to victims by the Act.138
 The description of “harassment” in s.1(1) is somewhat
circular. It has been deliberately defined broadly and clearly
goes beyond mere stalking which was the principal target of the
Act. The general feeling stated in Thomas v News Group
Newspapers Ltd is that “‘Harassment’ is . . . a word which has a
meaning that is generally understood”.139 Section 7 provides
some
assistance. “Harassment” is defined as conduct which includes
“alarming the person or causing the person distress”.140 “Course
of conduct” is stated to involve conduct on at least two
occasions,141 and may include speech.142 Although the cases
now give some guidance,143 Baroness Hale noted in Majrowski v
Guy’s and St Thomas’s NHS Trust that:

“A great deal is left to the wisdom of the

courts to draw sensible lines between the
ordinary banter and badinage of life and
genuinely offensive and unacceptable
behaviour.”144

As Lord Nicholls explained in that case, there is a boundary

between conduct which is unattractive, even unreasonable, and
conduct which is oppressive and unacceptable145; the court
keeping in mind whether the conduct is of such gravity as to
justify the sanctions of criminal law.146 A good example of
oppressive and unacceptable conduct may be found in Ferguson
v British Gas Trading Ltd147 where the persistent sending of
unjustified bills and threatening letters to a former customer of
British Gas was found to be of sufficient gravity to constitute
harassment. The Court of Appeal was unimpressed by British
Gas’ argument that it could not be held responsible for its own
computerised debt recovery system or that the threats were
 diminished by the fact that Mrs Ferguson knew them to be
unjustified. In the words of Jacob LJ:

“a victim of harassment will almost always

know that it is unjustified. The Act is there
to protect people against unjustified
harassment.”148

The ability to bring a harassment claim is not restricted to the

individual targeted by the course
of conduct complained of, but extends to other persons who are
foreseeably and directly harmed by the course of conduct.149
Claims will be restricted in a number of ways. First, a
“course of conduct” must be proved. Secondly, s.1(3) provides
that a valid defence exists when the conduct was pursued for the
purpose of detecting crime,150 under any legal requirement, or
was reasonable in the circumstances. Thirdly, it has been held
that remedies will not be granted in favour of limited companies
as opposed to individuals.151 Despite the fact that the Act has
been used to curb the activities of activists, for example animal
rights protesters, the courts have indicated that the Act should
not be used to restrict the citizen’s right to protest in the public
interest.152

Remedies
11–030 If harassment is shown, s.3 allows the claimant to sue for
damages and/or an injunction.153 Damages here may include a
sum for anxiety and any financial loss resulting from the
harassment.154 In Jones v Ruth,155 the Court of Appeal noted
that the Act does not state a test of remoteness and chose to
apply the test for intentional torts: the defendant is liable for all
 losses which directly flow from the harassment. There was
nothing in the language of the Act to suggest that the Wagon
Mound test of reasonable foreseeability would apply. In the case
itself, Ms Jones’ alternative claim for personal injury damages in
negligence had failed, but she was able to recover substantial
damages under the Act in circumstances where her
(unforeseeable) psychiatric injury had been caused by aggressive
and intimidatory conduct by the
Ruths. In Majrowski v Guy’s and St Thomas’s NHS Trust156 the
House of Lords recognised that the doctrine of vicarious liability
would apply to harassment by employees in the course of their
employment. An injunction may be granted for actual or
apprehended acts of harassment. If the defendant breaches the
injunction, s.3(3) controversially permits a civil court to issue a
warrant for the arrest of the defendant.157 Section 3A provides
for injunctions (but not damages) to protect persons from
harassment within s.1(1A).158

Malicious Prosecution

11–031 This tort has much in common with the tort of false
imprisonment. Both torts focus on loss of liberty. Whilst, in false
imprisonment, the defendant exercises direct restraint over the
movements of the claimant, malicious prosecution may be seen
as indirect restraint by means of setting the prosecution in
motion. This tort is not, however, actionable per se and damage
must be proved. The classic definition of damage was given by
Holt CJ in Savile v Roberts,159 namely damage to a man’s fame
(or reputation), person or property. It is clear that an
unwarranted prosecution may damage a person’s reputation.
Harm to the person has been interpreted broadly to include both
the threat of imprisonment and actual imprisonment. Harm to
property signifies the costs incurred by the claimant in defending
the charges.
The tort has four requirements:
▮ the defendant has prosecuted the claimant;
▮ maliciously (i.e. with some wrongful or improper
motive);
▮ without reasonable and probable cause; and
▮ the prosecution ended in the claimant’s favour. (This
may be by acquittal, discontinuance by the prosecution,
conviction quashed on appeal or on technical grounds.)
Actions for malicious prosecution will generally be against
the police.160 Actions may be brought against private
individuals, however, if they can be shown to have falsely and
maliciously given information to the police, in circumstances
where the police had no effective discretion whether to
prosecute. This will not be established simply on the basis that
the defendant has given information to the police, or prepared a
report for the police. The leading case is that of Martin v
Watson,161 where the defendant maliciously made a groundless
accusation of indecent exposure against the plaintiff, who was
subsequently prosecuted. Lord Keith, in his leading judgment,
held that:

“Where an individual falsely and

maliciously gives a police officer
information indicating that some person is
guilty of a criminal offence and states that
he is willing to give evidence in court of the
matters in question, it is properly to be
inferred that he desires and intends that the
person he names should be prosecuted.
 Where the circumstances are such that the
facts relating to the alleged offence can be
within the knowledge only of the
complainant, as was the position here, then
it becomes virtually impossible for the
police officer to exercise any independent
discretion or judgement, and if a
prosecution is instituted by the police
officer the proper view of the matter is that
the prosecution has been procured by the
complainant.”162

11–032 This is not an easy tort to establish and the courts are careful not
to allow the tort to be used to discourage the prosecution of
suspected criminals.163 The most difficult obstacle for a claimant
is to prove that the defendant had no reasonable and probable
cause for the prosecution. This involves proving a negative,
which is always problematic. The claimant must establish on the
balance of probabilities that the defendant did not have an
honest belief in the guilt of the accused founded on objective
facts which gave reasonable grounds for the existence of this
belief.164 The test thus has objective and subjective elements.
Malice alone will not suffice.
This is particularly difficult to establish if, for example, the
defendant has taken legal advice (provided of course the legal
adviser was given all the relevant facts). A defendant may have
a reasonable and probable cause for the prosecution even when
he does not believe that the proceedings will succeed. It is
enough that, on the material on which he acted, there was a
proper case to lay before the court.165 In Rees,166 however, the
court was not prepared to find an honest belief that there was a
proper case to lay before the court where the senior investigating
officer had persuaded an individual to make a false statement
implicating the claimants in a murder. Malicious prosecution is
usually heard by a judge and jury167 and while it is for the judge
to determine whether the prosecutor had reasonable and
probable cause, it remains nevertheless for the jury to determine
any disputed facts relevant to that question. It is for the jury to
decide whether the defendant honestly believed the guilt of the
accused.168
The jury will also determine whether the defendant was
malicious.169 Lord Toulson in Willers v Joyce170 explained that
this means that the claimant must prove that the defendant
deliberately misused the process of the court. The critical issue
is whether the proceedings instituted by the defendant were a
bona fide use of the court’s process. His Lordship argued that the
most obvious case is where the claimant can prove that the
defendant brought the proceedings in the knowledge that they
were without foundation, but that it would extend to cases where
a person was indifferent whether the allegation was supportable
but still brought the proceedings, not for the bona fide purpose
of trying that issue, but to secure some extraneous benefit to
which he had no right. The court emphasised in Rees that a
sincere belief that the claimants were guilty of the crime cannot
prevent the prosecution having been malicious.171
In the past, it was unclear whether the tort of malicious
prosecution was confined to prosecutions, i.e. criminal charges
or would extend to the malicious institution of civil
proceedings.172 In a variety of cases, liability had been imposed
at or close to the outset of civil proceedings, for
example, for the malicious procurement of a search-warrant173
and malicious presentation of a winding up order or petition for
bankruptcy174 without reasonable or probable cause. There is
also a tort of abuse of process, which deals with circumstances
where civil proceedings have been initiated or conducted for an
improper (or collateral) purpose other than that for which they
were designed.175 Lord Steyn in the House of Lords decision of
Gregory v Portsmouth CC176 indicated, however, that the law,
by providing adequate alternative remedies in defamation,
malicious falsehood, conspiracy and misfeasance in public
office, made it unnecessary and undesirable to extend this tort to
civil proceedings generally. A majority of 3:2 in the later Privy
Council decision of Crawford Adjusters v Sagicor General
Insurance (Cayman) Ltd177 disagreed, arguing that claimants
should be able to recover damages for foreseeable economic loss
caused by the malicious institution of civil proceedings (in this
case, the claim was for Cayman $1.335 million). Lords
Sumption and Neuberger in the minority, however, disagreed
strongly and expressed the fear that this new tort would be both
uncertain and potentially very wide and would offer litigants an
occasion for prolonging disputes by way of secondary litigation.
In July 2016, the Supreme Court (by a majority of 5:4) in
Willers v Joyce178 took the view that it would be unjust not to
extend the tort to the malicious prosecution of civil proceedings.
On this basis, the malicious prosecution of civil proceedings,
like malicious prosecution of criminal proceedings, is a tort. In
the case itself, Willers had alleged that the defendant had caused
the company (of which he was a former director) to sue him for
breach of contractual and fiduciary duties knowing that the
claim was brought without reasonable cause. The claim brought
against Willers was found to have all the necessary ingredients
for a claim for malicious prosecution of civil proceedings
provided such an action was sustainable in English law. Lord
Toulson (giving judgment for the majority) dismissed the
counter-arguments against the tort extending to such civil
proceedings179:
▮ Despite the limited number of actions for malicious
prosecution in relation to criminal proceedings, the tort
is not defunct and is not a thing of the past.
▮ It was “intrinsically unlikely” that the action would
deter people from bringing civil claims for fear of a
vindictive action for malicious prosecution.
▮ An action for malicious prosecution did not amount to a
collateral attack on the outcome of the first proceedings.
 ▮ A fear of a flood of unmeritorious claims was also
unwarranted. Indeed, it was argued that Willers and
Crawford both highlighted the fact that Lord Steyn’s
view in Gregory that any manifest injustices were
already covered by tort law.
▮ Liability would not be inconsistent with witness
immunity from civil liability (see para.14–012).

“The combination of requirements that the

claimant must prove not only the absence of
reasonable and probable cause, but also
that the defendant did not have a bona fide
reason to bring the proceedings, means that
the claimant has a heavy burden to
discharge.”180

Lord Kerr in the majority in Crawford was of the same view,

commenting that establishing the tort of malicious prosecution is
no easy task and demonstrating together these two requirements
would present a formidable hurdle for anyone contemplating the
launch of a claim for malicious prosecution.181

Misfeasance in public office

11–033 Lord Sumption dissenting in Crawford Adjusters v Sagicor took

the view that malicious prosecution had much in common with
another malice-based tort—misfeasance in public office—in that
they both dealt with the wrongful exercise of a public
function.182 Misfeasance in public office is
indeed unusual in being essentially a public law tort and
requiring malice as a condition for liability.183 Its continued
vitality was recognised by the House of Lords in Three Rivers
DC v Bank of England (No.3).184 The rationale of this tort is that
executive or administrative power should only be exercised for
the public good and not for ulterior and improper purposes.185 In
Three Rivers, the House of Lords found that liability in the tort
of misfeasance in public office arose where the actions of a
public officer186 were carried out in the knowledge of, or with
reckless indifference to the probability of,187 injury being caused
to a claimant, or a class188 of persons of which the claimant was
a member. Two forms of liability for misfeasance in public
office exist at common law:
▮ exercise of public power for improper or ulterior
motives (“targeted malice”); and
▮ where a public officer knowingly acts beyond his or her
powers and in the knowledge that such actions would
probably result in injury to the claimant (“untargeted
malice”). Reckless indifference is sufficient to establish
liability, but not mere negligence.189

Both forms impose liability for an abuse of power by a public

official activated by subjective bad faith.190 The claimant must
show special damage.191 Although this will generally be
economic loss, it will include personal injury.192 Mere distress or
normal emotion will not suffice.193

Trespass to Land
11–034 Trespass to land is clearly a different type of tort from those
examined above. Its rationale is not to protect the integrity or
reputation of the claimant, but to protect the claimant against
direct and unjustifiable interference with his or her possession of
land. There is an obvious similarity here with the tort of private
nuisance which equally deals with an unjustifiable interference
with the claimant’s use and enjoyment of land. However, there is
a notable distinction. Trespass to land, in common with all forms
of trespass, must be direct and immediate and is actionable
without proof of damage. In contrast, nuisance, as discussed in
Ch.10, involves an indirect act which is only actionable on proof
of damage. The distinction, which derives from the old rigid
forms of action, survives despite the abolition of the forms of
actions over 100 years ago. On this basis, if I throw a brick and
destroy your prize flowers, I have committed an actionable
trespass. If, however, I build a fire in my garden and noxious
fumes blow over and harm your prize flowers, I have only
committed a nuisance.
Unlike trespass to the person, trespass to land does not
generally lead to criminal liability, although there are a number
of statutory exceptions.194 It is actionable per se, which may
seem surprising. Tort law in the twenty-first century is generally
more concerned with protecting personal interests, such as those
discussed above, than with protecting interests in land, but
historical concerns that trespass would lead to a breach of the
peace led the courts to find liability without proof of harm.195
Nevertheless, a claimant is likely to receive only nominal
damages without proof of loss. Trespass also serves a useful
function in determining boundaries to land (although claimants
may alternatively seek a declaratory judgment) and in dealing
with persistent trespassers by means of injunctive relief.
In common with trespass to the person, it is an intentional
tort, but it is the act of entry which must be intentional and not
the act of trespass. On this basis, provided your actions are
voluntary, you are a trespasser whether you know you are
trespassing or not.196 It is therefore no excuse that you are
utterly lost, although the courts will not impose liability where
 you were forcibly thrown or pushed onto the land.197 Where
animals stray onto another’s land, Park J in League against
Cruel Sports v Scott198 indicated that the owner will be
responsible for the damage they cause if he or she intended them
to enter the claimant’s land or, knowing that there was a real risk
that they would enter, failed to take reasonable care to prevent
their entry. On this basis, the master of a hunt was liable when
his hounds entered land belonging to the League against Cruel
Sports, who were, unsurprisingly, not prepared to tolerate such a
trespass. This case raises the question whether, in spite of Letang
v Cooper,199 a defendant
may commit a trespass to land negligently. It is submitted that a
consistent approach should be adopted to trespass, which should
be confined to intentional voluntary acts. It is contrary to the
general development of the law for a tort actionable per se to be
committed negligently.
To establish trespass, the claimant must also show a direct
and unjustifiable interference with the claimant’s possession of
land. The nature of these two requirements will be examined
below.

(1) Direct and unjustifiable interference

11–035 This can occur in a number of ways. The obvious examples are
walking on my lawn or entering my house without my
permission, but it will also include such diverse examples as
throwing a CS gas canister on my land200 or allowing sheep to
stray onto my land.201 Trespass may be committed by
interference with the subsoil202 and even airspace if it is within
the height necessary for the ordinary use and enjoyment of the
land and structures on it.203 On this basis, the defendants in
Bernstein v Skyviews & General Ltd204 were not liable for taking
aerial photographs of the landowner’s home at a height of many
hundreds of metres above the ground. This is re-affirmed by the
Civil Aviation Act 1982 s.76(1), which provides that civil
 aircraft flying at a reasonable height do not commit a trespass. A
reasonable height will be determined by the court with regard to
the wind, weather and all the circumstances of the case. A
claimant may recover damages, however, from the owner of the
aircraft for property damage or personal injury caused by
something falling from an aircraft while in flight, taking off or
landing. The claimant need not prove negligence or intention, or
establish any other cause of action, provided that the loss or
damage was not caused or contributed to by the negligence of
the claimant.205
It should also be noted that the public have a right to use the
public highway for any reasonable purpose, which will extend to
peaceful assembly, provided their acts do not amount
to a public or private nuisance and do not obstruct the highway
by unreasonably impeding the public’s primary right to pass and
repass.206

(2) Possession of land

11–036 This is the interest protected by the tort of trespass. Only those
with possession of the land can sue for trespass. It is not enough
to be physically on the land or to have control over the land. A
mere licensee, such as a lodger or guest in a hotel, cannot sue for
trespass. The claimant must have an interest in land in
possession or at least exclusive possession to maintain an action
for trespass.207 An interest in land without possession will not
suffice. For example, when a landlord has leased his property,
the tenant is the party in possession. The landlord will only be
able to sue if the trespasser injures the interest he or she has in
possession, namely the reversionary interest in land, i.e. the
landlord’s right to possession at the end of the term of the
lease.208 Ordinarily, it will be the tenant who sues for trespass.
The similarities with the right to sue in private nuisance,
discussed in Ch.10, should be noted. The claimant will be able
to sue regardless of the fact that he or she was out of the
premises at the time the trespass took place or had only just
 acquired the right to possession. The concept of “trespass by
relation” allows the claimant to sue for trespass even if the
trespass took place between the time when the right to
possession was obtained and actual entry into possession.209

Trespass to Land: Defences

11–037 The defences bear a clear resemblance to the defences discussed

above for trespass to the person, namely consent, necessity and
lawful authority. Similarly to nuisance, there is generally no
defence of jus tertii to trespass. Jus tertii alleges that the
claimant cannot succeed because a third party has a better title to
the land than the claimant and should therefore be bringing the
action instead of the claimant. It has been rejected in a number
of cases.210

(1) Licence
11–038 The defendant will not be liable for trespass where he or she has
permission to act, be it express or implied, from the party in
possession. A licence should be distinguished from interests in
property, such as easements or profits à prendre which give the
grantee a proprietary right to enter the land. These are dealt with
in the standard works on land law.211 Although a licence to act is
a good defence, it has two notable limitations. It may be
restricted by express or implied terms and if they are exceeded,
the defendant has committed a trespass. As noted in Ch.8,
“When you invite a person into your house to use the staircase,
you do not invite him to slide down the banisters”.212 Equally,
permission can be withdrawn, thereby rendering the defendant a
 trespasser if he or she fails to leave within a reasonable period of
time.
Express or implied limits on permission to enter have been
discussed in Ch.8. However, the ability to withdraw or revoke a
licence is more complicated. Where the claimant has also been
granted a property interest such as a profit à prendre,213 or has a
licence coupled with an equity,214 the licence cannot simply be
revoked. In other circumstances, it will depend on whether the
claimant has been given permission to enter under a bare licence
(i.e. in the absence of consideration), or under a contractual
licence (i.e. in return for consideration, for example by
purchasing a ticket to watch a football match). A bare licence
may be revoked at any time,215 although public law may impose
some limits on the power of a public body to revoke its
licence.216 A contractual licence may be revoked (although this
may result in a claim for breach of contract) unless (a) there is
an express or implied term in the contract limiting the power to
revoke the licence for a defined or reasonable time, and (b) the
court would be prepared to grant an injunction to prevent breach
of contract.217 The existence of any implied term will be a
question of construction on the facts of the case. For example, if
I buy a ticket for the cinema, it is implied that (provided I
behave myself) I can stay in the cinema until the end of the
film.218 If the licence is revocable, the defendant must be given
reasonable time to leave and remove his or her goods.

(2) Necessity

11–039 Necessity is also a valid defence to trespass to land. The

necessity may be public or private, but in both cases, there must
be an actual or reasonably perceived danger in relation to which
reasonable steps are taken. For example, if there is a fire and the
defendant enters another’s land or destroys another’s property to
stop the spread of the fire, the defence will be one of public
necessity if the actions are in the public interest. If the defendant
has intervened to save his or her own person or property from
imminent danger, the defence will be one of private necessity.219
In Rigby v Chief Constable of Northamptonshire,220 a young
psychopath broke into a gun shop and armed himself. To end the
siege, the police fired a canister of CS gas into the shop to
smoke out the intruder. Unfortunately, it set the shop alight. The
shopkeeper sued the police for damages. Taylor J held that the
police could rely on the defence of necessity provided they
could show that they had not been negligent in creating or
contributing to the necessity. On the facts, the intruder had been
a clear threat to the public and the police had clearly not caused
or contributed to the problem at hand. They were therefore not
liable in trespass.221
In recent years, the Court of Appeal has expressed concern
as to the operation of this defence and advocated that it should
be confined to very limited circumstances. Lord Denning MR in
Southwark LBC v Williams222 highlighted the concern that it
could be used to justify public unrest. Here, a group of
individuals in dire need of accommodation had relied on
necessity to justify taking over a number of empty houses
belonging to the local authority which were due for
development. Lord Denning MR held that such behaviour was
not acceptable in society and that the defence should only apply
to urgent situations of immediate peril:

“If homelessness were once admitted as a

defence to trespass, no-one’s house could be
safe. Necessity would open a door which no
man could shut. It would not only be those
in extreme need who would enter. There
would be others who would imagine that
they were in need or would invent a need,
so as to gain entry. . . So, the courts must
for the sake of law and order take a firm
 stand. They must refuse to admit the plea of
necessity to the hungry and the homeless,
and trust that their distress will be relieved
by the charitable and the good.”223

This approach was approved by the Court of Appeal in

Monsanto Plc v Tilly.224 Here, campaigners
against genetically modified (GM) crops had entered onto land
and destroyed some of the GM crops growing there. Monsanto,
a company licensed by the Department of the Environment to
carry out trials on GM crops, sought injunctions against the
defendants prohibiting them from trespassing on the land. The
defendants claimed that they had a valid defence of necessity,
but this was dismissed by the Court of Appeal. The court held
that the real purpose of the campaign was to attract publicity for
their cause, and their actions did not fit within the very narrow
defence of necessity. The defence would only apply where the
defendants faced an emergency where it was necessary for the
defendants to act in the face of immediate and serious danger to
life or property, and where their actions were reasonable. In any
event, there was a public authority responsible for the public
interest in relation to GM crops, namely the Department of
Environment. Again, the Court of Appeal stressed that the
defence of necessity should not be used to justify “all sorts of
wrongdoing”.

(3) Justification by law

11–040 It is a valid defence that the defendant was legally authorised to

enter onto the claimant’s land. The most obvious example is that
of a police officer entering premises under warrant. Reference
should be made again to the Police and Criminal Evidence Act
1984 (ss.16 to 18, as amended) and the Criminal Justice and
Public Order Act 1994.225 One particular problem, which has
now been resolved by statute, is the difficulty experienced by
householders who needed access to neighbouring land to
undertake repairs to their property. Their neighbours at common
law were quite entitled to refuse, or charge a premium. The
Access to Neighbouring Land Act 1992 now provides that the
court may make an order allowing access to land for the purpose
of carrying out works which are reasonably necessary for the
preservation of adjoining or adjacent land and which cannot be
carried out, or would be substantially more difficult to carry out,
without entry upon the land. The scope of the Act is limited,
however, by the fact that the court cannot make such an order if
it would cause unreasonable interference with the neighbour’s
enjoyment of the land or unreasonable hardship. Equally, it is
confined to work to “preserve” the land, although it will extend
to improvement work incidental to such works: s.1(5).226
Abuse of such legal authority is treated severely. Where the
defendant has entered the property with legal authority, but
subsequently abuses that authority, the trespass is deemed to
have taken place from the moment of entry (the so-called
doctrine of trespass ab initio).227 This only applies, however, to
positive acts of abuse and does not apply to omissions. It also
does not seem to apply to cases of partial abuse. In Elias v
Pasmore,228 the police had lawfully entered the plaintiff’s
premises to arrest a man, and had seized a number of documents,
some of them unlawfully. Horridge J held that the original entry
was not a trespass to land. The only
action was for trespass to the goods unlawfully seized. It is
submitted that, despite criticism of trespass ab initio,229 the
doctrine is sound and should be preserved. It is important in a
democratic society that any abuse of legal authority which
interferes with the claimant’s right to possession should not be
tolerated.
 Trespass to Land: Remedies

11–041 The ordinary remedies of damages and/or an injunction may be

obtained for trespass. The trespass may consist of a single act or
be continuous. If the trespass is continuous, the claimant will
have a right to sue for as long as it lasts. On this basis, the
claimant may bring a second action for damages if the trespass
persists.230 The assessment of damages will be discussed in
more detail in Ch.17. Here, therefore, we confine our study to
remedies which are particularly relevant to the tort of trespass.
Further details may be found in texts on land law.

(1) Self-help
11–042 This is mentioned to stress its limits.231 A party in possession
may use reasonable force to resist wrongful entry or attempted
entry by a trespasser. Such people are therefore perfectly within
their rights to erect fences or put up barbed wire fences. The
force must be reasonable and any force in excess of what is
reasonably necessary will render the person liable for trespass to
the person.
A guard dog is equally permissible, provided that it is
reasonable to keep the dog on the premises for that purpose: the
Animals Act 1971 s.5(3). Guard Dogs Act 1975 s.1 further
provides, however, that a guard dog should not be used unless
the dog is secured, or his handler is on the premises and the dog
is under the control of the handler at all times. In any event, a
notice containing a warning that a guard dog is present should be
clearly exhibited at each entrance to the premises.232
Although anyone in possession of land has a right to re-enter
at all times,233 this is limited by the Criminal Law Act 1977.234
Section 6 renders it an offence for anyone without lawful
 authority (other than a displaced residential occupier235) to use
or threaten violence for the purposes of securing entry to any
premises occupied by another. Readers should also note the
restrictions on entry contained in the Protection from Eviction
Act 1977, which renders it an offence to unlawfully evict or
harass any person with a right to remain in occupation of the
premises.

(2) Order for possession of land

11–043 This is an action for the recovery of land (formerly called

“Ejectment”), by which the person entitled to possess the land
seeks a court order to recover the land. This is usually achieved
by the claimant proving his or her own title to land.236 There is
now a special summary procedure the claimant can use against
persons entering or remaining on their premises without the
claimant’s licence or consent, whether or not the claimant is able
to identify them.237 This permits the claimant to take action
against squatters within a short period of time. This is essentially
a proprietary action, but is mentioned because it has evolved
from the tort of trespass.

(3) Mesne238 profits

11–044 These will usually be claimed in addition to the action for
recovery of possession of land. They are a form of consequential
damages, given to the claimant for the time he or she has been
kept out of possession of his or her land and allow the owner to
make a fair and reasonable charge for the use of the land. By this
means, the claimant can seek a reasonable rent for the
defendant’s possession of the property. The remedy is usually
used against a tenant who has refused to leave at the end of the
lease. It is irrelevant that the claimant cannot show that the
property could have been let during this period or that the
defendant did not profit from the property. The damages are for
the lost use of the property. Therefore, in Inverugie Investments
Ltd v Hackett,239 the Privy Council held that the plaintiff could
recover a reasonable rent for every apartment in a hotel block, in
spite of the defendants’ objections that they had never
been fully booked and indeed had an average occupancy of 35 to
40%. Lord Lloyd held that it was not a question of the actual
loss suffered, or whether the defendants had derived any actual
benefit from the use of the premises, but of assessing a
reasonable rate for the 15½ years the plaintiff had been out of
possession:

“If a man hires a concrete mixer, he must

pay the daily hire, even though he may not
in the event have been able to use the mixer
because of rain. So also must a trespasser
who takes the mixer without the owner’s
consent. He must pay the going rate, even
though in the event he had derived no
benefit from the use of the mixer.”240

On this basis, it was acceptable to calculate the sum due on the

wholesale rate paid by tour operators, which took into account
seasonal variations in the booking fee. It is important to
remember, however, that care must be taken if the claimant also
makes a claim for damages which includes loss of profit arising
from the inability to use the property. The courts will endeavour
to ensure that claimants do not receive double recovery for the
same loss.241
 Trespass to Goods242

11–045 Finally, we shall briefly examine the tort of trespass to goods.

This tort is now largely covered by the Torts (Interference with
Goods) Act 1977, which brings together torts dealing with
wrongful interference with goods, such as trespass and
conversion, although s.2(1) abolishes the old tort of detinue.
Conversion is essentially theft in civil law and is defined as
wilfully dealing with the claimant’s property in a way which
amounts to a denial of the claimant’s rights over it, whereby the
claimant is deprived of the use and possession of the property.243
Reference should be made to other texts for a full understanding
of wrongful interference with goods.244 Here, we confine
ourselves to a general discussion of trespass to goods.
This form of trespass deals with intentional and direct
interference with the possession of
goods. This includes removing or damaging goods—in fact, any
act interfering with the claimant’s possession of the goods. It is
unnecessary to show the defendant has removed the goods to
establish this tort. Scraping your keys on the side of a vehicle
would amount to trespass to goods.245 In contrast to the other
forms of trespass discussed above, the requirements of this tort
are not particularly clear. They will be examined below.

The requirements of trespass to goods

◗ (1) It must be intentional

11–046 Generally, it would seem that the act of interference with the
goods must be intentional. It is, however, irrelevant whether the
defendant realised that he or she was committing a trespass. For
example, in Wilson v Lombank Ltd,246 a car had been sent to a
 garage for repair. The defendant, believing wrongly that the car
was his, removed it from the garage. It was held that the
defendant was liable in trespass. He had intentionally removed
the vehicle and it was irrelevant that it was due to a mistake.
However, a number of cases have suggested negligence to be
a sufficient condition of liability. In National Coal Board v JE
Evans & Co (Cardiff) Ltd,247 for example, the court excused the
conduct of the defendants who, in digging a trench, had
damaged an underground cable belonging to the plaintiffs. The
court found that the defendants had not been negligent— there
was no way they could have known of the presence of the cable,
which had been laid by the plaintiffs or by the plaintiffs’
predecessors in title without informing the landowner. The cable
was not visible and had not been marked on the plan given to the
defendants by the landowners. On this basis, where the claimant
cannot reasonably know of the existence of the goods, but
nevertheless harms them, a court will not find liability for
trespass. There are also a number of road accident cases where
the courts again look for negligence even when the action is
brought in trespass.248 This raises the “Fowler v Lanning249
question” of whether there is a parallel claim for unintentional
trespass to goods. It must be doubted whether such a claim is
necessary and it may be preferable simply to treat such claims as
negligence. Nevertheless, there is still some support for a tort of
unintentional trespass to goods. For example, Torts (Interference
with Goods) Act 1977 s.11(1) refers to “intentional trespass to
goods”, which suggests that it should be distinguished from
“unintentional” trespass to goods.

◗ (2) It must be direct

11–047 The interference must be direct and immediate.250 This raises all
the questions we have seen considered above in relation to the
other forms of trespass. For example, if I put out poison for my
neighbour’s dog, is this direct enough to amount to trespass to
goods? It may be argued that it is no more indirect than the acid
 put in the hand-dryer in DPP v K,251 discussed above.
Nevertheless, the general view is that it is probably not direct
enough.252

◗ (3) Actionable per se?

11–048 This tort is generally regarded as actionable without proof of
damage. Thus, it covers activities such as the unauthorised
touching of museum exhibits, which would not otherwise be
protected in tort. There is some authority in favour of proof of
damage, but these cases can generally be explained as highway
cases based on negligence.253

◗ (4) Possession
11–049 The key to this tort is interference with the possession, not the
ownership, of goods. In Wilson v Lombank Ltd,254 for example,
the plaintiff was found not to be the true owner of the car,
having purchased the vehicle from a person who had no right to
sell the car. Nevertheless, he was found to be in possession at the
time of the trespass, and was therefore able to bring an action for
trespass to goods. The question is therefore whether the claimant
was in possession at the time the interference took place.
Bailees,255 trustees, executors, administrators of estates and
owners of franchises will all satisfy this requirement.

Defences

11–050 The defences are similar to those mentioned for other forms of
trespass. It is a valid defence that the claimant has consented to
the interference. Equally, if the trespass in question was
necessary for the preservation and protection of the goods and
reasonable steps were taken,256
the defendant has a good defence. Readers should note that
under the Police and Criminal Evidence Act 1984,257 the police
are given specific powers to search for and seize property
without liability. Section 11(1) of the 1977 Act states that
contributory negligence is no defence to proceedings based on
“intentional” trespass to goods. Again, this begs the question
whether contributory negligence could be a defence should
unintentional trespass to goods be recog-nised, but as this is
essentially a claim for negligence, the answer is obviously yes.
Section 8 of the 1977 Act also provides a further defence:

“The defendant in an action for wrongful

interference shall be entitled to show, in
accordance with rules of court, that a third
party has a better right than the plaintiff in
respect of all or any part of the interest
claimed by the plaintiff, or in right of which
he sues.”

Under this provision, the defendant may protect himself or

herself against double liability by identifying who had the
interest protected by the tort at the relevant time. Rules of court
now provide that the claimant should give particulars of title and
identify any other person who, to his or her knowledge, has or
claims to possess an interest in the goods.258 Readers should
also note that the 1977 Act gives the claimant a wider range of
remedies than the common law remedies of damages and/or
injunction, which include a final order for special delivery, or for
delivery or damages, if the defendant is in possession or control
of the goods.259
Trespass to goods is therefore a means by which the
claimant’s possession of goods can be protected from
unwarranted interference by others. It is limited in scope, but
presents an example of one of the many varied interests
protected by the law of torts.
1 See Weaver v Ward (1617) Hob. 134; 80 E.R. 284 and Scott v Shepherd
(1773) 2 Wm. Bl. 892; 96 E.R. 525.

2 See Ch.17.

3 See, e.g. M. Dyson (ed), Unravelling Tort and Crime (CUP, 2014).

4 See F. A. Trindade, “Intentional Torts: Some Thoughts on Assault and

Battery” (1982) 2 O.J.L.S. 211.

5 See Powers of the Criminal Courts (Sentencing) Act 2000 ss.130–134 (as
amended).

6 See generally the Criminal Injuries Compensation Act 1995 and the
government website at
https://www.gov.uk/government/organisations/criminal-injuries-
compensation-authority [Accessed 1 August 2020].

7 See, e.g. Halford v Brookes [1991] 1 W.L.R. 428.

8 See the controversial publication: O.J. Simpson and R. Goldman, If I did

it: Confession of the killer (Gibson Square Books, 2007). A more recent
example is that of Ashley v Chief Constable of Sussex Police [2008] UKHL
25; [2008] 1 A.C. 962 (civil claim following death of unarmed man, shot by
police, when officer responsible had been acquitted of murder).

9 See, e.g. the guidelines given by Lord Woolf in Thompson v

Commissioner of Police of Metropolis [1998] Q.B. 498.

10 The Law Commission Report No.218, Criminal law: Legislating the

criminal code: Offences against the person and general principles (1993)
recommended the repeal of these sections. This has not occurred.

11 Note that common assault and battery are summary offences by virtue of
the Criminal Justice Act 1988 s.39.

12 This cannot be given when the defendant has pleaded guilty: Ellis v
Burton [1975] 1 W.L.R. 386.
13 See Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721; [2003]
3 All E.R. 932 at 937. The question focuses on the conduct in question, e.g.
an assault. The courts will not allow the claimant to circumvent s.45 by
framing the claim under a different cause of action e.g. under the rule in
Wilkinson v Downton. See also Masper v Brown (1876) 1 C.P.D. 97.

14 See Williams v Humphrey The Times 20 February 1975 where the

defendant was liable for deliberately pushing a guest in his swimming pool,
although he clearly did not intend to cripple the plaintiff, who broke his
ankle and foot.

15 James v Campbell (1832) 5 C. & P. 372; 172 E.R. 1015, and Bici v
Ministry of Defence [2004] EWHC 786 (QB) The Times 11 June 2004. For
criticism, see A. Beever, “Transferred malice in tort law?” (2009) 29 L.S.
400.

16 [1969] 1 Q.B. 439.

17 R. v Venna [1976] Q.B. 421. Subjective recklessness will suffice: see R.

v Savage [1992] 1 A.C. 699 HL and Bici v MOD [2004] EWHC 786 (QB)
at [67]: “it must be a subjective recklessness that they appreciated the
potential harm to the claimants and were indifferent to it”.

18 (1773) 2 W. Bl. 892; 96 E.R. 525.

19 [1990] 1 W.L.R. 1067. See also Haystead v Chief Constable of

Derbyshire [2000] 3 All E.R. 890 QBD.

20 (1704) 6 Mod. Rep. 149; 90 E.R. 958.

21 [1987] Q.B. 237. Followed by Flint v Tittensor [2015] EWHC 466 (QB);
[2015] 1 W.L.R. 4370 at [32].

22 [1984] 1 W.L.R. 1172. See also Lord Goff in Re F [1990] 2 A.C. 1.

23 [1990] 2 A.C. 1 at 72–73.

24 R. v St George (1840) 9 C. & P. 483 at 493; 173 E.R. 921 at 926. See
also Logdon v DPP [1976] Crim. L.R. 121.
25 (1830) 4 C. & P. 349; 172 E.R. 735.

26 (1844) 1 C. & K. 257 at 263; 174 E.R. 800. Contrast Chief Constable of
Thames Valley Police v Hepburn [2002] EWCA Civ 1841 The Times 19
December 2002 CA.

27 R. v Venna [1976] Q.B. 421; Bici v MOD [2004] EWHC 786 (QB)
(subjective recklessness).

28 [1986] Ch.20 at 65. More recently, the Court of Appeal rejected a claim
by the President of Equatorial Guinea that the advance group participating
in an attempted coup (which failed) had the means to carry out the threat
alleged: Mbasogo v Logo Ltd (No.1) [2006] EWCA Civ 1370; [2007] Q.B.
846.

29 See Meade’s & Belt’s Case (1823) 1 Lew. C.C. 184; 168 E.R. 1006: “no
words or singing are equivalent to an assault”.

30 [1998] A.C. 147.

31 (1669) 1 Mod. Rep. 3; 86 E.R. 684.

32 (1853) 13 C.B. 850; 138 E.R. 1437.

33 See R. v Governor of Brockhill Prison Ex p. Evans (No.2) [2001] 2 A.C.

19 (prison governor liable for unauthorised detention of prisoner when his
sentence, calculated by him on the law as then understood, was
subsequently found to be incorrect). Equally a breach of the principles of
public law may render detention unlawful even if the claimant could have
been detained if the correct procedures had been followed, although it is
likely to lead to no more than nominal damages: R. (on the application of
Lumba) v Secretary of State for the Home Department [2011] UKSC 12;
[2012] 1 A.C. 245.

34 (1870) L.R. 5 C.P. 534.

35 [1994] 2 All E.R. 597 CA. Comment: J. R. Spencer [1994] C.L.J. 433.
See also Ali v Heart of England NHS Foundation Trust [2018] EWHC 591
(Ch): witness passing information to police is not liable even if information
was incorrect.

36 [2014] EWCA Civ 897; [2015] 1 W.L.R. 312.

37 [2014] EWCA Civ 897 at [46]. Here nominal damages of £5 were

awarded.

38 (1845) 7 Q.B. 742; 115 E.R. 668.

39 R. (Jalloh (formerly Jollah) v Secretary of State for the Home

Department [2020] UKSC 4; [2020] 2 W.L.R. 418 at [24] per Lady Hale.

40 [2020] UKSC 4 at [27].

41 Breaking the curfew could lead to a £5,000 fine or imprisonment for up

to six months or both.

42 [2009] EWCA Civ 1312; [2010] Q.B. 732 (Sullivan LJ dissenting on the
issue of liability).

43 The court also found that the direct and immediate cause of the
prisoner’s confinement was the order of the Governor that, because of the
strike, prisoners should remain in their cells throughout the day.

44 [2009] EWCA Civ 1312 at [40]–[42], discussed at para.11–033.

45 [1999] 1 A.C. 458.

46 [1999] 1 A.C. at 495. Lord Nolan also dissented on this point.

47 HL v United Kingdom (45508/99) (2005) 40 E.H.R.R. 32.

48 The decision of the House of Lords pre-dated the coming into force of
the Human Rights Act 1998.

49 HL v United Kingdom (45508/99) (2005) 40 E.H.R.R. 32 at [90].

50 R. (Jalloh (formerly Jollah) v Secretary of State for the Home
Department [2020] UKSC 4 at [23]: “So far as is known, this is the only
example of a deprivation of liberty which did not amount to imprisonment
at common law: generally speaking, one may well be imprisoned without
being deprived of one’s liberty, but the other way round is harder to
envisage.”

51 [1910] A.C. 295 PC.

52 [1910] A.C. 295 PC at 299.

53 [1915] A.C. 67.

54 See generally K.F. Tan, “A misconceived issue in the tort of false

imprisonment” (1981) 44 M.L.R. 166.

55 (1838) 4 Bing. N.C. 212; 132 E.R. 769.

56 Meering v Grahame-White Aviation Co Ltd (1920) 122 L.T. 44.

57 (1920) 122 L.T. 44 at 53.

58 There is authority to the contrary in Herring v Boyle (1834) 1 Cr. M. &

R. 377; 149 E.R. 1126 which was not cited in Meering. This was criticised,
however, by Lord Griffiths in Murray v Ministry of Defence [1988] 1
W.L.R. 692 at 701.

59 [1988] 1 W.L.R. 692 at 703 (although the comment was obiter). See also
Sedley LJ in Chief Constable of Thames Valley Police v Hepburn [2002]
EWCA Civ 1841 The Times 19 December 2002 at [14]. This comment was
approved by the majority of the Supreme Court in R. (on the application of
Lumba) v Secretary of State for the Home Department [2011] UKSC 12;
[2012] 1 A.C. 245 (see, e.g. Lord Dyson at [64]).

60 [1897] 2 Q.B. 57.

61 [1919] 2 K.B. 316.

62 [1993] Q.B. 727.

63 Patel v Patel [1988] 2 F.L.R. 179.

64 [1993] Q.B. 727 at 736.

65 [1997] A.C. 655.

66 [2003] UKHL 53 [2004] 2 A.C. 406. See also Wong v Parkside Health
NHS Trust [2001] EWCA Civ 1721; [2003] 3 All E.R. 932 CA.

67 Dulieu v White & Sons [1901] 2 K.B. 669.

68 Field J in C v D [2006] EWHC 166 (QBD) approved Lord Hoffmann’s

view, although he found that the sexually abused claimant had succeeded in
part in his claim under the rule.

69 [2015] UKSC 32; [2016] A.C. 219. See C. D. L. Hunt, “Wilkinson v

Downton revisited” [2015] C.L.J. 392.

70 [2015] UKSC 32 at [87] per Baroness Hale and Lord Toulson. The book
was later published and became a bestseller, see J. Rhodes, Instrumental
(Canongate Books, 2015).

71 [2015] EWHC 2687 (QB); [2016] P.I.Q.R. Q2.

72 [1923] 1 K.B. 340.

73 Hegarty v Shine (1878) 14 Cox C.C. 124; R. v Clarence (1888) 22

Q.B.D. 23; R. v Linekar [1995] Q.B. 250 CA. Query its application in R. v
Tabassum (Naveed) [2000] 2 Cr. App. R. 328.

74 [2004] EWCA Crim 1103; [2004] Q.B. 1257.

75 Offences Against the Person Act 1861 s.20 does not require proof of
assault or battery.

76 [2015] UKSC 11; [2015] A.C. 1430. Comment: R. Bagshaw (2016) 132
L.Q.R. 182. See also Chester v Afshar [2004] UKHL 41; [2005] 1 A.C.
134. Applied recently in Diamond v Royal Devon and Exeter NHS
Foundation Trust [2019] EWCA Civ 585; [2019] P.I.Q.R. P12.
77 R. Heywood, “Medical disclosure of alternative treatments” [2009]
C.L.J. 30 at 31.

78 See also Pearce v United Bristol Healthcare [1999] P.I.Q.R. P53 CA.

79 See Chatterton v Gerson [1981] Q.B. 432 at 443 per Bristow J. Note that
if the patient has consented to one procedure, it does not mean that the
patient has consented to any further invasion unless the doctor has ensured
that the terms of consent authorise such further treatment as the doctor
considers necessary or desirable.

80 [1984] 1 Q.B. 524. Contrast majority view of the Supreme Court of

Canada in Non-Marine Underwriters v Scalera (2000) 185 D.L.R. (4th) 1.

81 Malette v Shulman (1990) 67 D.L.R. (4th) 321.

82 St George’s Healthcare NHS Trust v S [1999] Fam. 26. Scott highlights

the difficulties in determining the nature of moral and legal duties in such
situations: R. Scott, “The Pregnant Woman and the Good Samaritan: Can a
Woman have a Duty to Undergo a Caesarean Section?” (2000) 20 O.J.L.S.
407. See also Re AK (Adult patient) (Medical Treatment: Consent) [2001] 1
F.L.R. 129 (victim suffering from motor neurone disease but, although
severely disabled, intellect unimpaired). Note also the guidance set out in
Re B v NHS Hospital Trust [2002] EWHC 429 (Fam); [2002] 2 All E.R.
449 at 473–474 by Dame Elizabeth Butler-Sloss.

83 Re MB [1997] 2 F.C.R. 541 at 553 per Butler-Sloss LJ.

84 [1993] Fam. 95.

85 [1998] 1 F.L.R. 48.

86 Applying the test stated in Re C (Refusal of medical treatment) [1994] 1

F.L.R. 31. See also Re MB [1997] 2 F.C.R. 541 (fear of needles rendered
patient temporarily incompetent) and Re W [2002] EWHC 901 (Fam)
Independent 17 June 2002 (psychopathic disorder, but sufficient mental
capacity to weigh the information required to reach a decision as to
treatment).
87 S. Gilmore and J. Herring, “‘No’ is the hardest word: Consent and
children’s autonomy” (2011) 23 C.F.L.Q. 3.

88 [1986] A.C. 112. See, for example, JA (A Minor) (Medical Treatment:

Child Diagnosed with HIV) [2014] EWHC 1135 (Fam); [2015] 2 F.L.R.
1030 (not Gillick competent to refuse to take anti-retroviral therapy
medication).

89 [1993] Fam. 64. See also Re M (A child) (Medical treatment) [1999] 2

F.L.R. 1097. See M. R. Brazier and C. Bridge, “Coercion or caring:
analysing adolescent autonomy” (1996) 16 L.S. 84, although A. Morris in
2005 argued that the increasingly rights-based approach in this area may
lead to greater autonomy for adolescents: “Gillick, 20 years on: arrested
development or growing pains?” (2005) 21 P.N. 158.

90 The judgment of the European Court of Human Rights in Glass v United

Kingdom (61827/00) (2004) 39 E.H.R.R. 15 stressed the role of the court in
protecting the personal integrity of the child under art.8, even where
emergency procedures are involved if sufficient time exists.

91 [2000] Fam. 48. See also Re C (a child) (Immunisation: Parental rights)

[2003] EWCA Civ 1148; [2003] Fam Law 731 (immunisation ordered
despite mothers’ objections) and the more drastic Re A (Children)
(Conjoined Twins) [2001] Fam. 147 CA (parents’ objections to separation
of conjoined twins overruled, although the inevitable result was that one of
the girls would die).

92 [1999] 2 F.L.R. 1004 CA.

93 Att-Gen’s Reference (No.6 of 1980) [1981] Q.B. 715 at 719 per Lord
Lane CJ. Infliction of harm is permissible, however, in the course of
properly conducted games and sports or the lawful chastisement or
correction of children.

94 [1994] 1 A.C. 212. See also R. v Emmett The Times 15 October 1999 and
R. v BM [2018] EWCA Crim 560; [2019] Q.B. 1 (body modification), but
contrast R. v Wilson [1997] Q.B. 47 CA (wife able to consent to branding
buttocks with hot knife on the basis that it was analogous to tattooing!)
95 Laskey, Jaggard and Brown v UK (1997) 24 E.H.R.R. 39.

96 (2346/02) (2002) 35 E.H.R.R.1.

97 ECHR art.8.2.

98 The Strasbourg court also found no violation of art.2 (right to life) and
art.3 (right not to be subjected to degrading treatment). See also R. (on the
application of Nicklinson) v Ministry of Justice [2014] UKSC 38; [2015]
A.C. 657 (Suicide Act 1961 s.2 did not impose what would be regarded
under the ECHR as a “blanket ban” on assisted suicide, which would take it
outside the margin of appreciation afforded to Convention states on that
issue).

99 [1977] Q.B. 94. See also Lord Mustill in Airedale NHS v Bland [1993]
A.C. 789.

100 See, e.g. Austin v Commissioner of Police for the Metropolis [2007]
EWCA Civ 989; [2008] 1 All E.R. 564 (police preventing crowd from
leaving public place where unauthorised demonstration was taking place
amounted to false imprisonment, but was justified by necessity due to threat
of imminent breach of the peace). The appeal to the House of Lords on the
basis of breach of ECHR art.5(1) was rejected: crowd control measures
resorted to for public order and public safety reasons did not amount to a
deprivation of liberty provided that they were not arbitrary, were
proportionate and were enforced for no longer than was reasonably
necessary [2009] UKHL 5; [2009] 1 A.C. 564. For criticism, see D.
Feldman, “Containment, deprivation of liberty and breach of the peace”
[2009] C.L.J. 243.

101 [1990] 2 A.C. 1.

102 Re S (Adult Patient: Sterilisation: Patient’s Best Interests) [2001] Fam

15 CA. See also Re A (Mental Patient: Sterilisation) [2000] 1 F.L.R. 549
CA, Simms v Simms [2002] EWHC 2734 (Fam); [2003] Fam. 83 and
Portsmouth NHS Trust v Wyatt [2005] EWCA Civ 1181; [2005] 1 W.L.R.
3995.
103 Previously, statutory provision had been limited e.g. provision was
made under the Mental Health Act 1983 for psychiatric treatment of
persons formally detained in a mental hospital. For the correct approach to
be taken under the 2005 Act when making decisions on whether to give or
withdraw life-sustaining treatment to persons lacking capacity to make such
decisions themselves, see Aintree University Hospitals NHS Foundation
Trust v James [2013] UKSC 67; [2014] A.C. 591; An NHS Trust v Y [2018]
UKSC 46; [2019] A.C. 978.

104 The Court of Appeal has resolved that proper consideration may be
given to issues arising under ECHR art.8 (right to private and family life) in
the context of the s.4 appraisal of the person’s best interests: K v A Local
Authority [2012] EWCA Civ 79; [2012] 1 F.C.R. 441.

105 M. A. Jones (2007) 23 P.N. 238, 248. For a more detailed discussion of
the statutory provisions, see P. Bartlett and R. Sandland, Mental Health
Law: Policy and Practice, 4th edn (OUP, 2013) and E. Jackson, Medical
Law: Text, Cases and Materials, 5th edn (OUP, 2019).

106 [1993] A.C. 789.

107 [2001] Fam. 348 (Fam Div).

108 Ashley v Chief Constable of Sussex [2008] UKHL 25; [2008] 1 A.C.
962 (was policeman who fatally shot unarmed and naked suspect in the
dark acting in self-defence?) Comment: N. J. McBride (2008) 67 C.L.J.
461.

109 See also Criminal Justice and Immigration Act 2008 s.76 (Reasonable
force for purposes of self-defence etc).

110 See Ashley v Chief Constable of Sussex [2008] UKHL 25; [2008] 1
A.C. 962, and Bici v MOD [2004] EWHC 786 (QB) where both courts
distinguished the position in criminal law where an honest belief of attack
will suffice. Lord Scott in Ashley [2008] UKHL 25 at [17] and [18] justified
this distinction on the basis of the different functions of criminal and civil
law. In Bici, the soldiers, who had shot and injured a group of men
travelling together in a car in Kosovo, failed to satisfy the court that there
were reasonable grounds for them to believe that they were being
threatened with being shot by the men.

111 See Ashley v Chief Constable of Sussex [2006] EWCA Civ 1085;
[2007] 1 W.L.R. 398 at [82] per Sir Anthony Clarke MR.

112 [1968] 1 Q.B. 379.

113 The Times 5 April 2000.

114 [1968] 1 Q.B. 379.

115 The Times 19 December 1986.

116 [1977] Q.B. 94.

117 [1977] Q.B. 94.

118 [2002] UKHL 43; [2003] 1 A.C. 959 at [45], although his Lordship
reserved his opinion on this point.

119 [2011] EWCA Civ 329; [2012] Q.B. 320.

120 See Alliance and Leicester BS v Edgestop Ltd [1994] 2 All E.R. 38 and
Standard Chartered Bank v Pakistan National Shipping Corp (Nos 2 and 4)
[2002] UKHL 43; [2003] 1 A.C. 959.

121 Article 5.1 lists six cases where an individual may legitimately be
deprived of his liberty and these include detention after conviction by a
competent court and lawful arrest for the purpose of bringing a person
before a competent legal authority on reasonable suspicion of having
committed an offence.

122 Note also Criminal Justice Act 2003 s.329: civil proceedings by
convicted offender for trespass to the person in circumstances where the act
is alleged to be committed on the same occasion as the imprisonable
offence for which the claimant has been convicted. An action may only be
brought with permission of the court (see ss.329(2) and (3)) and it is a
defence if the defendant can prove both that the condition in subs.(5) is met,
and that, in all the circumstances, his act was not grossly disproportionate.

123 e.g. see P. Ozin and H. Norton, PACE: A practical guide to the Police
and Criminal Evidence Act 1984, 5th edn (OUP, 2019).

124 As amended by the Serious Organised Crime and Police Act 2005.

125 As inserted by the Serious Organised Crime and Police Act 2005
s.110(1) and (4).

126 Police and Criminal Evidence Act 1984 s.24A(1).

127 See Sowande v Crown Prosecution Service [2017] EWHC 1234

(Admin).

128 See R. v Self [1992] 3 All E.R. 476 at 480.

129 Police and Criminal Evidence Act 1984 s.24A(3).

130 See R. C. Austin, “The new powers of arrest: plus ça change: more of
the same or major change?” [2007] Crim. L.R. 459.

131 See Albert v Lavin [1982] A.C. 546 at 565 and R. (on the application of
Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55; [2007] 2
A.C. 105. See also police powers to enforce public order, primarily under
the Public Order Act 1986 and the Criminal Justice and Public Order Act
1994.

132 [1959] 1 Q.B. 426 at 433.

133 [1965] 1 Q.B. 232.

134 [1965] 1 Q.B. 232 at 240. Approved in Wilson v Pringle [1987] Q.B.
237. See also Bici v Ministry of Defence [2004] EWHC 786 (QB). In A v
Hoare [2008] UKHL 6; [2008] 1 A.C. 844, the House of Lords ruled that
this did not prevent the Limitation Act 1980 s.11 including both claims in
negligence and in trespass to the person due to its broad wording and
legislative history.
135 Patel v Patel [1988] 2 F.L.R. 179 CA.

136 See Khorasandjian v Bush [1993] Q.B. 727.

137 Protection from Harassment Act 1997 ss.2 (offence of harassment), 2A

(offence of stalking), 2B (right of entry in relation to stalking) and 4
(putting people in fear of violence). The police recorded crime statistics for
2018–2019 report 458,881 recorded offences of stalking and harassment:
see
https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bu
lletins/crimeinenglandandwales/yearendingjune2019 [Accessed 1 August
2020].

138 R. v C (Sean Peter) [2001] EWCA Crim. 1251; [2001] 2 F.L.R. 757 CA
(Crim).

139 Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233;
[2002] E.M.L.R. 4 at [30] per Lord Phillips MR.

140 Protection from Harassment Act 1997 s.7(2).

141 Protection from Harassment Act 1997 s.7(3)(a) in relation to a single

person. In the case of conduct in relation to two or more persons (see
s.1(1A)), conduct is required on at least one occasion in relation to each of
those persons.: s.7(3)(b). See also s.7(3A). See Lau v DPP [2000] 1 F.L.R.
799 (the fewer the number of incidents and the wider the time lapse, the less
likely a finding of “course of conduct”).

142 Protection from Harassment Act 1997 s.7(4). It may even on rare
occasions extend to press articles which provoke reader hostility to a
particular individual, although the courts are very conscious of the risk of
violating art.10 of the Convention (freedom of expression): Thomas v News
Group Newspapers Ltd [2001] EWCA Civ 1233; [2002] E.M.L.R. 4. More
recently, see Howlett v Holding [2006] EWHC 41 (QB) The Times 8
February 2006 (flying banners from aircraft referring to Mrs Howlett in
abusive and derogatory terms).
143 See Banks v Ablex Ltd [2005] EWCA Civ 173; [2005] I.C.R. 819
(failure to show misconduct amounting to harassment on 2 occasions),
Conn v Sunderland City Council [2007] EWCA Civ 1492; [2008] I.R.L.R.
324 (foreman shouting at employee and threatening to smash a window did
not amount to oppressive conduct).

144 [2006] UKHL 34; [2007] 1 A.C. 224 at [66].

145 [2006] UKHL 34; [2007] 1 A.C. 224 at [30].

146 Veakins v Kier Islington Ltd [2009] EWCA Civ 1288; [2010] I.R.L.R.
132.

147 [2009] EWCA Civ 46; [2010] 1 W.L.R. 785. See also Roberts v Bank
of Scotland Plc [2013] EWCA Civ 882 (hundreds of calls from bank call
centre amounted to harassment). Contrast Calland v Financial Conduct
Authority [2015] EWCA Civ 192, notably comments of Lewison LJ at [31].

148 [2009] EWCA Civ 46; [2010] 1 W.L.R. 785 at [20].

149 Levi v Bates [2015] EWCA Civ 206; [2016] Q.B. 91.

150 KD v Chief Constable of Hampshire [2005] EWHC 2550 (QB); [2005]

Po. L.R. 253 stated that s.1(3)(a) (course of conduct pursued for the purpose
of preventing or detecting crime) should be interpreted subject to the
defences of necessity and proportionality in the light of ECHR art.8.1. This
defence is, however, only available if the purpose behind the actions had a
rational basis and was not, for example, based on a personal vendetta:
Hayes v Willoughby [2013] UKSC 17; [2013] 1 W.L.R. 935.

151 DPP v Dziurzynski [2002] EWHC 1380 (Admin); (2002) 166 J.P. 545
and Daiichi Pharmaceuticals UK Ltd v Stop Huntingdon Animal Cruelty
[2003] EWHC 2337 (QB); [2004] 1 W.L.R. 1503, although this does not
prevent the managing director of the company in question bringing a claim
on his own behalf and on behalf of the employees of the company in a
representative capacity (see Bayer Plc v Shook [2004] EWHC 332 (QB)).
See J. Seymour, “Who can be harassed? Claims against animal rights
protestors under section 3 of the Protection from Harassment Act 1997”
(2005) 64 C.L.J. 57. Note that s.1(1A) can be relied upon by a corporate
claimant: Merlin Entertainments Plc v Cave [2014] EWHC 3036 (QB);
[2015] E.M.L.R. 3.

152 See Huntingdon Life Sciences Ltd v Curtin The Times 11 December
1997, but also DPP v Moseley The Times 23 June 1999.

153 The civil standard of proof is applied to proceedings under s.3:

Hipgrave v Jones [2004] EWHC 2901 (QB); [2005] 2 F.L.R. 174.

154 Protection from Harassment Act 1997 s.3(2).

155 [2011] EWCA Civ 804; [2012] 1 W.L.R. 1495.

156 [2006] UKHL 34; [2007] 1 A.C. 224.

157 The court in Silverton v Gravett unreported 19 October 2001 QBD)

held that this did not breach art.10 (freedom of expression) nor art.11
(freedom of association) of the ECHR as such restrictions could be justified
as being “for the prevention of disorder or crime” or “for the protection of
the reputation or rights of others”: see arts 10.2 and 11.2.

158 Added by the Serious Organised Crime and Police Act 2005 s.125(5).
See, e.g. Monarch Airlines Ltd v Yaqab [2016] EWHC 1003 (QB); CSC
Computer Sciences Ltd v Price [2018] EWHC 3990 (QB).

159 (1698) 1 Ld. Raym. 374; 91 E.R. 1147. See, more recently, Roch LJ in
Clark v Chief Constable of Cleveland [2000] C.P. Rep. 22.

160 See, for example, the recent case of Rees v Commissioner of Police of
the Metropolis [2018] EWCA Civ 1587 where a senior police officer had
encouraged an unreliable witness to implicate the claimants in a murder
even though the CPS had brought the actual prosecution. It was
inconceivable that the CPS would have advised that murder charges be
brought without the intervention of the officer.

161 [1996] 1 A.C. 74 at 86–87. Note further guidance given by Brooke LJ

in Mahon v Rahn (No.2) [2000] 1 W.L.R. 2150 at 2205–2206. Martin was
applied in Sallows v Griffiths [2001] F.S.R. 15, and, more recently, in
Copeland v Commissioner of Police of the Metropolis [2014] EWCA Civ
1014; [2015] 3 All E.R. 391.

162 But contrast H v B [2009] EWCA Civ 1092 (complainant in

prosecution for rape not prosecutor when no more than key witness and had
done nothing improper to influence CPS’s decision to prosecute).

163 In Canada, malicious prosecution is now being supplanted by the more

straightforward tort of negligent investigation: Hill v Hamilton-Wentworth
Regional Police Services Board 2007 S.C.C. 41; (2007) 285 D.L.R. (4th)
620 (comment: E. Chamberlain (2008) 124 L.Q.R. 205). However, such an
approach has been rejected by the English courts for policy reasons: see
Ch.2 and Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50;
[2009] 1 A.C. 225.

164 See Herniman v Smith [1938] A.C. 305 and, more recently, Isaac v
Chief Constable of the West Midlands Police [2001] EWCA Civ 1405,
Quaquah v Group 4 Falck Global Solutions Ltd (Malicious Prosecution)
[2003] EWHC 1504 (QB); [2004] Prison L.R. 1 and Moulton v Chief
Constable of West Midlands [2010] EWCA Civ 524.

165 Glinski v McIver [1962] A.C. 726 at 758–759 per Lord Denning.

166 Rees v Commissioner of Police of the Metropolis [2018] EWCA Civ

1587.

167 In common with false imprisonment.

168 Glinski v McIver [1962] A.C. 726.

169 On guidance for juries in awarding damages for malicious prosecution,

see Manley v Commissioner of Police of the Metropolis [2006] EWCA Civ
879; [2006] Po. L.R. 117. Note that in addition to the civil action, a
defendant who maliciously induces the authorities to bring unwarranted
charges may face prosecution for wasting police time, for perverting or
attempting to pervert the course of justice, or (if he or she gives evidence)
for perjury.
170 [2016] UKSC 43; [2018] A.C. 779 at [55]. See also Lord Toulson in
Juman v Att-Gen of Trinidad and Tobago [2017] UKPC 3 at [17]: malice is
not constituted by mere recklessness nor sloppiness. See, generally, J.
Murphy, “Malice as an ingredient of tort liability” (2019) 78 C.L.J. 355.

171 [2018] EWCA Civ 1587 at [89]: “[The officer] knowingly put before
the decision-maker a case which he knew was significantly tainted by his
own wrongdoing and which he knew could not be properly presented in that
form to a court. To find that the element of malice was not satisfied in this
case, to my mind, would be, quite simply, a negation of the rule of law” per
McCombe L.J.

172 This was doubted in Metall und Rohstoff v Donaldson, Lufkin &
Jenrette Inc [1990] 1 Q.B. 391.

173 Reynolds v Commissioner of Police of the Metropolis [1985] Q.B. 881;

Gibbs v Rea [1998] A.C. 786 PC; Kennedy v Chief Constable of Merseyside
[2004] Po. L.R. 226. See also Keegan v Chief Constable of Merseyside
[2003] EWCA Civ 936; [2003] 1 W.L.R. 2187 where the Court of Appeal
found, on the facts, no improper motive, but noted that had the Human
Rights Act 1998 been in force, art.8 might have made a difference.

174 Johnson v Emerson (1870–71) L.R. 6 Ex 329; Quartz Hill Gold Mining
Co v Eyre (1883) 11 Q.B.D. 674. See, more recently, Tibbs v Islington LBC
[2002] EWCA Civ 1682; [2003] B.P.I.R. 743.

175 The origin of this tort is Grainger v Hill (1838) 4 Bing (NC) 212; 132
E.R. 769. See also Land Securities Plc v Fladgate Fielder (A Firm) [2009]
EWCA Civ 1402; [2010] 2 W.L.R. 1265, where the Court of Appeal
refused to extend this tort to applications for judicial review for which the
court had given permission and where only general economic losses had
been suffered.

176 [2000] 1 A.C. 419, which held that the tort does not apply to internal
disciplinary proceedings. For comment, see P. Cane (2000) 116 L.Q.R. 346.

177 [2013] UKPC 17; [2014] A.C. 366 (appeal from Cayman Islands Court
of Appeal). Comment: T.K.C. Ng (2014) 130 L.Q.R. 43.
178 [2016] UKSC 43; [2018] A.C. 779. Lords Neuberger and Sumption
again dissented, together with Lords Mance and Reed.

179 See, in particular, the criticisms of Lord Mance at Willers v Joyce

[2016] UKSC 43; [2018] A.C. 779 at [131]–[136] who found the majority
view to be “unjustified and unwise”. The minority also indicated that the
new tort could create real problems both in identifying what constitutes
malice and in deciding what types of loss and damage should be
recoverable in connection with claims based on the proposed tort.

180 [2016] UKSC 43 at [56].

181 [2013] UKPC 17 at [109]–[110].

182 [2013] UKPC 17 at [145]. On this basis, he argued that it made no

sense to extend malicious prosecution to civil proceedings where the
claimant was not exercising a public function. This view has, however, not
been followed.

183 See J. Murphy, “Misfeasance in a public office: a tort law misfit?”

(2012) 32 O.J.L.S. 51 who argues that this tort serves a discrete and vital
role in holding public officers to account and, more recently, M. Aronson,
“Misfeasance in public office: Some unfinished business” (2016) 132
L.Q.R. 427 and D. Nolan, “Tort and public law: Overlapping categories?”
(2019) 135 L.Q.R. 272.

184 [2001] UKHL 16; [2003] 2 A.C. 1. The tort itself can be traced back to
the 17th century (see Turner v Sterling (1671) 2 Vent. 25) and was
described as “well established” by the Privy Council in Dunlop v Woollahra
Municipal Council [1982] A.C. 158 at 172 per Lord Diplock.

185 See Nourse LJ in Jones v Swansea City Council [1990] 1 W.L.R. 54 at

85.

186 This is a broad concept: Calveley v Chief Constable of the Merseyside

Police [1989] A.C. 1228. In the case, the Bank of England was held to
satisfy this requirement.
187 Akenzua v Secretary of State for the Home Department [2002] EWCA
Civ 1470; [2003] 1 W.L.R. 741. Comment: J. R. Spencer [2003] C.L.J. 543.

188 This is defined loosely: see Akenzua v Secretary of State for the Home
Department [2002] EWCA Civ 1470; [2003] 1 W.L.R. 741 (victim did not
need to be known prior to the expected harm occurring).

189 Muuse v Secretary of State for the Home Department [2010] EWCA
Civ 453. See also Mouncher v Chief Constable of South Wales [2016]
EWHC 1367 (QB).

190 Southwark LBC v Dennett [2007] EWCA Civ 1091; [2008] H.L.R. 23
at [21]–[22].

191 Watkins v Secretary of State for the Home Department [2006] UKHL
17; [2006] 2 A.C. 395 (special damage required even where a public officer
has infringed a constitutional right—here, that of a prisoner to receive
unopened correspondence from his legal advisers or the court). Loss of
liberty will, however, by analogy with false imprisonment be regarded as
special damage: Karagozlu v Commissioner of Police of the Metropolis
[2006] EWCA Civ 1691; [2007] 1 W.L.R. 1881.

192 Akenzua v Secretary of State for the Home Department [2002] EWCA
Civ 1470.

193 Hussain v Chief Constable of West Mercia [2008] EWCA Civ 1205.

194 e.g. “aggravated trespass” under the Criminal Justice and Public Order
Act 1994 s.68 (as amended), where persons have trespassed on the land to
disrupt a lawful activity taking place on the land (e.g. hunt saboteurs). 195
See Clerk & Lindsell on Torts, 23rd edn (Sweet and Maxwell, 2020),
para.19–09.

196 Conway v George Wimpey & Co Ltd [1951] 2 K.B. 266 at 273–274.

197 Smith v Stone (1647) Style 65; 82 E.R. 533.

198 [1986] Q.B. 240.

199 [1965] 1 Q.B. 232 (which of course only deals with trespass to the
person).

200 Rigby v Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242.

201 This has been found to extend to the discharge of water into a canal
without permission: British Waterways Board v Severn Trent Water Ltd
[2001] EWCA Civ 276; [2002] Ch. 25.

202 See Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35;
[2011] 1 A.C. 380 (owner of surface land was also owner of strata beneath
it, including minerals found there unless alienated by conveyance, the
common law or statute to someone else). Lord Hope acknowledged,
however, at [27] that there must be some stopping point where the concept
of strata belonging to anybody would be so absurd to be not worth arguing.

203 See Kelsen v Imperial Tobacco Co Ltd [1957] 2 Q.B. 334 and, more
recently, Anchor Brewhouse Developments Ltd v Berkley House (Docklands
Developments) Ltd (1987) 38 B.L.R. 82 (injunction awarded to stop a
developer’s cranes oversailing the plaintiff’s land, even though they were
high enough not to affect the normal use of that land). See also Laiqat v
Majid [2005] EWHC 1305 (QB); [2005] 26 E.G. 130 (CS) (an overhanging
that occurred four metres above ground level would be regarded as an
interference with airspace and would amount to trespass).

204 [1978] Q.B. 479.

205 Civil Aviation Act 1982 s.76(2).

206 DPP v Jones [1999] 2 A.C. 240 HL (peaceful assembly on highway did
not amount to trespass necessary to invoke police powers against
trespassory assembly under the Public Order Act 1986).

207 Nicholls v Ely Beet Sugar Factory [1931] 2 Ch.84.

208 See Jones v Llanrwst Urban DC [1911] 1 Ch.393 at 404.

209 See Clerk & Lindsell on Torts, 23rd edn (Sweet and Maxwell, 2020),
para.19–027.

210 Nicholls v Ely Beet Sugar Factory [1931] 2 Ch. 84; Chambers v
Donaldson (1809) 11 East. 65; 103 E.R. 929. It may, however, be used in
relation to actions for the recovery of land: see below.

211 Note also that such rights may be acquired by prescription (see Ch.10).

212 See Scrutton LJ in The Carlgarth [1927] P. 93 at 110.

213 A right to take goods from the land—see Thomas v Sorrell (1673)
Vaugh. 330; 124 E.R. 1098.

214 See National Provincial Bank Ltd v Hastings Car Mart Ltd [1964] Ch.
665 and M. Dixon, Modern Land Law, 11th edn (Routledge, 2018), 9.3.

215 See CIN Properties Ltd v Rawlins [1995] 2 E.G.L.R. 130 which applied
this rule even to quasi-public places such as a shopping centre and survived
a challenge to the European Commission on Human Rights (Anderson v
United Kingdom [1998] E.H.R.L.R. 218). This was applied in Porter v
Commissioner of Police for the Metropolis unreported 20 October 1999),
despite the highly critical academic response of K. Gray and S. F. Gray,
“Civil Rights, Civil Wrongs and Quasi-Public Space” [1999] E.H.R.L.R.
46.

216 See Wandsworth v A [2000] 1 W.L.R. 1246 CA (attempt to deny parent

access to a primary school).

217 Winter Garden Theatre (London) Ltd v Millennium Productions Ltd

[1948] A.C. 173.

218 Compare Hurst v Picture Theatres Ltd [1915] 1 K.B. 1. There is also
authority that if the court is prepared to award an order for specific
performance, the licence cannot be revoked even where the licensee has yet
to enter into possession of the premises: Verrall v Great Yarmouth BC
[1981] Q.B. 202.
219 Although it has been held that it is no excuse to an action in trespass
that you entered due to threats to your life: Gilbert v Stone (1647) Style 72;
82 E.R. 539.

220 [1985] 1 W.L.R. 1242.

221 They were, however, found to be negligent in firing the canister when
no fire-fighting equipment had been present, as discussed at para.2–045.

222 [1971] 1 Ch.734.

223 [1971] 1 Ch.734 at 744.

224 [2000] Env. L.R. 313 The Times 30 November 1999.

225 See also Countryside and Rights of Way Act 2000 s.2.

226 See also Party Wall etc. Act 1996.

227 See the Six Carpenters’ Case (1610) 8 Co Rep. 146a; 77 E.R. 695.

228 [1934] 2 K.B. 164.

229 The doctrine has been criticised as antiquated and for failing to
recognise that a lawful act should not be rendered unlawful by subsequent
events: see the Court of Appeal obiter in Chic Fashions (West Wales) Ltd v
Jones [1968] 2 Q.B. 299 at 313, 317, 320. Lord Denning was critical of the
doctrine in Chic Fashions when it is used against the police, but
nevertheless used it against taxi-drivers in Cinnamond v British Airports
Authority [1980] 1 W.L.R. 582 at 588 who had abused their right to set
down passengers at London airport by touting for business.

230 Holmes v Wilson (1839) 10 Ad. & E. 503; 113 E.R. 190.

231 As emphasised by the Court of Appeal in Macnab v Richardson [2008]

EWCA Civ 1631; [2009] 35 E.G. 108, notably where it is not a clear and
simple case of trespass, nor an emergency.

232 See Hobson v Gledhill [1978] 1 W.L.R. 215.

233 Note Ropaigealach v Barclays Bank Plc [2000] Q.B. 263 CA
(mortgagee permitted to exercise right to take possession without court
order).

234 As amended by the Criminal Justice and Public Order Act 1994 and
Serious Organised Crime and Police Act 2005.

235 This is defined by s.12(3) as any person who was occupying the
premises as a residence immediately before being excluded from
occupation by a trespasser.

236 On this basis, there is authority that the defence of jus tertii applies to
an action for recovery of land.

237 See the Civil Procedure Rules Pt 55.

238 Pronounced “mean”.

239 [1995] 1 W.L.R. 713.

240 [1995] 1 W.L.R. 713 at 718. See also Horsford v Bird [2006] UKPC 3;
[2006] 1 E.G.L.R. 75 (mesne profits awarded up to date that judge awarded
damages in lieu of an injunction for trespassory encroachment of boundary
wall on Horsford’s land).

241 See Ramzan v Brookwide Ltd [2011] EWCA Civ 985; [2012] 1 All E.R.
903. Both may, however, be awarded where the damages claim relates to
future use and account needs to be taken of past trespass.

242 See, generally, S. Green, “Understanding the wrongful interference

actions” [2010] Conv. 15.

243 Consider S. Green, “Theft and conversion—tangibly different?” (2012)

128 L.Q.R. 564, who argues that the civil action should be reformed so that
its scope is similar to that of theft.

244 See, e.g. D. Sheehan, The Principles of Personal Property Law 2nd edn
(Hart, 2017) and M.G. Bridge, Personal Property Law, 4th edn (OUP,
2015).
245 See the example given by Alderson B obiter in Fouldes v Willoughby
(1841) 8 M. & W. 540 at 549; 151 E.R. 1153 at 1157: “Scratching the
panels of a carriage would be a trespass”.

246 [1963] 1 W.L.R. 1294.

247 [1951] 2 K.B. 861.

248 Holmes v Mather (1875) 133 L.T. 361.

249 [1959] 1 Q.B. 426.

250 For a recent example, see White v Withers LLP [2009] EWCA Civ
1122; [2010] 1 F.L.R. 859 (estranged wife intercepting husband’s post).

251 [1990] 1 W.L.R. 1067.

252 See Clerk & Lindsell on Torts, 23rd edn (Sweet and Maxwell, 2020),
para.15–09.

253 Everitt v Martin [1953] N.Z.L.R. 298 and Slater v Swann (1730) 2 Str.
872; 93 E.R. 906.

254 [1963] 1 W.L.R. 1294.

255 See Owen and Smith (trading as Nuagin Car Service) v Reo Motors
(Britain) Ltd (1934) 151 L.T. 274 CA.

256 See Kirk v Gregory (1876) 1 Ex. D. 55 where the defence failed
because, although the defendant had acted bona fide, it was not proved that
the interference was reasonably necessary.

257 See Police and Criminal Evidence Act 1984 ss.8–22.

258 CPR r.19.5A.

259 See Torts (Interference with Goods) Act 1977 s.3.

 12

The Economic Torts

Introduction
12–001 This chapter will examine a number of different torts which
protect a claimant (usually a business1) from infliction of pure
economic loss by intentional acts.2 These are the so-called
“economic torts”. It is important to distinguish these torts from
the tort of negligence, in which pure economic loss may be
caused by careless, rather than intentional, misconduct. Until
quite recently, there was much confusion about the nature and
scope of the economic torts. This is because they were often
invoked in rather complex commercial circumstances, and, as
the courts wrestled with the appropriate principles to apply in
such circumstances, a number of different and overlapping
causes of action emerged.
Until 2007, it was usual to think in terms of there being at
least four different economic torts. These included torts called
“conspiracy”, “intimidation”, “inducing a breach of contract”
and “interference with contractual relations”. However, some of
the case law dealing with the last two of these torts had blurred
the distinction between them. In some cases, it had been
suggested that both these torts might be dealt with according to a
single set of rules (the so-called “unified theory”). To make
matters worse, in other cases, it had been suggested that some of
the economic torts were in fact just ways of committing a wider
“generic” tort called “causing loss by unlawful means”.
Thankfully, however, the 2007 decision of the House of
Lords in OBG v Allan3 has provided
much-needed clarity. In the light of this decision, we can say that
there are nowadays three “economic torts”, as follows:
▮ Inducing or procuring a breach of contract.
▮ Causing loss by unlawful means.
▮ Conspiracy.

The important thing to note is that, in OBG v Allan, their

Lordships confirmed that the second of these torts is indeed a
generic tort. As such, it encompasses a number of torts that
formerly went by different names. Although, no doubt, these old
names will continue to be used to describe different factual
scenarios in which the generic tort is committed, the rules
governing these scenarios are now the same.
In earlier times, the economic torts were often invoked to
provide a remedy where trade unions caused loss to commercial
parties by organising industrial disputes. Nowadays, however,
the right to take or incite industrial action without being exposed
to tortious liability is enshrined in legislation. Thus, although the
economic torts continue to play a small role in regulating trade
union activity (claims may be brought where economic loss is
caused by “unofficial” action taken in breach of the statutory
rules), their main purpose in modern times is to regulate
competition between commercial parties.4 Essentially, they do
this by making some forms of unreasonable business practice
unlawful.5 Bearing in mind this purpose, it will be useful, before
exploring the rules of each tort, if we consider in general terms
the extent to which the courts have felt able to interfere with
commercial competition. An understanding of the problem the
courts face will help us to understand why the specific rules of
the torts are framed as they are.
 Regulating competition: the scope of the
economic torts
12–002 In developing the economic torts, the courts have had to strike a
delicate balance between the need to protect traders from
unreasonable behaviour and the desirability of allowing vigorous
competition, which is necessary for a thriving economy. The
general approach of the courts was established in Mogul
Steamship Co Ltd v McGregor, Gow & Co,6 an important
decision of the House of Lords taken at the end of the nineteenth
century.
The defendants were various shipowners involved in the
highly lucrative trade of importing tea from China. They sought
to obtain a monopoly in this trade by driving the plaintiff, a rival
shipping company, out of business. To achieve this, the
defendants formed an association and began to ship tea at
heavily discounted prices, so that the plaintiff company could
not compete and lost all its business. The plaintiff company
brought an action against the defendants to recover its financial
loss, arguing that the defendants’ actions should be declared
unlawful.
The House of Lords held that the plaintiff company had no
cause of action. The defendants had engaged in vigorous, cut-
throat competition, but what they had done could not be called
unlawful. The effect of this decision was to establish the ground
rules for the subsequent development of the economic torts: the
courts would be wary of interfering with market competition,
even where this had the effect of driving a trader out of business.
What this means, in a modern context, is that where, for
example, a new “superstore” opens, selling goods at bargain
prices, small local traders whose businesses suffer have no
remedy in law—the law does not prohibit simple competition,
even though it might be regarded by some as unfair (or, perhaps,
as contrary to the wider social interest in preserving the
traditional identities of communities). As the Supreme Court
stated in the recent case of JSC BTA Bank v Ablyazov,7 the
 elements of the established economic torts are carefully defined
so as to avoid trespassing on legitimate business activities and
should not impose any wider liability than can be justified in
principle. Tort law will therefore only provide a remedy for
unfair trading practices in certain very limited circumstances. It
is to these that we now turn.

Inducing a Breach of Contract

12–003 This tort is committed where A, knowing of a contract between

B and C, and intending that it should be breached, persuades B
to breach that contract, and as a result B does breach the
contract, causing loss to C. Actual breach of contract is
obviously an essential requirement of this tort and the claim will
fail if the contract in question was void or voidable.8
Liability for inducing a breach of contract was established in
the famous case of Lumley v Gye.9 The defendant, Mr Gye, was
the proprietor of a theatre. He wished to secure the services of a
certain opera singer by the name of Miss Wagner, who was, at
the time, under a contract to sing for the plaintiff, Mr Lumley.
Mr Gye offered Miss Wagner a large sum of money to break this
contract. When she did so and performed in Mr Gye’s theatre,
the plaintiff brought an action claiming that Mr Gye had
unlawfully induced Miss Wagner to breach her contract,
thereby causing him financial loss. The court upheld this claim,
holding that a person who procures another to commit an
actionable wrong10 (in this case a breach of contract) is liable as
an accessory.
Note that the essence of the Lumley v Gye tort is that the
defendant, by approaching and persuading, joins with the
contract-breaker in committing a wrong against the claimant—
 the breach thereby has the flavour of a joint enterprise. This is
what justifies the imposition of accessory liability. Liability
cannot be established simply on the basis that the defendant has
factually caused non-performance of the contract (say, by
making available to the contract-breaker, without persuasion, a
more attractive deal). It will also help with our understanding at
this stage if we remember that there is no tort of inducing lawful
termination of a contract.11 On this basis where a representative
of an energy company knocks at your door and persuades you to
“switch” service providers, the tort is not committed, because
their intention is that you should lawfully terminate your contract
with your existing provider.
For the Lumley v Gye tort to be established, the defendant
must:
▮ know of the existence of the contract;
▮ know that his or her behaviour will (if acted on) induce
a breach; and
▮ intend to induce that breach.

It is worth considering each point in turn:

The defendant must know of the existence

of the contract

12–004 This requirement is fairly straightforward. The simple point is

that there can be no liability where A does something which
causes the breach of a contract between B and C unless A knows
that there is such a contract. The point is illustrated by the
decision in Smith v Morrison.12 Here, the first defendant (a
farmer) accepted a deposit from the plaintiff in respect of the
sale of his farm. In the particular circumstances of the case, he
did not believe that this constituted a binding contract to sell the
farm. He subsequently sold the farm to the second defendant (a
company) which shared his belief that the previous dealings did
 not amount to a contract. In the action, the plaintiff claimed,
amongst other things, that the second defendant had induced
a breach of contract by dealing with the first defendant.
However, Plowman J accepted the company’s evidence that it
had honest and genuine doubts about the existence of any valid
previous contract to sell the farm. In these circumstances, there
could be no liability for inducing a breach of contract.
The requirement of knowledge of the existence of a contract
is, of course, necessary to fulfil the requirement that interference
with the contract must be intentional. As Lord Nicholls put it in
OBG v Allan13: “Intentional interference presupposes
knowledge of the contract”. In many situations, however, A may
know that B and C have a contractual relationship, but may not
fully appreciate its terms. A may therefore not realise (and so
not intend) that persuading B to act in a certain way will result in
a breach. (A may think, for example, that B’s conduct will result
in terminating the contract lawfully.) In these circumstances, A
cannot normally be liable.

The defendant must know that the induced

conduct will amount to a breach

12–005 As has been said, the defendant must normally know that his or
her inducement will (if acted on) result in a breach of contract.
In order for this to be so, two things are necessary:
▮ the defendant (A) must have knowledge of any relevant
contractual terms that might be broken if B acts in
response to the inducement; and
▮ the defendant (A) must realise that the legal effect of B
taking the induced course of conduct vis-à-vis C will be
to put B in breach of those terms.

◗ Knowledge of the contractual terms

12–006 The defendant (A) must normally have knowledge of the
contractual term(s) between B and C that might be broken as a
result of dealing with B. Such knowledge can sometimes be
inferred from the fact that the defendant is familiar with the
usual terms incorporated into contracts of the relevant kind.14
Yet, where this is not the case, the law will not fix A with
constructive knowledge of the contractual term(s) just because A
has dealings with B but carelessly fails to make appropriate
inquiries about the extent of B’s contractual obligations to C.15
The position is different,
however, where A’s failure to acquire the relevant knowledge
results from deliberately “turning a blind eye” (i.e. where A
deliberately refrains from making inquiries because of a
suspicion that they would reveal something to A’s disadvantage.)
Thus, in Emerald Construction Co Ltd v Lowthian,16 union
officers (A) took unlawful industrial action against a building
contractor (B) with the purpose of inducing it to terminate its
arrangements with the plaintiff (C) for the supply of labour. One
of the issues in the case was whether the union officers knew
that, if B terminated these arrangements with C, it would amount
to a breach of contract. The union officers had had sight of the
contract between B and C, but had not investigated its terms.
Lord Denning MR said:

“Even if they did not know of the actual

terms of the contract, but had the means of
knowledge—which they deliberately
disregarded—that would be enough. Like
the man who turns a blind eye. So here, if
the officers deliberately sought to get this
contract terminated, heedless of its terms,
regardless of whether it was terminated by
breach or not, they would do wrong.”17
 Similarly, in the recent case of One Money Mail Ltd v Ria
Financial Services,18 the Court of Appeal held that the
defendants had known of the exclusivity provision in Mr
Wasilewski’s contract with the claimants which prevented him
from working for competing firms. This was despite the fact that
Mr Wasilewski had told them that he “thought” that there was no
such restriction (it did not help that Mr Wasilewski had a limited
command of English when he signed his contract with the
claimants and so could not be relied upon to have read and
understood all the provisions in a closely printed ten page
contract). Even if true “knowledge” could only be obtaining by
reading the contract itself, evidence indicated that the defendants
knew that all agents working for the claimants operated on an
exclusive basis and so it could not rely on turning a blind eye. In
the circumstances, Ria were found to have known of (or at least
been reckless as to) the existence of the exclusivity clause.

◗ Knowledge of the legal effect of the induced

conduct
12–007 In some situations, the defendant (A) may know about the
relevant contractual terms between B and C, but not realise that,
as a matter of law, B will be in breach these terms by responding
to the inducement. Addressing this sort of situation, Lord
Hoffmann, in OBG v Allan, said:

“To be liable for inducing a breach of

contract, you must know that you are
inducing a breach of contract. It is not
enough that you know

that you are procuring an act which, as a

matter of law or construction of the
 contract, is a breach. You much actually
realize that it will have this effect.”19

There can therefore be no liability in a case where the defendant

(A) is honestly mistaken about the legal effect of B’s actions on
B’s contract with C. Such was the case in British Industrial
Plastics Ltd v Ferguson.20 Here, a former employee (B) of the
plaintiff company (C) offered the defendant (A) information
about one of the company’s secret processes which he (B) had
invented while working for the company. The defendant knew
that the employee had a continuing contractual obligation to the
company not to reveal trade secrets. However, he dealt with the
employee in the honest (but mistaken) belief that this obligation
did not, in law, extend to patentable processes, so that dealing
with the employee would not give rise to a breach of contract.
In the Court of Appeal, McKinnon LJ observed that, in
accepting this evidence, the trial judge had “vindicated [the
defendant’s] honesty . . . at the expense of his intelligence”.21
The House of Lords agreed, however, that the defendant’s lack
of intelligence about the law was nothing to the point—he could
not be liable unless he had actually known that the legal effect of
the employee’s conduct would be a breach of contract.

The defendant must “intend” to induce the

breach

12–008 The Lumley v Gye tort is a tort of intention. It is not sufficient

for liability that a defendant’s dealings cause a breach of
contract if that is not what was intended. As Lord Nicholls put it
in OBG v Allan:
 “Causative participation is not enough. A
stranger to the contract may know nothing
of the contract. Quite unknowingly and
unintentionally he may procure a breach of
the contract by offering an inconsistent deal
to a contracting party which persuades the
latter to default on his contractual
obligations. The stranger is not liable in
such a case. Nor is he liable if he acts
carelessly. He owes no duty of care to the
victim of the breach. Negligent interference
is not actionable.”22

◗ What counts as “intending”?

12–009 The difficult question, of course, is to what extent a defendant
can be said to “intend” a breach of contract where that is not
what he or she necessarily desires, but is nevertheless the
foreseeable, probable or inevitable consequence of taking a
particular course of action. Before the decision in OBG v Allan,
the law on this point was extremely confused. The leading case,
Millar v Bassey,23 was a Court of Appeal decision concerning
the well-known singer, Shirley Bassey. She breached a recording
contract, knowing that this would result in her record company
having to breach its contracts with the plaintiffs—a record
producer and a group of musicians who had already been
engaged to make the record. A majority of the Court of Appeal
declined to strike out the plaintiffs’ action. Beldam LJ thought
that Miss Bassey might be said to have “intended” those
breaches, even though she had not “desired” them.24
This approach, however, was disapproved of by the House of
Lords in OBG v Allan. Explaining the correct approach to be
taken, Lord Hoffmann said that it was necessary to distinguish
between “ends, means and consequences”. In the first two cases,
there would be liability, but not in the third. Thus, in the first
case, it is conceivable (though it would be unusual) that a
defendant might desire the breach purely as an end in itself, to
serve some spiteful purpose. Here, there would be the required
degree of intention. Equally, in the second (usual type of) case,
the necessary intention will be present. Here, the defendant does
not desire the breach as an end in itself, but only as the means of
achieving a different end (usually his or her own enrichment or
advantage). As Lord Hoffmann put it:

“If someone knowingly causes a breach of

contract, it does not normally matter that it
is the means by which he intends to achieve
some further end or even that he would
rather have been able to achieve that end
without causing a breach. Mr Gye would
very likely have preferred to be able to
obtain Miss Wagner’s services without her
having to break her contract. But that did
not matter.”25

In the third type of case, however, the defendant neither desires

the breach as an end in itself nor as a means of achieving a
further end. This was the situation in Millar v Bassey. The
breaches of the contracts with the producer and musicians were
not a means by which Miss Bassey sought to achieve her desired
end (freedom from her own recording obligations), nor, of
course, were they a desired end in themselves. Their Lordships
in OBG v Allan thought that, this being so, Miss Bassey could
not be said to have “intended” those breaches in the necessary
 sense. The Court of Appeal had therefore been wrong to allow
the action to proceed.

◗ Must the defendant intend to cause loss?

12–010 It will suffice if the defendant intends to cause a breach of
contract. There is no further requirement that the defendant must
intend to cause loss to the claimant.26 Thus, for example, in
South Wales Miners’ Federation v Glamorgan Coal Co Ltd,27
the defendant, a miners’ union, was held liable for inducing
breaches of contracts between miners and their employers when
it instructed the miners to stop work for a time. The union’s
purpose was to restrict the supply of coal, in order to keep the
price of coal high (thereby maintaining the level of miners’
wages, which were paid by reference to that price). Maintaining
the price of coal, of course, would also be of benefit to the
employers. It was clear, therefore, that the union did not intend
to cause the employers any loss as a result of their members’
actions. However, when, in the event, some loss was suffered,
the union was liable—it was sufficient that it had intended to
cause breaches of contract, and its conduct could not be excused
on the basis that it had not intended to cause any loss. (Note,
however, that the tort of “causing loss by unlawful means”—
discussed below— does require an intention to cause the
claimant loss.)

What counts as “inducing”?

12–011 To be liable for the Lumley v Gye tort of “inducing” (or

“procuring”)28 a breach of contract, there must be a sufficient
causal connection between the behaviour of the defendant (A)
and the actions of the third party (B) in breaching his or her
contract with C. Since liability under the tort is “accessory”
liability, the applicable principles are to be found in other cases
dealing with the question of when a defendant can be liable as
an accessory to a civil wrong committed by another.29 In the
 leading case of Fish & Fish Ltd v Sea Shephard UK,30 for
example, Lord Toulson indicated that to establish accessory
liability in tort, “it is not enough to show that D did acts which
facilitated P’s commission of the tort. D will be jointly liable
with P if they combined to do or secure the doing of acts which
constituted a tort”. In essence, these cases hold that the
defendant must “join with” the other person to commit the
wrong, in furtherance of some shared purpose. We can see that
this was true in Lumley v Gye, since both Mr Gye and Miss
Wagner sought to achieve the same purpose–namely that she
would sing for Mr Gye instead of the plaintiff.
By contrast, no such common purpose existed in CBS Songs
v Amstrad Consumer Electronics Plc.31 This case concerned
(amongst other things) an allegation of procuring (or
“inducing”)
copyright infringement. The defendants manufactured and
marketed a hi-fimusic centre featuring an integrated record-
player, radio, and twin cassette-deck with high-speed dubbing.
This equipment could be used by members of the public to copy
commercial broadcasts, records and tapes. Lord Templeman,
giving the leading speech in the House of Lords, held that the
defendants’ conduct could not be regarded as analogous to the
situation in Lumley v Gye—merely making available the means
of committing a wrong was not the same as jointly committing
that wrong. It could not be said that the defendants’ purpose in
selling such equipment was to infringe copyrights (though this
might, of course, be the purpose of people who bought the
machines).

Defences to inducing a breach of contract

12–012 The Trade Union and Labour Relations (Consolidation) Act

199232 sets out a number of defences to the economic torts,
including the Lumley v Gye tort. Detailed consideration of the
circumstances in which these defences operate is beyond the
scope of this book. For present purposes it will suffice to note
 that, because most forms of industrial action involve breach of a
contract of employment, in the absence of such statutory
protection it would be impossible for a trade union to encourage
its members to take industrial action without exposing itself to a
claim by the employer for inducing a breach of contract.
In addition to the statutory defences, there is the common
law defence of “justification”. This can operate in a number of
different circumstances, as follows:

◗ Where the defendant has an equal or superior

right to the third party’s performance
12–013 This form of justification will arise where the third party (the
contract-breaker) has, under a previous contract, assumed
obligations towards the defendant which are inconsistent with
performing the contract with the claimant. In such a case, it can
be said that the defendant has an equal or superior legal right to
the third party’s services which justifies inducing the third party
to breach.33

◗ Where the defendant has statutory authority to

interfere with the contract
12–014 In Stott v Gamble,34 for example, a licensing authority,
constituted under the Cinematograph Act 1909, had a statutory
power to prevent films they considered “objectionable or
indecent” from being shown in theatres. The plaintiffs,
distributors of a film called “Five Nights”, had a contract with a
theatre-owner under which a fee was to be paid when the film
was shown. As a result of the licensing authority’s decision to
ban the film, the theatre-owner did not show the film or pay the
fee. The plaintiffs’ action against the licensing authority failed.
Horridge J held that the licensing authority had not sought to
cause the breach “for their own ends” (as required by Lumley v
Gye) but had done so to serve a statutory purpose.
 ◗ Where the defendant has a moral or social duty to
interfere with the contract
12–015 In Brimelow v Casson35 the defence of justification succeeded
when the defendant (a trade union official) induced a number of
women employed as actresses to breach their contracts of
employment. The defendant argued that he was morally justified
in taking this action because the women’s wages were so low
that they were compelled to supplement their income by
prostitution.
This form of the defence, however, is of quite limited scope.
It will not cover a situation where trade union officials merely
seek to improve workers’ wages or conditions,36 and is probably
confined to extreme circumstances such as those in Brimelow v
Casson where (as Goff LJ subsequently put it) “the conduct of
the party whose contracts were interfered with was utterly
disgraceful and the circumstances produced were in the nature of
a public scandal”.37

Causing Loss by Unlawful

Means

12–016 The key elements of this tort were examined by Lord Hoffmann
in OBG v Allan. His Lordship said:

“The essence of the tort . . . appears to be

(a) a wrongful interference with the actions
of a third party in which the claimant has
an
 economic interest and (b) an intention
thereby to cause loss to the claimant.”38

This general formulation can be taken to encompass the types of

wrongdoing that were formerly regarded as the commission of
the separate economic torts known as “interference with
contractual relations” and “intimidation”.39
The “unlawful means tort” differs from the “Lumley v Gye
tort” in that the defendant does not “join with” the third party in
committing a wrong against the claimant. Rather, the defendant
acts independently to bring about the claimant’s loss by doing
something unlawful vis-à-vis the third party, which affects the
third party’s ability to deal with the claimant. Liability for
commission of the unlawful means tort is therefore primary or
“stand alone” liability, rather than accessory liability.
In summary, to establish the unlawful means tort, the
following three things must be shown:
▮ the defendant must take some action in relation to the
third party which is “unlawful” in the relevant sense;
▮ the action in question must affect the third party’s
freedom to deal with the claimant; and
▮ the defendant must intend to cause the claimant loss.

We consider each proposition in turn:

The defendant’s actions must be

“unlawful” in the relevant sense

12–017 A memorable example of “unlawful” conduct towards third

parties giving rise to liability is to be found in the early case of
Tarleton v McGawley.40 Here, the plaintiff, wishing to trade with
the native inhabitants of Cameroon, had anchored his ship near
the shore, loaded with trading goods. As the inhabitants
approached the ship in their canoes, the defendant, the master of
a rival trading ship, thought to secure their trade exclusively for
himself. He therefore fired a cannon at them, intending to
frighten them off and deter them from trading with the plaintiff.
This unlawful act produced the desired effect, and the plaintiff
suffered economic loss when
the inhabitants refused to trade with him. The court held that the
plaintiff could recover this loss from the defendant.
Under the modern law (somewhat confusingly perhaps), not
every form of conduct that is against the law will count as
“unlawful” for the purpose of establishing the tort of “causing
loss by unlawful means”.41 As Lord Walker observed in OBG v
Allan, in deciding what sort of actions should count as
“unlawful” for this purpose, it is necessary for the law to
identify a suitable control mechanism “to stop the notion of
unlawful means getting out of hand”. Otherwise (to use his
Lordship’s example) there might be liability in tort where, say, a
pizza delivery business obtains more custom, to the detriment of
its competitors, because its drivers regularly exceed the speed
limit or jump red lights.42
The majority43 in OBG v Allan agreed that a suitable way of
confining the scope of the unlawful means tort was to insist that
actions by the defendant will only count as “unlawful” if they
are independently actionable at the suit of the third party against
which they are directed. Examples would include breach of
contract and torts such as trespass to the person. Lord Hoffmann
added one qualification—this would extend to unlawful means
even if they were not technically actionable because the third
party had suffered no loss.44 On this basis, the “intimidation”
scenario (see below) would be included, even if, despite the
threat, the third party suffers no loss by submitting to the threat
and the only loss suffered falls on the claimant. It is nevertheless
unlawful means.
Taking this approach rules out liability in Lord Walker’s
pizza delivery example, because the conduct in question, though
it involves the commission of criminal offences, is not
 actionable at the suit of the third parties affected by it (the
customers who buy pizzas with a faster delivery time, to the
detriment of the claimant). Moreover, there can be no liability in
such a case because the conduct in question does not affect the
freedom of the third parties to deal with the claimant (see below)
—the customers can still order a slower, lawfully-delivered
pizza if they want to.
By contrast, such an approach would allow for liability in a
case where (to extend Lord Walker’s example) a pizza business
prevented customers from contracting to buy pizzas from a rival
by, say, unlawfully detaining the rival’s customers or threatening
them with violence.45
This sort of unlawful conduct gives rise to a cause of action at
the suit of the third parties (trespass to the person), and affects
their freedom to deal with the claimant.

The defendant’s actions must affect the

third party’s freedom to deal with the
claimant

12–018 This requirement explains why the courts have refused to

impose liability in the so-called “bootlegging” cases. In RCA
Corp v Pollard,46 for example, the plaintiff company had the
exclusive right to exploit records made by Elvis Presley. The
defendant sold bootleg records that had been made without
consent at Elvis concerts before his death. The plaintiff company
claimed that this activity amounted to an unlawful interference
with the contractual relationship between it and the Presley
estate, and had the potential to cause the company loss, in the
form of lost sales of authorised Elvis records. The Court of
Appeal declined to hold the bootlegger liable for causing loss by
unlawful means. Although bootleg recording was a criminal
offence, it did not interfere with the Presley estate’s freedom to
deal with the company—it made no difference to the estate’s
ability to honour its contractual obligation to the company,
 because that obligation was merely an undertaking not to
consent to the exploitation of Elvis recordings by persons other
than the plaintiff. In other words, there could be no liability
because, in spite of the bootlegger’s activity, the third party (the
estate) was still free to deal with the plaintiff on the same terms
as it always had done.
More recently, in Secretary of State for Health v Servier
Laboratories Ltd,47 Servier had obtained a European patent for a
drug from the European Patent Office (EPO) and obtained an
injunction from an English court to stop another company
selling a generic version in the UK. Following further court
proceedings, the patent was declared invalid in the UK and was
later revoked by the EPO. Servier were sued by the claimants for
causing them loss by unlawful means—namely that by obtaining
the patent/injunction with fraudulent misrepresentations, they
had used unlawful means in a way which caused the NHS loss
(it had been unable to buy generic drugs which were cheaper
generally to purchase than patented drugs). The Court of Appeal
struck the case out. Following OBG, interference by the
defendant with the liberty of a third party to deal with the
claimant was an essential element of the tort. The claimants
could not show that the liberty of either the EPO or the English
court to deal with the claimants had been affected.

The defendant must intend to cause the

claimant loss

12–019 Without an intention to cause the claimant loss, there can be no

liability, even if the loss is the inevitable result of the
defendant’s actions. Mere causative participation in the
circumstances
producing the loss will not suffice. Thus, for example, if you
always drive to the supermarket on Saturday afternoons, but one
Saturday I crash into your car—inevitably resulting in loss of
custom for the supermarket—I will not, without more, be liable
to the supermarket. This is because the essence of the unlawful
means tort is that I must intend to “strike at” the supermarket
through you—it will not be sufficient if I simply could not care
less whether you get to the supermarket or not.
As with the Lumley v Gye tort, it is necessary here to
distinguish between “ends, means and consequences”. Intention
will be established in the first two cases, but not in the third. In
some cases, therefore, it will be sufficient if the defendant’s
principal desire (the “end”) is personal enrichment, and injuring
the claimant through the third party is only a means of achieving
this end. Thus, as Lord Hoffmann explains in OBG v Allan, the
ship’s master who fired the cannon in Tarleton v McGawley:

“. . .may have had nothing against the other

trader. If he had gone off to make his
fortune in other waters, he would have
wished him well. He simply wanted a
monopoly of the local trade for himself. But
he nevertheless intended to cause him
loss.”48

By contrast, there will be no “intention” in cases where the loss

is only a foreseeable consequence. For example, in Barretts &
Baird (Wholesale) Ltd v Institution of Professional Civil
Servants49 the defendant trade union called a strike by civil
servants in the Ministry of Agriculture in support of a pay claim.
As a result, the plaintiffs, an abattoir, were unable to obtain
certificates necessary for exporting meat and claiming subsidies.
The defendants could not be liable, however, because causing
economic loss to the abattoir was neither the purpose of the
strike nor was it desired as a means of achieving that purpose.
 Ways of committing the unlawful means
tort
12–020 It will be instructive here to consider a number of scenarios in
which, under the old law before OBG v Allan, the courts used to
say that defendants were liable for committing the economic
torts of “interference with contractual relations” and
“intimidation”. Considering these scenarios will show us how
these old economic torts were really just different ways of
committing the modern tort of causing loss by unlawful means.

◗ The “interference with contractual relations”

scenarios
12–021 Before OBG v Allan, it used to be said that there could be two
additional “indirect” ways of committing the Lumley v Gye
tort.50 Thus, under the old law, the Lumley v Gye tort could
actually be committed in three ways:
(1) The “classic” or “direct” form of the tort (the only form
that now survives) was committed where the defendant
made a direct approach to the third party and persuaded
or procured (“induced”) the third party to breach a
contract with the claimant (as in Lumley v Gye itself).
(2) One of the (old) “indirect” forms was committed where
the defendant brought about the breach by doing
something else (other than “inducing”) in relation to
one of the contracting parties (e.g. taking away a party’s
tools so they could not perform the contract).51
(3) Another of the (old) “indirect” forms was committed
where the defendant (a trade union) induced a breach of
“Contract A” (e.g. between workers and employer), so
as to prevent performance of “Contract B” (e.g.
between employer and customer), intending to cause
 loss to the customer as a means of putting pressure on
the employer.52

The courts had held that the “indirect” forms of the Lumley v
Gye tort (scenarios 2 and 3) amounted to the commission of a
tort called “interference with contractual relations”. They had
also held that it was a requirement in such cases that the
defendant must have used “unlawful means” to interfere with the
contract—e.g. trespass to goods in scenario 2, or the “direct”
form of the Lumley v Gye tort (which would suffice as “unlawful
means”) in scenario 3.
However, in OBG v Allan, Lord Hoffmann (with whom the
majority agreed) stated:

“. . . the distinction between direct and

indirect interference is unsatisfactory and it
is time for the unnatural union between the
Lumley v Gye tort and the tort of causing
loss by unlawful means to be dissolved.”53

Nowadays, therefore, we can say, much more simply, that

scenarios 2 and 3 are just examples of the tort of “causing loss
by unlawful means”. The wrongs in question are actionable
because they meet the requirements of this tort, as set out in
OBG v Allan, not because they represent “extensions” of the
Lumley v Gye principle.

◗ The “intimidation” scenario

12–022 The classic example of the old tort of “intimidation” is Rookes v
Barnard.54 The plaintiff was employed by BOAC. The three
defendants were union officials. There was an informal
agreement between the union and BOAC that all employees
 would belong to the union. When the plaintiff resigned from the
union, the defendants threatened BOAC with an unlawful strike
unless they dismissed him. BOAC gave in to this threat, and
lawfully brought the plaintiff’s contract to an end. The plaintiff
had no remedy against BOAC for breach of contract because he
had been dismissed lawfully. He therefore brought an action
against the defendants. The House of Lords held that the
defendants had committed the tort of intimidation against the
plaintiff. This tort would be established where a defendant
threatened to use unlawful means against a third party to compel
that third party to act in such a way as to cause economic loss to
the claimant.
If we re-examine Rookes v Barnard, using the language of
OBG v Allan, we can see that its facts will fit within the rules for
establishing the modern unlawful means tort. First, the threat of
a strike would clearly count as “unlawful” because it was
potentially actionable as a breach of contract by the third party
(BOAC). Secondly, the threat clearly affected BOAC’s ability to
deal with the plaintiff (they could no longer employ him). Lastly,
the defendants intended to cause loss to the plaintiff (have him
dismissed), albeit that causing this loss was only a means of
securing their primary objective of maintaining a union-only
workforce.

The modern torts applied: the OBG v

Allan appeals

12–023 In OBG v Allan the House of Lords decided three appeals. It will
be convenient here to note how the modern torts were applied in
the factual context of each case.

◗ Mainstream Properties Ltd v Young

12–024 Here, two employees of the claimant property company, in
breach of their contracts of employment, diverted a development
opportunity to another company which they ran. The defendant,
 who provided financial assistance for this transaction, knew that
the employees worked under contracts with the claimant
company, but accepted the employees’ assurances that their
involvement in the transaction would not put them in breach of
those contracts. Their Lordships dismissed the claimant
company’s contention that the defendant’s actions should
amount to inducing a breach of contract. On the facts, whilst the
defendant had known about the existence of the contracts, he
had not known (or turned a blind eye to) their terms. Therefore,
it could not be said that he had intended to cause the breaches.

◗ OBG v Allan
12–025 In this case, the defendants were official receivers, who, it
turned out, had been wrongly appointed. Acting in good faith,
however, the receivers took control of the claimants’ company
and so caused them loss that would not have resulted if the
company had continued to trade normally. The claimants argued
that the receivers’ actions amounted not only to trespass to their
land and conversion of their goods,55 but to the commission of
an economic tort involving interference with contractual
relations. Their Lordships held that, under the rules of the
modern unlawful means tort, such a claim could not succeed.
The receivers had not done anything unlawful (in the relevant
sense) when dealing with the company’s assets. Moreover, since
they had acted in good faith, the receivers had not intended to
cause loss to the claimants.

◗ Douglas v Hello!
12–026 This appeal concerned the publication of wedding photographs
of the film-stars Michael Douglas and Catherine Zeta-Jones. The
magazine “OK!” had contracted with the Douglases for the
exclusive right to publish photos of the wedding. The defendants
—a rival magazine called “Hello!”—published photographs that
it knew had been taken secretly at the wedding by an
unauthorised photographer pretending to be a waiter. This, of
 course, deprived “OK!” of their “scoop” and caused them loss,
in the form of lost magazine sales. “OK!” claimed that “Hello!”
were liable for misuse of confidential information,56 and also for
the tort of causing loss by unlawful means. Their Lordships held
that the unlawful means claim could not
succeed. The defendants’ actions in publishing the secret
pictures had not interfered with the third parties’ ability to deal
with the claimant (the Douglases were not actually prevented
from honouring their agreement to supply “OK!” with wedding
pictures). This meant that one of the essential ingredients for
establishing the modern tort was missing.

Conspiracy

12–027 The tort of conspiracy57 has two forms:

▮ unlawful means conspiracy; and
▮ lawful means conspiracy (also known as “conspiracy to
injure” or “simple conspiracy”).

Both forms share the requirement that two or more defendants

must “combine” with a common purpose so as to cause the
claimant loss. Usually, this means that the defendants will agree
to pursue a common course of action, but there is no need for an
express agreement between them.58

Unlawful means conspiracy

12–028 This tort is committed where two or more defendants act
together with a shared intention of using “unlawful means” to
 cause loss to the claimant. The elements of unlawful means
conspiracy are, then, as follows: (i) an agreement between one
or more people to act unlawfully or to use unlawful means; (ii)
these people act with the intention of causing damage to the
claimant; and (iii) the claimant must suffer damage.59 Until quite
recently, the rules of this tort were rather uncertain. Much ink
had been spilt by judges and academics alike in discussing two
things:
▮ What degree of “intention” should be required?
▮ What should count as “unlawful means”?

It will be helpful to examine these two issues in the light of a

number of recent decisions that have clarified the law.

◗ What must the conspirators intend?

12–029 A distinction must first be drawn between the different degrees
of intention required for the two different forms of conspiracy.
To establish “lawful means conspiracy” (discussed below) the
conspirators must intend to injure the claimant in the sense that
this is their predominant purpose. (This effectively limits the
application of “lawful means conspiracy” to very rare situations
where the defendants act purely out of malice.) However, to
establish “unlawful means conspiracy” it is sufficient if the
conspirators “intend” to injure the claimant in the wider OBG v
Allan sense that they intend to do so only as a means of
achieving an end (usually their own enrichment).60 It is not,
therefore, a problem that their predominant motive was their
own self interest. It is clear from the decision of the Court of
Appeal in Meretz Investments v ACP Ltd61 that what is said in
OBG v Allan about intention in the context of the “causing loss
by unlawful means” tort applies equally in the context of
“unlawful means conspiracy”. Thus, the conspirators must
intend not simply that unlawful means will be used—they must
also intend to cause the claimant loss.
 Although the conspirators must share the relevant degree of
intention or “common design”,62 they do not all have to share
the same degree of participation in the use of the unlawful
means. Indeed, the whole purpose of invoking the tort of
conspiracy is to attribute to all conspirators responsibility for
actions committed by other members of the conspiracy. Thus,
for example, where A and B conspire to ruin C’s business by
shooting all his customers, but B acts alone in firing the gun, A
may be liable to C in conspiracy, even though A has not
committed the unlawful act.63 In this example, of course, one of
the conspirators (B) has also committed the tort of “causing loss
by unlawful means”. Invoking the tort of conspiracy here simply
has the effect of creating secondary liability for that tort, and so
widening the class of potential defendants.
In the recent past, it was sometimes said that “unlawful
means conspiracy” was a tort of
rather limited usefulness, because its only function seemed to be
to impose secondary liability for committing the tort of “causing
loss by unlawful means”. In other words, whenever the tort was
invoked, it was merely an “added extra”, because one or more of
the conspirators would turn out to be liable anyway for “causing
loss by unlawful means”.64 However, the recent House of Lords
decision in Total Network SL v Revenue and Customs
Commissioners65 shows us that the tort is, in fact, much more
useful than this. First, it can be used in situations where it is
extremely unlikely that a single defendant acting alone would
have been able to cause the loss in question. Secondly, because
of the extended meaning given to the phrase “unlawful means”,
it can be used in situations where none of the conspirators has
actually committed the unlawful means tort.

◗ What counts as “unlawful means” for the

purpose of establishing this tort?
12–030 In Total Network SL v Revenue and Customs Commissioners the
defendants had perpetrated a complex VAT fraud—known as a
“carousel fraud”—with the intention of obtaining tax rebates
from the Revenue to which they were not entitled. For technical
reasons, the Revenue were unable to use statutory procedures to
reclaim the money they had wrongly paid out. They therefore
sought to recover the money in an action for “unlawful means
conspiracy”. The Court of Appeal thought that, in principle,
such an action ought to succeed. The problem, however, was that
what the defendants had done, although a criminal offence, was
not actionable in civil law as a tort. This meant that, according to
existing authority,66 it could not qualify as “unlawful means” for
the purpose of establishing the tort. The relevant cases had held
(as in OBG v Allan) that not every illegal act would count as
“unlawful means”—an act would only count as “unlawful” if it
was unlawful in the special sense of being actionable in civil
law. The Court of Appeal therefore felt constrained to decide the
issue in the defendants’ favour, but gave leave to the Revenue to
appeal to the House of Lords.
In the House of Lords, Lord Walker observed that the
development of the economic torts had been “a long and difficult
process” that had resulted in some confusion. A particular dif-
ficulty, he said, was that:

“. . . it has been generally assumed,

throughout the 20th-century cases, that
“unlawful means” should have the same
meaning in the intentional harm tort and in
the tort of conspiracy.”67

His Lordship went on to explain, however, that this assumption

was unnecessary—there was no reason why “unlawful means”
could not mean different things for the purposes of the two
different torts.
Following this reasoning, the House of Lords concluded that,
in the context of the tort of “unlawful means conspiracy”, the
phrase “unlawful means” can have a wider meaning than it does
in the context of the tort of “causing loss by unlawful means”.
For the latter tort, following OBG v Allan, the defendant’s
actions must be “unlawful” in the special sense that they are
actionable in civil law by the party against whom they are
directed, and affect that party’s ability to deal with the claimant.
However, this restrictive meaning of “unlawful” does not apply
in the context of “unlawful means conspiracy”. It is sufficient to
establish this tort if the conspirators have merely done
something unlawful in the wider sense, for example, criminal
conduct (at common law or statute). On this basis, the
defendants in the case could be held liable. The commission of a
criminal offence could be a sufficient unlawful means for the
purpose of the law of conspiracy, provided it was objectively
directed against the claimant.
The Supreme Court reviewed this position in JSC BTA Bank
v Ablyazov.68 Here the Court was asked whether contempt of
court, specifically dealing with assets subject to a freezing order
against the bank’s former Chairman (C), amounted to “unlawful
means” for the purposes of the tort of conspiracy. The bank had
brought a claim against the son-in-law of C on the basis that he
had conspired with C (who had since disappeared) to breach the
freezing order by helping him conceal his assets. Contempt of
court is not a tort but a criminal offence punishable in civil
proceedings, but the Supreme Court nevertheless found it to
amount to unlawful means.69 The defendants had intended to
damage the claimant’s interests and while damage to the bank
was not the predominant purpose of the concealment, the
damage was more than incidental—it had prevented the claimant
from enforcing its order against C. In the words of Lords
Sumption and Lord Lloyd-Jones:

Conspiracy being a tort of primary liability,

the question what constitute unlawful
means cannot depend on whether their use
 would give rise to a different cause of action
independent of conspiracy. The real test is
whether there is a just cause or excuse for
combining to use unlawful means. That
depends on (i) the nature of the
unlawfulness, and (ii) its relationship with
the resultant damage of the claimant.70

12–031 The problem with the approach in Total Network SL and JSC
BTA Bank, of course, is that it raises the prospect of widespread
liability for unlawful means conspiracy. The Court openly
recognised in JSC BTA Bank that the reasoning in Total Network
leaves open the question how far it should apply to non-criminal
acts, such as breaches of statutory duty, contract or fiduciary
duties—this will need to be resolved in future cases. It will be
recalled that, in OBG v Allan, Lord Walker noted that a
restricted definition of “unlawful means” was needed in order to
stop liability for “causing loss by unlawful means” from getting
out of hand. Thus, where a pizza delivery business employs
motorcyclists who exceed the speed limit and jump red lights
(criminal offences), intending to take custom away from a rival,
no action will lie, because the “unlawful means” in question are
not actionable in civil law. But what if (as seems not unlikely)
the owners, managers, chefs and motorcycle-riders involved in
the defendant pizza business are all acting in combination, with
a common intention to enrich themselves at the claimant’s
expense by breaking the law? Surely then we have an “unlawful
means conspiracy” in the terms allowed by Total Network SL?
Leading academic, Hazel Carty, has expressed real concern that
lawyers will try to rely on the wider definition of “unlawful
means conspiracy” to circumvent the limits of the tort of causing
loss by unlawful means, arguing that it will not be too difficult
to prove the conspiracy element when the claimant can place the
intentional economic harm in a corporate context.71 Her view is
that the economic torts should remain a modest common law
contribution to policing excessive competitive behaviour and no
more.
There are potentially two ways in which this problem of
expansive liability might be avoided. The first is to confine the
application of the new, wider, meaning of “unlawful means” to
situations where the criminal offences committed are breaches of
criminal laws designed specifically for the protection of the
claimant’s interests. On this basis, it would, as in Total Network
SL, be a conspiracy where defendants combine to defraud the
Revenue by committing the offence of common law “cheat”
(specifically preserved in revenue cases by Theft Act 1968
s.32(1)(a)) because the very reason that offence exists is to
protect the Revenue from loss of money. Equally it can be
argued that the crime of dealing with assets subject to a freezing
order in contempt of court protects not only the authority and
dignity of the court, but also the claimant’s interest in the
defendant’s assets. On the other hand, it would not be a
conspiracy to combine to exceed the speed limit or jump red
lights with an intention to injure the claimant’s business, because
the criminal offences in question are not designed to protect the
claimant from economic loss, but to serve very different
purposes.
The second is to limit the application of the tort in its wider
form to situations where the unlawful conduct was directed
against the claimant and the injury was not incidental. In the
pizza example, the injury to third parties (customers, or other
road users) is indirect and any damage incidental to the
defendants’ purpose of “striking at” the claimant’s business
through the third parties. This seems to find favour in JSC BTA
Bank,72 although its lack of precision is self-evident.
The reasoning of their Lordships in Total Network SL and
JSC BTA Bank suggest that either
or both of these approaches might serve as a suitable control
mechanism to confine the scope of liability in future cases.
 Lawful means conspiracy
12–032 The anomalous73 tort of “lawful means conspiracy” is
committed where two or more persons in combination
intentionally cause loss to the claimant by acts that would be
perfectly lawful if done by one person alone. Essentially, the tort
makes defendants liable for “ganging up” on the claimant for no
good reason and exercising their (lawful) rights in such a way as
to cause the claimant loss. The tort’s distinguishing feature is
that, to establish liability, it must be shown that causing the
claimant loss is the defendants’ predominant purpose—if it can
be shown that their predominant purpose was to achieve some
other objective (e.g. their own enrichment) there will be no
liability.74 (In the language of OBG v Allan, it will not be
sufficient if the defendants intend to injure the claimant only as a
means of achieving an end—they must intend to injure the
claimant as an end in itself.) Thus, the tort could not apply in a
case like Mogul Steamship Co Ltd v McGregor, Gow & Co—
which we considered at the beginning of this chapter—because
the predominant purpose of the defendants in that case was to
further their own interests by gaining a monopoly in the tea trade
—intentionally driving the plaintiff out of business was just the
means of achieving that goal.
Of course, this restrictive “predominant purpose”
requirement makes the tort very dif-ficult to establish. It was,
however, said to have been established by the House of Lords in
the 1901 case of Quinn v Leathem,75 where a number of
butchers (at the behest of their trade union) agreed to inflict
economic loss on the plaintiff (who was employing non-union
workers) by exercising their lawful entitlement not to handle the
plaintiff’s meat. Subsequent attempts to establish the tort have
not been so successful. For example, in Crofter Hand Woven
Harris Tweed Co Ltd v Veitch,76 dock workers lawfully refused
to handle the plaintiffs’ machine-spun imported yarn. Their hope
was that preventing mill-owners from obtaining such yarn would
advance the pay claims of workers in traditional mills (using
hand-spun, home-produced yarn) who were members of the
dock workers’ union. It was held that the plaintiffs had no cause
of action against the dock workers, whose “predominant
purpose” had not been to injure the plaintiffs but to further the
interests of their fellow union members.77
It may seem strange that liability should ever attach to lawful
acts simply because they are
done in concert with others. The traditional rationale for such
liability, as expressed by Bowen LJ in Mogul Steamship Co Ltd
v McGregor, Gow & Co (when that case was before the Court of
Appeal) is that:

“. . .a combination may make oppressive or

dangerous that which if it proceeded only
from a single person would be otherwise.”78

In Lonrho v Shell,79 however, Lord Diplock pointed out that

such a proposition is really quite absurd when seen in the
context of the modern business world. His Lordship said:

“. . .to suggest today that acts done by one

street-corner grocer in concert with a
second are more oppressive and dangerous
to a competitor than the same acts done by
a string of supermarkets under a single
ownership or that a multinational
conglomerate such as Lonrho or oil
company such as Shell or BP does not
exercise greater economic power than any
combination of small businesses, is to shut
one’s eyes to what has been happening in
 the business and industrial world since the
turn of the century.”

His Lordship concluded, however, by saying:

“The civil tort of conspiracy to injure . . .

must I think be accepted by this House as
too well-established to be discarded
however anomalous it may seem today.”

The application of the tort is not extensively considered in either

OBG v Allan or Total Network SL. On the other hand, its
continued existence was not doubted by their Lordships.
Conceivably, therefore, it remains applicable in very special
circumstances.

The economic torts: conclusion

12–033 We have seen that the economic torts, though complex, have
gained a good deal of coherence from recent House of Lords
decisions. Thanks to modern industrial-relations legislation,
these torts no longer serve so directly one of the main purposes
for which they were developed—the regulation of trade union
activity. However, it is clear that they still have an important
function in setting the boundaries of acceptable commercial
conduct.

1 Claims are occasionally made outside of a commercial context. See, e.g.

Falconer v ASLEF [1986] I.R.L.R. 331 (a claim for hotel expenses by a
traveller who could not use his train ticket because of unlawful industrial
action).
2 See, generally, H. Carty, An Analysis of the Economic Torts, 2nd edn
(OUP, 2010) and H. Carty, “The modern functions of the economic torts:
reviewing the English, Canadian, Australian and New Zealand positions”
[2015] C.L.J. 261.

3 [2007] UKHL 21; [2008] 1 A.C. 1. See also H. Carty, “The economic
torts in the 21st century” (2008) 124 L.Q.R 641; J. O’Sullivan, “Intentional
economic torts, commercial transactions and professional liability” (2008)
24 P.N. 164.

4 Although note the distinction between tortious liability arising from

breach of UK competition law and the economic torts, see C. A. Banfi,
“Defining the competition torts as intentional wrongs” [2011] C.L.J. 83.

5 Note that this is also the function of a related tort called “passing off”,
consideration of which is beyond the scope of this book. Interested readers
should consult specialist texts on intellectual property, e.g. T. Aplin and J.
Davis, Intellectual Property Law: Text, Cases and Materials, 3rd edn (OUP,
2017), Ch.5.

6 [1892] A.C. 25. See also Allen v Flood [1898] A.C. 1 (no liability for
simply causing loss, even if intentional, if the defendant’s actions are
lawful).

7 [2018] UKSC 19; [2018] 2 W.L.R. 1125 at [6].

8 Proform Sports Management Ltd v Proactive Sports Management Ltd

[2006] EWHC 2903 (Ch); [2007] 1 All E.R. 542.

9 (1853) 2 El. & Bl. 216; 118 E.R. 749.

10 For the sake of simplicity, it is convenient to refer to the tort as

“inducing a breach of contract”. Strictly speaking, however, the principles
of the tort apply equally to a (limited) number of other situations where the
defendant procures a third party to commit an actionable wrong against the
claimant. Such situations include procuring a breach of a company
director’s fiduciary duty, or a breach of an agent’s duty to account to a
principal. For some modern examples, see Kallang Shipping SA Panama v
AXA Assurances Senegal [2008] EWHC 2761 (Comm); [2009] 1 Lloyd’s
Rep. 124 and Colliers CRE plc v Pandya [2009] EWHC 211 (QB).

11 DC Thomson & Co Ltd v Deakin [1952] Ch. 646 at 679.

12 [1974] 1 W.L.R. 659.

13 OBG v Allan [2007] UKHL 21 per Lord Nicholls at [192].

14 Middlebrook Mushrooms Ltd v Transport and General Workers’ Union

[1993] I.C.R. 612 per Neil LJ at 621.

15 See British Industrial Plastics Ltd v Ferguson [1940] 1 All E.R. 479. per
Lord Hoffmann in OBG v Allan [2007]
UKHL 21 at [41]: “Mr Ferguson did not deliberately abstain from enquiry . . . He negligently
made the
wrong inquiry, but that is an altogether different state of mind”. See also Swiss Bank Corp v
Lloyds Bank Ltd
[1979] Ch.548 (constructive knowledge of the contractual terms will not suffice, per Browne-
Wilkinson J at
572).

16 [1966] 1 W.L.R. 691 at 700. Recently affirmed by TCP Europe Ltd v

Perry [2012] EWCA Civ 1940 (QB) at [32].

17 Emerald Construction Co Ltd v Lowthian [1966] 1 W.L.R. 691 per Lord

Denning MR at 700.

18 [2015] EWCA Civ 1084.

19 OBG v Allan [2007] UKHL 21 per Lord Hoffmann at [39].

20 [1940] 1 All E.R. 479. Contrast Wolff v Trinity Logistics USA Inc [2018]
EWCA Civ 2765; [2019] 1 W.L.R. 3997 at [46]–[47].

21 British Industrial Plastics Ltd v Ferguson [1938] 4 All E.R. 504 CA per
McKinnon LJ at 513 (noted by Lord Hoffmann in OBG v Allan [2007]
UKHL 21 at [39]).
22 OBG v Allan [2007] UKHL 21 per Lord Nicholls at [191].

23 [1994] E.M.L.R. 44.

24 Peter Gibson LJ dissented, expressing a diametrically opposed view.

25 OBG v Allan [2007] UKHL 21 per Lord Hoffmann at [42].

26 Although the claimant must suffer some loss. The tort is not actionable
per se. See Sefton v Tophams Ltd [1965] Ch. 1140 (CA) (overruled by HL
on different grounds at [1967] 1 A.C. 50.)

27 [1905] A.C. 239 (cited by Lord Hoffmann in OBG v Allan [2007] UKHL
21 at [62]).

28 The terms are used inter-changeably.

29 OBG v Allan [2007] UKHL 21 per Lord Hoffmann at [36].

30 [2015] UKSC 10; [2015] A.C. 1229 at [21].

31 [1988] A.C. 1013. See also Unilever v Chefaro [1994] F.S.R. 135.
Contrast, however, Football Dataco Ltd v Sportradar GmbH [2013] EWCA
Civ 27; [2013] F.S.R. 30.

32 s.219. See also B. Simpson, “Trade Disputes Legislation and the

Economic Torts” in T.T. Arvind and J. Steele (eds), Tort Law and the
Legislature (Hart, 2012).

33 Smithies v National Association of Operative Plasterers [1909] 1 K.B.

310; Edwin Hill & Partners v First National Finance Corp Plc [1989] 1
W.L.R. 225; Royal Bank of Scotland Plc v McCarthy [2015] EWHC 3626
(QB).

34 [1916] 2 K.B. 504.

35 [1924] 1 Ch. 302.

36 See South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905]
A.C. 239.

37 Pritchard v Briggs [1980] Ch.338 per Goff LJ at 416.

38 OBG v Allan [2007] UKHL 21 per Lord Hoffmann at [47].

39 It should be noted that only 3 party intimidation fits under the “unlawful
means” tort. Lord Hoffmann acknowledged in OBG [2007] UKHL at [61]
that two party intimidation—where a claimant is compelled by unlawful
intimidation to act to his own detriment—raised different issues.

40 (1794) 1 Peake 270; 170 E.R. 153.

41 What makes matters more confusing is that what counts as “unlawful”

for the purpose of this tort is different from what counts as “unlawful” for
the purpose of establishing the tort of “unlawful means conspiracy”
(discussed in later section).

42 OBG v Allan [2007] UKHL 21 per Lord Walker at [266].

43 Lords Hoffmann, Brown and Baroness Hale. Lord Nicholls took an

alternative line, based on the idea that the defendant must be said to cause
the claimant’s loss through the “instrumentality” of the third party, which
would have cast the net wider. Lord Walker declined to prefer either
approach.

44 [2007] UKHL 21 at [49], giving the example of National Phonograph

Co Ltd v Edison-Bell Consolidated Phonograph Co Ltd [1908] 1 Ch. 335.

45 What would be the position if a pizza business unlawfully interfered

with customers’ phone calls, so as to prevent them ordering pizzas from a
rival? This would (probably) not give rise to a cause of action at the suit of
the customer, but it would prevent the customer from dealing with the
claimant. Such an example shows us how, in some circumstances, the wider
“instrumentality” test suggested by Lord Nicholls might be useful.
46 [1983] Ch. 135. See also Ex p. Island Records [1978] Ch. 122; Issac
Oren v Red Box Toy Factory Ltd [1999] F.S.R. 785.

47 [2019] EWCA Civ 1160; [2019] 3 W.L.R. 938. For commentary, see
Jacob and Strath (2019) 14 JIPL & P 922.

48 OBG v Allan [2007] UKHL 21 at [63].

49 [1987] I.R.L.R. 3. Approved by Lord Hoffmann in OBG v Allan [2007]

UKHL 21 at [64]. See also Emerald Supplies Ltd v British Airways plc (Nos
1 and 2) [2015] EWCA Civ 1024; [2016] Bus L.R. 145 at [169]: no
intention to injure when it was not known whether anyone from the alleged
class would in fact suffer at all.

50 See, e.g. DC Thomson & Co Ltd v Deakin [1952] Ch.646, where the CA
adopted the “unified theory” of liability under Lumley v Gye.

51 This example is given by Jenkins LJ in Thomson & Co Ltd v Deakin

[1952] Ch.646 at 696. See also GWK Ltd v Dunlop Rubber Co Ltd (1926)
42 T.L.R. 376.

52 See, e.g. JT Stratford & Son Ltd v Lindley [1965] A.C. 269. Note that an
intention to injure the customer was here inferred from the fact that this was
an inevitable result of the defendant’s conduct. In the new language of OBG
v Allan, it would have to be said that injuring the customer was a “means”
of achieving the union’s “end” (putting pressure on the employer) as
opposed to a mere by-product of achieving that end.

53 OBG v Allan [2007] UKHL 21 per Lord Hoffmann at [38].

54 [1964] A.C. 1129. For a critical appraisal of the new approach to

intimidation as stated by Lord Hoffmann in OBG v Allan, see J. Murphy,
“Understanding intimidation” (2014) 77 M.L.R. 33.

55 The claimants also sought to extend the tort of conversion to cover

choses in action (i.e. their outstanding contractual claims at the time the
receivers were appointed). However, the majority (Lord Nicholls and
Baroness Hale dissenting) declined to extend the scope of this tort.
56 The majority (Lords Nicholls and Walker dissenting) held that this
should succeed. This aspect of the case is discussed in Ch.15.

57 Conspiracy as a tort is not to be confused with criminal conspiracy,

which has different rules. See Meretz Investments v ACP Ltd [2007] EWCA
Civ 1303; [2008] Ch 244 at [174] per Toulson LJ. For an argument that a
separate tort of conspiracy in either of its forms is no longer needed post-
OBG, see P.S. Davies and P. Sales, “Intentional harm, accessories and
conspiracies” (2018) 134 L.Q.R. 69.

58 Belmont Finance Corp v Williams Furniture Ltd (No.2) [1980] 1 All

E.R. 393.

59 See, e.g. Tullett Prebon Plc v BGC Brokers LP [2011] EWCA Civ 131;
[2011] I.R.L.R. 420 and Bank of Tokyo-Mitsubishi UFJ Ltd v Baskan Gida
Sanayi Ve Pazarlama AS [2009] EWHC 1276 (Ch). Loss must be proved:
Stevenson v Singh [2012] EWHC 2880 (QB). So long as each individual
conspirator knows the central facts and entertains the same object, it is not
necessary that all conspirators join the agreement at the same time: QBE
Management Services (UK) Ltd v Dymoke [2012] EWHC 80 (QB) at [198].

60 Lonrho Plc v Fayed [1992] 1 A.C. 448; Kuwait Oil Tanker Co SAK v Al
Bader [2000] 2 All ER (Comm) 271 at [107] per Nourse LJ.

61 [2007] EWCA Civ 1303; [2008] Ch. 244 at [146] per Arden LJ.

62 Arguably, a conspirator who has played some part in the proceedings but
lacks the required degree of intention might be liable on the basis that other
conspirators have that intention. This is doubtful, however, because it
would involve the proposition that persons can be liable for being in a
combination without a true meeting of their minds.

63 Responsibility may be attributed on the basis of the “common

enterprise” principle. See Brook v Bool [1928] 2 K.B. 578.

64 See, e.g. per Lord Devlin in Rookes v Barnard [1964] A.C. 1129 at
1204: “. . . the element of conspiracy is usually only of secondary
importance since the unlawful means are actionable by themselves”.
65 [2008] UKHL 19; [2008] 1 A.C. 1174. Comment: J. O’Sullivan [2008]
C.L.J. 459.

66 Powell v Boladz [1998] Lloyd’s Med. Rep. 116.

67 Total Network SL v Revenue and Customs Commissioners [2008] UKHL

19 per Lord Walker at [89]. His Lordship uses the phrase “intentional harm
tort” to mean what we (and their Lordships in OBG v Allan) refer to as the
tort of “causing loss by unlawful means”.

68 Also known as JSC BTA Bank v Khrapunov [2018] UKSC 19; [2018] 2
W.L.R. 1125.

69 The Court also rejected the argument that there was a principle of public
policy that persons in contempt of court should not be exposed to anything
other than criminal penalities at the discretion of the court.

70 [2018] UKSC 19; [2018] 2 W.L.R. 1125 at [11].

71 H. Carty, “The modern functions of the economic torts: reviewing the

English, Canadian, Australian and New Zealand positions” [2015] C.L.J.
261, 280–281.

72 See also Palmer Birch (A Partnership) v Lloyd [2018] EWHC 2316

(TCC); [2018] 4 W.L.R. 164 at [189].

73 Lonrho Ltd v Shell Petroleum Co Ltd (No.2) [1982] A.C. 173 at 188 per
Lord Diplock: “as a civil tort, however, conspiracy is a highly anomalous
cause of action”. See S. Daly, “The aberrant tort of lawful means
conspiracy?” (2020) 31 K.L.J. 145, who argues that it is no longer required
as an independent tort as it is superceded by statute.

74 See Lonrho Plc v Fayed [1992] 1 A.C. 448.

75 [1901] A.C. 495.

76 [1942] A.C. 435.

77 Compare Huntley v Thornton [1957] 1 W.L.R. 321 where union officials
were held liable when they sought to prevent the plaintiff from getting a
job, after losing their argument with the union that he should be expelled.
Harman J (at 340) found that the officials had not acted to further the
union’s interest, but to uphold “their own ruffled dignity”, and this did not
qualify as a legitimate ulterior purpose.

78 Mogul Steamship Co Ltd v McGregor, Gow & Co (1889) 23 Q.B.D. 598

CA per Bowen LJ at 616.

79 [1982] A.C. 173.

 13

Defamation

Introduction
13–001 Defamation is a different type of tort from those examined in
earlier chapters. It does not protect the personal safety of the
individual or even the right to self-determination of the claimant.
It protects something far more indistinct: the reputation of the
claimant. On this basis, while abuse of the claimant in private
can only give rise to liability for harassment or possibly assault,
unjustified criticism of the claimant to another, which has caused
or is likely to cause serious harm to the claimant’s reputation,
gives rise to the tort of defamation. It is the claimant’s
reputation, not injured feelings, which the tort aims to protect.
The tort raises a number of difficult problems. For example,
a basic democratic right stated in the European Convention on
Human Rights art.10 is the right to freedom of expression,
which includes the right to “hold opinions and to receive and
impart information and ideas without interference by public
authority”. Article 10 is now incorporated into English law by
the Human Rights Act 1998 and s.6 of the Act provides that it is
unlawful for a public authority (which includes courts) to act in
a way which is incompatible with a Convention right.1 Freedom
of expression includes the right to criticise, and is particularly
important in relation to politicians and officials who occupy
positions of power. This is further supported by s.12 of the 1998
Act which provides that when a court is considering whether to
grant any relief which, if granted, might affect the exercise of
freedom of expression, it must have particular regard to the
importance of this right and, inter alia, the public interest in the
publishing of such material by the press.2
On the other hand, the reader will be fully aware of the
frequent complaints of press intrusion and irresponsible
reporting where journalists, anxious for a “scoop” in a very
competitive media market, publish without fully checking their
facts. Such complaints were highlighted
by the Leveson Inquiry into the Culture, Practices and Ethics of
the Press, whose report was published in November 2012.3 A
person mistakenly named as a serial rapist is unlikely to fight the
corner of freedom of expression. Article 10.2 of the Convention
recognises that the right to freedom of expression cannot go
unchallenged. Such a right:

“carries with it duties and responsibilities

[and so] may be subject to such formalities,
conditions, restrictions or penalties as are
prescribed by law and are necessary in a
democratic society . . . for the protection of
the reputation or rights of others.”

The tort of defamation must therefore attempt to balance the

competing rights of freedom of expression and protection of
one’s reputation. As Laws LJ has commented, the focus of the
tort “is not on reputation as akin to a right of property. It is on
the balance to be struck between public interest and individual
right: between free speech and private claims”.4 This is a far
from easy task and, unfortunately for the reader, has led to a
complex and frequently confusing area of law. This will be
examined below.
 It should be noted, however, that the UK Government has
recognised the need for change and the Defamation Act 2013
introduces a number of key reforms into this area of law.5 The
Government argued that the previous law on defamation was
old-fashioned, costly and unfair, and had resulted in a chilling
effect on freedom of expression and the stifling of legitimate
debate. The new Act, it stated, would take defamation into the
twenty-first century and create a more balanced and fair law.6
This chapter (and the next) will examine the nature of these
reforms and the extent to which these ambitious goals have been
met.
Chapters 13 and 14 will approach defamation in four logical
stages. This aids clarity and helps to minimise the difficulties
outlined above. Four main questions must be addressed:
▮ Is the statement defamatory?
▮ Does it refer to the claimant?
▮ Has it been published?
▮ Do any of the defences apply?

This chapter will focus on the first three stages, establishing

when a claimant can bring an action for defamation and who can
sue and be sued. Chapter 14 will set out the defences available to
defendants, particularly in the light of the Defamation Acts of
1996 and 2013 and the important House of Lords judgment in
Reynolds v Times Newspapers Ltd.7 It will also consider
alternatives to defamation law (for example the tort of malicious
falsehood).8
The first step must, however, be to examine the long-
standing division of defamation into two parts: libel and slander.
Both are examples of defamation, but for historical reasons are
treated separately. It would make life easier for all if this
distinction were abolished (unless the reader has a particular
desire to maintain a distinction logical in Tudor times, but sadly
not our own). Abolition has been suggested from 1843 without
 success.9 The Defamation Act 2013, as will be seen below, has
merely amended some of the rules relating to slander.

Libel and Slander

13–002 These torts are generally distinguished on the basis that libel
takes permanent form, for example, an article or a photograph
published in a daily newspaper,10 while slander is temporary, for
example words shouted across a classroom or gestures made to a
crowd.11 The permanency of libel is deemed to make it more
serious—more people will possibly see it and it will not be
forgotten. In the past damage was presumed,12 making libel
actionable per se (i.e. without proof of damage). This position
has changed following the Defamation Act 2013 s.1 (discussed
at para.13–011) in that the claimant must now show that serious
reputational harm has been caused by, or is likely to result in
future from, the publication complained of.13 Slander requires
proof of special damage, that is, damage that can be proved by
evidence of financial loss or any other material loss capable of
estimation in financial terms. Being shunned by friends is not
sufficient. However, being shunned by clients will suffice, due to
the financial impact on your business.14 The damage must, as
always, not be too remote. In defamation cases, the test for
remoteness, as stated by Lynch v Knight,15 is that the loss is such
as might fairly and reasonably
on the facts of the case have been anticipated and feared to
result. Libel, unlike slander, is also a crime, although few
prosecutions are brought.
Unfortunately, the distinction between libel and slander is far
from watertight. A spoken insult in the presence of your peers
may do more harm to your reputation than insults in a
 disreputable newspaper. The distinction may also be quite
complicated. For example, I dictate a letter to my secretary who
then posts it. It contains defamatory material. On the current
case law, the letter once sent amounts to libel for which I am
responsible, but my dictation to the secretary is merely slander.16
Further problems arise if you consider what happens if the
spoken words are recorded on tape: do they now amount to
libel? What about insulting words in a long-running play—can
they really be considered slander when repeated every night? In
the latter case, Parliament has helpfully intervened and stated
that performances of a play (except when given on a domestic
occasion in a private dwelling) shall be treated as publication in
permanent form and therefore libel.17 Equally, broadcasts on
television or on radio are treated as libel.18 Youssoupoff v MGM
Pictures Ltd19 deals somewhat confusingly with our first
problem. Here, a Russian Princess complained about words used
in the film soundtrack to “Rasputin, the Mad Monk”, which she
claimed had falsely suggested that she had been raped or
seduced 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, therefore, 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 to be libel. Further examples of
unresolved problems include whether writing in chalk on a
wall20 or sky-writing by aeroplanes21 amounts to libel or
slander. Such uncertainty, it is submitted, is as good a reason as
any for abolishing the distinction between libel and slander.

Types of slander actionable per se

13–003 In the past, there were four occasions where slander was
actionable without proof of damage. These represented
occasions where the court felt safe in presuming damage,
because of the nature of the allegations made. As will be seen,
 the Defamation Act 2013 s.14 abolishes the third and fourth
examples, but leaves the first two occasions intact. They will,
however, be subject to the s.1 threshold of the Defamation Act
2013.

◗ (1) Imputation of a criminal offence punishable

by imprisonment
13–004 There must be an imputation that a criminal offence has been
committed. For example, in Webb v Beavan,22 it was stated that
“I will look you up in Gloucester gaol next week. I know enough
to put you there”. This was held to imply that a criminal offence
had been committed and so was actionable per se. An allegation
that an individual is suspected of a criminal offence will not
suffice.23

◗ (2) Imputation of professional unfitness or

incompetence
13–005 This is the most important exception. A statement criticising a
person’s professional competence or fitness for office may affect
his or her reputation and will be difficult to brush off. The only
question which has arisen here relates to the scope of the
exception. At common law, it was held that the accusation had to
relate directly to the person’s professional competence. The
exception therefore did not apply where the accusation was
unrelated to the post, for example where a headmaster was
accused of committing adultery with one of the school’s
cleaners.24 The exception was broadened by the Defamation Act
1952 s.2 to include 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.
 ◗ (3) Imputation of unchastity or adultery by a
female (abolished by the Defamation Act 2013
s.14(1))
13–006 This was stated to be actionable per se under the Slander of
Women Act 1891 s.1. The Ministry of Justice in its consultation
for the Defamation Bill found it to be outdated and potentially
discriminatory25 and the 1891 Act has now been repealed.

◗ (4) Imputation of a contagious disease (now

requires special damage: Defamation Act 2013
s.14(2))
13–007 This was originally used in relation to allegations that the
claimant had a contagious disease such as venereal disease,
leprosy or plague. The last reported case under this head was
in

1844,26 but it had been suggested that it might still be relevant to

diseases such as AIDS. Again, the Ministry of Justice found it to
be outdated and s.14(2) now provides that:

“the publication of a statement that conveys

the imputation that a person has a
contagious or infectious disease does not
give rise to a cause of action for slander
unless the publication causes the person
special damage.”

As may be seen, the distinction between libel and slander still

has a basis at law and the Defamation Act 2013 makes no effort
to change this. It has been justified on the basis that the
requirement of special damage excludes minor claims for
 slander where the claimant has suffered little harm, but in reality,
the cost of bringing a defamation claim, and procedural rules
against vexatious litigants, are likely to deter such claimants in
any event.

The General Requirements of

Defamation

13–008 As stated above, the best way of approaching defamation is by

logically answering the following four questions:
▮ Is the statement defamatory?
▮ Does it refer to the claimant?
▮ Has it been published to a third party?
▮ Can the defendant rely on any of the defences?

Judge and jury?

13–009 An action for defamation, unlike one for negligence, has
traditionally been heard by a judge and jury. This presumption
could be rebutted, however, where the court was of the opinion
that the trial required a prolonged examination of documents or
accounts, or any scientific or local investigation which could not
conveniently be made with a jury.27 In practice, this occurred in
a large number of cases. Defamation Act 2013 s.11 now changes
this presumption. It provides
that the defamation trial should be without a jury unless the
court orders otherwise.28 By removing the presumption in
favour of jury trial in defamation cases, the Government hoped
to reduce the cost and length of defamation cases.
In Yeo v Times Newspapers Ltd,29 the operation of s.11 was
immediately tested. The case concerned a libel claim brought by
an MP (Tim Yeo) who had chaired a Parliamentary select
committee and related to the publication of articles alleging that
he had been prepared to abuse his position by acting as a paid
Parliamentary advocate. The Times newspaper applied for an
order that the case be tried with a jury. The court held, however,
that there was no reason to rebut the presumption in s.11 against
a jury trial. Section 11 meant that trial by jury for libel and
slander would be the exception rather than the rule. The
defendant had not identified any skills, knowledge, aptitudes or
other attributes likely to be possessed by a jury which would
make it better equipped than a judge to grapple with the issues
that needed to be tried. Indeed, the judge added that where the
subject-matter of a libel case was political, it was especially
desirable that the court’s judgment explained what conclusions it
had reached and why. Yeo’s prominent status and powerful
position did not mean that there would be any suspicion of bias
if a judge returned a verdict in his favour so as rebut the
presumption against jury trial. Moreover, trial by jury invariably
took longer and was more expensive than a trial without a jury.
On this basis, the court concluded 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”.30
If the court does order a jury trial, the role of judge and jury
are as follows. The judge will determine, as a matter of law,
whether the words are capable of being defamatory, that is,
could a reasonable jury come to the conclusion that the
statement was capable of bearing a defamatory meaning?31 The
jury will determine whether, as a matter of fact, the words in the
case are defamatory. The jury will also determine the level of
damages and may, if appropriate, award aggravated or punitive
damages.
The first three questions listed above will be examined in
this chapter. Defences will be examined in Ch.14.
 (1) Is the statement defamatory?
13–010 The test of what is defamatory is now partly statutory and partly
common law, by virtue of the Defamation Act 2013 s.1. We can
say then: a statement is defamatory if it has caused or is likely to
cause serious harm to a person’s reputation.
It is important, first of all, to identify whether the claimant’s
reputation has been harmed.
The classic definition is found in Sim v Stretch,32 where
statements were held to be defamatory and therefore to harm a
person’s reputation when they “tend to lower the plaintiff in the
estimation of right-thinking members of society generally”.33
This has been extended by Youssoupoff v MGM Pictures Ltd34 to
circumstances where the claimant is “shunned or avoided” as a
result of the statements. The question is therefore whether your
reputation has been harmed in the eyes of “right-thinking
members of society”. Essentially, this is the standard of the
“reasonable person”, who is, of course, a fiction, but this sets at
least an objective standard to be applied by the courts. The
reasonable person, we are told, is fair-minded, neither unduly
suspicious nor unduly naive, nor avid for scandal, nor bound to
select one defamatory meaning when non-defamatory meanings
are available.35 (If there is a jury trial, it will be determined
partly by the judge, who decides whether the statement in
question is capable of being defamatory before it can be put
before a jury). This can raise questions as to the ability of the
courts to relate to the standards of society in general. For
example, in Byrne v Deane,36 a verse had been placed on the
notice-board of a golf club which stated: “But he who gave the
game away, may he byrnne [sic] in hell and rue the day”. Mr
Byrne, who was a member of the club, alleged that it implied
that he had informed the police of certain illegal gambling
machines which had been on the premises and which had been
removed as a result. The Court of Appeal held that the verse was
not defamatory. An allegation that he had reported a crime to the
police could not be regarded as lowering the reputation of Mr
 Byrne, certainly not in the eyes of a “good and worthy subject of
the King”. The resulting distress and perhaps isolation suffered
by Mr Byrne as a result of the verse were regarded as irrelevant.
There is therefore a distinct danger that the standard of “right-
thinking people” may rise far above the general standards of
society, and fail to protect the claimant’s reputation adequately
by assuming that right-thinking people could not possibly
conclude that a particular statement is defamatory.
Further difficulties may be seen when this test is applied to
allegations of adultery and homosexuality. Whilst clearly
defamatory in the past, it might be suggested that in more liberal
times, they would no longer affect a person’s reputation. The
court must choose between a liberal approach and an
appreciation that such a view may not be shared by every
member of society. Who, then, is the right-thinking member of
society? In R. v Bishop,37 the court
recognised that the legalisation of homosexuality in the Sexual
Offences Act 1967 did not necessarily change the views of
society, and that, in 1975, many still regarded homosexuality as
immoral. It is an open question whether this is still the case
today. Arguably, the situation is different for adultery. In a
society where one in three marriages fail, one might expect a
more tolerant view of adultery and sex outside marriage. On this
basis, a statement that X is an adulterer should not be regarded
as defamatory, unless it suggests that X is a hypocrite, for
example, he is a clergyman or the Minister for the Family.38

13–011 In recent years, the courts have added the requirement that, to be
defamatory, a statement must surmount what has been called “a
threshold requirement of seriousness”. By this means the courts
have sought to exclude trivial claims, taking the view that the
hypothetical reasonable claimant should not be unduly sensitive
to criticism which does little harm to his or her reputation. In
Thornton v Telegraph Media Group,39 Tugendhat J argued that
imposing liability for defamation where the claimant had
suffered no or minimal damage to his or her reputation would
constitute an interference with freedom of expression which
could not be justified under ECHR art.10.2.40

Defamation Act 2013 s.1 now imposes a test of “serious harm”

to the reputation. This provides that:

“(1) A statement is not defamatory unless

its publication has caused or is likely to
cause serious harm to the reputation of
the claimant.
(2) For the purposes of this section, harm
to the reputation of a body that trades
for profit is not ‘serious harm’ unless it
has caused or is likely to cause the
body serious financial loss.”

This means, therefore, that to be defamatory, the claimant musts

show, on the balance of probabilities, that the statement has
caused (or is likely to cause) “serious harm” to the claimant’s
reputation. “Serious harm” is not defined, however, and so we
must look to cases for guidance. In the first case on this topic—
Cooke v MGN Ltd41—the court held that s.1 raised the bar for
claimants. It is not enough simply to show injury to feelings,
even if grave. The court will have regard to all the relevant
circumstances, including evidence of what happened after
publication. A prompt and prominent apology which minimised
any unfavourable impression of the claimant would, therefore,
be taken into account in assessing harm to reputation,
particularly
if the apology remained available online and was more
accessible than the original article. The court also suggested that
evidence of serious harm could be presumed where the
statements in question were obviously likely to cause serious
harm to a person’s reputation, such as where a national
newspaper wrongly accuses someone of being a paedophile or a
terrorist.
The question of serious harm was re-examined by the
Supreme Court in 2019. In Lachaux v Independent Print Ltd,42 a
number of newspaper articles had alleged that Lachaux had
mistreated his ex-wife. Faced with a defamation action, the
newspapers claimed that the articles were not defamatory
because they had neither caused nor were likely to cause
Lachaux serious harm to his reputation under s.1(1). The
Supreme Court emphasised that s.1(1) had altered the previous
law and this meant that it would no longer suffice that the
statement had an inherent tendency to cause some harm to the
reputation (the “meaning” test). The Court had to address the
actual impact of the words used on those to whom they were
communicated. In looking at the consequences of publication,
the Court would still consider the meaning of the words, but in
combination with consideration of their impact on others.

“Mr Lachaux must demonstrate as a fact

that the harm caused by the publications
complained of was serious . . . [A] finding of
serious harm [could be based] on (i) the
scale of the publications; (ii) the fact that
the statements complained of had come to
the attention of at least one identifiable
person in the United Kingdom who knew
Mr Lachaux and (iii) that they were likely
to have come to the attention of others who
either knew him or would come to know
him in future; and (iv) the gravity of the
statements themselves . . . There is no
reason why inferences of fact as to the
seriousness of the harm done to Mr
 Lachaux’s reputation should not be drawn
from considerations of this kind.”43

The emphasis of the Court is that s.1 has changed the common
law in the interests of protecting free speech. The claimant can
show serious harm by relying on extrinsic evidence e.g.
statements from witnesses, or inferences of fact.
For companies (i.e. a body that trades for profit),44 more is
required—serious financial loss. For companies, therefore, it is
not enough to show that the defamatory statement is likely to
cause serious harm to their reputation, the claimant must show
that actual financial loss is likely to result. While the
Government admitted that this raised a little the hurdle for
claimants in defamation, it took the view that it would not bar
any claimant who had serious problems as a result of a
publication.45 The clear aim is to prevent trivial and unfounded
actions going to
trial.46 In Brett Wilson LLP v Person(s) Unknown,47 for
example, the solicitors’ firm was able to show serious financial
loss where unknown persons had been operating a website
which had accused the firm of misconduct. It was able to point
to a prospective client who had withdrawn instructions on the
basis of the website and, as a firm that attracted a considerable
amount of its work from the internet, it was inevitable that it
would impact on prospective clients in general.

13–012 It should also be noted that it is no excuse that the defendant did
not intend the words to be defamatory.48 The law protects
reputation and it cannot be said that the statement does not affect
the claimant’s reputation just because the insult was
unintentional. The test is objective, and it is irrelevant that the
defendant did not intend to defame the claimant, or even
whether the people to whom the statement was communicated
actually believed the statement to be true.49 The defendant may,
however, be able to claim that the words should not be treated as
 defamatory because the statement was mere abuse uttered in
rage (“You idiot!”) and was not intended to be taken seriously.
This is a very fine line. While the courts may be prepared to
disregard words spoken in the heat of the moment, which the
hearer must have understood to be mere abuse, they are unlikely
to dismiss written words on this basis. A number of claims have
arisen from postings on social media and the courts have made
clear that outrageous statements on Twitter can give rise to
successful claims for defamation.50 In terms of articles in
newspapers, the general view is that the writer will have had the
opportunity to cool down and repent, so that if the words are
published nevertheless, they cannot be dismissed as mere abuse.
In Berkoff v Burchill,51 the majority of the Court of Appeal held
that a published description of the actor, director and writer
Steven Berkoff as “hideously ugly” was capable of being
defamatory and could not be dismissed as mere abuse. He was a
person in the public eye and it was held that such a description
would expose him to ridicule as it suggested that he had a
repulsive appearance. Such cases must now be read, however, in
the light of the s.1(1) serious harm test.

◗ Innuendo
13–013 Defamation is not confined to direct attacks on the claimant’s
reputation. If this were so, a defendant could easily resort to
indirect attacks, safe in the knowledge that the audience would
be well aware of what was actually being alleged, and yet the
claimant could do nothing. To protect the claimant’s reputation,
defamation must also include implied or veiled attacks, which
are generally known as “innuendo”. An innuendo consists of an
implied attack on a person’s reputation. The test is objective:
what view would a reasonable person take of the statement? It is
no defence that the defendant had not (or could not have)
reasonably foreseen that the statement contained an innuendo.52
There are two types of innuendo: true (or legal) and false (or
popular). A true innuendo is one 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. The court will obviously have to be
informed in the Statement of Case what special meanings are
alleged and what facts support this meaning.53 A false or
popular innuendo is one which a reasonable person guided by
general knowledge would infer from the natural and ordinary
meaning of the words.54 The court does not have to be informed
of any specific facts to draw this inference. This is a complicated
distinction, and an example will help the reader to understand
the distinction between true and false innuendo. Suppose that A
publishes a statement that B works for “the family business”. By
itself, this is not defamatory unless:
▮ B’s father has been arrested for involvement with the
Mafia. With this extra knowledge, we now know that A
is implying that B works for the Mafia and is involved
in organised crime. This is defamatory as a true
innuendo.
▮ B can show that the term “family business” is known to
be a slang term for the Mafia. This is unlikely here, but
if B were successful, he would be relying on a false or
popular innuendo.

A true innuendo was relied upon in Tolley v JS Fry & Sons

Ltd,55 where a famous amateur golfer alleged that a caricature of
him had appeared without his knowledge or consent in an
advertisement for Frys 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 in the innuendo. People knowing of Tolley’s amateur
status might think less of him and therefore his reputation would
be diminished.56 Equally, in Cassidy
v Daily Mirror Newspapers Ltd,57 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.
Lewis v Daily Telegraph Ltd58 is a good illustration of how
courts deal with a false innuendo. Here, the defendants had
published a paragraph in their newspaper which indicated that
the Fraud Squad was investigating the affairs of a company and
its chairman, Mr Lewis. This was in fact true, and so the claim
for defamation on the literal meaning of the words failed.
However, it was also claimed that the paragraph contained an
innuendo—it indicated that the company was being operated in a
fraudulent and dishonest way. The majority of the House of
Lords held that the words were not capable of bearing that
meaning. The test was an objective one: what would an ordinary
and reasonable person infer as the natural and ordinary meaning
of these words? The court held that a reasonable person might
infer from the paragraph that the company and Lewis were
suspected of fraud, but held that a reasonable person would not
assume that a police investigation indicated that Lewis and the
company were guilty of such conduct. This has to be correct,
otherwise newspapers would be unable to report investigations
prior to their final result. The court also recommended that, for
clarity, claimants should set out the meaning of the false
innuendo on which they wish to rely if it does not speak for
itself.59 This will enable the defendant to be fully aware of the
case against him or her and will clarify issues prior to trial.

13–014 The general test is therefore: would the reasonable person view
the statement as defamatory on the particular facts of the case?
The courts do look at the statements in context. It is not enough
to point to a particular sentence or isolated paragraph. The court
will look at the article as a whole. This is illustrated by the
approach of the House of Lords in Charleston v News Group
Newspapers Ltd.60 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 might have had some readers who only read
the headlines.61 Lord Nicholls did warn newspapers, however,
that they were “playing with fire”, and that if the explanatory
text were tucked away further down the article or on a
continuation page, the court would be likely to take a different
view.62
More recently, the question has arisen to what extent the
context of social media should be taken into account, given that
people tend to engage with it more casually, in the nature of a
conversation rather than a written text. In Stocker v Stocker,63
the Supreme Court advised that a judge tasked with deciding
how a reasonable social media user would interpret a statement
made on social media, such as a Facebook post or a tweet on
Twitter, had to keep in mind the way in which such postings and
tweets were made and read, i.e. quickly whilst scrolling through
messages. Here “tried to strangle” was taken more generally
 than its dictionary defini-tion of attempted murder to signify an
allegation that the claimant had grasped the defendant by the
throat (for which she could establish a defence of truth).
Once the claimant has shown that the words used were
defamatory, he or she must move on to the second requirement
and show that the words in fact referred to him or her.

(2) Does the statement refer to the

claimant?

13–015 This is obviously not a problem if the claimant is mentioned by

name, but otherwise the question is: would the reasonable
person, having knowledge of the special circumstances,
understand the words to refer to the claimant?64 This was
considered by the House of Lords in Morgan v Odhams Press
Ltd.65 A newspaper article in The Sun newspaper had reported
that a girl had been kidnapped by a dog-doping gang. This was
incorrect and the girl had been staying at Mr Morgan’s flat at the
relevant time. Morgan produced a small number of witnesses
who had seen the two together and who claimed that, having
read the article, they assumed it to suggest that Morgan was part
of the dog-doping gang. The majority of the House held that
on the facts there was sufficient material for a jury to find that
the statement referred to him. It was not necessary to find a
specific “pointer” in the article, or a “peg” on which to hang
such a reference. Although a careful study of the article would
have suggested that it could not refer to Morgan, it was held that
the ordinary, reasonable reader did not have the forensic skills of
a lawyer. The majority of the House held that, taking account of
the sensationalist nature of the article, and the fact that the
average reader was likely to read the story casually, gaining a
general impression of it, the ordinary reasonable person would,
on the facts, have drawn the inference that the article referred to
Morgan.66 A new trial was ordered nevertheless, due to the
judge’s misdirection to the jury on the assessment of damages.
 It is generally the rule that the meaning of any statement
must be judged at the time of publication. Liability will not arise
where an innocent statement is later rendered defamatory by
subsequent events.67 However, the courts will not allow this rule
to be used to “cover up” defamatory statements where the
defendant has made a defamatory statement, but only identified
the claimant in a later article. Therefore, in Hayward v
Thompson,68 the Court of Appeal admitted in evidence a later
article identifying the plaintiff where the first article had merely
referred to “a wealthy benefactor of the Liberal party”. On this
basis, both articles were found to be defamatory of the
defendant.69 The key, as the Privy Council explained recently, is
that there must be created a sufficient nexus, connection or
association between the statements in the mind of the reasonable
reader to enable the reader to identify the claimant as the subject
of the defamatory accusation.70 Further, the Privy Council
warned, even where this exists, there is the possibility that the
later article identifying the claimant may take away the
defamatory sting of the first.

13–016 As stated above, it is irrelevant whether the defendant intended

the words to be defamatory. It is equally irrelevant whether the
defendant intended to refer to the claimant. Provided reasonable
persons would find the statement defamatory, and to refer to the
claimant, the defendant who publishes the statement will be
liable. Hulton & Co v Jones71 is the classic example. The
defendant newspaper had published a humorous account of a
motor festival in Dieppe, featuring the antics of a fictional
churchwarden from Peckham called Artemus Jones.
Unfortunately for the newspaper, this was also the name of a
barrister, who sued for libel. The real Mr Jones was not a
churchwarden, had not gone to the Dieppe festival and did not
live in Peckham, but friends of his swore that they believed the
article to refer to him. The House of Lords 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.72
It is of no assistance to the defendant that the words were
true of another individual. In Newstead v London Express
Newspaper Ltd,73 a report of the conviction for bigamy of a
Harold Newstead, aged 30, of Camberwell, London provoked an
action for defamation from another Harold Newstead who also
lived in Camberwell and who was about the same age. The
Court of Appeal upheld his claim against the newspaper.
Newstead is perhaps a more meritorious case than Hulton. Such
a coincidence was obviously prejudicial to the reputation of the
innocent Mr Newstead, and the newspaper should therefore have
made greater efforts to identify the real culprit. The decision
does impose a considerable burden on newspapers, however,
which cannot possibly check every story to ascertain whether
there is any chance of confusion as to the identity of the person
involved. This was recognised by the court, but it was held that
it was not unreasonable to place a burden on the party who puts
the statements into circulation to identify the person so closely
that little or no risk of confusion arises.74
The question arises, however, whether it is reasonable to
expect newspapers to bear the risk of a person being mistaken
for another individual in a photograph in the paper. This problem
arose in O’Shea v MGN Ltd,75 where the Sunday Mirror had
published an advertisement for an adult internet service
featuring a “glamour” model, who resembled the claimant. Ms
O’Shea complained that ordinary sensible readers, who were
aware of her resemblance to the model, would have concluded
that she had consented to appear on a highly pornographic
website. Whilst concluding that, as a matter of law, the image
was defamatory,76 Morland J held that liability would be
contrary to the European Convention on Human Rights art.10.
Protection of Ms O’Shea’s reputation could not be said to meet a
“pressing social need”77 and to be necessary in a democratic
society for the protection of the reputation of others.78 The judge
distinguished Hulton and Newstead on the basis that the
 existence of the claimants could have been discovered in those
cases, whereas it would have been impossible in O’Shea.
Liability would impose an “impossible burden” on the publisher,
which could not be justified.79
It may be questioned whether such a distinction is valid. Ms
O’Shea had been accidentally defamed, as had Mr Jones, and it
may be challenged whether the form the statement takes should
be of such crucial importance. If the true objection is to liability
for unintentional
defamation, can the art.10 right to freedom of expression be
confined to photographs? At present, O’Shea appears to be
treated as an isolated exception80 and the general rule remains. It
remains to be seen whether the case can in future found a basis
to challenge this form of liability.
If confusion as to identity does arise, the defendant has only
two options:
▮ To argue that there is not enough evidence for a
reasonable person to identify the claimant; or.
▮ To adopt a defence of unintentional defamation. This
will be discussed in the next chapter, but generally
involves an apology and offer to pay some
compensation.

◗ Group defamation
13–017 If the statement in question relates to a group of individuals, it
will be difficult for the claimant to establish that the words refer
to him or her directly. Unless the group in question has legal
identity, for example is a company, and can therefore sue for loss
of the group’s reputation, no action will stand unless:
▮ the class is so small that the claimant can establish that
the statement must apply to every member of the class;
or
 ▮ the claimant can show that the statement refers to him
or her directly.

The leading case on group defamation is the House of Lords

case of Knuppfer v London Express Newspaper Ltd.81 In this
case, an article had been published which criticised the Young
Russian political party, Mlado Russ. The party consisted of
several thousand members, but they were mainly overseas and
the British branch consisted of only 24 members. Knuppfer was
one of these members. To establish that the libel referred directly
to him, he alleged that because he was the head of the British
branch, British readers would assume the remarks referred to
him. This argument was rejected by the House of Lords. It was
held that the article was not capable of referring to Knuppfer.
There had been no mention of the activities of the party in the
UK and their Lordships found no evidence to infer that the
article referred to Knuppfer. Lord Porter advised that in deciding
whether the article was capable of referring to the claimant, the
court should examine the size of the class, the generality of the
charge and the extravagance of the
accusation.82 The true test was whether a reasonable man could
find that the article was capable of referring to the claimant.
As a general rule, therefore, a statement aimed at a group
will not be considered to refer to its individual members. On this
basis, a politician could not sue a newspaper which printed “All
politicians are liars” unless he or she could show something
which referred specifically to him or her.83 It will depend on the
facts of the case. Obviously, the smaller the group and more
specific the charge, the easier it will be to show that the article
refers to the claimant. For example, a statement that the local
five-a-side team are utterly incompetent obviously refers to five
particular individuals.84

(3) Has the statement been published to

a third party?
13–018 This third requirement is vital.85 It is not enough, for example,
that the defendant sends a letter to the claimant making lurid
accusations against him or her. This will not harm his or her
reputation, although he or she may be distressed by it. It is only
when the letter is seen by a third party (or “published”) that the
claimant’s reputation will be harmed.86 It can be seen that
“publication” has nothing to do with printing presses, but
signifies that the libel or slander has come to the knowledge of a
third party. The claimant’s reputation will only suffer harm when
the offending words are communicated to someone other than
the claimant and the defendant. Insulting words spoken to the
claimant in private by the defendant are not defamatory,
although they may of course give rise to claims for harassment
or assault. Although readers may see the term “malicious
publication” used, this should not be taken literally. Malice is
not required. I therefore use the simple term “publication”.
The requirement of publication is obviously met by printing
an article in a newspaper or book, or by shouting a remark in a
lecture theatre, and will not generally be a problem. It is really a
matter of common sense. For example, if I make defamatory
statements in my lecture and the students (a) cannot understand
me because I am speaking in old Norse,87 or (b) cannot hear me
because my microphone is not working, I have not published my
statements. Publication requires that the words must be
intelligible and reach the third party.
Problems have arisen when the defendant alleges that he or
she did not intend to publish the words. For example, A sends a
letter defamatory of B to B. B alleges in court that it was opened
by his wife, Mrs B, and it has therefore been published to a third
party enabling him to sue for defamation. A states that he did not
intend the letter to be published and therefore he
should not be liable. The courts deal with this by having a test of
reasonable foresight: if it is reasonably foreseeable that a third
party would see the statement, then the defendant will be liable.
On that basis, in Theaker v Richardson,88 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. In contrast, in Huth v Huth,89 it was found that it was
not foreseeable that a butler would open his employer’s mail.
Defendants wishing to avoid publication should ensure that the
document is in a sealed envelope marked “private and
confidential”. Making defamatory remarks on a postcard is
obviously unwise and the court will presume, in the absence of
evidence to the contrary, that someone will have read the
remarks along the way.90 Similarly, a careless defendant who
leaves documents open on his or her desk runs the risk of
publication to visitors or perhaps cleaners, but not, it would
seem, to a burglar who steals the document from a locked
drawer.91
A few odd rules remain. It is still the rule (despite the fact
that the law no longer regards husband and wife as one person)
that a husband does not publish words by telling his wife (or
vice versa).92 A modern explanation for this rule may be a
concern for “marital harmony” whereby the courts are reluctant,
save in exceptional circumstances, to see spouses give evidence
against one another. It also seems to be the rule that while an
author who dictates a document to a typist is liable for
publication,93 a typist or printer who hands back to the author a
document containing defamatory statements made by the author
is deemed not to be liable for publication. This is easier to
explain. The typist can hardly publish the document to the
author of the document itself.94 The typist and printer are
effectively acting as the author’s agents, and an agent repeating
back the statements of the principal cannot be treated as
publication to a third party. However, if the documents are
shown to anyone else, the typist or printer (as well as the author)
may be liable for publication of the statements.
In this regard, it should be noted that it is no defence that the
defendant is merely repeating the defamatory statements of
another.95 Repetition will increase the harm to the claimant’s
 reputation, for which the defendant will be obliged to pay
compensation. The fact that the
person repeating the libel or slander expresses a doubt or
disbelief as to the truth of the statement is irrelevant—repetition
is sufficient to incur liability.96 This has particular impact in
relation to social media, e.g. it would be unwise to retweet a
serious accusation of criminal behaviour to followers of a
popular Twitter account.97
There are a limited number of situations, however, where the
original defamer will remain liable, namely:
▮ where the original defamer has authorised or requested
publication98;
▮ where he or she intended that the statement should be
repeated or republished;
▮ where he or she has informed a person who is under a
moral duty to repeat or republish the statement99; or,
generally,
▮ where the re-publication is, on the facts, the natural and
probable result of the original publication.

13–019 This last point was argued in Slipper v BBC.100 Slipper, a former
detective superintendent, had complained about a film made and
broadcast by the BBC which dealt with his abortive efforts to
bring back one of the Great Train Robbers, Ronnie Biggs, from
Brazil. Slipper claimed that a press review of the film portrayed
him in a defamatory light, and that the BBC were responsible for
the repetition of the libel in the newspaper reviews of the film.
The Court of Appeal treated the matter as one of causation and
remoteness, rather than turning on any particular rule relating to
defamation: did the reviews amount to a novus actus
interveniens breaking the chain of causation? Therefore, if
repetition of the libel was the natural and probable consequence
of the original publication, the original publisher would remain
liable. On the facts, the court held that this was a question for the
jury and refused to strike out this part of Slipper’s case.
The application of this test was discussed more recently in
McManus v Beckham.101 Here, McManus had complained that
Victoria Beckham, wife of footballer David Beckham, had
entered his memorabilia shop and had advised customers that a
signed photograph of her husband for sale in the shop was a
forgery. The incident received extensive press coverage, and
McManus brought a claim based on subsequent damage to his
business. The question
remained whether it was a natural and probable consequence of
her outburst that it would receive media attention. The Court of
Appeal rejected a simple test of reasonable foresight, which had
been suggested in Slipper. This would impose an unfair burden
on the defendant. A just and reasonable result would be achieved
by imposing liability:
▮ where the defendant is actually aware that what she
says or does is likely to be reported, and, that if she
slanders someone that slander is likely to be repeated in
whole or in part; or
▮ where she should have appreciated that there was a
significant risk that what she said would be repeated in
whole or in part in the press and that that would
increase the damage caused by the slander.102

In other words, she will be liable where it was foreseeable to a

reasonable person in the position of the defendant that there was
a significant risk of repetition, either in whole or in part, and
that, in consequence, increased harm to the claimant would
ensue.103 On the facts of the case, it could not be said that it was
impossible for the claimants to satisfy this test.104
One last question is whether it is possible to publish by
omission. For example, in Byrne v Deane,105 discussed earlier,
the question arose whether the club could be liable for failing to
remove the notice in question. The court held that those
 responsible for the club would be liable if they failed to remove
defamatory matter attached to the club notice-board within a
reasonable time.106 However, if the defamatory matter was not
readily removable (for example, carved deep into stonework)
and could only be removed at great inconvenience and expense,
its non-removal would not amount to publication. Equally, the
host of a phone-in show might find himself or herself liable for
failing to take reasonable care to prevent controversial guests
making defamatory statements. It is therefore a question of
control. In this last case, however, the host may now have a
defence of innocent dissemination under the Defamation Act
1996 s.1 (see Ch.14).

Who can sue?

◗ (1) Any living human being

13–020 We have seen numerous examples of this already, such as
Princess Youssoupoff and Artemus Jones. It should be noted,
however, that the action does not survive death,107 so the estate
of a person who has been defamed has no cause of action.

◗ (2) Companies
13–021 This is more controversial. A company is a corporate entity, not
a real person, and is incapable of having its “personal feelings”
injured by the defendant’s statements. Yet, as stated at the start
of this chapter, the tort of defamation is concerned with
reputation, not personal feelings. A company does have a
business reputation to protect. Despite arguments that this
interest is sufficiently protected by other torts, such as malicious
falsehood and deceit, it is clear that companies can sue for
defamation. The classic authority is South Hetton Coal Co v
North-Eastern News Assoc Ltd,108 where the Court of Appeal
held that the company was entitled to sue a newspaper which
had alleged that properties in which the company housed its
employees were highly insanitary. A libel calculated to injure
the company’s trading reputation was held to be actionable. A
more modern example is the long-running “McLibel” trial109 in
which the fast-food chain McDonalds brought a case against two
environmental campaigners for allegedly defamatory statements
about the company.
The reasoning of the Court of Appeal in South Hetton was
approved by the House of Lords in Jameel v Wall Street Journal
Europe SPRL (No.3).110 In this case, a trading company,
incorporated in Saudi Arabia, had brought an action for libel in
response to a newspaper article which suggested that its bank
accounts were being monitored to prevent their use for
channelling funds to terrorist organisations. The company was
found to have a trading reputation in the UK, despite the fact
that it conducted no business in the jurisdiction. It was argued
that to allow such a company to bring a claim in libel which at
the time required no proof of damage amounted to an undue
restriction of freedom of speech, contrary to art.10. The majority
of the House of Lords disagreed.111 In the words of Lord
Bingham:

“the good name of a company, as that of an

individual, is a thing of value. A damaging
libel may lower its standing in the eyes of
the public and even its own staff, make
people less ready to deal with it, less willing
or less proud to work for it . . . I find
nothing repugnant in the notion that this is
a value which the law should protect.”112

In view of the margin of appreciation given to national courts in

their interpretation of art.10,113 his Lordship was not prepared to
 alter the well-established rule in South Hetton and require a
company to show special damage. He added, however, that
where the trading corporation had suffered no financial loss,
damages should be kept strictly within modest bounds.114
This position had been criticised by Faulks Committee in
1975, which had recommended that companies should not be
able to sue unless they had suffered financial loss or the words
were likely to cause the company financial damage.115 As seen
in para.13–011, the Defamation Act 2013 s.1(2) finally brings
reform to this area and provides that a company (i.e. “a body
that trades for profit”) cannot sue for defamation unless the
statement caused or is likely to cause the body serious financial
loss. The aim is to exclude trivial claims. It is also likely to
serve, to a limited extent, as a means to prevent possible abuses
of power by companies which use the threat of litigation to
discourage defendants from criticising their activities.

Who cannot sue?

◗ (1) Governmental bodies

13–022 The House of Lords in Derbyshire CC v Times Newspapers
Ltd116 held that institutions of central or local government, such
as local authorities, could not sue for defamation. This is an
important decision. The plaintiff, a local authority, had brought
an action for damages for libel against The Times in respect of
two newspaper articles which had questioned the propriety of its
financial dealings. On a preliminary issue, as to whether the
plaintiff had a cause of action against the defendants, the House
of Lords upheld the view of the Court of Appeal that a local
authority could not bring an action for libel. Lord Keith, giving
the leading judgment, commented that:
 “It is of the highest public importance that
a democratically elected governmental
body, or indeed any governmental body,
should be open to uninhibited public
criticism. The threat of a civil action for
defamation must inevitably have an
inhibiting effect on freedom of speech.”117

The decision is therefore significant in recognising that it is in

the public interest that individuals are free to question and
criticise central and local government. It would be contrary to
the democratic process and freedom of expression for such
bodies to have a right to sue in defamation, and would “place an
undesirable fetter on freedom of speech”.118 In reaching this
conclusion, the House of Lords, unlike the Court of Appeal,119
did not rely on the European Convention on Human Rights, but
relied on English and US case law.120 However, with the
incorporation of the Convention into English law by the Human
Rights Act 1998, art.10 is now the main focus of any discussion
of freedom of expression. The decision marks welcome
recognition that open government is a valuable part of modern
democratic society and that any restrictions of freedom of
expression in this context should be examined very carefully.

◗ (2) Political parties

13–023 The logic of (1), namely the requirement that the public should
be able to question the executive, applies equally to political
parties. Buckley J in Goldsmith v Bhoyrul121 applied Derbyshire
to exclude a claim for defamation by the Referendum Party.122
Despite the fact that the party had yet to be elected, Buckley J
held that defamation actions, or the threat of such actions, would
restrict free speech, which would be contrary to the public
interest. The public should be free to discuss and criticise
political parties putting themselves forward for election.
It is important, however, to note the limited effect of these
two decisions. These decisions do not prevent individual
politicians from suing, and indeed a number of politicians have
sued in recent years (for example, former Conservative MPs
Rupert Allason and Neil Hamilton) with mixed success.123
There is an obvious argument that politicians, involved in
the democratic process, should also be prevented from suing for
defamation for the reasons stated in Derbyshire, at least when
the statements relate to their performance as Members of
Parliament.124 This is not the legal position at present. There is
no English equivalent to the US restrictions on the ability of
public figures to sue for defamation, stated by the US Supreme
Court in New York Times v Sullivan.125 In that case, the Supreme
Court held that in the light of the protection of free speech in the
First Amendment to the US Constitution, public figures may
only sue if they can present clear and convincing evidence of
actual malice by the publisher. Actual malice is shown by
proving that the defendant published the piece with knowledge
that the defamatory statement was false or at least with reckless
disregard as to its falsity. The rule in Derbyshire is further
undermined by the fact that governmental bodies still have the
right to sue for malicious falsehood (see Ch.14) and to prosecute
for criminal libel. The impact of the decision must therefore be
questionable when the restriction can so easily be circumvented
in this way.126 In Derbyshire itself, the council leader,
Bookbinder, was able to sue in his own right for damages. Mr
Bookbinder’s earlier action against Norman Tebbit, former
Chairman of the Conservative party, will be discussed in the
next chapter.

Conclusion
13–024 This chapter has examined the elements that the claimant must
establish to bring an action for defamation. The next chapter will
concentrate on the defences available to the defendant. As will
be seen, it is with the defences that the real tensions between the
right to freedom of expression and the need to protect the
claimant’s reputation show themselves. The Defamation Act
2013 seeks to address these tensions by placing key defences in
a statutory form. The defences available in defamation are
somewhat complicated and therefore warrant a chapter of their
own.

1 The Act came into force on 2 October 2000.

2 See Human Rights Act 1998 s.12(1) and (4).

3 See https://www.gov.uk/government/publications/leveson-inquiry-report-
into-the-culture-practices-and-ethics-of-the-press [Accessed 1 August
2020].

4 Rothschild v Associated Newspapers Ltd [2013] EWCA Civ 197; [2013]

E.M.L.R. 18 at [25].

5 It should be noted that most of the Act’s provisions only apply to England
and Wales (although certain provisions such as s.6 on peer-reviewed
statements in scientific or academic journals also extend to Scotland). The
Act came into force on 1 January 2014: Defamation Act 2013
(Commencement) (England and Wales) Order 2013 (SI 2013/3027) art.2.

6 Government Press Release, 25 April 2013.

7 [2001] 2 A.C. 127.

8 A claimant may also wish to consider an action in negligence or misuse of

private information. See Chs 2 and 15.

9 See, in particular, Ch.2 of the report of the Faulks Committee in 1975

(Report of the Committee on Defamation, Cmnd.5909).
10 Or even a waxwork: Monson v Tussauds Ltd [1894] 1 Q.B. 671 CA.

11 It is generally suggested that sign language would be treated as slander.

12 See, e.g. Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005]
Q.B. 946.

13 Lachaux v Independent Print Ltd [2019] UKSC 27; [2020] A.C. 612.

14 See Storey v Challands (1837) 8 Car. & P. 234; 173 E.R. 475 and
McManus v Beckham [2002] EWCA Civ 939; [2002] 1 W.L.R. 2982.

15 (1861) 9 H.L Cas. 577 at 600; 11 E.R. 854 (Lord Wensleydale).

16 Osborn v Thomas Boulter & Son [1930] 2 K.B. 226.

17 Theatres Act 1968 s.4(1).

18 Broadcasting Act 1990 s.166.

19 (1934) 50 T.L.R. 581.

20 See Monson v Tussauds Ltd (1894) 1 Q.B. 671 at 692 which suggests it
should be treated as libel.

21 The Faulks Committee at para.76 suggested that it would be libel due to

the fact that the vapour takes some time to disperse.

22 (1883) 11 Q.B.D. 609.

23 Simmons v Mitchell (1880) 6 App. Cas. 156 PC.

24 Jones v Jones [1916] 2 A.C. 481. Applied in Hopwood v Muirson [1945]

K.B. 313 (solicitor criticised whilst acting as referee for friend).

25 See Draft Defamation Bill Consultation (Consultation Paper CP3/11), 9.

26 Bloodworth v Gray (1844) 7 Man & G 334; 135 E.R. 140 (venereal
disease).
27 Senior Courts Act 1981 s.69.

28 Amending the Senior Courts Act 1981 s.69(1) to exclude libel and
slander from its list.

29 [2014] EWHC 2853 (QB); [2015] 1 W.L.R. 971.

30 [2014] EWHC 2853 (QB); [2015] 1 W.L.R. 971 at [47] per Warby J.

31 Capital and Counties Bank Ltd v Henty (1882) 7 App. Cas. 741,
although the application of the test in this case is less than satisfactory. See
also Mark v Associated Newspapers Ltd [2002] EWCA Civ 772; [2002]
E.M.L.R. 38.

32 [1936] 2 All E.R. 1237.

33 [1936] 2 All E.R. 1237 at 1240 HL per Lord Atkin. This presumes that
the claimant’s reputation can be lowered: see Williams v MGN Ltd [2009]
EWHC 3150 (QB) claimant in a libel action with a background of serious
criminal convictions had no reputation capable of protection.

34 (1934) 50 T.L.R. 581. See L. Treiger-Bar-Am, “Defamation law in a

changing society” (2000) 20 L.S. 291.

35 See Lewis v Daily Telegraph [1964] A.C. 234 at 259–260 per Lord Reid
and Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14] per Sir
Anthony Clarke MR. Society would appear to signify society as a whole
and not simply a section of the community: Tolley v Fry [1930] 1 K.B. 467
at 479. It has been suggested that, in view of the more diverse nature of
society today and the fact that the reputation of a person within his or her
own racial or religious community may be damaged by a statement which
would not be regarded as damaging by society at large, this may need to be
re-addressed in future: Arab News Network v Al-Khazen [2001] EWCA Civ
118.

36 [1937] 1 K.B. 818 at 833.

37 [1975] Q.B. 274 at 281. The case itself concerned the admissibility of
character evidence.

38 See also Gatley on Libel and Slander, 12th edn (Sweet and Maxwell,
2013), para.4.17, which suggests that an imputation against a judge of
inattentiveness or falling asleep on the bench would qualify as defamatory
but not, today, one of adultery.

39 [2010] EWHC 1414 (QB); [2011] 1 W.L.R. 1985.

40 [2010] EWHC 1414 (QB); [2011] 1 W.L.R. 1985 at [90].

41 [2014] EWHC 2831 (QB); [2015] 1 W.L.R. 895. For criticism of the
requirement of serious harm, see E. Descheemaeker, “Three errors in the
Defamation Act 2013” (2015) 6 J.E.T.L. 1.

42 [2019] UKSC 27; [2020] A.C. 612.

43 [2019] UKSC 27 at [21] per Lord Sumption.

44 See D. J. Acheson, “The Defamation Act 2013: What exactly is ‘a body

that trades for profit’?” (2015) 20 Comms L. 113.

45 Lord Chancellor and Secretary of State for Justice, Hansard HC 12 June

2012: col.181 (Second Reading of Defamation Bill).

46 It should also be noted that trivial claims may be struck out under the
doctrine of abuse of process: Jameel v Dow Jones & Co Inc [2005] EWCA
Civ 75; [2005] Q.B. 946 (needs to be a real and substantial tort).

47 [2015] EWHC 2628 (QB); [2016] 4 W.L.R. 69. Contrast Undre v

Harrow LBC [2016] EWHC 931 (QB); [2017] E.M.L.R. 3 where the judge
advised that a good starting point would be to ask whether the company has
proved that its financial position had worsened after the publication
complained of, compared with its previous position.

48 The intention of the defendant may, however, be relevant in relation to

possible defences (see Ch.14) or at least diminish the award of damages.
49 See Morgan v Odhams Press [1971] 1 W.L.R. 1239 at 1246 and 1252.

50 Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4 W.L.R. 68

(journalist Katie Hopkins was ordered to pay damages of £24,000 to Jack
Monroe, a food blogger with left-wing views whom she had defamed on
Twitter.)

51 [1996] 4 All E.R. 1008. But contrast Norman v Future Publishing Ltd
[1999] E.M.L.R. 325 CA.

52 Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; [2011] 1

W.L.R. 1526. This position was held to be consistent with ECHR art.10.

53 See Practice Direction–Defamation Claims Pt 53B r.4.2.

54 See, generally, Lewis v Daily Telegraph Ltd [1964] A.C. 234 at 271–272
per Lord Hodson.

55 [1931] A.C. 333.

56 Evidence was given that he would have been called on to resign the
membership of any reputable golf club.

57 [1929] 2 K.B. 331.

58 [1964] A.C. 234 at 258. See also Mapp v News Group Newspapers Ltd
[1998] Q.B. 520. Contrast Hayward v Thompson [1982] Q.B. 47, where the
words “connected with” a murder plot were held to be plainly capable of
conveying to ordinary persons the imputation of Hayward’s guilt.

59 [1964] A.C. 234 at 281 and 273. Note Lord Denning MR in Allsop v
Church of England Newspaper Ltd [1972] 2 Q.B. 161 at 167 who stated
that, in most cases, it is not only desirable but necessary for the claimant to
set out in the Case Statement the meaning which he or she says the words
bear unless there is only one ordinary meaning which is clear and explicit.
See now CPR Pt 53.

60 [1995] 2 A.C. 65. See also Butt v Secretary of State for the Home
Department [2019] EWCA Civ 933 (cannot read one paragraph of a
government press release in isolation—this is something an ordinary reader
would not do).

61 [1995] 2 A.C. 65 at 73 per Lord Bridge.

62 [1995] 2 A.C. 65 at 74.

63 [2019] UKSC 17; [2019] 2 W.L.R. 1033.

64 Morgan v Odhams Press Ltd [1971] 1 W.L.R. 1239.

65 [1971] 1 W.L.R. 1239 at 1245 and 1269–1270.

66 Note the contrast with the approach taken by the House of Lords in the
more recent case of Charleston v News Group Newspapers Ltd [1995] 2
A.C. 65, discussed above.

67 Grappelli v Derek Block (Holdings) Ltd [1981] 1 W.L.R. 822.

68 [1982] Q.B. 47.

69 In any event, there was evidence that a number of people had identified
Mr Hayward from the context of the first article, including his family, other
members of the Liberal party and innumerable journalists.

70 Simon v Lyder [2019] UKPC 38; [2020] A.C. 650 at [21] per Lord
Briggs.

71 [1910] A.C. 20. The Faulks Committee recommended no change in the

rule of Hulton v Jones (para.123).

72 W.E. Peel and J. Goudkamp, Winfield & Jolowicz on Torts, 19th edn
(Sweet and Maxwell, 2014), 13–08, note that Jones had once worked for the
newspaper. This might have influenced the jury, even though his counsel
accepted that the newspaper staff had forgotten about him.

73 [1940] 1 K.B. 377.

74 [1940] 1 K.B. 377 at 388 per Greene MR.

75 [2001] E.M.L.R. 40 (QBD).

76 See Dwek v Macmillan Publishers Ltd [2000] E.M.L.R. 284 CA

(photograph described as Dodi Fayed with a prostitute was, in fact, of the
claimant).

77 See Lord Keith in Derbyshire CC v Times Newspapers [1993] A.C. 534

at 550.

78 See ECHR art.10.2.

79 O’Shea v MGN Ltd [2001] E.M.L.R. 40 (QBD) at [43]. Morland J was

additionally concerned that liability would inhibit investigative journalism
into drug dealing, corruption, child abuse and prostitution.

80 The Court of Appeal in Baturina v Times Newspapers Ltd [2011] EWCA

Civ 308; [2011] 1 W.L.R. 1526 (at [29]) argued that it might be better
explained as a small extension of the Reynolds qualified privilege defence,
discussed in Ch.14.

81 [1944] A.C. 116. For a more recent example on similar facts, see
Tilbrook v Parr [2012] EWHC 1946 (QB): unsuccessful claim of chairman
of English Democrats party.

82 [1944] A.C. 116 at 124.

83 Although political parties cannot sue for defamation, politicians can sue
in their own right. This is discussed below under “Who can sue?”.

84 See also Aspro Travel v Owners Abroad Group Plc [1996] 1 W.L.R. 132,
where directors of a limited family company were allowed to sue for
defamation in their own right.

85 The Defamation Act 2013 does not seek to change the common law
meaning for publication: s.15.

86 This is not the case, however, for criminal libel, where publication to the
prosecutor alone will suffice.
87 Unless I am very unlucky and one of my audience understands old
Norse!

88 [1962] 1 W.L.R. 151.

89 [1915] 3 K.B. 323.

90 See, e.g. Sim v Stretch [1936] 2 All E.R. 1237.

91 Pullman v Hill [1891] 1 Q.B. 524 at 527 per Lord Esher MR.

92 Wennhak v Morgan (1888) 20 Q.B.D. 635.

93 Osborn v Thomas Boulter & Son [1930] 2 K.B. 226.

94 See Eglantine Inn Ltd v Smith [1948] N.I. 29 at 33 and Osborn v Thomas
Boulter & Son [1930] 2 K.B. 226 at 237 per Slesser LJ.

95 Weld-Blundell v Stephens [1920] A.C. 956. See also Stern v Piper [1997]
Q.B. 123 and Shah v Standard Chartered Bank [1999] Q.B. 241. This rule
was strongly affirmed in Mark v Associated Newspapers Ltd [2002] EWCA
Civ 772; [2002] E.M.L.R. 38, where it was held to be consistent with the
European Convention on Human Rights art.10.

96 Slipper v BBC [1991] 1 Q.B. 283.

97 Consider Lord McAlpine v Bercow [2013] EWHC 1342 (QB) where

Bercow had merely tweeted “why is Lord McAlpine trending? * innocent
face* “to her more than 56,000 followers. Mrs Bercow settled the case and
advised other Twitter users to behave more responsibly in how they use this
platform: Statement in Court, 21 October 2013.

98 e.g. by requesting journalists present to note allegations made during a

parish meeting: see Parkes v Prescott (1869) L.R. 4 Ex. 169 at 179.

99 Slipper v BBC [1991] 1 Q.B. 283 at 301 per Slade LJ.

100 [1991] 1 Q.B. 283.

101 [2002] EWCA Civ 939; [2002] 1 W.L.R. 2982.

102 [2002] 1 W.L.R. 2982 at 2998 per Waller LJ.

103 [2002] 1 W.L.R. 2982 at 3001 per Laws LJ.

104 The case was ultimately settled, Mrs Beckham paying the claimants
£55,000 for the hurt and damage suffered together with a set of official
merchandise signed by her husband: Statement in Open Court, 11 March
2003 (QBD, Gray J).

105 [1937] 1 K.B. 818.

106 More recently this has been applied by analogy to a web service which
provided a platform for blogs: see Tamiz v Google Inc [2013] EWCA Civ
68; [2013] 1 W.L.R. 2151 (arguable that Google had associated itself with
publication when notified of defamatory material on blog and could have
readily removed or blocked access to any notice which did not comply with
its own terms and conditions).

107 Law Reform (Miscellaneous Provisions) Act 1934 s.1(1).

108 [1894] 1 Q.B. 133.

109 McDonald’s Corp v Steel (No.4) [1995] 3 All E.R. 615. The trial itself
lasted 313 days (the longest trial in English history). See J. Vidal, McLibel–
Burger culture on trial (Pan, 1997).

110 [2006] UKHL 44; [2007] 1 A.C. 359.

111 Lord Hoffmann and Baroness Hale dissenting. Lord Hoffmann at [91]
distinguished an individual’s reputation (part of his or her personality) from
that of a company (really no more than a commercial asset) and questioned
why defamation should differ from other torts, such as malicious falsehood,
where a company is required to show proof of damage to bring an action to
protect its commercial assets from tortious harm.

112 [2006] UKHL 44; [2007] 1 A.C. 359 at [26]. Concern was also raised
that if special damage was required, a company would not be able to avert
irreparable damage to its reputation by a prompt issue of proceedings: see
Lord Bingham at [26] and Lord Hope at [102].

113 See Steel and Morris v United Kingdom (68416/01) (2005) 41 E.H.R.R.
22.

114 [2006] UKHL 44; [2007] 1 A.C. 359 at [27]. See also his remark at
[19].

115 Report of the Committee on Defamation, Cmnd.5909 para.342.

116 [1993] A.C. 534. Comment: B. Bix and A. Tomkins (1993) 56 M.L.R.
738; S. Palmer [1993] C.L.J. 363, and E. Grant and J. G. Small (1994) 14
O.J.L.S. 287.

117 [1993] A.C. 534 at 547.

118 [1993] A.C. 534 at 549 per Lord Keith.

119 [1992] Q.B. 770.

120 Lord Keith commented ([1993] A.C. 534 at 541): “My Lords, I have
reached my conclusion upon the common law of England without finding
any need to rely upon the European Convention . . . I can only add that I
find it satisfactory to be able to conclude that the common law of England
is consistent with the obligations assumed by the Crown under the Treaty in
this particular field”.

121 [1998] Q.B. 459 at 463.

122 The Referendum party had been founded by Sir James Goldsmith
(father of former MP and now life peer Zac Goldsmith) and sought to
secure a referendum on Britain’s future in Europe. It put up 547 candidates
in the 1997 election.

123 As re-iterated by Tugendhat J in McLaughlin v Lambeth LBC [2010]

EWHC 2726 (QB); [2011] E.M.L.R. 8: the right to sue of any individual
who carried on the day to day management of the affairs of a governmental
body was subject to no limitation other than the requirement that the words
complained of should refer to, and be defamatory of, that individual.

124 See E. Barendt, “Libel and freedom of speech in English law” [1993]
P.L. 449.

125 376 U.S. 254 (1964). See also Lingens v Austria (1986) 8 E.H.R.R. 407
in which the European Court of Human Rights adopted an approach
towards public figures similar to that adopted in the US. For a comparison,
see D. Elder, “Freedom of expression and the law of defamation: the
American approach to problems raised by the Lingens case” (1986) 35
I.C.L.Q. 891. See, generally, A.T. Kenyon (ed), Comparative Defamation
and Privacy Law (CUP, 2016).

126 See B. Bix and A. Tomkins, “Local authorities and libel again” (1993)
56 M.L.R. 738.
 14

Defences to Defamation

Introduction
14–001 Chapter 13 examined the basic requirements of a defamation
action. The burden is on the claimant to establish (a) that the
statement is defamatory, (b) that it refers to the claimant and (c)
that it has been published to a third party. This chapter will
examine the defences open to the defendant once the claimant
has established these three requirements. The Human Rights Act
1998 has made an inevitable impact on this area of law. As seen
in Ch.13, it places particular importance on freedom of
expression (ECHR art.10) and requires the courts to balance the
protection of a party’s reputation against the public interest in
allowing individuals to “hold opinions and to receive and impart
information and ideas without interference” by the courts.
Section 12(4) of the Act further provides that the courts “must
have particular regard to the importance of the Convention right
to freedom of expression.” Although the law of defamation has
always recognised these two conflicting interests, it cannot be
denied that the 1998 Act has brought this debate to the fore.
The most significant development in recent years is,
however, the Defamation Act 2013 which came into force on 1
January 2014.1 This introduces new defences (notably for
operators of websites and for authors of peer-reviewed scientific
or academic articles) and places the main defamation defences in
 a statutory form. The aim is to simplify and clarify the law,
whilst ensuring protection of the right to freedom of expression
in the public interest. The common law defence, therefore, of
justification becomes the s.2 defence of truth; that of fair
comment, the s.3 defence of honest opinion with the new s.4
defence of “publication on matter of public
interest” replacing the common law defence established in
Reynolds v Times Newspapers.2 It should also be noted that
although these are the most important defences, other defences
exist. It is a defence, for example, if the claimant has expressly
or impliedly consented to the publication of the defamatory
matter,3 and under the Defamation Act 19964 a number of
further options arise: unintentional defamation and innocent
dissemination. Consent will be discussed generally in Ch.16, but
the other defences will be examined below. If all the defences
fail, the defendant has one final option. This is to mitigate the
level of damages by raising arguments in his or her favour, for
example that an apology was made or that the defamatory
material was not shown to a large number of people. Such
arguments will not amount to a defence, but may at least lead the
court to award a lesser amount of damages against the
defendant.
Each defence will be discussed in turn.

Truth5

14–002 It is a valid defence to show that the defamatory statements were

in fact true. Two points should be noted here. First, defamatory
statements are presumed to be untrue.6 The claimant does not
have to show that the statements were false. The burden
therefore will be on the defendant to show that the statements
were true and so justified. Secondly, the claimant has no right to
complain about true statements which lower his or her
reputation. Logically, such statements merely bring the
individual’s reputation down to its appropriate level.7 It is also
irrelevant whether the statements are published out of malice or
to let others know the truth. The only exception to this is
contained in the Rehabilitation of Offenders Act 1974 s.8.
Section 8(5)8 provides that where the claimant complains that
the defendant has published information concerning his or her
spent convictions, the defendant cannot rely on the defence of
truth
if the publication is proved to have been made with malice. The
burden will be on the claimant to show the presence of malice.9
The key provision is now Defamation Act 2013 s.2, which
abolishes the common law defence of justification.10 Section
2(1) provides that “it is a defence to an action for defamation for
the defendant to show that the imputation conveyed by the
statement complained of is substantially true”. This reflects the
pre-existing common law position. The defendant is expected to
prove, on the balance of probabilities, that the words used are
substantially true. This includes their express meaning, but also
extends to any innuendoes deriving from the statement. In
Wakley v Cooke,11 for example, the defendant had called the
plaintiff a “libellous journalist”. He was able to show that a
judgment had once been obtained against the plaintiff for libel.
However, because the words, by innuendo, were capable of
meaning that the plaintiff was in the habit of libelling people, the
comment could not be justified by referring to only one previous
incident of libel. The defendant’s claim of justification therefore
failed. The operation of the “substantially true” test may be seen
in Alexander v North Eastern Railway Co.12 Here, the
defendants had stated that the plaintiff had been convicted of an
offence of dishonesty and sentenced to three weeks’
imprisonment in default of payment of a fine. In fact, they could
only prove the conviction and a sentence of two weeks’
imprisonment. Nevertheless, the court found the statement to be
 substantially true and the defendants therefore succeeded in their
defence of justification. It is clear that existing case law will be
helpful in applying this test. The defendant can also, when
appropriate, rely on the Civil Evidence Act 1968 s.13 (as
amended by the Defamation Act 1996 s.12(1)). This provides
that if the defendant has alleged that the claimant has committed
an offence, this can be proved to be true simply by giving
evidence of the conviction. It is not necessary to prove that the
claimant was rightly convicted.

14–003 Sections 2(2)–2(4) deal with a different issue: where the

claimant alleges that the statement in question conveys more
than one defamatory allegation. Section 2(3) provides that:

“If one or more of the imputations is not

shown to be substantially true, the defence
under this section does not fail if, having
regard to the imputations which are shown
to be substantially true, the

imputations which are not shown to be

substantially true do not seriously harm
the claimant’s reputation.”

Defamation Act 1952 s.5 had previously dealt with this issue
and is now repealed by the Act.13 On this basis, where the
defendant has made two or more defamatory allegations (or
imputations), the defence of truth is not lost if the most serious
allegations are substantially true and those which are not do not
seriously harm the claimant’s reputation. The Explanatory Notes
to the Act indicate that these provisions have the same effect as
s.5, but seek to use more “user-friendly” modern terminology.14
 This situation should be distinguished from that where the
defendant argues that a number of different defamatory
allegations have a “common (or general) sting” which he or she
is able to show is substantially true. For example, in Williams v
Reason,15 a Welsh amateur rugby player sued in respect of an
article which accused him of writing a book for profit, contrary
to his amateur status. The defendants claimed justification and
were permitted to allege in support of the article that the player
had previously taken money for wearing a particular brand of
boots. The sting of the defamatory words was that Williams had
compromised his amateur status (so-called “shamateurism”) and
the evidence of the boots money went to justify that charge.
However, the “common sting” argument will not work where the
allegation against the claimant is specific. In such cases, the
court will focus on each individual allegation and the defendant
will not be permitted to raise matters with a “common sting”.16
On this basis, the Court of Appeal in Bookbinder v Tebbit17
struck out part of the defence put forward by Norman Tebbit, the
former chairman of the Conservative party, which referred to
general examples of irresponsible spending by Derbyshire City
Council. The court found that Tebbit had made a specific
allegation against Bookbinder that the council, under his
leadership, had squandered public money by overprinting
stationery with a political message. He would therefore have to
justify that particular allegation.
The difficulties in proving that a particular allegation is true
should not be underestimated despite current reforms. The
burden is on the defendant to justify the substantial truth or
“sting” of the allegations. If the defendant cannot show that the
statements were substantially true, the defence fails. Evidence
that the statement is partially true will not constitute a defence,
although it may serve to reduce the level of damages awarded.
In contrast, an unsuccessful attempt to justify the defamatory
statement may be deemed to aggravate the injury to the claimant
by giving the statement extra publicity at trial, and so merit a
higher award of damages.18 It is therefore a calculated risk
whether to raise this defence.
 Where the defendant raises a defence of truth or honest
opinion, the defendant must specify the defamatory meanings he
or she seeks to justify19 or defend as honest opinion and give
details of the matters on which he or she relies in support of the
allegation.20

Honest Opinion

14–004 This defence, previously known as fair comment and, from

2010, honest comment,21 is under the Defamation Act 2013 s.3
now entitled “honest opinion”.22 Section 3(8) abolishes the
common law defence of fair comment. It should be
distinguished from that of truth (discussed above). Here, the
defendant does not have to show that his or her words are true,
but that he or she has exercised the right to criticise the claimant.
It is therefore closely linked to the right to freedom of
expression. The question for the courts is to what extent the
defendant’s right to freedom of expression should be kept within
bounds. The aim of the 2013 Act is to simplify and clarify the
operation of this defence, but it also, by removing the common
law requirement that the opinion must be on a matter of public
interest,23 extends its scope. There are now three conditions for
the application of this defence: (a) it must be a statement of
opinion; (b) the statement must indicate, in general or specific
terms, the basis for this opinion; and (c) it must be honest. These
conditions are discussed below.

Condition one: statement of opinion

14–005
Section 3(2) provides that the statement complained of must be a
statement of opinion. This reflects the pre-existing common law
position and the Explanatory Note to the Act expressly states
that the Act wishes to embrace the requirement established in
Cheng v Tse Wai Chun24 that the statement must be recognisable
as comment and not a statement of fact. Cases such
as British Chiropractic Association v Singh25 indicated that the
distinction between fact and opinion might not always be
straightforward, but the Act now adopts a definition based on
what an ordinary person would understand it to be.26 In Singh,
the issue was whether a criticism of lack of scientific evidence to
support a particular treatment amounted to an opinion or was a
statement of fact. The Act supports the Court of Appeal’s view
that an inference from facts may be a form of opinion,
particularly where it is clear that the defendant is not in a
position to know whether this represents the true position. The
recent case of Butt v Secretary of State for the Home
Department27 affirmed that a statement based on an assessment
or evaluation of evidence would be regarded as a statement of
opinion, not fact. In the case itself, a statement in a government
press release concerning tackling extremism referred to Butt (the
editor of a website) as expressing views “contrary to British
values”. This was regarded as a statement of opinion. The
ordinary reasonable reader would appreciate that this was an
assessment reached by looking at the claimant’s public
pronouncements and how they conformed to certain values.
Case law has indicated, however, that an allegation of
dishonesty, fraud or attempted fraud, attacking the claimant’s
integrity, would usually fall on the side of fact rather than
opinion.28

Condition two: the statement must

indicate, in general or specific terms, the
basis for this opinion
14–006 It is well established that, for this defence, the defendant must
show that the words in question consist of a comment on a true
set of facts. (The defendant will obviously not be able to invent
facts and then “comment” on them.) It is, however, sometimes a
difficult question whether the defendant has sufficiently stated or
indicated the facts on which the comment is made. Failure to do
so may make the court treat the statement as one of fact to which
this defence would not apply. In Kemsley v Foot,29 for example,
Lord Kemsley (a well-known newspaper proprietor at the time)
had complained about an article entitled “Lower than Kemsley”,
which criticised the quality of a newspaper unconnected with
him. The article contained no other reference to Kemsley, but the
inference was obviously that Kemsley produced low quality
newspapers. It was questioned whether the defendants could rely
on the defence of what was then called “fair comment” when
there were no facts in the article to “comment” upon. The House
of Lords took a very broad view of the headline and held that
where a “substratum of fact” could be inferred from the words
used, the defence of fair comment could be put to the jury. Here,
the defendants
had clearly referred to Lord Kemsley, who was well known to
the public generally. A stricter line was taken, however, by the
House of Lords in the later case of Telnikoff v Matusevitch.30 In
this case, a letter was published in the Daily Telegraph which
criticised an article by the plaintiff, published in the same
newspaper, concerning recruitment to the BBC Russian service.
The letter suggested that the plaintiff was racist. The plaintiff
brought an action against the letter writer for libel. The question
arose whether, in considering the letter writer’s defence of fair
comment, the letter should be considered in the context of the
article it criticised. The majority of the House of Lords held that
in considering whether the letter amounted to “comment”, the
court should not look at the article, since many readers of the
letter would not have read the article or, if they had read it,
would not have had its terms fully in mind. If, in isolation,
remarks in the letter were adjudged to be statements of fact
rather than comment, then the defence of fair comment would
not lie, and the defendant would have to resort to the alternative
defence of justification (now truth). Lord Keith denied that this
would require future letter writers to include the entire text of
the article in the letter. The onus would simply be on the letter
writer to make it clear that he or she was writing comment and
not making statements of fact. His Lordship thought that
newspaper editors would not have any difficulty in observing
whether this had in fact been achieved.31
In 2010, the Supreme Court in Spiller v Joseph32 reviewed
these two cases and suggested that the test should be whether the
comment has explicitly or implicitly indicated, at least in general
terms, the facts on which it is based. It was not, however,
necessary to identify the facts with such particularity that the
reader could judge for himself whether it was well founded. In
the words of Lord Phillips, the key issue is that:

“. . . the reader can understand what the

comment is about and the commentator
can, if challenged, explain by giving
particulars of the subject matter of his
comment why he expressed the views that
he did. A fair balance must be struck
between allowing a critic the freedom to
express himself as he will and requiring him
to identify to his readers why it is that he is
making the criticism.”33

Defamation Act 2013 s.3(3) now provides that “the second

condition is that the statement complained of indicated, whether
in general or specific terms, the basis of the opinion”. This seeks
to reflect the Spiller test and avoid the complexity of earlier
cases such as Kemsley v Foot34 and Telnikoff v Matusevitch35 in
 which the case law struggled to articulate with clarity the extent
to which reference to the facts on which the opinion was based
was needed.

Condition three: honest

14–007 The common law found this final condition difficult to define. It
is not a question whether the words used are true or not, but
merely whether the opinion, however exaggerated, obstinate or
prejudiced, was honestly held by the person expressing it.36 The
fact that the comment was expressed strongly, provided it does
not descend into mere abuse, did not make a difference.37 It was
also the case that the defence would be defeated by malice,
although, confusingly, Lord Nicholls in Cheng v Tse Wai Chun38
determined that this had a different meaning to that used to
defeat the defence of qualified privilege (discussed below). His
Lordship held that the touchstone of the defence was honesty.
Regardless of motive, if the defendant honestly believed the
truth of his comment, then a court would not find malice. Spite,
animosity, intention to injure or other motivation would only be
relevant as evidence that the defendant did not genuinely believe
the view expressed.
Section 3(4) now provides that:

“[t]he third condition is that an honest

person could have held the opinion on the
basis of—(a) any fact which existed at the
time the statement complained of was
published; (b) anything asserted to be a fact
in a privileged statement published before
the statement complained of.”
It thus sets an objective test with two elements: (a) could an
honest person have held that opinion on the basis of “any” fact
which existed at the time; or (b) on the basis of a fact in a
privileged statement?39 The defence will be lost, however, if the
defendant did not actually hold the opinion in question: s.3(5).
This is a subjective test, although it should be noted that the term
“malice” is no longer used. Section 3(6) also deals with a
situation where the publisher of the opinion is not the actual
author of the piece, for example, where an action is brought
against a newspaper editor for a comment in his or her
newspapers. The editor will not be affected by the s.3(5) defence
unless he or she knew or ought to have known that the author
did not hold the opinion in question.
The Act also abolishes the Defamation Act 1952 s.6 on the
basis that the problem it dealt with—defamatory statements
which consist partly of allegations of fact and partly of
expressions of opinion where the truth of every allegation of fact
cannot be proved—is now covered by
the new approach set out in s.3(4).40 Section 3(4)(a) achieves
this by providing that “any fact” can provide a sufficient factual
basis for the opinion in question.41 So, for example, where A has
published an article in which she states that schoolteacher B had
failed his examinations at university, was always late for class
and is therefore incompetent to teach at the local school in
circumstances where A can prove that B failed his examinations,
but not that he is always late, A will be able to rely on s.3
despite the fact she cannot show the truth of all the allegations of
fact.

Privilege
14–008 This is the third main defence and has been subject to significant
changes under the Defamation Act 2013 ss.4, 6 and 7. Here,
while the defendant is unable to prove that the allegations made
are substantially true, the public interest in freedom of
expression is nevertheless such that it overrides any concerns as
to the effect of this freedom on the claimant’s reputation. There
are two types of privilege in English law. Absolute privilege 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. Qualified privilege is the
weaker form of privilege. It applies in situations where it is
desirable that freedom of speech should be protected, but only
where the author is acting without malice. If the claimant can
show that the defendant has acted maliciously, the qualified
privilege is lost. If there is a jury trial, the judge will decide
whether the occasion is a privileged one, and whether a
reasonable jury could find that the author’s dominant motive
was malice. The jury will decide whether any allegation of
malice has been proved.
Decisions determining the occasions that merit absolute or
qualified privilege have been taken over the last 500 years and
represent the policy choices of Parliament and the judiciary at
particular moments in history. Privilege has also been subject to
statutory intervention, most recently in the Defamation Acts of
1996 and 2013. Defamation Act 2013 s.4 is particularly
important in that it places the defence set out in the leading
House of Lords case of Reynolds v Times Newspapers42 in
statutory form. Absolute and qualified privilege are discussed
below.

Absolute privilege

14–009 Absolute privilege applies to statements made in Parliament, in

court and by certain officers of state. There are five main
occasions when the defence will apply.
 ◗ (1) Statements in Parliament
14–010 Bill of Rights 1688 art.9 provides that:

“the freedom of speech and debates or

proceedings in Parliament ought not to be
impeached or questioned in any court or
place out of Parliament.”

This preserves parliamentary autonomy and allows Members of

Parliament freely to criticise individuals as they feel appropriate.
It also prevents the courts from inquiring into the conduct of
parliamentary business.43 The defence is confined, however, to
statements made in Parliament.44 As the Privy Council
commented in Buchanan v Jennings:

“A degree of circumspection is accordingly

called for when a Member of Parliament is
moved or pressed to repeat out of
Parliament a potentially defamatory
statement previously made in
Parliament.”45

In Church of Scientology of California v Johnson-Smith,46 the

plaintiff was not permitted to rely upon statements made by an
MP in Parliament as evidence of malice, even though the action
was based on comments made by the MP outside Parliament.
The rule can be a mixed blessing for MPs. When the former
Conservative MP, Neil Hamilton, sued The Guardian for libel,
the action was stayed by May J, on the basis that the defendants
 would be unable to mount an effective defence because of
parliamentary privilege.47 This left Hamilton unable to clear his
own name and pressure mounted for a change in the law. In an
attempt to avoid any unfairness,
Parliament passed the Defamation Act 1996 s.13, which
provided that an MP may waive privilege for the purpose of
defamation proceedings.48 This section was, however, criticised
for unduly favouring MPs over their opponents and was repealed
in 2015.49

◗ (2) Reports, papers, votes and proceedings

ordered to be published by either House of
Parliament
14–011 Statements in these documents are absolutely privileged by
virtue of the Parliamentary Papers Act 1840 s.1. Absolute
privilege does not extend, however, to extracts from, or abstracts
of, parliamentary papers, or to reports of parliamentary
proceedings, but all of these are covered by qualified privilege,
which will be discussed below.

◗ (3) Judicial proceedings

14–012 It is important that the court should hear all relevant and
admissible evidence, and it would be contrary to public policy if
witnesses were reluctant to give evidence for fear that they may
subsequently be sued for defamation. To ensure a fair trial,
absolute privilege is therefore given to all oral and written
statements made in the course of judicial proceedings. “Judicial
proceedings” are defined broadly, and cover all tribunals
exercising functions equivalent to a court of justice.50 The
privilege extends to statements made by the judge, jury,
advocates, the parties and witnesses.51 This freedom to comment
may be abused, but it is for the judge to regulate the conduct of
the case in court. The defence also applies to statements made
 on occasions that can be regarded as a step in judicial
proceedings, for example witness statements.52
Whilst the defence applies to the solicitor/client relationship in
connection with litigation, it is not clear whether it applies to
communications between a solicitor and client which are not
related to judicial proceedings. Logically, perhaps, it should not.
In More v Weaver,53 however, the Court of Appeal held that all
relevant communications between solicitor and client were
absolutely privileged. The question was left open by the House
of Lords in Minter v Priest,54 and it is more likely that such
communications are covered by qualified privilege (discussed
below).

◗ (4) Reports of UK court proceedings

14–013 Defamation Act 1996 s.14 (as amended by the Defamation Act
2013 s.7(1))55 provides that absolute privilege is accorded to all
fair and accurate contemporaneous reports of public proceedings
in any court in the UK, any court established under the law of a
country or territory outside the UK and in any international court
or tribunal established by the Security Council of the United
Nations or by an international agreement. This will include the
Court of Justice of the European Union and the European Court
of Human Rights. Thus, a newspaper can give an account of
national and international court proceedings without fearing
actions for defamation. “Contemporaneous” is the main limiting
factor. This seems to mean as soon as practicable.56 In a jury
trial, it will be for the jury to decide whether the report is a fair
and accurate one.

◗ (5) Communications between certain officers of

state
14–014 The argument here is that officers of state will perform their
duties better if they are not acting under fear of litigation. This is
essentially the familiar public policy argument that is used in the
 tort of negligence to justify not imposing liability on the police
and other public bodies
(see Ch.2). The leading case on this category of absolute
privilege is Chatterton v Secretary of State for India.57 Here, the
Court of Appeal held that an action for libel based on a letter
written by the Secretary of State for India to his parliamentary
under-secretary, to enable the latter to answer questions in
Parliament concerning the plaintiff, was rightly dismissed by the
trial judge. To allow any judicial inquiry into such matters would
tend to deprive officers of state of their freedom of action. The
scope of this immunity is a matter of some debate, and it has
been narrowly construed in more recent times. The immunity
does not, for example, extend to communications between civil
servants. Henn-Collins J in Szalatnay-Stacho v Fink58 suggested
that it does not extend to officials below the rank of Minister,
and in Merricks v Nott-Bower59 the Court of Appeal refused to
strike out a claim simply because the report was written by high-
ranking police officers.

Qualified privilege

14–015 This is the more limited form of privilege and takes two forms:
common law qualified privilege and statutory qualified
privilege. As stated above, unlike absolute privilege, this
defence is defeated by proof of malice, that is, the claimant can
show either that the statement was made maliciously (for
example, the defendant abused the privilege by using it for some
purpose other than that for which the privilege was given) or that
the defendant has exceeded the privilege (for example by
publishing the statements more widely than necessary). In
Horrocks v Lowe,60 Lord Diplock considered the meaning of
“malice” and held that the defendant is entitled to be protected
by the privilege unless a “dominant and improper” motive is
proved. His Lordship emphasised, however, that judges (and
juries when relevant) should be slow to find a defendant
malicious on the sole ground that the publication of the
 defamatory words (even though he believed them to be true) was
prompted by the dominant motive of injuring the claimant.
Generally, an extra element was required. The defence of
qualified privilege would be lost only if it could be shown that
the defendant did not honestly believe that what he or she said
was true or was reckless as to its truth or falsity.61
Common law and statutory qualified privilege will be
examined below. The Defamation Act 1996 put on a statutory
basis a number of miscellaneous occasions on which qualified
privilege had previously arisen at common law. The 1996 Act
has been subject to amendment by the Defamation Act 2013
which adds two new statutory categories of qualified privilege:
publication on matter of public interest (s.4) and peer-reviewed
statements in scientific or academic journals (s.6). We will start,
however, with the common law doctrine of qualified privilege.

◗ Traditional common law qualified privilege: the

duty/interest test
14–016 Here, we are concerned with qualified privilege which arises in
situations where there is a “reciprocal duty and interest” between
the defamer and the person to whom the statement is published.
Unfortunately, as we shall see, it has proved difficult to define
precisely when such situations will arise. The defence has a
number of forms, but in its basic form has two requirements:
▮ X has a duty or interest in communicating with Y (this
duty may be legal, moral or social); and
▮ Y has a corresponding interest or duty in receiving the
information in question.62

The element of reciprocity is essential. On this basis, if X

writes a letter to Y which contains false defamatory statements
about Z, but (a) X has a duty to inform Y, and (b) Y has an
interest in receiving this information, X has a good defence of
qualified privilege provided he is not malicious.
 Qualified privilege will also extend to situations where X
publishes a statement to Y who shares a “common interest” with
X, for example in the business in which they both work.63
Further, it will include the situation where X has published the
statement to defend his or her own interests and it is in the
interest of Y to receive and consider the statement. For example,
in Osborn v Boulter64 the plaintiff had claimed that he had been
supplied with poor quality beer. The defendant’s response—that
the plaintiff watered down his beer—was sent to meet this
accusation and was therefore privileged. The courts have found
that the law will generally attach privilege more readily to
communications within an existing relationship than to
communications between strangers.65
The privilege will not be lost by dictating a letter to a
secretary or delivering a circular to a printer.66 These are
reasonable and ordinary means of communication in business
and are therefore privileged. It is not clear, however, whether
they are covered by an ancillary form of privilege, which is
dependent on the defendant establishing qualified privilege
between the defendant and the intended recipient of the letter, or
whether they form their own head of qualified privilege because
of the common interest between the author and the typist in
getting the letter written. Divergent views were expressed in
Bryanston Finance Ltd v de Vries,67 and the point therefore
remains open.

WHAT IS A LEGAL, MORAL OR SOCIAL DUTY?

14–017 The observations of Lindley LJ, in Stuart v Bell,68 make it clear
that the law simply leaves this question to be answered at the
discretion of the judge:

“The question of moral or social duty being

for the judge, each judge must decide it as
best as he can for himself. I take moral or
social duty to mean a duty recognised by
 English people of ordinary intelligence and
moral principle, but at the same time not a
duty enforceable by legal proceedings,
whether civil or criminal.”

This provides little assistance. At best, we can say that the

law applies an objective test, having regard to the moral and
social duties prevalent in society. This inevitably raises a
question as to the ability of the courts to ascertain the views of
modern society. In practice, it will be a matter of looking at past
case law and ascertaining what situations in recent times have
given rise to such duties.

WHAT IS AN INTEREST?
14–018 Generally, this is easier to define. The courts will interpret
“interest” broadly to include, for example, financial and business
interests such as an interest in the financial stability of an
individual or company. Again, an objective test will be applied,
and the question will be decided by the judge, who will ascertain
whether the interest is legitimate and should be protected for the
common convenience and welfare of society.

EXAMPLES
14–019 The rationale for this head of qualified privilege is said to be the
“common convenience and welfare of society”.69 In other
words, it is necessary at times for people to be free to
communicate without fear of litigation, in order to protect their
own interests or because they are under a duty to communicate.
The law will respect this freedom as being in the public interest
provided it is not abused (i.e. exercised with malice).70 A few
examples will assist. On applying for a job, your new employer
will generally require a reference from your former employer.
Your former employer is under no legal duty to provide the
reference, but is under a social duty to do so. It is very much in
the interest of your new employer to see your reference.
Therefore, the reference will be protected by qualified privilege:
Spring v Guardian Assurance.71 The same reasoning will apply
in respect of complaints made or information given to the police
or appropriate authorities regarding suspected crimes.
Another example may be seen in the case of Watt v
Longsdon.72 In this case, the plaintiff was managing director of a
company overseas. The defendant was also a director of the
company. The defendant had been informed by a manager (B) of
various allegations of misconduct relating to the plaintiff. The
defendant wrote back to B, adding his own suspicions, and
asking B to obtain sworn statements to support the allegations.
Without waiting to verify the complaints, the defendant wrote to
the chairman of the board of directors, and to the plaintiff’s wife
(who was an old friend of his), informing them of the
allegations. The allegations proved to be false and the plaintiff
sued the defendant for libel. The question arose whether
publication of the allegations to the chairman of the board and to
the plaintiff’s wife were covered by qualified privilege. The
Court of Appeal held that the defendant’s letter to the chairman
of the board of directors was covered by qualified privilege.
Employees of a company would have a common interest in the
affairs of the company, which entitled them to discuss the
behaviour and conduct of another employee. Additionally, there
was a possibility that the chairman might be asked to provide a
reference for the plaintiff at a future date. The qualified privilege
did not extend, however, to the defendant’s letter to the
plaintiff’s wife. Here, the defendant was held to have no duty to
pass this information to the wife, particularly when it had not
been verified. Yet, this is not clear-cut. Arguably, a wife has an
interest in hearing about the misconduct of her husband, and
there may sometimes be a “moral” or “social” duty to inform her
of his misconduct. The court held that it would depend on the
circumstances of each case. If the defendant had known the
information to be genuine, it may have been found that the
defendant had a moral duty to pass the information to the wife.73
This case illustrates the problems which can arise in dealing
with the vague concepts of “duty” and “interest”.
 ◗ Common law qualified privilege and the media:
the Reynolds test
14–020 The important case of Reynolds v Times Newspapers Ltd74
called into question the relationship between qualified privilege
and the press. Reynolds was heard in 1999; a year before the
Human Rights Act 1998 came into force. Although the Act did
not apply in this case, the House of Lords expressly
acknowledged that, in a democracy, the press plays a vital role in
ensuring that the public are informed and are aware of the laws
and regulations which affect their daily lives. This view is also
reflected in s.12(4) of the 1998 Act which provides that the
courts should have a particular regard to the importance of
freedom of expression and, in deciding cases which concern
journalistic, literary or artistic material, should examine: (i) the
extent to which the material has, or is about to, become available
to the public; (ii) the extent to which it is, or would be, in the
public interest for the material to be published; and (iii) any
relevant privacy code.75
In view of such advocacy of press freedom, the argument
was raised that the defence of qualified privilege should be
extended to all statements published in the public interest.
Society has a clear interest in such stories, and the press may
regard itself as under a duty to publish such material. Such an
extension would ensure that the press, provided it acted without
malice, would have the freedom to discuss important issues
without the “chill” of a potential libel claim. This argument is
particularly strong in relation to political discussion. Political
matters are of direct concern to the electorate. Therefore, it can
be argued that the electorate has a “right to know”. Nevertheless,
in Reynolds v Times Newspapers, the House of Lords reiterated
that the media did not possess its own head of qualified
privilege, even when dealing with matters of political
information. However, a more liberal stance was suggested. This
decision, and its implications, will be examined below.
14–021 In Reynolds, the former Prime Minister of the Republic of
Ireland, Albert Reynolds, brought an action against The Times
over an article which he claimed implied that he had deliberately
misled the Irish Parliament and his cabinet colleagues during a
political crisis in Ireland in 1994. He succeeded at first instance,
but the jury awarded him one penny in damages. He appealed.
The Times also appealed, claiming that it was protected by
qualified privilege. The Court of Appeal set aside the jury’s
verdict and ordered a retrial, but held that the article was not
covered by qualified privilege. The Times appealed to the House
of Lords, but the majority of the House rejected its appeal. It
was held that there was no special head of qualified privilege for
the media based on the public interest in political information
and discussion. However, their Lordships were of the view that
the “duty/interest” test was flexible enough to include
consideration of diverse factors such as the nature, status and
source of the material published and the circumstances of
publication. Applying this test, the majority agreed with the
Court of Appeal that the article did not contain information
which the public had a right to know.76 Their Lordships
particularly focused on the fact that the article had failed to
mention Mr Reynolds’ own explanation of his conduct to the
Irish Parliament. The case nevertheless marked a clear
recognition by the House of Lords of the importance of the
European Convention on Human Rights art.10, and of the need
to balance the countervailing interests of reputation and freedom
of speech. Lord Nicholls advised future courts to 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—whether it is a matter of
public concern;
 ▮ its source;
▮ what steps had been taken to verify the information;
▮ the status of the information, i.e. the reliability of the
report;
▮ the urgency of the matter (news being a perishable
commodity);
▮ whether comment is sought from the claimant;
▮ whether the gist of the claimant’s side of the story has
been told;
▮ the tone of the article; and
▮ the general circumstances and timing of the publication.

This flexible approach left the courts free to weigh up the

competing interests of freedom of expression and reputation on
the facts of each case, but also brought uncertainty. While Lord
Nicholls asserted that courts should be slow to find that
publication is not in the public interest, particularly in relation to
political discussion,77 it remained for the courts to determine
how his Lordship’s ten guidelines would be applied. It should be
noted, however, that these ten factors incorporate both the test
for privilege and the question of malice.

THE APPLICATION OF REYNOLDS

14–022 The courts in a number of subsequent decisions sought to clarify
the operation of the Reynolds test for qualified privilege, notably
in the Loutchansky litigation78 and in Bonnick v Morris,79 which
stressed that the Reynolds test was one of responsible
journalism. If the newspaper could satisfy the Reynolds criteria
and demonstrate that it had acted responsibly, the defence of
qualified privilege would apply.
Despite such guidance, the House of Lords in Jameel v Wall
Street Journal Europe SPRL (No.3)80 in 2006 noted that the
lower courts had been interpreting the Reynolds defence in an
unduly restrictive manner. It was necessary, therefore, to restate
the principles of Reynolds qualified privilege.81 The Court of
Appeal in this case had rejected the defence of qualified
privilege due to the failure of the newspaper to delay publication
to allow the claimant to comment. Whilst this is one of Lord
Nicholls’ relevant factors, the House of Lords stressed that the
ten factors were not hurdles, but merely pointers towards the
correct approach to adopt.82 Their Lordships identified two
questions to be addressed in cases of media qualified privilege:
▮ that the subject-matter of the article, taken in context
and as a whole, was in the public interest; and
▮ that the publication met the objective standard of
responsible journalism.

On the facts of the case, their Lordships were in no doubt that,

despite the failure to contact Mr Jameel,83 the article as a whole,
dealing with the thorny issue of the funding of international
terrorism in the wake of the 9/11 attacks, raised a matter of
public interest and that the Wall Street Journal (described as a
respected, influential and non-sensational newspaper)84 had
acted responsibly in taking reasonable steps to verify the facts
relied upon. The House of Lords stressed the need to apply the
Reynolds test more generously and with greater flexibility.85
Lord Hoffmann also commented that allowance should be made
for editorial judgement and the fact that the judge, with the
benefit of hindsight, might have made a different editorial
decision should not destroy the defence.86
In 2012, the Supreme Court felt it necessary to reiterate its
guidance in Flood v Times Newspapers Ltd.87 Again the
argument was that the Court of Appeal had been too harsh in
judging an article which had named Flood as a detective accused
of corruption. The court ruled that a story relating to police
corruption was of high public interest and that in circumstances
where there had been a strong circumstantial case against Flood,
 it would suffice that the journalist had believed in the truth of the
allegations, that this was based on a reasonable investigation and
that it was a reasonable belief for him to hold. Lord Mance
argued that the courts should take a “broad and practical”
approach to the standard of responsible journalism,88 and that
while the courts must have the last word in setting the
boundaries of this test, within those boundaries the judgment of
responsible journalists and editors would merit respect.89 Lord
Phillips also approved the view expressed by the Privy Council
in Seaga v Harper90 that Reynolds
privilege was not simply reserved for the media (although this
was the most likely context in which it would be raised) and that
it could extend to any publication made by a person who
publishes material of public interest in any medium, so long as
the “responsible journalism” test is satisfied.91 On this basis,
Reynolds privilege could be extended to quasi-media defendants,
such as bloggers, and other bodies acting in the public interest
such as NGOs.

NEED FOR REFORM?

14–023 The Reynolds test, as interpreted in Jameel and Flood,
represented a liberalisation of traditional rules, but the repeated
intervention of the highest court suggested that it was being
applied inconsistently. The English position may be compared
with that of New Zealand, where the New Zealand Court of
Appeal rejected Reynolds as too uncertain and restrictive and
favoured a press-specific head of privilege.92 In so doing, the
court commented that this could be justified on the basis that
New Zealand newspapers were more responsible than their
English counterparts.93 The Reynolds test may also be contrasted
with the position in the US where, following New York Times v
Sullivan,94 public figures may only recover damages for
defamation if they are able to show by clear and convincing
evidence that the defendant published with malice. The UK
Government sought in the Defamation Act 2013 to give greater
certainty and ensure that freedom of expression received
 sufficient protection by codifying the Reynolds defence based on
the Supreme Court’s ruling in Flood. By giving the defence
statutory form both the lower courts and litigants would, in its
view, have a clearer picture how the defence should operate.
Section 4(6) of the 2013 Act therefore abolishes the Reynolds
common law defence of qualified privilege in favour of a new
defence. The Government has noted, however, that the case law
discussed above will provide a helpful (albeit not binding) guide
to interpreting how the new statutory defence should be
applied.95

◗ Qualified privilege under the Defamation Act

2013
SECTION 4: PUBLICATION ON MATTER OF PUBLIC
INTEREST
14–024 In contrast to earlier drafts of this section which sought to
incorporate the Lord Nicholls’ Reynolds criteria, s.4 provides
that:

“(1) It is a defence to an action for

defamation for the defendant to show that
—
(a) the statement complained of was, or
formed part of,96 a statement on a
matter of public interest; and
(b) the defendant reasonably believed that
publishing the statement complained of
was in the public interest.”

The defence is clearly not confined to the media and applies to

any statement on a matter of public interest. The two-stage test
remains but with a difference: (1) public interest (not defined in
the Act but it will have its common law meaning) and (2)
instead of “responsible journalism”, the test that the defendant
reasonably believed that publishing the statement was in the
public interest. Again, no express reference is made to malice.
The stage (2) test is, as stated in Flood, both a subjective and
objective test: the defendant must believe publication was in the
public interest at the time of publication and the court must find
that the belief was a reasonable one to hold in all the
circumstances. What is a “reasonable belief” is not defined. In
determining whether the belief was a reasonable one, although it
is not specified, the courts take into account the Reynolds criteria
discussed above. Section 4(2) further directs the court to
consider all the circumstances of the case, but notes, at s.4(4),
that the court should make such allowance for editorial
judgement as it considers appropriate.97 Section 4(5) adds that
for the avoidance of doubt, the defence may be relied upon
irrespective of whether the statement complained of is a
statement of fact or a statement of opinion.
We now have some cases to help us interpret s.4. In
Economou v de Freitas,98 a grieving father, whose daughter had
killed herself while awaiting trial on charges of fabricating a
rape allegation against the claimant, had been sued for making
statements to the press that the CPS had been wrong to prosecute
his daughter. The Court of Appeal held that although s.4
replaces the common law Reynolds defence, the factors
identified by Lord Nicholls in that case would be relevant in
determining whether the defendant reasonably believed that
publication was in the public interest. The criteria should be
applied flexibly, however, taking account of the circumstances
of the case which would include the role of the defendant. Here,
the fact that the statements concerned a matter of public
interest99 which the father actually believed should be published
in the public interest was not appealed. The question was
whether Mr de Freitas had reasonably held that view. The Court
noted that while not all of the Reynolds criteria were satisfied
e.g. he had not sought a comment from the claimant, Mr de
Freitas had made some efforts to investigate the merits of the
case against his daughter. Acknowledging his status as a
contributor to various articles, the Court held that the test was
satisfied. Contributors to media publications and “citizen
journalists”/bloggers should not be subject to the same standards
as professional journalists.
Economou should not be taken to give a green light to non-
journalists. The community blogger in Doyle v Smith100 who
falsely alleged that a property developer had admitted to fraud
was not allowed to rely on s.4 as a defence. He knew that a
major component of the factual account which he presented to
readers was untrue. That was fatal. Even if he subjectively
believed that it was in the public interest to present false
information to the public, such a belief would not be regarded as
reasonable. Equally, it should not be seen to justify a harsher
approach to journalists. The Supreme Court in Serafin v
Malkiewicz101 criticised the Court of Appeal below for rejecting
the defence on the basis that not all the Reynolds criteria had
been satisfied. The Court firmly stated that while the Reynolds
criteria could help guide the application of s.4, they were not to
be treated as a mandatory checklist for journalists. Section 4 is a
statutory defence in its own right and should be construed as
such. On this basis, a failure to invite comment from the
claimant prior to publication would no doubt be the subject of
some consideration under s.4(1)(b), but doing so was not a
requirement to establish the defence.
Section 4(3) retains the controversial defence of
“reportage”.102 This was described in Flood as “a special, and
relatively rare, form of Reynolds privilege [which] arises where
it is not the content of the reported allegation that is of public
interest, but the fact that the allegation has been made”.103 The
key issue here is that the article in question involves the neutral
reporting of allegations made by one named party against
another without adopting, embellishing or endorsing the
allegations.104 If the defendant can show that he or she has not
adopted the statement, the defendant is not required to verify the
 truth of the allegation but simply to check that the allegation has
been made. There have only been two successful cases to
date.105 In Galloway v Telegraph Group Ltd,106 the court
rejected the defence of reportage in circumstances where the
Daily Telegraph was found to have gone a long way to adopt
and embellish the allegations contained in documents found by
its reporter and had done so with relish. Section 4(3) now
provides that:

“If the statement complained of was, or

formed part of, an accurate and impartial
account of a dispute to which the claimant
was a

party, the court must in determining

whether it was reasonable for the defendant
to believe that publishing the statement was
in the public interest disregard any
omission of the defendant to take steps to
verify the truth of the imputation conveyed
by it.”

Section 4 marks a significant step in the history of qualified

privilege. Reynolds privilege is now replaced by express
recognition of a distinct public interest defence. The aim is
clearly that s.4 will provide statutory recognition of the value
played in a democracy of publication of matters of public
interest, subject, of course, to the test stated in s.4(1)(b).

SECTION 6: PEER-REVIEWED STATEMENTS IN

SCIENTIFIC OR ACADEMIC JOURNALS ETC
14–025
 The introduction of s.6 is perhaps less momentous than s.4, but
nevertheless it also represents a reaction to criticism that the
defamation defences did not provide sufficient protection for
freedom of expression. Section 6 responds to concerns that the
threat of defamation proceedings might discourage research in
science (which includes medicine and engineering), or academic
research more generally, which was critical of the views of
others. This problem was brought to the public’s attention by the
case of British Chiropractic Association v Singh,107 discussed
above in the section on honest opinion. Section 6 now provides
that the publication of a statement in a scientific or academic
journal (whether published electronically or not) is privileged if
two conditions are met:
▮ the statement relates to a scientific or academic matter;
and
▮ before the statement was published in the journal an
independent review of the statement’s scientific or
academic merit was carried out by—(a) the editor of the
journal,108 and (b) one or more persons with expertise
in the scientific or academic matter concerned.109

Section 6(4) extends the defence to any assessment of the

statement’s scientific or academic merit in the course of peer
review, that is, to cover the reviewers of the article in question.
Qualified privilege is lost, however, by malice: s.6(6). It should
be noted, however, that it would not have covered the Simon
Singh case—a scientist writing an article in a national
newspaper which presumably did not undergo any peer review
—and for such general scientific debate, the defence of honest
opinion will still be relevant.

◗ Qualified privilege under the Defamation Act

1996
14–026
 The Defamation Act 1996 provides for numerous occasions on
which qualified privilege will arise. This is now subject to
amendment by the Defamation Act 2013 s.7 and the amended
provisions are listed below. The key section is that of 15(1)
which provides that:

“The publication of any report110 or other

statement mentioned in Sch.1 to this Act is
privileged unless the publication is shown to
be made with malice.”

Some of the most important examples in Sch.1 are considered

below.

(I) REPORTS OF PARLIAMENTARY PROCEEDINGS

14–027 Absolute privilege only extends to reports, papers, votes and
proceedings ordered to be published by either House of
Parliament. It does not include fair and accurate reports of
parliamentary proceedings, which were covered by common law
qualified privilege111 and are now covered by the Defamation
Act 1996. Sch.1 para.1 provides that there is privilege for a fair
and accurate report of proceedings in public of a legislature
anywhere in the world.112 Schedule 1 para.7 also provides that a
fair and accurate copy of, or extract from, matter published by or
on the authority of a government or legislature anywhere in the
world is privileged. This expands the previous privilege granted
under the Parliamentary Papers Act 1840 s.3.113 In both cases,
publication is covered by qualified privilege “without
explanation or contradiction” (the meaning of this phrase is
discussed later).

(II) REPORTS OF JUDICIAL PROCEEDINGS

14–028 Defamation Act 1996 s.14 provides that absolute privilege is
accorded to fair and accurate contemporaneous reports of court
 proceedings in public. Fair and accurate non-contemporaneous
reports of public judicial proceedings are covered by qualified
privilege.114 The common law is now replaced by the
Defamation Act 1996 (Sch.1 para.2) which provides that a fair
and accurate report of proceedings in public before a court
anywhere in the world is privileged without explanation or
contradiction.

(III) REGISTERS
14–029 Likewise, publication of a fair and accurate copy of or extract
from a register required by law to be open to public inspection,
for example the register of county court judgments, was
privileged under the common law115 and is now privileged
without explanation or contradiction under the Defamation Act
1996 (Sch.1 para.5).

(IV) OTHER MATTERS COVERED BY THE

DEFAMATION ACT 1996 S.15 AND SCH.1
14–030 We have already seen the operation of Sch.1 in the examples
above. Schedule 1 replaces previous statutory provisions for
privilege in the Law of Libel Amendment Act 1888 and the
Defamation Act 1952. It also covers some of the common law
examples of qualified privilege. It 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”. This
distinction is important. Qualified privilege may be lost (for Pt II
reports only) if it is proved that the defendant has been
requested, by the claimant, to publish in a suitable manner116 a
reasonable letter or statement by way of explanation or
contradiction, and has refused or neglected to do so: s.15(2). In
other words, the claimant must be given the right of reply with
respect to Pt II reports. However, the courts will not permit
Sch.1 to be abused. Section 15(3) provides that the privilege will
not extend to matters which are not of public interest and the
publication of which is not for the public benefit.117 It will
 equally not protect the publication of matters prohibited by
law.118
We shall refrain from repeating the long list of reports and
statements given in Sch.1. Readers are advised to look at the
Defamation Act 1996. Generally, Pt I covers fair and accurate
reports of legislative, court or government body proceedings
anywhere in the world, as may be seen from the examples given
above. The Pt II list consists of a number of different types of
reports, including a fair and accurate copy of, extract from or
summary of a document made available by a court anywhere in
the world, or by a judge or officer of such a court (para.10)119;
fair and accurate reports of proceedings at any public meeting
held anywhere in the world (para.12)120; and fair and accurate
reports of proceedings at a general meeting of a listed company,
i.e. public companies all over the world (para.13).121

Offer of Amends Under the

Defamation Act 1996

14–031 This defence applies to unintentional defamation. It may be

recalled that the publication of a statement may amount to
defamation even though the defendant did not intend to harm the
claimant’s reputation. For present purposes, there are two senses
in which the publication of a defamatory statement might be said
to be “unintentional”. First, there is the situation where, for
example, a newspaper publishes a defamatory statement,
knowing that it refers to the claimant, but honestly and
reasonably believing that the statement is true (as in Cassidy v
Daily Mirror, discussed in Ch.13). Secondly, there is the
“mistaken identity” situation, where a newspaper publishes a
statement which is false and defamatory in relation to the
claimant, but intends the statement to refer to someone else,
about whom it is true (as in Newstead v London Express, also
discussed in Ch.13).
Defamation Act 1952 s.4 did provide some mechanism
whereby a defendant could, in such circumstances, make an
“offer of amends” which, if accepted, would end proceedings,
and if not accepted would amount to a defence. But this
provision was little used, mainly because of the difficulties
defendants had in proving that the statement was published
“innocently”, as required by s.4(5). A revised version appears in
the Defamation Act 1996.122 Sections 2 to 4 set out the new
procedure for making an offer of amends. As May LJ stated in
Milne v Express Newspapers123:

“The main purpose of the statutory

provisions is plain. It is to encourage the
sensible compromise of defamation
proceedings without the need for an
expensive jury trial.”

Under s.2, the defendant must be prepared:

▮ To admit that he or she was wrong (or partly wrong);
▮ To offer in writing to make a suitable correction and
apology;
▮ To publish the correction and apology in a manner that
is reasonable and practicable in the circumstances; and
▮ To pay the claimant such compensation (if any) and
such costs as may be agreed or determined to be
payable.
The offer may relate to the statement generally, or only to a
specific defamatory meaning (known as a “qualified offer”).
Timing is important. The offer must be made before service of
a defence.124 This forces the defendant to decide whether to
fight the action or admit that he or she is wrong. If the offer is
accepted, the claimant must discontinue the action against the
defendant.125 If the parties cannot agree the amount of
compensation to be paid, s.3(5) provides that it will be settled by
the court, sitting without a jury, “on the same principles as
damages in defamation proceedings”.126 This will involve
questions such as mitigation, aggravation and causation of loss.
Recent case law has clarified that if an early unqualified offer to
make amends is accepted and an agreed apology published, the
court is likely to find substantial mitigation, reducing the level of
damages awarded.127
If the offer is not accepted, the action may continue, but the
defendant may use the making of the offer as a defence unless
the claimant is able to show that the defendant knew or had
reason to believe that the statement referred to the claimant (or
was likely to be understood as referring to him) and was both
false and defamatory of him. The test is one of bad faith, not
negligence.128 In other words, the burden is on the claimant to
show that the defamation was intentional or reckless. Section
4(4) provides that the defendant cannot rely on an offer of
amends by way of defence in combination with any other
defence. The defence is therefore of limited use, and a defendant
would be wise to consider his or her tactical position before
relying on an offer or qualified offer of amends as a defence. It
should be noted that even if the offer is not accepted, it may be
relied upon in mitigation of damages.129
On a historical note, the defendant still has a defence under
the Libel Act 1843 s.2 (as amended by the Libel Act 1845). This
provides that it is a defence, when a libel is published in a
newspaper without actual malice or gross negligence, for the
defendant to publish a full apology in the newspaper and pay
money into court by way of amends. This has not been repealed
 by the Defamation Act 1996, but has been little used due to
substantial procedural disadvantages to the defendant. The
Faulks Committee in 1975 recommended its repeal “with a view
to simplifying this aspect of the law of defamation”,130 but this
sensible suggestion has not been taken up. After the 1996 Act,
however, it is only of historical interest.

Innocent Dissemination

14–032 This defence applies to parties involved in the distribution

process, who inadvertently become involved in the publication
of defamatory material. It therefore has no application to the
actual author of the defamatory material, or to the publisher who
actively produces the work. An example will help us understand
the problem. I write a defamatory article for the Daily Rag. I
have published the libel and will be liable, but so at law have the
editor, publisher and the distributors of the Daily Rag, including
Mr X, the newsagent. Each repetition of the libel is actionable
by the claimant. It seems harsh to allow the claimant to sue all of
the above parties. Therefore, the defence of innocent
dissemination seeks to draw a distinction between those who
produce the libel (here myself, my editor and publisher) and
those who “disseminate” or distribute it (here the distributors
and Mr X). Originally, the defence was part of the common law,
as stated in Vizetelly v Mudie’s Select Library Ltd.131 The court
in this case held that the mechanical distribution of defamatory
material by agencies such as newsagents or libraries would be
protected against claims for defamation provided they could
show that:
▮ they did not know that the work contained a libel of the
claimant;
 ▮ it was not by negligence that they did not know of the
libel; and
▮ the defendants did not know, nor ought to have known,
that the works were of such a character that they were
likely to contain defamatory material.

In the case itself, the defendants were held liable for defamation
because they had overlooked a publisher’s circular which had
requested the return of copies of the book in question, and in fact
had no procedure for checking whether the books they lent
contained defamatory material.
The common law has now been superseded by the
Defamation Act 1996 s.1. It is now a defence to show that:

▮ the defendant is not the author,132 editor or commercial

publisher (in the sense of issuing material to the public
in the course of business)133 of the statement;
▮ the defendant took reasonable care in relation to the
publication; and
▮ the defendant did not know, and had no reason to
believe, that what he or she did caused or contributed to
the publication of a defamatory statement.

In assessing the above criteria, the court will have regard to the
extent of the defendant’s responsibilities for the content of, or
decision to publish, the statement; the nature or circumstances of
the publication; and the previous conduct or character of the
author, editor or publisher (s.1(5)). For example, if the defendant
distributes work by an author renowned for controversy, the
defendant will be expected to vet the work carefully for
defamatory material. Sections 1(3)(a) to (e) list a number of
individuals who do not qualify as “authors”, “editors” or
“publishers”. These provisions are not comprehensive, and do
not prevent the courts from reasoning by analogy. Section 1(3)
(a) provides that distributors and printers134 can rely on a s.1
 defence. Interestingly, broadcasters of live programmes may also
rely on the defence if, in the circumstances, they have no
effective control over the maker of the statement, for example in
live phone-in programmes.135 Again, however, if controversial
guests are invited, editors would be wise to employ some kind of
screening process, and consider devices such as a delay
mechanism on the transmission of material, if they wish to show
that they have taken reasonable care.

INTERNET DEFAMATION
14–033 The internet is provided for, in s.1(3)(c) and (e). Section 1(3)(e)
covers the “operator or provider of access to a communications
system by means of which the statement is transmitted, or made
available, by a person over whom he had no effective control”—
essentially an internet service provider or “ISP”. This particular
provision was considered in the case of Godfrey v Demon
Internet Ltd.136 The defendants were an ISP which provided a
particular newsgroup, which stored postings for about a
fortnight. In January 1997, an unknown person made a posting
to the newsgroup which was defamatory of Dr Godfrey. Godfrey
contacted the defendants four days later, requesting that the
posting be removed from their news server. The defendants
failed to do so, and the posting remained on the server for the
full two-week period. It was accepted that the defendants could
have removed the posting had they chosen to do so. Godfrey
sued the defendants for libel. Morland J struck out the
defendants’ s.1 defence. The defendants had known of the
posting’s defamatory contents and, by failing to remove the
statements, lost the protection of s.1 of the Act. While the
defendants were not the author, editor or commercial publisher
of the statement, they could not show that they had taken
reasonable care in relation to the publication, nor that they did
not know that what they did caused or contributed to the
publication of a defamatory statement. Morland J also refused to
accept that an ISP could not “publish” information.137 An ISP
which transmitted a defamatory posting on a news server would,
by analogy to a bookseller, be deemed to publish the
 information contained in the posting.138 Subsequent case law
has indicated that an ISP can only avoid being held accountable
for publishing information if its role is purely passive.139
Fears were expressed after Godfrey that the decision would
lead to a restriction of freedom of speech on the internet. Faced
with an allegation that a posting is defamatory, most ISPs would
simply withdraw the posting to avoid potential litigation and
would not bother to check whether the allegation is well
founded. Arguably, this would give individuals the opportunity
to “veto” any posting which contains information they do not
wish to be published and consequently limit free speech. It is
notable that the US Supreme Court, when faced with a similar
case in Lunney v Prodigy,140 chose to find in favour of the ISP.
The introduction of the Electronic Commerce (EC Directive)
Regulations 2002 did not remove these fears.141 These
Regulations, implementing EC Directive 2000/31,142 limit the
potential liability of ISPs in relation to a number of legal claims,
including defamation, obscenity and copyright. Regulation 19
grants immunity to the ISP which hosts the relevant site, but
only if two conditions are met:
▮ The ISP does not have actual knowledge of the
unlawful activity or information and is not aware of
facts or circumstances from which it would have been
apparent to the ISP that the activity or information was
unlawful; and
▮ It acts expeditiously to remove such information on
obtaining any such knowledge.

The Law Commission in its 2002 report discussed below

concluded that this would act in the same manner as s.1, again
leaving the ISP potentially liable where it has been notified of an
allegedly defamatory posting.143
14–034 Loutchansky v Times Newspapers Ltd (No.2)144 highlighted a
further risk of liability for internet publishers. Here, the article in
question had been posted as part of The Times (at that time)
publicly accessible online archive. The Court of Appeal held
that every hit of the article on this site would amount to
publication. This is consistent with Godfrey, but the decision in
Duke of Brunswick v Harmer145 meant that every publication
would give rise to a cause of action and so the claimant would
be able to sue every time someone accessed the article. It was
argued that such ongoing liability would be contrary to free
speech, place an unfair burden on the ISP and totally undermine
the one-year limitation period for defamation claims (see below
under “Limitation”). The court rejected these arguments. As
“stale news”, such information had limited public interest value
and, in any event, the court concluded that the attachment of an
appropriate notice, warning that any suspected article should not
be treated as the truth, would remove the sting from the material
and that any claims for damages would be modest. The court
thus refused to change the law in favour of the US “single
publication” rule,146 whereby an article is published only once
when it is first posted on the archive.147
The Court of Appeal in Jameel v Dow Jones & Co Inc148
suggested that defendants would find more success in claiming
abuse of process. Here, an article had listed a number of alleged
donors, including the claimant, to an organisation that was
claimed to be a front for Al Qaeda. It had been posted on the
internet in the US for the Wall Street Journal On-Line, a
subscriber service. Evidence suggested that only five149
subscribers had accessed the article in the UK. It was held that,
in such circumstances, the court could strike out the libel action
as an abuse of process. Where publication within the jurisdiction
was minimal and did not amount to a real and substantial tort
harming the claimant’s reputation, the claim could be struck out
on the basis that the costs of proceeding to trial would be out of
all proportion to what would be achieved. The burden is
therefore on the claimant to establish that there has been more
than minimal access to the material. The courts are not prepared
to presume at law that there has been substantial publication,
even where the site is open to general access.150
 REFORM: DEFAMATION ACT 2013 SS.5, 8 AND 10
14–035 Despite the possibility of striking out claims for abuse of
process, doubts were expressed whether the current state of the
law in relation to internet defamation was satisfactory. The
Law Commission in its report, “Defamation and the Internet: A
preliminary investigation”,151 found a “strong case” for
changing the law. It had been given evidence that ISPs were
receiving over 100 complaints each year, and concluded that,
under the present law, the safest course for any ISP in such
circumstances would be to remove the material, whether or not
the alleged defamatory material was in the public interest or
true. This caused a potential conflict with ECHR art.10. Equally,
although it agreed with the view that damages arising from
online archives would generally be modest, it noted concerns as
to the costs and difficulties facing publishers in defending such
cases if brought many years after the original publication.
Defamation Act 2013 s.8 finally introduces a single
publication rule. It provides that where a person publishes a
statement to the public152 and then subsequently publishes a
statement (whether or not to the public) which is substantially
the same, any cause of action for the purpose of the one-year
limitation period for defamation claims153 accrues on the date of
the first publication: ss.8(1) and (3). The test will be whether the
subsequent publication is “materially different” from the manner
of the first publication. Relevant factors for the court to consider
will be the level of prominence that a statement is given and the
extent of the subsequent publication.154 This removes the
multiple publication rule stated above.
Defamation Act 2013 s.5 goes further to provide ISPs with
positive protection against defamation claims. It provides for a
new defence: the operator of the website on which the statement
is posted did not post the statement on the website itself. The
defence will be defeated, however, if the claimant can show:

▮ it was not possible for the claimant to identify155 the

person who posted the statement;
 ▮ the claimant gave the operator a notice of complaint in
relation to the statement; and
▮ the operator failed to respond to the notice of complaint
in accordance with any provision contained in
regulations.156

The Defamation (Operators of Websites) Regulations 2013157

set out what must be included in the notice of complaint, what
the operator must do in response to it to retain the defence and
the period within which it should act. It should also be noted that
the defence is defeated by malice, but that the operator will not
lose the defence simply by moderating the statements posted on
the site by others.158 It was hoped that such a defence would
prove useful for operators
of discussion forums and blog sites, but to date there are no
reported cases. It would seem that the take-up of the s.5
procedure has been very low to its complicated and onerous
nature, with website operators preferring to rely on other
defences if sued. More generally, the Defamation Act 2013 s.10
provides that:

“a court does not have jurisdiction to hear

and determine an action for defamation
brought against a person who was not the
author, editor or publisher159 of the
statement complained of unless the court is
satisfied that it is not reasonably
practicable for an action to be brought
against the author, editor or publisher.”

The aim of this section is to focus defamation claims on the

primary publisher of the allegedly defamatory statement and
 stop secondary publishers such as booksellers and newsagents
being unfairly targeted. One potential difficulty remains,
however. Even if the claimant is successful against the primary
publisher, the latter may not be in a position to remove the
defamatory statement from the website or stop booksellers or
newsagents from distributing the material. This is resolved by
s.13 of the 2013 Act which provides that where a court gives
judgment for the claimant in an action for defamation, the court
may order (a) the operator of a website on which the defamatory
statement is posted to remove the statement, or (b) any person
who was not the author, editor or publisher of the defamatory
statement to stop distributing, selling or exhibiting material
containing the statement.
Sections 5, 10 and 13 stand alongside the existing
Defamation Act 1996 s.1. Agate comments that these sections
are to be welcomed for moving the focus away from the web
operator and onto the user responsible for the statement,
although she expresses some concerns how they will operate in
practice.160

Limitation

14–036 This is not really a defence, but an assertion that the claimant
has run out of time to bring his or her claim for defamation. The
Limitation Act 1980 sets out time limits for claimants bring a
claim. In defamation the time limit is very short. Defamation
Act 1996 ss.5 and 6 amend the Limitation Act 1980 to reduce
the time limit from three years to one year. Limitation Act 1980
s.4A now provides that the ordinary six year time limit for
claims in tort does not apply. After one year has expired, the
claimant cannot normally sue, however bad the injury to his or
her reputation. The assumption is that if your reputation has
been injured, you should have
realised this and be sufficiently incensed to bring the claim
within a short period of time.161 This logic is supported by the
introduction of the single publication rule under the Defamation
Act 2013 s.8 explained above: the one-year time limit in such
cases accrues on the date of first publication. The court does,
however, have a largely unfettered discretion to hold that the
time limit should not apply under the Limitation Act 1980
s.32A.162 In so doing, it must balance the interests of the parties
with regard to all the circumstances of the case. Section 32A(1)
provides that:

“If it appears to the court that it would be

equitable to allow an action to proceed
having regard to the degree to which–(a)
the operation of s.4A of this Act prejudices
the plaintiff . . . and (b) any decision of the
court under this subsection would prejudice
the defendant . . . the court may direct that
that section shall not apply to the action.”

The court will consider the length of the delay, why it occurred
and, if it is due to lack of knowledge of certain facts, how soon
the claimant acted once these facts were known.163 The court
will also examine the extent to which the delay has weakened
the evidential basis for the claim.164 The provisions also apply to
malicious falsehood.165
 Remedies: Damages and
Injunctive Relief

14–037 The main remedy for defamation is that of damages, although

the claimant may also seek an injunction to stop future
publication of the defamatory statements. One particular concern
has been the level of damages awarded in libel trials.
Commentators have argued that this is due to the use of juries
and have contrasted the level of damages awarded for libel with
that awarded for personal injury; the latter being strictly
controlled by the courts and often considerably less in value.
This section will examine attempts by the courts to control the
level of damages awards before looking at the impact of the
Defamation Act 2013 s.11, which provides for trial without a
jury in defamation cases unless the court orders otherwise. It
will also consider procedural reforms which seek to reduce the
costs of a defamation claim and why
it is difficult to obtain an interim injunction for defamation.
Damages and injunctions will be examined in more detail in
Ch.17.

Damages: controlling the level of damages

awarded
14–038 Damages traditionally have been assessed by the jury, not the
judge. Initially, the Court of Appeal was reluctant to interfere
with jury awards, but, by 1990, faced with a series of
notoriously high awards, this attitude had to change.166 Courts
and Legal Services Act 1990 s.8 empowered the Court of
Appeal to substitute its own figure of damages for that of the
jury without the need for a retrial.167 More fundamentally, the
Court of Appeal recognised that the judge must exercise some
degree of control over jury awards, by ensuring that they receive
appropriate guidance in the summing-up.
This can be seen in the 1994 case of Rantzen v Mirror Group
Newspapers (1986) Ltd,168 where the newspaper had accused the
television presenter Esther Rantzen, who had founded the
children’s charity ChildLine, of knowingly protecting a person
guilty of sexual abuse. The jury had awarded £250,000. The
Court of Appeal set this aside under the Courts and Legal
Services Act 1990 s.8 and substituted the figure of £110,000.
Neill LJ held that:

“We consider therefore that the common

law if properly understood requires the
courts to subject large awards of damages
to a more searching inquiry than has been
customary in the past . . . The question
becomes: ‘Could a reasonable jury have
thought that their award was necessary to
compensate the plaintiff and to re-establish
his reputation?’”169

Further guidance was given in John v Mirror Group Newspapers

Ltd.170 Despite the ruling in Rantzen, the court found that there
was still evidence of disproportionate libel awards, and thought
further action was necessary. On this basis, the court accepted
that juries should be informed, by way of guidance, of the level
of damages awarded in personal injury cases. While it was
clearly impossible to compare severe brain damage with an
attack on a person’s reputation, it would give the jury some
guidance as to the level of damages necessary in the
circumstances. The judge, and advocates for both sides, would
now be permitted to address the jury on what they considered to
be the correct level of damages. Such changes, it was hoped,
 would make the assessment of damages “more rational and so
more acceptable to public opinion”.171 The courts would
continue to refer to decisions under the 1990 Act (as suggested
in Rantzen), but nevertheless still refused to allow references to
defamation awards which had been made on different sets of
facts. The Court of Appeal reduced the jury’s award of
compensatory damages in this case from £75,000 to £25,000.

AGGRAVATED AND EXEMPLARY DAMAGES

14–039 Aggravated and exemplary damages will be discussed generally
in Ch.17, but it is worth highlighting the important role they play
in defamation cases. Aggravated damages will be awarded for
additional injury to the claimant’s feelings.172 Further,
defamation remains one of the few occasions when exemplary or
punitive damages may be awarded. The court will award
exemplary damages where the defendant, either knowing a
statement to be false or careless whether it be true or false, has
deliberately published the statement because the profit gained
from publication will outweigh any financial penalties.173 This
obviously is particularly apposite to newspapers publishing
sensational stories such as the one concerning Elton John in
John. Nevertheless, such sums are also controlled, and the Court
of Appeal reduced the exemplary damages in John from
£275,000 to £50,000. Sir Thomas Bingham MR warned that:

“principle requires that an award of

exemplary damages should never exceed
the minimum sum necessary to meet the
public purpose underlying such damages,
that of punishing the defendant, showing
that tort does not pay and deterring
others.”174
 THE IMPACT OF DEFAMATION ACT 2013 S.11
14–040 Prior to the Act, there had been concern that the controls listed
above still did not prevent juries from awarding disproportionate
sums as damages. In Kiam v MGN Ltd,175 Sedley LJ dissenting
complained that the John case had failed in its purpose of
limiting damages: “the train has left the station again and is now
accelerating”.176 The Court of Appeal noted that whatever
guidance was given to juries, the sums awarded still remained
large. This was exacerbated
by changes in personal injury law which increased awards for
non-pecuniary loss177—to which libel juries were asked in John
to refer. The conclusion had to be that however much the courts
refined the guidance given to juries, ultimately the question
would arise whether it would be simpler just to abolish the jury
in defamation cases, or, less drastically, place assessment of
damages in the hands of the judge as in personal injury cases.
The Faulks Committee in 1975 had recommended removing the
right to trial by jury and permitting only a judicial discretion to
allow trial by jury if necessary.178 Lord Phillips in 2010 again
asked whether “the time [had] come to recognise that
defamation is no longer a field in which trial by jury is
desirable?”179 This is now the case under s.11. It remains to be
seen whether, following the implementation of the Act,
complaints continue to arise in this area of law. Warby J in
Barron v Vines was optimistic, commenting that:

“Practice in libel actions has developed

considerably since 1997, and theDefamation
Act 2013has removed the presumption in
favour of trial by jury in defamation cases.
As a result, most damages awards in recent
years have been made by judges, rather
than juries. It is fair to say that a more or
 less coherent framework of awards has
been built up.”180

Procedural reforms

14–041 Much of the cost of defamation cases comes from the

complicated trial process. Defamation Act 1996 s.8 establishes
that some cases may be dealt with by a summary non-jury
procedure.181 Under s.8(2), where the claimant has no realistic
prospect of success, and there is no reason why the claim should
be tried, a judge without a jury may dismiss the claim.
Alternatively, where there is no defence which has a realistic
prospect of success, and there is no other reason why the claim
should be tried,182 a judge may give judgment for the claimant
and grant the claimant summary relief.183 The remedies open to
the claimant are limited, however. Under s.9(1), the court has a
range of options which consist of: (i) a declaration that
the statement was false and defamatory; (ii) an order that the
defendant publish a suitable correction and apology; (iii) an
award of damages not exceeding £10,000; and (iv) an injunction
restraining publication. It is for the parties to arrange the
correction and apology. If they cannot agree on its content,
s.9(2) provides that the claimant must be satisfied by a summary
of the court’s judgment. The advantages to the parties are
obvious: a speeded-up procedure which avoids a long-winded
and costly trial. The claimant can ensure that the statement is
corrected and may obtain a certain amount of damages. The
judge is given a discretion under s.8(3) to force the claimant to
follow the summary route if it “will adequately compensate him
for the wrong he has suffered”.
Use of this provision will inevitably be confined to
straightforward cases where the claimant is prepared to accept
an award not exceeding £10,000. Additionally, in the light of
ECHR, which (under art.6) grants the defendant a right to a fair
 trial, it must be questioned to what extent courts should restrict
the defendant’s ability to assert his or her right to freedom of
expression in a full trial. It is a first step, however, in trying to
simplify the complicated and costly procedure involved in
defamation cases.

Interim injunctions

14–042 Injunctions will be considered in more detail in Ch.17. It is

worth noting, however, in the context of defamation that
although the claimant may wish to obtain an injunction to
prevent publication of the statement in question, the courts will
only rarely grant an injunction prior to a full hearing at the trial.
Therefore, even if the claimant is given prior notice of
publication of statements which may diminish his or her
reputation, it will be difficult to prevent publication. The award
of an injunction is at the court’s discretion and the court will not
ordinarily grant interim relief to restrain a libel where the
defendant alleges a defence. In particular, if truth is raised as a
defence, interim relief will not be granted unless the claimant
can prove that the libel is plainly untrue.184 In Holley v
Smyth,185 the majority of the Court of Appeal upheld this rule as
supporting the right to free speech, even where the defendant’s
motives were questionable.186 More recently, the Court of
Appeal in Greene v Associated Newspapers Ltd187 confirmed
that such a rule was consistent with the European Convention on
Human Rights and that a lesser test would seriously weaken the
effect of art.10.188
This chapter will end with an examination of an alternative
to suing in defamation: the tort of malicious falsehood. The
advantages and disadvantages of this option will be examined
below.
 Malicious or Injurious
Falsehood

14–043 Malicious falsehood is generally classified as an economic tort,

i.e. a tort which specifically protects the economic interests of
the claimant.189 Here, the claimant is complaining that the
defendant has made a false statement to a third party which has
damaged his or her business interests. This is distinct from
defamation. Defamation protects the business reputation of the
claimant. Malicious falsehood protects the financial interests of
the claimant. This distinction is illustrated in the following
example. The defendant has told X that the claimant’s shop does
not sell paper. This is untrue. X, as a result, buys his paper from
the defendant’s shop. Such a statement will not necessarily affect
the claimant’s trading reputation but will obviously reduce the
income of the shop, and affect the claimant’s financial position.
On this basis, the Court of Appeal in Ratcliffe v Evans190 held
that the plaintiff had a valid action when a newspaper published
a statement that the plaintiff’s firm had gone out of business. It
was held that the statement did not reflect on the plaintiff’s
character, but nevertheless the plaintiff could sue for the general
loss of business which resulted from publication.
To bring a case for malicious falsehood, there are four main
requirements:
▮ the defendant made a false statement concerning the
claimant or his or her property;
▮ maliciously;
▮ to some person other than the claimant; and
▮ as a result the claimant suffered economic loss.
 The tort is therefore not actionable without proof of damage.
Special damage must be proved, such as loss of business.191
However, the claimant may be assisted by the Defamation Act
1952 s.3(1), which provides that it is sufficient if the words are
published in writing and are calculated to cause pecuniary
damage to the claimant. This provision covers many of the
occasions giving
rise to the action and makes the tort largely actionable without
proof of special damage, provided the words are calculated to
cause the claimant financial loss. Moore-Bick LJ in the case of
Tesla Motors Ltd v BBC192 explained that the term “calculated”
means that the statement complained about must be more likely
than not to cause the claimant pecuniary damage. A claimant
who is unable to prove actual damage and who relies on s.3 may
still recover substantial damages and is not restricted to nominal
damages.193
The other requirements must, however, be met. The
statement must be proved to be false.194 This, unlike in
defamation, will not be presumed. The claimant must also show
that the statement was made maliciously, i.e. that the defendant
knew that the statement was false, or was reckless as to whether
it was true or not,195 or was actuated by some indirect, dishonest
or improper motive.196 It is always a defence that the statement
was made in good faith.197

14–044 Damages may extend to distress and injury to feelings

consequential on financial loss. In Khodaparast v Shad,198 an
Iranian woman had lost her part-time job as a teacher in a
religious school and found it difficult to gain employment when
a former lover had distributed mock-up advertisements for
telephone sex services using her photograph. At trial, he had
persisted in claiming that these were genuine advertisements and
such behaviour was typical of her loose morals. The trial judge
had found in favour of the claimant and awarded additional
aggravated damages199 to reflect the injury to the claimant’s
feelings from the defendant’s conduct prior to and during the
trial. The Court of Appeal approved this award. As stated by
Stuart-Smith LJ:

“once the plaintiff is entitled to sue for

malicious falsehood, whether on proof of
special damage or by reasons of s.3 of the
1952 Act I can see no reason why, in an
appropriate case, he or she should not
recover aggravated damages for injury to
feelings . . . justice requires that it should be
so.”200

It should be noted that this is a supplementary claim. The tort

does not permit a claimant to obtain damages solely for
emotional distress or injury to his or her reputation. Any claim
for the latter must be brought under the tort of defamation.
Generally, therefore, defamation will be easier (depending,
of course, on the facts) for the claimant to prove, so few actions
are brought for malicious falsehood. In the past, claimants have
also had the benefit of a jury in defamation, which is not
available for malicious falsehood, although this has now
changed. There may nevertheless be advantages to suing for
malicious falsehood. First, the claimant does not have to show
an attack on his or her business reputation, and, if a company,
serious financial loss under Defamation Act 2013 s.1(2), but
simply that the false statement has resulted in the business losing
money.201 Secondly, the tort may prove useful where other
causes of action fail. For example, in Kaye v Robertson,202 the
court, horrified by the behaviour of the newspaper in question,
relied on malicious falsehood to support Kaye’s claim. Gorden
Kaye, a popular actor, had been seriously injured when a piece
of wood smashed through his car windscreen during a bad storm
in 1990. He was in a critical condition for many days, and a
 special notice was placed on his door to keep out visitors. A
journalist and photographer from the Sunday Sport newspaper
nevertheless entered the room, obtained a picture of Mr Kaye
using a flash camera, and claimed that Kaye had consented to an
“interview”. The paper alleged that it had obtained “a great old-
fashioned scoop”. In fact, Kaye was in intensive care and could
not remember the incident 15 minutes after the event. The Court
of Appeal took a dim view of such conduct, but struggled to find
a basis for liability in tort. Trespass to the person (see Ch.11) did
not work. The use of a flash by itself did not amount to
battery.203 The judges were tempted by libel, on the basis that it
was defamatory to state falsely that Kaye had consented to give
an exclusive interview to the Sunday Sport. However, the court
adhered to the rule that interim injunctions (i.e. injunctions
before the final hearing) should be used sparingly in libel.204
The court therefore resorted to malicious falsehood: the paper’s
allegation that the story and photograph had been taken with
Kaye’s consent was clearly false, and Kaye had lost the right to
sell his first interview after the accident for profit.205 Bingham
LJ commented that:

“Fortunately, a cause of action in malicious

falsehood exists, but … the present case
strengthens my hope that the review [of the
need for a tort of privacy] may prove
fruitful.”206

Defamation: conclusion
14–045 As may be seen, defamation is a difficult and complex area of
law, but one which is of considerable interest to anyone who is
concerned to see how tort law deals with the difficult issue of
 balancing freedom of expression against the rights of individuals
to protect their reputation from attack. The best way to approach
this area of law is in stages, following the method indicated
above. In this way, the reader can understand the reasoning
adopted by the courts and appreciate the problems inherent in
this area of law. The Defamation Act 2013 has made significant
changes to defamation law, notably in relation to defences
protecting freedom of expression. The Government describes the
2013 Act as rebalancing the law on defamation to provide more
effective protection for freedom of speech while ensuring that
people who have been defamed are able to protect their
reputation.207 Only now are we starting to see cases appearing
under the Act. It remains to be seen whether the Government’s
intention to clarify and simplify the law and provide the correct
balance between freedom of expression and protection of
reputation will prove to be successful in practice.

1 Defamation Act 2013 (Commencement) (England and Wales) Order 2013

(SI 2013/3027) art.2. See A. Mullis and A. Scott, “Tilting at windmills: the
Defamation Act 2013” (2014) 77 M.L.R. 87 for an overview of the
potential impact of the Act. For a critical review of the defences post-Act,
see E. Descheemaeker, “Mapping defamation defences” (2015) 78 M.L.R.
641 and “Three errors in the Defamation Act 2013” (2015) 6 J.E.T.L. 1.

2 [2001] 2 A.C. 127.

3 Cookson v Harewood [1932] 2 K.B. 478n; Chapman v Lord Ellesmere

[1932] 2 K.B. 431 at 463–465 per Slesser LJ.

4 See K. Williams, “Reforming Defamation Law in the UK” (1997) 5 Tort

L. Rev. 206.

5 Formerly also known as justification. The term “truth” was favoured by

the Faulks Committee (Report of the Committee on Defamation, 1975,
Cmnd.5090) para.129, which believed that it would save confusion.
6 This was challenged in the Court of Appeal in Jameel v Wall Street
Journal Europe SPRL (No.3) [2005] EWCA Civ 74; [2005] Q.B. 904 at
[55]–[57] for infringing the ECHR arts 6 and 10 (not raised on appeal to
HL). Although the point was dismissed as having been raised too late in
proceedings, the court gave it little support, stressing that it would require a
major change of the law of defamation. The point does, however, remain
open and there is some indication in Steel and Morris v United Kingdom
(68416/01) (2005) 41 E.H.R.R. 22 that it may, in exceptional
circumstances, give rise to a breach of art.10.

7 M’Pherson v Daniels (1829) 10 B. & C. 263 at 272; 109 E.R. 448 at 451.
It is irrelevant that the defendant did not know the statements to be true at
the time they were made, provided they are of course in fact true.

8 As amended by Defamation Act 2013 s.16(3).

9 Eady J in Silkman v Heard unreported 28 February 2001 QBD raised the

question whether this is compatible with the right to freedom of expression
in ECHR art.10 in that the information is in the public domain and this
section has been relied on so rarely in defamation actions. He nevertheless
added in KJO v XIM [2011] EWHC 1768 (QB) that it could be argued that
such restrictions are necessary and proportionate for the legitimate objective
of rehabilitation: [13].

10 Defamation Act 2013 s.2(4).

11 (1849) 4 Exch. 511; 154 E.R. 1316.

12 (1865) 6 B. & S. 340; 122 E.R. 1221. Note also the comments of Eady J
in Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB) at [109]:
“English law is generally able to accommodate the policy factors
underlying the Article 10 jurisprudence by means of established common
law principles; for example that a defamatory allegation need only be
proved, on a balance of probabilities, to be substantially true”.

13 Defamation Act 2013 s.2(4).

14 Explanatory Note to Defamation Act 2013 para.17.

15 [1988] 1 W.L.R. 96 at 103 per Stephenson LJ. See also Rothschild v
Associated Newspapers Ltd [2013] EWCA Civ 197; [2013] E.M.L.R. 18,
notably at [24].

16 Polly Peck (Holdings) Plc v Trelford [1986] Q.B. 1000. See also Cruise
v Express Newspapers Plc [1999] Q.B. 931 CA.

17 [1989] 1 W.L.R. 640.

18 See Lord Diplock in Broome v Cassell & Co Ltd [1972] A.C. 1027 at
1125.

19 Lucas-Box v News Group Newspapers Ltd [1986] 1 W.L.R. 147.

20 See Practice Direction to Pt 53B paras 4.3 and 4.4 to the Civil
Procedures Rules.

21 The change of name was introduced by Lord Phillips in Spiller v Joseph

[2010] UKSC 53; [2011] 1 A.C. 852 at [117].

22 See H. Brown, “Fair comment to honest opinion—what’s new?” (2013)

24 Ent. L.R. 236 and J. Bosland, A.T. Kenyon and S. Walker, “Protecting
inferences of fact in defamation law: Fair comment and honest opinion”
[2015] C.L.J. 234.

23 See Seymour v Butterworth (1862) 3 F.&F. 372; 176 E.R. 166; South
Hetton Coal Co v North-Eastern News Assoc Ltd [1894] 1 Q.B. 133;
London Artists v Littler [1969] 2 Q.B. 375. Lord Phillips in the leading case
of Spiller v Joseph had suggested that there was a case for widening the
scope of the defence by removing the requirement that it must be in the
public interest: [2010] UKSC 53 at [113].

24 Also known as Tse Wai Chun Paul v Albert [2001] E.M.L.R. 31; 10
B.H.R.C. 525 CFA (HK).

25 [2010] EWCA Civ 350; [2011] 1 W.L.R. 133. See also Waterson v Lloyd
[2013] EWCA Civ 136; [2013] E.M.L.R. 17: “scandalous expenses claim”
a statement of fact or opinion?
26 Explanatory Note to the Defamation Act 2013 para.21.

27 [2019] EWCA Civ 933.

28 Wasserman v Freilich [2016] EWHC 312 (QB).

29 [1952] A.C. 345. Described by Lord Phillips in Spiller v Joseph [2010]

UKSC 53 at [91] as “an absurd libel action. It was not about vindicating the
reputation of Viscount Kemsley but about amour propre”.

30 [1992] 2 A.C. 343.

31 Note, however, Lord Ackner’s vigorous dissenting judgment in favour of

freedom of speech.

32 [2010] UKSC 53; [2011] 1 A.C. 852.

33 [2010] UKSC 53 at [104].

34 [1952] A.C. 345.

35 [1992] 2 A.C. 343.

36 See Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 at 193 per
Lord Nicholls; Slim v Daily Telegraph [1968] 2 Q.B. 157 at 170; Merivale v
Carson (1887) 20 Q.B.D. 275 at 281; Turner v Metro-Goldwyn-Mayer
Pictures Ltd [1950] 1 All E.R. 449 at 461; Silkin v Beaverbrook
Newspapers Ltd [1958] 1 W.L.R. 743 at 747.

37 Merivale v Carson (1887) 20 Q.B.D. 275.

38 Also known as Tse Wai Chun Paul v Albert [2001] E.M.L.R. 31; 10
B.H.R.C. 525 CFA (HK). Comment F.A. Trindade (2001) 117 L.Q.R. 169.
See also Associated Newspapers Ltd v Burstein [2007] EWCA Civ 600;
[2007] 4 All E.R. 319.

39 A privileged statement is defined in Defamation Act 2013 s.3(7). Note

that there is no requirement that the fact in question was one known to the
defendant at the time.
40 Defamation Act 2013 s.3(8).

41 This is confirmed by the Explanatory Note to the Act which states that a
defendant should be able to satisfy the three conditions set out in
Defamation Act 2013 s.3 without needing to prove the truth of every single
allegation of fact relevant to the statement complained of: para.28.

42 [2001] 2 A.C. 127.

43 The defence has been found to be consistent with the European

Convention on Human Rights in that it does not impose a disproportionate
restriction on the individual’s right of access to the court: A v United
Kingdom (35373/97) (2003) 36 E.H.R.R. 51.

44 Buchanan v Jennings [2004] UKPC 36; [2005] 1 A.C. 115 (absolute

privilege does not extend to repetition of statements outside Parliament for
the MP’s own purposes even where the MP merely adopts and confirms a
previous statement made in Parliament). There may, however, by
exceptional cases where it is in the public interest to extend the protection
of art.9 to extra-Parliamentary speech: Makudi v Baron Triesman [2014]
EWCA Civ 179; [2014] Q.B. 839 at [25].

45 Lord Bingham in Buchanan v Jennings [2004] UKPC 36; [2005] 1 A.C.

115 at [20].

46 [1972] Q.B. 522.

47 Hamilton v Guardian Newspapers The Times 22 July 1995, following

the Privy Council decision in Prebble v Television New Zealand [1995] 1
A.C. 321 (see A. Sharland and I. Loveland, “The Defamation Act 1996 and
Political Libels” [1997] P.L. 113). For a recent example of parliamentary
privilege, see Foreign and Commonwealth Office v Warsama [2020] EWCA
Civ 142.

48 See Hamilton v Al Fayed (No.1) [2001] 1 A.C. 395, where the House of
Lords applied s.13 in Hamilton’s favour—a short lived victory for Mr
Hamilton whose claim ultimately failed. Comment: A.W. Bradley [2000]
P.L. 556.
49 Deregulation Act 2015 Sch.23 para.44.

50 See O’Connor v Waldron [1935] A.C. 76 and Trapp v Mackie [1979] 1

W.L.R. 377 HL. It also applies to statements made to regulatory bodies
responsible for disciplinary proceedings, as long as those bodies are
recognised by law and are operating in the public interest e.g. General
Medical Council’s Fitness to Practise Directorate (White v Southampton
University Hospitals NHS Trust [2011] EWHC 825 (QB)).

51 Royal Aquarium and Summer and Winter Garden Society v Parkinson

[1892] 1 Q.B. 431 at 451 per Lopes LJ. Note, however, that both advocates
and expert witnesses may now find themselves liable for negligence in
court regardless of the defence of absolute privilege: see Arthur J Hall &
Co v Simons [2000] UKHL 38; [2002] 1 A.C. 615 (advocates) and Jones v
Kaney [2011] UKSC 13; [2011] 2 A.C. 398 (friendly experts).

52 Watson v McEwan [1905] A.C. 480 at 487; Buckley v Dalziel [2007]

EWHC 1025 (QB); [2007] 1 W.L.R. 2933. This avoids the potential
difficulty of individuals being reluctant to make witness statements due to
their fear of being sued for defamation. However, the rule has boundaries
and the statements in question must have reference to the subject-matter of
proceedings: Iqbal v Mansoor [2013] EWCA Civ 149. It is also confined to
the statement itself and would not extend, for example, to the fabrication of
documentary evidence: Darker v Chief Constable of the West Midlands
[2001] 1 A.C. 435 and Singh v Reading BC [2013] EWCA Civ 909; [2013]
1 W.L.R. 3052.

53 [1928] 2 K.B. 520 CA.

54 [1930] A.C. 558 (see Lord Buckmaster at 570, Viscount Dunedin at 575
and Lord Atkin at 586). Note also the judgments of Brooke LJ (with whom
Nourse LJ and Sir Brian Neill agreed) in Waple v Surrey CC [1998] 1
W.L.R. 860 and Gray J in Clarke v Davey [2002] EWHC 2342 (QB), who
found a realistic prospect that Ms Clarke would be able to establish at trial
that More v Weaver could no longer stand in the light of subsequent
authority.
55 This replaces the very similar Law of Libel Amendment Act 1888 s.3 (as
amended) which was confined to television, newspapers and the radio. The
amendments, however, only apply to England and Wales.

56 Defamation Act 1996 s.14(2). Alsaifiv Amunwa [2017] EWHC 1443

(QB); [2017] 4 W.L.R. 172 suggests that it should be as nearly at the same
time as the proceedings as is reasonably possible. The privilege extends to
the reporting of previous court hearings, insofar as it was reasonably
necessary to give context to a contemporaneous report of a court hearing:
Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB).

57 [1895] 2 Q.B. 189.

58 [1946] 1 All E.R. 303 at 305; not considered by Court of Appeal [1947]
K.B. 1.

59 [1965] 1 Q.B. 57.

60 [1975] A.C. 135 at 149–150.

61 Except where the person is under a duty to pass on, without endorsing,
defamatory reports made by some other person.

62 See Adam v Ward [1917] A.C. 309 at 334 per Lord Atkinson.

63 See, e.g. Bryanston Finance Ltd v de Vries [1975] Q.B. 703.

64 [1930] 2 K.B. 226 at 233–234.

65 See Kearns v General Council of the Bar [2003] EWCA Civ 331; [2003]
1 W.L.R. 1357.

66 Osborn v Boulter [1930] 2 K.B. 226 at 234.

67 [1975] Q.B. 703—Lord Denning MR arguing for original privilege at

719 and Lawton LJ arguing for ancillary privilege at 736–738.

68 [1891] 2 Q.B. 341 at 350.

69 Toogood v Spyring (1834) 1 Cr.M. & R. 181 at 193 per Parke B; 149
E.R. 1044 at 1049–1050; Davies v Snead (1870) LR 5 QB 608 at 611 per
Blackburn J.

70 See Lord Nicholls in Reynolds v Times Newspapers [2001] 2 A.C. 127 at

194.

71 [1995] 2 A.C. 296. In this case, the plaintiff relied on negligence and
breach of contract following a finding that none of the persons involved in
the giving of the reference had acted maliciously.

72 [1930] 1 K.B. 130.

73 See Scrutton LJ [1930] 1 K.B. 130 at 149–150.

74 [2001] 2 A.C. 127 HL; [1998] 3 W.L.R. 862 CA. Comment: F.A.
Trindade (2000) 116 L.Q.R. 185; I. Loveland [2000] P.L. 351.

75 Human Rights Act 1998 s.12(1) provides that: “This section applies if a
court is considering whether to grant any relief which, if granted, might
affect the exercise of the Convention right to freedom of expression”.
Section 12(5) adds that “relief” includes any remedy or order (other than in
criminal proceedings).

76 The minority felt that the issue of qualified privilege should be

reconsidered at the re-trial in the light of their Lordships’ judgments.

77 Lord Nicholls [2001] 2 A.C. 127 at 205.

78 See, in particular, Loutchansky v Times Newspapers Ltd (Nos 2–5)

[2001] EWCA Civ 1805; [2002] Q.B. 783.

79 [2002] UKPC 31; [2003] 1 A.C. 300.

80 [2006] UKHL 44; [2007] 1 A.C. 359 (also discussed in Ch.13 in the
context of a company’s right to sue in defamation).

81 [2006] UKHL 44 at [38] per Lord Hoffmann.

82 [2006] UKHL 44 at [33] per Lord Bingham and at [56] per Lord
Hoffmann.

83 Scepticism was expressed whether any useful response could in any

event have been obtained.

84 Lord Bingham [2006] UKHL 44 at [2]. Query to what extent the

“quality” of the newspaper should be relevant.

85 The House was divided, however, whether the Reynolds defence should
be seen as a development of the common law duty/interest test (Lords
Bingham, Scott and Hope) or whether it is, in reality, a distinct public
interest defence (Lord Hoffmann and Baroness Hale). This did not appear,
however, to have any impact on the actual content of the defence and their
Lordships were in agreement as to its application to the facts of the case.

86 [2006] UKHL 44 at [51].

87 [2012] UKSC 11; [2012] 2 A.C. 273, reversing the Court of Appeal
[2010] EWCA Civ 804. Comment: D. Tan (2013) 129 L.Q.R. 27.

88 Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 A.C. 273 at
[127].

89 Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 A.C. 273 at
[137].

90 [2008] UKPC 9; [2008] 1 All E.R. 965. See also Lord Hoffmann in
Jameel [2006] UKHL 44; [2007] 1 A.C. 359 at [54].

91 [2012] UKSC 11 at [44].

92 See Lange v Atkinson [2000] 3 N.Z.L.R. 385 (where a genuine political

discussion is involved). Consider also the different Australian test set out in
Lange v Australian Broadcasting Co (1997) 189 C.L.R. 520 based on a test
of reasonableness. For a comparison with Canada, see R. Mullender,
“Defamation and responsible communications” (2010) 126 L.Q.R. 368.

93 [2000] 3 N.Z.L.R. 385 at 398.

94 66 376 U.S. 254 (1964).

95 Explanatory Note to Defamation Act 2013 at para.35.

96 The Explanatory Note to Defamation Act 2013 at para.30 explains that

this phrase serves to indicate that either the words complained of may be on
a matter of public interest or that a holistic view may be taken of the
statement in the wider context of the document in which it is contained.

97 Defamation Act 2013 s.4(4): “In determining whether it was reasonable

for the defendant to believe that publishing the statement complained of
was in the public interest, the court must make such allowance for editorial
judgement as it considers appropriate”.

98 [2018] EWCA Civ 2591; [2019] E.M.L.R. 7.

99 Namely whether the CPS as a public body had been wrong to prosecute
Ms de Freitas, a vulnerable rape complainant.

100 [2018] EWHC 2935 (QB); [2019] E.M.L.R. 15.

101 [2020] UKSC 23; [2020] 1 W.L.R. 2455.

102 Described by Ward LJ as a “fancy word”: Roberts v Gable [2007]

EWCA Civ 721; [2008] Q.B. 502 at [34].

103 [2012] UKSC 11 at [77] per Lord Phillips.

104 See Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001]
EWCA Civ 1634; [2002] E.M.L.R. 13 (Mantell LJ dissenting) and Roberts
v Gable [2007] EWCA Civ 721; [2007] E.M.L.R. 16.

105 Namely Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001]
EWCA Civ 1634 and Roberts v Gable [2007] EWCA Civ 721.

106 [2006] EWCA Civ 17; [2006] E.M.L.R. 11. The defence also failed in
Charman v Orion Publishing Group Ltd [2007] EWCA Civ 972; [2008] 1
All E.R. 750.
107 [2010] EWCA Civ 350; [2011] 1 W.L.R. 133 (the Simon Singh case).

108 In the case of a journal with more than one editor, this signifies the
editor or editors who were responsible for deciding to publish the statement
concerned: Defamation Act 2013 s.6(8).

109 Where the statement is privileged, this will extend to publication of a

fair and accurate copy of, extract from or summary of the statement:
Defamation Act 2013 s.6(5).

110 Henry v BBC (Qualified Privilege) [2005] EWHC 2787 (QB):

broadcast was so heavily laden with editorial comment that it did not
qualify as a report protected by Defamation Act 1996 s.15.

111 Wason v Walter (1868) L.R. 4 Q.B. 73.

112 For a recent application, see Curistan v Times Newspapers Ltd [2008]
EWCA Civ 432; [2009] Q.B. 231.

113 As amended by Defamation Act 1952 s.9(1).

114 This did not extend to fair and accurate reports of judicial proceedings
in foreign courts: Webb v Times Publishing Co [1960] 2 Q.B. 535.

115 Searles v Scarlett [1892] 2 Q.B. 56.

116 That is, in the same manner as the publication complained of or in a

manner that is adequate and reasonable in the circumstances: Defamation
Act 2013 s.15(2).

117 As amended by Defamation Act 2013 s.7(2).

118 Defamation Act 2013 s.15(4)(a).

119 As substituted by Defamation Act 2013 s.7(4).

120 As amended by Defamation Act 2013 s.7(6).

121 As amended by Defamation Act 2013 s.7(7). The term “listed
company” has the same meaning as in the Corporation Tax Act 2009 Pt 12.

122 As recommended by the Neill Committee on Practice and Procedure in

Defamation 1991, Ch.VII.

123 [2004] EWCA Civ 664; [2005] 1 W.L.R. 772 at [14].

124 Defamation Act 1996 s.2(5).

125 Subject to a residual court discretion to allow a party to resile from an

accepted offer in exceptional circumstances: Warren v Random House
Group Ltd [2008] EWCA Civ 834; [2009] Q.B. 600.

126 See Abu v MGN Ltd [2002] EWHC 2345 (QB); [2003] 1 W.L.R. 2201.

127 See Nail v News Group Newspapers Ltd [2004] EWCA Civ 1708;
[2005] 1 All E.R. 1040 (reduced by 50% but no standard percentage
discount and each case would require individual consideration). This is
because, due to the early capitulation of the defendant, the claimant’s
reputation has been vindicated whilst he or she has been spared the anxiety
and costs risk of contested proceedings. Where only one defendant (out of
several) makes an unqualified offer of amends with published apology, the
court will cap his liability when considering joint and several liability with
the other defendants: Veliu v Mazrekaj [2006] EWHC 1710 (QB); [2007] 1
W.L.R. 495.

128 Defamation Act 1996 s.4(3). “Reason to believe” imports the concept
of recklessness, discussed by Lord Diplock in Horrocks v Lowe [1975] A.C.
135: see Milne v Express Newspapers [2004] EWCA Civ 664; [2005] 1
W.L.R. 772.

129 Defamation Act 1996 s.4(5): “The offer may be relied on in mitigation
of damage whether or not it was relied on as a defence”.

130 Report of the Committee on Defamation, Cmnd.5909 at para.373.

131 [1900] 2 Q.B. 170, applying Emmens v Pottle (1885) 16 Q.B.D. 354.
132 Defamation Act 1996 s.1(2) defines “author” as originator of the
statement, but does not include a person who did not intend that his or her
statement be published at all.

133 Defamation Act 1996 s.1(2).

134 Ch.11 of the report of the Faulks Committee in 1975 (Report of the
Committee on Defamation, Cmnd.5909) recommended that the defence of
innocent dissemination should be extended to printers.

135 Defamation Act 1996 s.1(3)(d).

136 [2001] Q.B. 201.

137 In effect, rejecting the “mere conduit” argument that has gained
acceptance in the US. Contrast the position where the information is
“cached”, that is stored temporarily on the computer system for the purpose
of enabling the efficient availability of internet material. Here, Bunt v Tilley
[2006] EWHC 407 (QB); [2007] 1 W.L.R. 1243 held that the role of the ISP
is passive and it would not be liable unless it had been knowingly involved
in the process of publication (see also Electronic Commerce (EC Directive)
Regulations 2002 (SI 2002/2013) reg.18).

138 Dr Godfrey’s claim against Demon was finally settled, with much
publicity, with an agreement to pay Godfrey £15,000 in damages plus costs
which amounted to almost £250,000: The Times 31 March 2000.

139 Tamiz v Google Inc [2013] EWCA Civ 68; [2013] 1 W.L.R. 2151:
Google provided a platform for blogs and was found to have associated
itself with their publication when it was notified of defamatory material on
a blog in circumstances in which it could have readily removed or blocked
access to any notice which did not comply with its own terms and
conditions. Contrast Metropolitan International Schools Ltd (t/a SkillsTrain
and t/a Train2game) v Designtechnica Corp (t/a Digital Trends) [2009]
EWHC 1765 (QB); [2011] 1 W.L.R. 1743 (Google not publisher of
allegedly defamatory material appearing on a search return).
140 See 529 US 1098 (2000) The Times 3 May 2000, where the US
Supreme Court let stand a decision of the New York Court of Appeals (94
N.Y. 2d 242; 701 N.Y.S. 2d 684; 723 N.E. 2d 539) that Prodigy was a
“common carrier” who would not be responsible for what appeared on its
site.

141 Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013)

in force from 21 August 2002.

142 Directive 2000/31 on certain legal aspects of information society

services, in particular electronic commerce, in the Internal Market [2000]
OJ L178/1.

143 Defamation and the Internet: A preliminary investigation: para.2.23.

Not all commentators agree, however, arguing that the term “unlawful” in
reg.19 makes it a more generous defence than s.1. Eady J remarked in Bunt
v Tilley [2006] EWHC 407 (QB) at [72] that “in order to be able to
characterise something as ‘unlawful’ a person would need to know
something of the strength or weakness of available defences”, e.g. privilege
or honest opinion.

144 [2001] EWCA Civ 1805; [2002] Q.B. 783.

145 (1849) 14 Q.B. 185; 117 E.R. 75. Upheld in Berezovsky v Michaels
[2000] 1 W.L.R. 1004 HL.

146 Gregoire v GP Putnam’s Sons (1948) 81 NE 2d 45 (applied to a website

publication in Firth v State of New York (2002) NY Int 88).

147 The Times’ appeal to the European Court of Human Rights was
dismissed: Times Newspapers Ltd v United Kingdom (3002/03 and
23676/03) [2009] E.M.L.R. 14. The court did, however, express concern
that, on different facts, libel proceedings against a newspaper after a
significant lapse of time might, in the absence of exceptional circumstances,
give rise to a disproportionate interference with press freedom under ECHR
art.10.

148 [2005] EWCA Civ 75; [2005] Q.B. 946.

149 Three of whom were said to be agents or associates of the claimant.

150 Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 W.L.R. 113.

151 Scoping study No.2, December 2002.

152 “Publication to the public” includes publication to a section of the

public: Defamation Act 2013 s.8(2).

153 See below.

154 See Defamation Act 2013 ss.8(4) and (5).

155 It is possible for a claimant to “identify” a person only if the claimant

has sufficient information to bring proceedings against the person:
Defamation Act 2013 s.5(4).

156 Defamation Act 2013 s.5(3).

157 Defamation (Operators of Websites) Regulations 2013 (SI 2013/3028).

158 Defamation Act 2013 ss.5(11) and (12) respectively.

159 The terms “author”, “editor” and “publisher” have the same meaning as
in Defamation Act 1996 s.1: s.10(2).

160 See J. Agate, “The Defamation Act 2013—key changes for online”
[2013] C.T.L.R. 170.

161 Although it should be noted that in the case of slander not actionable
per se, the one year time limit will only start to run from the date on which
the special damage occurs.

162 See Steedman v BBC [2001] EWCA Civ 1534; [2002] E.M.L.R. 17
(extension rejected where good claim against solicitor and absence of any
contemporary complaint). Defamation Act 2013 s.8(6) clarifies that the
single publication rule does not affect the court’s discretion under s.32A.

163 See Limitation Act 1980 s.32A(2)(a) and (b).

164 See Limitation Act 1980 s.32A(2)(c).

165 See Cornwall Gardens PTE Ltd v RO Garrard & Co Ltd [2001] EWCA
Civ 699; The Times, 19 June 2001.

166 In Tolstoy Miloslavsky v United Kingdom (1995) 20 E.H.R.R. 442, the

European Court of Human Rights found the law prior to the Courts and
Legal Services Act 1990 and Rantzen v Mirror Group Newspapers (1986)
Ltd [1994] Q.B. 670 to be contrary to the European Convention on Human
Rights art.10. The jury’s award of £1.5 million in damages at trial (which
was three times the size of the highest libel award previously made in
England) was therefore a violation of art.10.

167 Note also that in Grobbelaar v News Group Newspapers Ltd [2002]
UKHL 40; [2002] 1 W.L.R. 3024, the House of Lords exercised its inherent
power to alter the award.

168 [1994] Q.B. 670.

169 [1994] Q.B. 670 at 692.

170 [1997] Q.B. 586. Applied in Kiam v MGN Ltd [2002] EWCA Civ 43;
[2003] Q.B. 281.

171 [1997] Q.B. 586 at 616 per Sir Thomas Bingham MR. But note the
doubts expressed by Lord Hoffmann in Gleaner Co Ltd v Abrahams [2003]
UKPC 55; [2004] 1 A.C. 628 as to the comparability of personal injury and
defamation awards due to their different purpose and differing impact on
society.

172 See, e.g. Cairns v Modi [2012] EWCA Civ 1382; [2013] 1 W.L.R.
1015: aggravated damages to former professional cricketer following
unsubstantiated match-fixing allegations on Twitter.

173 See Broome v Cassell [1972] A.C. 1027.

174 [1997] Q.B. 586 at 619.

175 [2003] Q.B. 281.

176 [2003] Q.B. 281 at 302.

177 See Ch.17; Heil v Rankin [2001] Q.B. 272.

178 Report of the Committee on Defamation, Cmnd.5909 at para.516.

179 Spiller v Joseph [2010] UKSC 53 at [116].

180 [2016] EWHC 1226 (QB) at [81].

181 The new procedure was brought into force on 28 February 2000.

182 In deciding whether the claim should be tried, the judge will consider,
amongst other things, how serious the defamation is and whether it is
justifiable in the circumstances to proceed to a full trial: Defamation Act
1996 s.8(4).

183 Defamation Act 1996 s.8(3). See James Gilbert Ltd v MGN Ltd [2000]
E.M.L.R. 680 and, generally, CPR r.53.2. The test is the same as that under
CPR Pt 24, which allows for summary disposal of cases generally. In
Loutchansky v Times Newspapers Ltd (Nos 2–5) [2001] EWCA Civ 1805;
[2002] Q.B. 783, the Court of Appeal held that there was no reason why the
summary procedure should not also be used for disposing of questions of
quantum alone once liability had been determined or admitted.

184 See Bonnard v Perryman [1891] 2 Ch. 269 CA. See also William
Coulson & Sons v James Coulson and Co (1887) 3 T.L.R. 846: an interim
injunction should only be used in the clearest of cases.

185 [1998] Q.B. 726 (Staughton LJ dissenting).

186 The defendant had used the threat of publication as a means of putting
pressure on the claimant to compensate him for an alleged wrong.

187 [2004] EWCA Civ 1462; [2005] Q.B. 972.

188 The Court of Appeal accepted that a different rule would apply for
breach of confidence: see Ch.15 and LNS v Persons Unknown [2010]
EWHC 119 (QB); [2010] E.M.L.R.16.
189 For economic torts generally, see Ch.12.

190 [1892] 2 Q.B. 524.

191 Royal Baking Powder Co v Wright Crossley & Co (1900) 18 R.P.C. 95

at 99: “The damage is the gist of the action and therefore . . . it must be
especially alleged and proved”.

192 [2013] EWCA Civ 152 at [27]. The claimant in this case experienced
difficulties in establishing causation and the claim was ultimately struck
out.

193 Joyce v Sengupta [1993] 1 W.L.R. 337 at 347.

194 It does not include mere advertising “puffs”: White v Mellin [1895]
A.C. 154.

195 Shapiro v La Morta (1923) 40 T.L.R. 201. See also Cruddas v Calvert
[2015] EWCA Civ 171; [2015] E.M.L.R. 16 at [111]: foreseeability does
not constitute malice for the purpose of malicious falsehood.

196 Balden v Shorter [1933] Ch. 427. For a recent example, see Al-Ko
Kober Ltd v Sambhi [2019] EWHC 2409 (QB): rival trader making false
statements about the claimant’s product in YouTube videos.

197 Spring v Guardian Assurance [1995] 2 A.C. 296.

198 [2000] 1 W.L.R. 618.

199 See Ch.17: Damages.

200 [2000] 1 W.L.R. 618 at 630–631, relying heavily on dicta from

Nicholls VC and Sir Michael Kerr in Joyce v Sengupta [1993] 1 W.L.R. 337
and distinguishing previous negative dicta in Fielding v Variety Inc [1967] 2
Q.B. 841.

201 The courts have also suggested that, unlike defamation, the claimant
can allege that the words used do not have a single meaning to the
reasonable reader and, on this basis, rely on the false meaning of the words:
see Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] EWCA Civ
609; [2011] Q.B. 497.

202 [1991] F.S.R. 62.

203 Although Glidewell LJ suggested at 68 that a bright light deliberately

shone into another’s eyes which injured his sight or damaged him in some
other way might at law be a battery.

204 See para.14–042 above.

205 The Court of Appeal also considered the economic tort of passing off,
in which the claimant sues for a misrepresentation made to the claimant’s
prospective or existing customers which is calculated to injure the business
or goodwill of the claimant and which has caused or threatened actual
damage to the business or goodwill of the claimant. The claimant must be a
“trader”. The court held that the possibility of Kaye selling the story of his
accident did not make him a “trader”.

206 [1991] F.S.R. 62 at 70. This deficiency has now been met by the courts’
development of a tort of misuse of private information to protect an
individual’s right to privacy (see Ch.15).

207 Explanatory Memorandum to the Defamation (Operators of Websites)

Regulations 2013 (SI 2013/3028) para.7.1.
 15

Privacy (or Misuse of Private

Information)

15–001 As stated in Ch.13, defamation protects the reputation of the

claimant against untrue statements of fact. The common law has
found more difficulty in deciding whether the claimant should
be able to obtain a remedy in tort for the publication of true facts
which the claimant does not wish others to know. Until recently,
litigants were forced to resort to torts such as trespass and
private nuisance to find some protection. With the advent of the
Human Rights Act 1998, the question has arisen whether
English law should now accept a new tort based on invasion of
privacy.
The existence of such a tort is controversial. Whilst a privacy
tort would protect the claimant from invasion of his or her
private life, it would be at the expense of the public’s right to
know and the defendant’s freedom of expression, protected by
the European Convention on Human Rights (ECHR) art.10. At
worst, it would give claimants a means of suppressing true, but
damaging, information which it is in the public interest to
disclose. Yet, it cannot be denied that publication of details of an
individual’s private life, even when they are accurate, can be
distressing. In particular, advances in modern technology have
led to an increasing number of intrusions into the private lives of
individuals, be they public or private figures. Many other
countries have accepted the need for laws protecting privacy.1
 The 1998 Act, which incorporates ECHR art.8 (right to respect
for private and family life), brings to the fore the question of
whether, and to what extent, English law should recognise a
right to privacy.

Protection of privacy by existing torts

15–002 Prior to the Human Rights Act 1998, it seemed clear that there
was no general right to privacy in English law. Tort law did,
however, offer some protection on an ad hoc basis. Whilst the
claimant would have to satisfy the basic requirements for each
tort, some protection could thereby be obtained, even if it was
merely indirect and the remedy often ill-suited to the protection
of privacy. Trespass to land, private nuisance, malicious
falsehood and even defamation were therefore relied upon by
claimants.
Trespass, notably, provided a means of preventing direct
interference with the claimant’s possession of land and has long
been used to protect the claimant against invasion of privacy.2
Yet, with the advent of long-range lenses, photographers are no
longer required to intrude onto the claimant’s land, thereby
limiting the effectiveness of this action. For example, in
Bernstein v Skyviews Ltd,3 Lord Bernstein failed in his action for
trespass against the defendants. The defendants had taken aerial
photographs of his country house without his consent, but the
court held that the rights of a landowner did not extend to
airspace exceeding that necessary for the ordinary use and
enjoyment of land.4 Equally, private nuisance may assist in
preventing indirect interference with one’s enjoyment of land,
although its use is limited by the House of Lords decision in
Hunter v Canary Wharf Ltd,5 which confined the right to sue for
private nuisance to those with an interest in land or exclusive
possession.6 Defamation can offer only limited protection
against the invasion of privacy, although innuendo may assist a
claimant in bringing an action. In Tolley v Fry,7 for example,
Tolley successfully sued the defendants for an advertisement in
which his caricature was pictured promoting the defendants’
chocolate bars. However, this case rested on the innuendo that
Tolley (an amateur golfer) had violated his amateur status. He
would have been unable to sue simply on the basis that he had
been caricatured in an advertisement. More fundamentally, the
protection provided by defamation is subject to the defence of
truth, which permits the defendant to publish any statement
provided he or she can show that it is substantially true.8
Malicious falsehood also came to the assistance of Gorden Kaye
in Kaye v Robertson9
where the court, horrified by the behaviour of the newspaper in
question, sought to find some way of supporting his claim.
Following an accident, Kaye was in intensive care in hospital. A
journalist and photographer from the Sunday Sport newspaper
nevertheless entered the room, obtained a picture of Mr Kaye
using a flash camera, and claimed that Kaye had consented to an
“interview”, although he was unable to recollect the incident 15
minutes after the event.10 The Court of Appeal took a dim view
of such conduct, but struggled to find a basis of liability in tort,11
resorting finally to malicious falsehood: the paper’s allegation
that the story and photograph had been taken with Kaye’s
consent was clearly false, and Kaye had lost the right to sell his
first interview after the accident for profit. Bingham LJ
commented that:

“this case nonetheless highlights, yet again,

the failure of both the common law of
England and statute to protect in an
effective way the personal privacy of
individual citizens.”12
 Such provisions are thus limited and, at best, provide only
indirect protection of an individual’s private life. However, the
Human Rights Act 1998 raised the prospect of change. The Act
expressly refers to the art.8 right to respect for one’s private and
family life. The remainder of this chapter will examine the
impact of this development. Has the Act, despite Government
denials, introduced a right to privacy into English law?

The Impact of the Human

Rights Act 1998

15–003 In October 2000, the Human Rights Act 1998 came into force in
England and Wales. This Act gives domestic legal effect to the
vast majority of the rights contained in the European Convention
on Human Rights. Under s.6, the courts (as a public authority)
must act in a way which is compatible with the Convention.
Article 8 of the Convention states that:

“(1) Everyone has the right to respect for

his private and family life, his home
and his correspondence.
(2) There shall be no interference by a
public authority with the exercise of
this right except such as is in
accordance with the law and is
necessary in a democratic society in the
interests of national security, public
safety or the economic well-being of
the country, for the prevention of
 disorder or crime, for the protection of
health or morals, or for the protection
of the rights and freedoms of others.”

This imposes a positive obligation on States to see that such

rights are respected.13 Nevertheless, it is qualified. It must also
be considered in the light of art.10, which protects freedom of
expression:

“(1) Everyone has the right to freedom of

expression. This right shall include
freedom to hold opinions and to receive
and impart information and ideas
without interference by public
authority and regardless of frontiers.
(2) The exercise of these freedoms, since it
carries with it duties and
responsibilities, may be subject to such
formalities, conditions, restrictions or
penalties as are prescribed by law and
are necessary in a democratic society,
in the interests of national security,
territorial integrity or public safety, for
the prevention of disorder or crime, for
the protection of health or morals, for
the protection of the reputation or the
rights of others, for preventing the
disclosure of information received in
confidence, or for maintaining the
authority and impartiality of the
judiciary.”14
 The question arises whether such provisions are sufficient to
give claimants a “right” to privacy, or require or empower the
courts to develop a tort protecting claimants from invasion of
their privacy. The Government’s response was in the negative.
The Lord Chancellor, during the reading of the Human Rights
Bill, stated:

“This Bill does not impose any statutory

controls on the press by a back-door
privacy law . . . I would not agree with any
proposition

that the courts as public authorities will be

obliged to fashion a law on privacy because
of the terms of the Bill.”15

Further, s.12(4) of the 1998 Act provides that:

“The court must have particular regard to

the importance of the Convention right to
freedom of expression and, where the
proceedings relate to material which the
respondent claims, or which appears to the
court, to be journalistic, literary or artistic
material (or to conduct connected with such
material), to—
(a) the extent to which—
(i) the material has, or is about to,
become available to the public; or
 it is, or would be, in the public interest
(ii)
for the material to be
published;
(b) any relevant privacy code.”

This does not prevent, however, the courts choosing to develop

the common law in a way which provides greater protection of
privacy rights.16 The subsequent development of the law
illustrates two propositions:
▮ there is still no general tort of invasion of privacy; and
▮ claimants may nevertheless seek a remedy against the
publication of private information relating to their
personal lives. The nature of this action will be
discussed below.

The Current Legal Position

(1) Rejection of a stand-alone tort of
invasion of privacy
15–004 The leading case is that of Wainwright v Home Office.17 Here, a
mother and son visiting a relative in prison were strip-searched
for drugs under humiliating conditions. No drugs were found.
The search was conducted in breach of prison rules (and
therefore not protected by statutory
authority) and both claimants suffered distress as a result; the
son, who suffered from physical and learning difficulties,
developing post-traumatic stress disorder. It was claimed that
such conduct invaded their rights to privacy.18
 In the House of Lords, Lord Hoffmann rejected the existence
of a common law tort of invasion of privacy. Whilst existing
torts might provide some protection, this did not indicate that the
common law should regard privacy as a principle of law worthy
of protection in itself. Any such development could only be
undertaken by Parliament, which could provide specific detailed
rules to deal with privacy issues.19 In any event with the coming
into force of the Human Rights Act 1998, in future claims
against public authorities could be brought under the Act. The
creation of a general tort was not, in his Lordship’s opinion,
necessary to comply with art.8.
The 1998 Act was not applicable on the facts of Wainwright
which occurred before the Act was in force. Their Lordships
accepted that a challenge might subsequently be made to the
European Court of Human Rights in Strasbourg. This, indeed,
occurred and the Strasbourg Court held unanimously that the
prison officers’ conduct was a breach of art.8. The requirement
to submit to a strip-search would generally amount to an
interference with the right to respect for private life under art.8,
and it could not be said that the searches were a proportionate
response to the legitimate aim of combating the drugs problem
within the prison.20 Each applicant was awarded €3,000 in
compensation.
Nevertheless, the basic proposition in Wainwright stands: a
general tort of privacy has not been accepted by the courts. It
should be noted, also, that a Wainwright claim under the 1998
Act will only work against a public authority and not against a
private citizen.

(2) The “extended” breach of

confidence action

15–005 Lord Hoffmann, in rejecting a general tort of privacy in

Wainwright, noted that the law of breach of confidence had in
recent years undergone “judicious development” to provide a
remedy for some invasions of privacy.21 This is somewhat of an
understatement. Despite the
courts’ doubts in relation to a new tort protecting privacy, they
have been far less reticent in re-moulding the equitable doctrine
of breach of confidence22 as a means of protecting the private
lives of claimants. Traditional breach of confidence exists where
(a) information is of a confidential nature; (b) communicated in
circumstances importing an obligation of confidence and (c) has
been used in an unauthorised way.23 For example, in Argyll v
Argyll,24 an ex-wife was able to obtain an injunction preventing
her former husband revealing confidences of their married life.
The key to breach of confidence is, however, the existence of a
genuine relationship of confidence between the parties and to
information said to possess the necessary quality of
confidence.25
However, the courts have extended breach of confidence to
adopt a far more generous interpretation which covers not only
confidential information, but private information.26 The
inspiration was the Human Rights Act 1998 and art.8 ECHR. As
stated in the leading case of Campbell:

“The time has come to recognise that the

values enshrined in articles 8 and 10 are
now part of the cause of action for breach
of confidence . . . The values embodied in
articles 8 and 10 are as much applicable in
disputes between individuals or between an
individual and a non-governmental body
such as a newspaper as they are in disputes
between individuals and a public
authority.”27
 Under the “extended” breach of confidence action, it was no
longer necessary to identify a “relationship of confidence” or
“confidential information”. It is enough that the information is
private. Was this still breach of confidence? For Lord Nicholls in
Campbell, “[t]he essence of the tort is better encapsulated now
as misuse of private information”.28 At first, the courts resisted
recognising a new cause of action. The Court of Appeal in
Douglas v Hello! Ltd (No.3), for example, rejected this
description.29 However, over time, the courts started to refer to
the action as a tort,30 and academics openly criticised the courts
for failing to recognise the need for some
form of privacy tort.31 Finally, in 2015, the Court of Appeal in
Vidal-Hall v Google Inc32 accepted the existence of a distinct
tort of misuse of private information, at least for the purposes of
service of a claim outside jurisdiction. A clear dividing line
therefore exists between traditional breach of confidence actions
(which still exist, notably in relation to disclosure of trade
secrets) and the tort of misuse of private information. The Court
of Appeal did note, however, that in creating a new tort, the
courts would have to resolve matters such as the correct
limitation period and appropriate remedies for the action.33
Below we examine the key modern cases in the development
of the tort of misuse of private information, namely Campbell v
Mirror Group Newspapers Ltd34 and McKennitt v Ash.35 These
cases provide a framework for the modern action and illustrate
its development from a “modified” form of the breach of
confidence action to a cause of action in its own right.

◗ Campbell v Mirror Group Newspapers Ltd:

protecting private information
15–006 Naomi Campbell is a well-known “supermodel”. The Daily
Mirror published a number of articles which revealed that,
contrary to her previous statements, she was a drug addict and
attending Narcotics Anonymous meetings to deal with her
addiction. Photographs were taken without her knowledge,
showing her in a public street leaving a group meeting, and
details were given of her treatment. In response to her action for
breach of confidence,36 the Daily Mirror alleged that it had
acted in the public interest in correcting her previous denials and
that the photographs and other details were merely peripheral to
this information.
The House of Lords accepted that the Mirror was entitled to
set the record straight and correct Ms Campbell’s previous
untrue statements, but their Lordships were divided whether the
additional details were peripheral or not. The majority argued in
favour of Ms Campbell37: details relating to her treatment were
akin to the private and confidential information contained
in medical records and their publication might deter Ms
Campbell from seeking help for her addiction and thereby harm
her health. On balance, her art.8 rights therefore outweighed the
newspaper’s right to freedom of expression. Ms Campbell was
entitled to an award of damages.
A number of points arise from the Campbell decision. First,
it is clear that although the action is stated to be that of breach of
confidence, their Lordships are focussing on issues of private
information. Lord Nicholls is perhaps most overt in recognising
that what is being applied in Campbell is a new form of the
“breach of confidence” action:

“The common law or, more precisely, courts

of equity have long afforded protection to
the wrongful use of private information by
means of the cause of action which became
known as breach of con-fidence . . . This
cause of action has now firmly shaken off
the limiting constraint of the need for an
initial confidential relationship. In doing so
it has changed its nature . . . Now the law
imposes a ‘duty of confidence’ whenever a
 person receives information he knows or
ought to know is fairly and reasonably to be
regarded as confidential . . . the more
natural description today is that such
information is private.”38

Secondly, this action does not protect all privacy rights, but is
confined to private information. For example, the strip-searches
in Wainwright would not fit under this action. Future
Wainwrights would have to seek a remedy not in tort, but under
the Human Rights Act 1998 ss.7 and 8.39 Thirdly, liability will
only arise if the defendant discloses private, not public,
information. This is therefore a key issue. When will
information be private? Clearly if a public figure discusses her
private life in the press, she will run the risk, as with Ms
Campbell, that this will be viewed as a matter of public debate.
Finally, art.8 rights are not, as stated above, absolute. The courts
will in each case balance the claimant’s rights to private and
family life against the defendant’s freedom of expression. It is
clear in Campbell that, despite the Human Rights Act 1998 s.12,
neither right has pre-eminence. Lord Steyn in Re S (a child)40
provided a useful summary of four key propositions to be taken
from Campbell:
▮ Neither art.8 nor art.10 has precedence over the other.
▮ Where the values under the two articles conflict, an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary.
▮ The justifications for interfering with or restricting each
right must be taken into account.
▮ The proportionality test must be applied to each (which
his Lordship termed “the ultimate balancing test”).
 The test is therefore whether publication pursues a legitimate
aim and whether the benefit of publication is proportionate to
the harm done by interference with privacy.41

◗ McKennitt v Ash: the two stage test

15–007 Unlike Naomi Campbell, Loreena McKennitt, despite being a
well-known Canadian folk musician, had carefully guarded her
personal life and was distressed when a former close friend
wrote a book that contained personal and private details of her
life. She sought an injunction on the basis of breach of privacy
or confidence to prevent further publication of certain private
material. Her friend, Niema Ash, alleged that this prevented her
telling her own story which included her friendship with Ms
McKennitt.
The Court of Appeal was, perhaps understandably,
unconvinced by Ms Ash’s argument. In reality, her book
(entitled Travels with Loreena McKennitt) was only of interest
due to revelations arising from her close and confidential
relationship with Ms McKennitt. As Buxton LJ commented:

“the matters related in the book were

specifically experiences of . . . Ms
McKennitt. Ms Ash cannot undermine their
confidential nature by the paradox of
calling in aid the confidential relationship
that gave her access to the information in
the first place.”42

Yet, McKennitt is important not due to its application of the law,

which can be argued to satisfy even the traditional conception of
the breach of confidence action, but in its guidance as to the
nature of the “extended” action. Buxton LJ confirmed that the
 action lies in the case law of arts 8 and 10 and that, as a result,
there are two key questions for the court to resolve43:
▮ Is the information private in the sense that it is in
principle protected by art.8? If no, that is the end of the
case. If yes, then;
▮ In all the circumstances, must the interest of the owner
of the private information yield to the right of freedom
of expression conferred on the publisher by art.10? (the
“balancing exercise”).
Much then will depend on the facts of the case, although
undoubtedly some guidance may be gained from examining
previous decisions. Caution must, however, be taken with early
cases such as Douglas v Hello! Ltd (No.1)44 and A v B Plc,45 in
that more recent decisions indicate that the courts would now be
far more willing to protect the privacy rights of the claimants in
question.46

(3) Application of the two-stage test

◗ (i) Is the information private?

15–008 Whether a particular piece of information qualifies as private
will depend on all the circumstances of the case, and the courts
proceed case by case. At times this may be obvious. For
example, the journals of the Prince of Wales recording his
impressions of the handing over of Hong Kong in 1993 were
considered to be paradigm examples of private documents.47
Equally issues relating to sexual behaviour (and sexuality) and
physical and mental health are matters protected by art.8
ECHR.48 Information may also be private even if the individual
in question wishes to exploit it commercially, although this is
likely to reduce the level of damages awarded.49 In Campbell,
Lord Nicholls explained the test as follows: in respect of the
disclosed facts, did the person in question have a reasonable
expectation of privacy?50
Subsequent cases have helped to explain the “reasonable
expectation of privacy” test. It is primarily an objective
question: what would a reasonable person feel to be private if
placed in the claimant’s position? The courts therefore will look
to the nature of the activity in which the claimant was engaged,
the place at which it was happening, the nature and purpose of
the
intrusion, absence of consent (known or inferred), the effect on
the claimant, and the circumstances in which, and purposes for
which, the information came into the hands of the publisher.51
The attributes of the claimant will also be relevant (although not
decisive), for example, is the claimant a publicity-seeking
celebrity or a mere child? In Murray v Express Newspapers
Plc,52 for example, the Court of Appeal held that it was arguable
that a photograph of JK Rowling’s infant son taken without his
parents’ consent in a public street infringed the child’s
reasonable expectation of privacy. It made no difference on the
facts that the photo had been taken in a public place.53 Further in
Weller v Associated Newspapers,54 the children of well-known
British musician, Paul Weller, were found to have a reasonable
expectation of privacy when on a family outing in the shops and
cafés of Los Angeles, California. In a considered judgment,
Lord Dyson MR indicated that while a child does not
automatically have a reasonable expectation of privacy, it might
be easier to establish than for an adult. The courts in such cases
should, in applying the objective test set out above, take into
account the child’s age,55 parental lack of consent, the effect on
the child and any security concerns, although ultimately it would
depend on the facts of each individual case. The courts will look,
in particular, at whether the parent has placed the child in the
lime-light e.g. taking the child to a film première.56 More
recently, a case, brought by veteran entertainer Cliff Richard,57
questioned to what extent the media could report on the fact that
someone was being investigated for a crime, when he had yet to
 be charged by the police. Accusations, particularly of serious
crimes such as abuse, carry obvious stigma, despite the fact that,
at law, a person is presumed innocent until proven guilty. As a
general rule, then, up to the point of charge, a person will have a
reasonable expectation of privacy in a police investigation and
should not normally be identified due to the risk of unfair
damage to reputation. This is not, however, a universal rule and
will remain fact sensitive.58

◗ (ii) Balancing art.8 and art.10

15–009 Here, the key is to identify whether it is proportionate to prevent
disclosure of private information, having regard to the
competing Convention right of freedom of expression. Neither
article has precedence over the other. The cases indicate that a
number of factors may affect the balancing exercise. A court is
far more likely to permit discussion of matters of legitimate
public interest, for example information relating to politicians in
the exercise of their functions, than tittle-tattle related to parties
with no real public function,59 as exemplified by the European
Court of Human Rights judgment in favour of Princess Caroline
of Monaco who, despite having no official functions, had been
photographed dining, with her children, shopping, playing tennis
and bicycling.60 The court found that:

“the publication of the photos and articles

in question, of which the sole purpose was
to satisfy the curiosity of a particular
readership regarding the details of the
applicant’s private life, cannot be deemed
to contribute to any debate of general
interest to society despite the applicant
being known to the public.”61
In contrast, where the photograph is related to a debate of
legitimate interest to society, art.8 will not be breached, For
example, in a later case (Von Hannover (No.2)), a photograph of
Princess Caroline on holiday while her father Prince Rainier of
Monaco was ill was found to be part of a discussion how the
prince’s children reconciled their obligations of family solidarity
with the legitimate needs of their private life and did not breach
art.8.62 Certain matters may help tip the balance. Special
considerations apply to photographs, which are, by their very
nature, more intrusive than words.63 Equally, the fact that the
revelation might harm the claimant’s children or step-children
may tip the balance in the claimant’s favour in that particular
weight is accorded to the art.8 rights of any children likely to be
affected by the publication.64 In the Prince of Wales case, the
fact that the information was disclosed to the newspaper by an
employee in Prince Charles’ private office, who was under a
contractual obligation to keep the contents of the journal
confidential, was also said to support Prince Charles’s claim.65
In Weller,66 Lord Dyson MR, guided by Von Hannover (No.2),
in addition to examining whether the publication made a
contribution to a debate of general interest, considered the
circumstances
in which the photographs were taken, the content, form and
consequences of the publication, the subject of the report,
whether the person concerned was well known and their prior
conduct. In this case, the photographs of Weller’s children were
only of interest because they had a famous father and, in the
court’s words, were published for “the sole purpose of satisfying
public curiosity”. On this basis, their art.8 rights outweighed the
defendant’s art.10 right. In the Cliff Richard case, the question
was less straightforward. It was argued that there was a
significant public interest in publicising investigations into
historic sexual abuse, not least that it encouraged other victims
to come forward. Nevertheless, the consequences of disclosure
would be great stigma to those investigated,67 which, in this
case, had been severely magnified by the dramatic and
 sensationalist style of reporting by the BBC, which was rightly
condemned by the Court. Cliff Richard was awarded general and
aggravated damages of £210,000.

Information in the public domain

15–010 This is a defence for breach of confidence. It is also relevant to

the tort of misuse of private information. The basic principle is
that information will not be protected against publication if it is
already known to the public. However, the Court of Appeal in
Browne v Associated Newspapers Ltd drew an important
distinction between information which is made available to a
person’s circle of friends or work colleagues, and information
which is widely published in a newspaper.68 Only the latter is in
the public domain. This raises difficult questions of degree. For
example, in McKennitt, despite Ms McKennitt’s insistence of
her avoidance of publicity, evidence was given that she had
discussed the death of her fiancé in a drowning accident and its
impact on her in a number of articles. The Court of Appeal
refused to accept that limited disclosure of personal details
permitted subsequent scrutiny of every detail of her personal
life. On the facts, the articles had been part of a campaign by
McKennitt to promote water safety and it was regarded as
“cruelly insensitive”69 to suggest that this opened up her entire
life to scrutiny as a result.

Remedies
15–011 A claimant, if aware of or suspecting disclosure, will frequently
seek an injunction to prevent publication. Bearing in mind the
time it takes to go to trial, a claimant will often seek an
interlocutory injunction, that is, a court order that the defendant
may not publish the information before the matter is resolved at
trial. As noted in Ch.14, English courts are particularly aware of
the dangers that the award of interlocutory injunctions may pose
 to the right of freedom of expression. This does not, of course,
prevent the claimant bringing an action for damages, but
in the past, there was limited incentive to do so when the
damages awarded were not large. Further, damages can do little
to lessen the claimant’s distress once the information is publicly
known. As will be seen below, recent court decisions on
remedies have brought important changes to this area of law.

◗ (i) Damages
15–012 Claims for damages have been made, but until recently, the
awards made by the courts have been relatively low. Michael
Douglas and Catherine Zeta-Jones, for example, in the Douglas
v Hello! Ltd litigation were awarded a mere £3,750 each for the
distress arising from infringement of their privacy rights when
an unauthorised photographer sold photographs of their wedding
reception (although this was no doubt reduced by their
willingness to grant exclusive rights to their wedding pictures to
Hello!’s rival, OK! Ltd).70 A claim for an account of profits—
that is, requiring the defendant to hand over his profits to the
claimants—was accepted to be possible, but unavailable on the
facts.71 Ms McKennitt received a mere £5,000.
However, this changed with Mosley v News Group
Newspapers Ltd,72 where Eady J awarded Max Mosley £60,000
in view of the scale of distress and indignity he had suffered.
The newspaper had published salacious details of the claimant’s
involvement in sadomasochistic activities, which, it alleged, had
a Nazi theme and mocked the way that Holocaust victims had
been treated in concentration camps. In addition to being (at the
time) President of the FIA (the organisation running Formula 1
motor-racing), Mr Mosley is the son of Sir Oswald Mosley, a
noted Fascist leader during the Second World War, rendering
such allegations doubly embarrassing. Sexual activity of this
nature was, predictably, deemed to give rise to a reasonable
expectation of privacy and, in the absence of proof of the Nazi
or concentration camp allegations, publication could not be said
to be in the public interest. In awarding damages, Eady J
highlighted that the court should award an adequate financial
remedy, capable of acknowledging the infringement
of privacy and compensating for injury to feelings,
embarrassment and distress. Exemplary damages would not,
however, be awarded.73 Whilst accepting the sums previously
awarded had been modest, in view of the infringement in
question, which included video footage of the claimant which
was freely accessible on the News of the World’s website and
persistent reference to the unproven Nazi allegations, Eady J
was prepared to be more generous.74
This new approach was followed by the Court of Appeal in
Gulati v MGN Ltd75 and Richard v BBC (discussed above, where
the Court awarded general and aggravated damages). In Gulati,
the voicemails of numerous celebrities had been hacked by
journalists in pursuit of information to generate articles about the
victims. Such blatant intrusion into their private lives, causing
considerable distress and anxiety, led to awards of damages
ranging from £72,500 to £260,250. These awards place damages
for misuse of private information on a par with those awarded
for defamation (discussed in Ch.14). In rejecting the
newspaper’s appeal, the court recognised that while these were
the largest awards ever made for breach of a person’s privacy, it
was important to compensate not only for the distress caused by
misuse of private information, but also for the fact that the
defendant had deprived the claimants of their right to control the
use of private information relating to them. The court rejected
the argument that awards should be limited by reference to the
awards given by the European Court of Human Rights: “the
conditions of the tort are governed by English law and not the
Convention . . . national courts are intrinsically better able to
assess the adequacy of an award in their jurisdiction than an
international body”.76 Damages might be limited, however, if
mitigating circumstances were shown e.g. the repeated misuse of
information where there had been some genuine mistake as to its
source or the defendant had made a timely apology or where the
information would, on the facts, have become public knowledge
anyway.
 ◗ (ii) Interlocutory injunctions
15–013 For many, however, it is the question of obtaining an
interlocutory injunction to prevent the information being
revealed in the first place which is the most important issue. In
Cream Holdings Ltd v Banerjee,77 the House of Lords indicated
when a court should make an interim order for what was then
called a breach of confidence claim. The question is complicated
by the Human Rights Act 1998 s.12(3), which states:

“No such relief is to be granted so as to

restrain publication before trial unless the
court is satisfied that the applicant is likely
to establish that publication should not be
allowed.”

This form of wording differs from the traditional test stated in

American Cyanamid Co v Ethicon Ltd,78 namely that the court
must be satisfied that there is a real prospect of success. Lord
Nicholls, with the full agreement of the House, considered the
meaning of the word “likely” in s.12(3) and how it differed from
the traditional test. Did it, in other words, make it easier or
harder for the claimant to obtain an interlocutory injunction for
misuse of private information, or did it simply maintain the
status quo? In his Lordship’s view, the principal purpose of this
section was to buttress the protection given to freedom of
expression. It thus set a higher threshold for the grant of an
interlocutory injunction than existed previously. Although
bearing in mind that informational privacy, once breached, is
lost forever, his Lordship concluded:
 “There can be no single, rigid standard
governing all applications for interim
restraint orders. Rather, on its proper
construction the effect of section 12(3) is
that the court is not to make an interim
restraint order unless satisfied the
applicant’s prospects of success at the trial
are sufficiently favourable to justify such an
order being made in the particular
circumstances of the case. As to what
degree of likelihood makes the prospects of
success ‘sufficiently favourable’, the general
approach should be that courts will be
exceedingly slow to make interim restraint
orders where the applicant has not satisfied
the court he will probably (‘more likely than
not’) succeed at the trial. In general, that
should be the threshold an applicant must
cross before the court embarks on
exercising its discretion, duly taking into
account the relevant jurisprudence on
article 10 and any countervailing
Convention rights.”79

His Lordship accepted that there will be cases where the

courts will be required to depart from this general approach and
require a lesser degree of likelihood, for example, where the
potential adverse consequences of disclosure are particularly
grave or where a short-lived injunction is needed to enable the
court to hear and give proper consideration to an application for
interim relief pending the trial or any relevant appeal. Generally,
however, the test
enunciated by Lord Nicholls places the burden on the claimant
to persuade the judge that his prospects of success at trial are
sufficiently favourable.80 The court will, in most cases, be slow
to grant an interim restraint order where the claimant has not
satisfied the court that, once the relevant balancing exercise
between art.8 and art.10 rights has been carried out, he or she
would be more likely than not to succeed at the trial.
In PJS v News Group Newspapers Ltd,81 the Supreme Court
examined once again the operation of interlocutory injunctions
in circumstances where the information in question (which
concerned revelations of adultery) had already been revealed in
the US, Canada and Scotland and evidence was given that “those
interested in a prurient story” could probably find out details by
using the internet. In such circumstances, should a court exercise
its discretion to continue an injunction to stop the defendant
disclosing “private” information which could, in any event, be
found on the internet? Human Rights Act 1998 ss.12(4)(a)(i) and
(ii) specifically provide that where the proceedings relate to
journalistic material, the court must have particular regard to the
extent to which the material has, or is about to, become available
to the public or it is, or would be, in the public interest for the
material to be published. The majority of the Supreme Court
found for the claimant (Lord Toulson dissenting). There was no
public interest in the revelation of matters of a sexual nature
which were clearly private. Further there was a qualitative
difference between the intrusiveness and distress likely to be
involved between disclosures already made on the internet and
unrestricted publication by the English media in hard copy as
well as on the internet.82 Unrestricted publication would
undoubtedly give rise to a “media storm” to the great distress of
the claimant, his partner and their young children.83 On this
basis, where the claimant was deemed likely to establish at trial
that publication should not be allowed (the Cream Holdings test)
and damages would not be an adequate remedy, the majority of
the Court would not be swayed by the fact that the
 uncontrollable world of the internet and social media might
make further inroads into the protection intended by the
injunction. Lord Toulson, in contrast, was of the view that “the
court needs to be very cautious about granting an injunction
preventing publication of what is widely known, if it is not to
lose public respect for the law by giving the appearance of being
out of touch with reality”.84 Lord Neuberger’s response was
robust: “if Parliament takes the view that the courts have not
adapted the law to fit current realities, then, of course, it can
change the law”.85

Conclusion

15–014 This is an area of law that is still developing. We can now draw
a clear line between traditional actions for breach of confidence
—where confidential information is disclosed without authori-
sation when the defendant has an express or implied duty of
confidence (e.g. an employee giving away trade secrets)—and
the action for misuse of private information. At times, the courts
will face both claims, for example, in actions such as
McKennitt86 and the Prince of Wales case discussed above.
Nevertheless, the law relating to misuse of private information is
becoming clearer even though, as seen in PJS above, the world
of the internet and social media continue to present challenges
for the courts. It is to be hoped that formal recognition of a tort
of misuse of private information will bring clarity to this area of
law and permit the law to develop its own rules and remedies
out of the shadow of the action for breach of confidence.
The tort of misuse of private information also provides a
novel example where the Human Rights Act 1998 has
influenced the development of an action in the law of tort.87 The
unanswered question, however, is to what extent privacy rights
not protected by the tort of misuse of private information should
be protected by tort law. The tort only protects informational
privacy. It has been argued that it should also extend to
“intrusion upon seclusion” cases, that is, where the defendant
 observes the claimant in a private, or even public, place without
his or her consent (in a New Zealand case illicitly videoing a
woman in the shower).88 The answer is currently no—the tort
requires that information is “misused”, that is, distributed to a
third party. However, it remains an open question whether the
courts could interpret the term “misuse” more broadly to
include, for example, the intrusion upon seclusion situation.89
Mann J recently in Fearn v Board of Trustees of the Tate
Gallery90 had an alternative suggestion: that, following the
Human Rights Act 1998, the tort of private nuisance might be
extended to protect ordinary householders from intrusion from
people prying into their homes from a nearby gallery viewing
platform. This view, however, was firmly rejected by the Court
of Appeal as wrong in principle, distorting the tort of private
nuisance.91 In the view of the Court of Appeal: “This is an area
in which the legislature has intervened and is better suited than
the courts to weigh up competing interests.”92 Extension of the
tort of misuse of private information to protect wider privacy
interests remains therefore a matter for ongoing debate.

1 e.g. the United States Restatement (Second) of Torts recognises 4 types of

invasion of privacy: intrusion, appropriation of name or likeness,
unreasonable publicity and placing a person in a false light (paras 652A–
652I) (1977). New Zealand finally confirmed the existence of a tort
protecting informational privacy in Hosking v Runting [2005] 1 N.Z.L.R. 1
and C v Holland [2012] 3 N.Z.L.R. 672. In contrast, France introduced a
new provision into its Civil Code: art.9 (by virtue of the Law 70–643 of 17
July 1970), whilst German courts recognised privacy as a right
(Persönlichkeitsrecht) protected by its Civil Code para.823(1) in the 1950s:
see W. van Gerven, J. Lever and P. Larouche, Tort Law (Hart, 2000). See,
generally, A.T. Kenyon (ed), Comparative Defamation and Privacy Law
(CUP, 2016),

2 See Entick v Carrington (1765) 2 Wils. K.B. 275; 95 E.R. 807.

3 [1978] 1 Q.B. 479.

4 See Ch.11.

5 [1997] A.C. 655, discussed in Ch.10.

6 Thereby overturning the Court of Appeal’s decision in Khorasandjian v

Bush [1993] Q.B. 727 that the daughter of the house (who was a licensee)
could obtain an injunction for private nuisance to stop harassment by a
former boyfriend. For a recent attempt to rely on nuisance to protect privacy
rights, see Fearn v Board of Trustees of the Tate Gallery [2019] EWHC 246
(Ch); [2019] Ch 369 where Mann J argued that peering from the viewing
gallery in the Tate Modern into a nearby block of flats could amount to a
private nuisance. This was firmly rejected, however, on appeal as contrary
to principle: [2020] EWCA Civ 104.

7 [1931] A.C. 333. See also Charleston v News Group Newspapers [1995]
2 A.C. 65.

8 Defamation Act 2013 s.2. Note, however, that under the Rehabilitation of
Offenders Act 1974 s.8 (as amended) truth is not a defence where the
defendant has maliciously published details of a person’s distant criminal
past. The defences of honest opinion and privilege may also limit the
claimant’s ability to complain.

9 [1991] F.S.R. 62.

10 The paper alleged that it had obtained “a great old-fashioned scoop”.

11 Trespass to the person failed as the use of a flash by itself did not amount
to battery. Nor did Kaye have sufficient possessory rights to bring an action
for trespass to land. Defamation (that is, the newspaper had falsely stated
that Kaye had consented to give an exclusive interview to the Sunday Sport)
equally failed as the court was not prepared to impose an interim injunction
except in the clearest of cases.

12 [1991] F.S.R. 62 at 70. Further protection is provided by copyright law

where the claimant owns the copyright of the work or photograph disclosed:
see Williams v Settle [1960] 1 W.L.R. 1072; Copyright, Designs and Patents
Act 1988 s.85. Specific statutes also offer protection: Protection from
Harassment Act 1997, Data Protection Act 1998 (which extends the rights
of individuals to control the use of personal data stored on computers or
manually).

13 Von Hannover v Germany (59320/00) (2005) 40 E.H.R.R. 1.

14 Emphasis added.

15 Lord Irvine of Lairg, Hansard, 24 November 1997, cols 784–5.

16 The so-called “indirect” horizontal effect: see M. Hunt, “The ‘horizontal

effect’ of the Human Rights Act” [1998] P.L. 423.

17 [2003] UKHL 53; [2004] 2 A.C. 406. See J. Morgan, “Privacy torts: out
with the old, out with the new” (2004) 120 L.Q.R. 393 and A. Johnston,
“Putting the Cart Before the Horse? Privacy and the Wainwrights” [2004]
C.L.J. 15.

18 It was also argued that the parties could claim under the rule in
Wilkinson v Downton. This claim, which was rejected, is discussed in
Ch.11.

19 [2004] 2 A.C. 406 at [33].

20 Wainwright v United Kingdom (12350/04) (2007) 44 E.H.R.R. 40. See

also Peck v United Kingdom (44647/98) (2003) 36 E.H.R.R. 41 (footage
broadcast of Mr Peck’s suicide attempt captured on CCTV cameras
breached his art.8 rights and no effective remedy existed at the time). Both
cases indicate that the law prior to the Human Rights Act 1998 was not
fully compatible with art.8, as interpreted by the European Court of Human
Rights (contrast the Commission ruling in Earl Spencer v United Kingdom
(28851/95) (1998) 25 E.H.R.R. CD 105: applicants did not demonstrate that
the remedy of breach of confidence was insufficient or ineffective in the
circumstances of their case).

21 [2004] 2 A.C. 406 at [18]. The first step was taken by Lord Goff in Att-
Gen v Guardian Newspapers Ltd (No.2) [1990] A.C. 109 at 281–282.
22 Breach of confidence is an independent equitable principle: see Att-Gen
v Guardian Newspapers Ltd (No.2) [1990] A.C. 109 at 280–283 per Lord
Goff.

23 Coco v AN Clark (Engineers) Ltd [1969] R.P.C. 41 at 47–48 per

Megarry J.

24 [1967] Ch. 302. See also Stephens v Avery [1988] Ch. 449 and the early
case of Prince Albert v Strange (1849) 1 De G & Sm 652; 1 Mac. & G. 25
(publisher obtaining copies of private etchings made by the Prince Consort
of members of the royal family at home from an employee of a printer to
whom the Prince had entrusted the plates).

25 Coco v AN Clark (Engineers) Ltd [1969] R.P.C. 41 at 47–48 per

Megarry J.

26 Note the influential article, G. Phillipson, “Transforming breach of

confidence? Towards a common law right of privacy under the Human
Rights Act” (2003) 66 M.L.R. 726.

27 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; [2004] 2

A.C. 457 at [17] per Lord Nicholls.

28 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; [2004] 2

A.C. 457 at [14]. Emphasis added.

29 Douglas v Hello! Ltd (No.3) [2005] EWCA Civ 595; [2006] Q.B. 125.

30 See, e.g. Lord Neuberger MR in Tchenguiz v Imerman [2010] EWCA

Civ 908; [2011] Fam 116 at [65] who remarked that “following [the]
decision in Campbell, there is now a tort of misuse of private information”.
For the background to this debate, see P. Giliker, “English tort law and the
‘tort’ of breach of confidence” [2014] J.R. 15.

31 See, e.g. J. Morgan, “Privacy, Confidence and Horizontal Effect: ‘Hello’

Trouble” [2003] C.L.J. 444, R. Mulheron, “A Potential Framework for
Privacy? A Reply to Hello!” (2006) 69 M.L.R. 679.
32 [2015] EWCA Civ 311; [2016] Q.B. 1003, noting that the speech of
Lord Nicholls in Campbell v Mirror Group Newspapers Ltd [2004] UKHL
22; [2004] 2 A.C. 457 has been highly influential in this process of
development (at [22]). Comment: J. Folkard (2016) 132 L.Q.R. 31.

33 Vidal-Hall v Google Inc [2015] EWCA Civ 311; [2016] Q.B. 1003 at
[51].

34 [2004] UKHL 22; [2004] 2 A.C. 457. Comment: J. Morgan, “Privacy in

the House of Lords, again” (2004) 120 L.Q.R. 563 and N. Moreham,
“Recognising privacy in England and New Zealand” [2004] C.L.J. 555.
Appeal to the European Court of Human Rights for violation of art.10 was
rejected by a majority of 6:1: MGN Ltd v United Kingdom (39401/04)
(2011) 29 B.H.R.C. 686.

35 [2006] EWCA Civ 1714; [2008] Q.B. 73. Comment: N. Moreham,

“Privacy and horizontality” (2007) 123 L.Q.R. 373.

36 A claim was also brought under the Data Protection Act 1998, but all
parties agreed that this claim would succeed or fail depending on the
success of the breach of confidence action.

37 Lords Nicholls and Hoffmann dissenting.

38 [2004] UKHL 22 at [13]–[14]. See also Lord Hoffmann at [50]: “What

human rights law has done is to identify private information as something
worth protecting as an aspect of human autonomy and dignity”.

39 For criticism of limiting privacy protection to private information, see N.

Moreham, “Beyond information: Physical privacy in English law” [2014]
C.L.J. 350.

40 [2004] UKHL 47; [2005] 1 A.C. 593 at [17] per Lord Steyn.

41 Campbell [2004] UKHL 22 at [113] per Lord Hope.

42 [2006] EWCA Civ 1714; [2008] Q.B. 73 at [32].

43 [2008] Q.B. 73 at [11].

44 [2001] Q.B. 967. The later Court of Appeal decision in Douglas v Hello!
Ltd (No.3) [2005] EWCA Civ 595; [2006] Q.B. 125 stated, obiter, that in
the light of the subsequent development of the law, the decision to lift the
interlocutory injunction had been wrong (decision in favour of Douglases’
claim not appealed to HL: OBG Ltd v Allan [2007] UKHL 21; [2008] A.C.
1).

45 [2003] Q.B. 195. The Court in McKennitt v Ash [2006] EWCA Civ 1714
commented at [62]: “The width of the rights given to the media by A v B
cannot be reconciled with Von Hannover”.

46 Note, in particular, the influence of the subsequent decision of the

European Court of Human Rights in Von Hannover v Germany (59320/00)
(2005) 40 E.H.R.R. 1 (publication of photographs and articles relating to
Princess Caroline of Monaco in her daily life without her consent, the sole
purpose of which was to satisfy the curiosity of a particular readership
regarding the applicant’s private life, did not contribute to any debate of
general interest—breach of art.8).

47 HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ

1776; [2008] Ch. 57 at [35] per Lord Phillips CJ.

48 See Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB),
PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] A.C. 1081
and most recently BVC v EWF [2019] EWHC 2506 (QB).

49 Douglas v Hello! Ltd (No.3) [2005] EWCA Civ 595; [2006] Q.B. 125
(wedding photos).

50 [2004] UKHL 22 at [21]. See also Lord Hope: “a duty of confidence will
arise whenever the party subject to the duty is in a situation where he knows
or ought to know that the other person can reasonably expect his privacy to
be protected” [2004] UKHL 22 at [85].

51 Murray v Express Newspapers Plc [2008] EWCA Civ 446; [2009] Ch

481 per Sir Anthony Clarke MR at [36].
52 [2008] EWCA Civ 446; [2009] Ch. 481. The case was ultimately settled
prior to trial.

53 See also Von Hannover v Germany (59320/00) (2005) 40 E.H.R.R. 1

(photographs taken of Princess Caroline of Monaco in her daily life).

54 [2015] EWCA Civ 1176; [2016] 1 W.L.R. 1541. Note that one critical
factor in this case was that the children’s faces were clearly visible (despite
assurances that they would be pixelated) and they had been identified by
surname.

55 An older child is likely to have a greater perception of his or her own

privacy and his or her experience of an interference with it might well be
more significant than for a younger child.

56 [2015] EWCA Civ 1176; [2016] 1 W.L.R. 1541, at [29]–[38].

57 Richard v BBC [2018] EWHC 1837 (Ch); [2019] Ch 169.

58 For example, where there may be an immediate risk to the public.

59 See Baroness Hale in Campbell v Mirror Group Newspapers Ltd [2004]

UKHL 22; [2004] 2 A.C. 457 at [148]–[149].

60 Von Hannover v Germany (59320/00) (2005) 40 E.H.R.R. 1.

61 Von Hannover v Germany (59320/00) (2005) 40 E.H.R.R. 1 at [65].

62 Von Hannover v Germany (40660/08 and 60641/08) (2012) 55 E.H.R.R.

15 (Grand Chamber). See E. Reid, “Rebalancing Privacy and Freedom of
Expression” (2012) 16 Edin. L.R. 253. See also Axel Springer AG v
Germany (39954/08) (2012) 55 E.H.R.R. 6; Sihler-Jauch v Germany
(68273/10) [2016] E.C.H.R. 456.

63 See Von Hannover (2005) 40 E.H.R.R. 1 at [59]; Campbell [2004]

UKHL 22 at [123] and [155] (Lord Hope and Baroness Hale respectively)
and Douglas v Hello! Ltd (No.3) [2005] EWCA Civ 595 at [84]–[91]. In
Theakston v MGN Ltd [2002] EWHC 137 (QB); [2002] E.M.L.R. 22, e.g.
Ouseley J was prepared to restrain photographs of the celebrity, but not the
information that he had visited a brothel.

64 K v News Group Newspapers Ltd [2011] EWCA Civ 439; [2011] 1

W.L.R. 1827 (interest in preserving stability of family and saving claimant’s
children from ordeal of playground ridicule which would inevitably follow
publicity); Rocknroll v News Group Newspaper Ltd [2013] EWHC 24 (Ch)
(risk of stepchildren being subjected to teasing or ridicule at school).

65 [2006] EWCA Civ 1776 at [71].

66 [2015] EWCA Civ 1176 at [72]–[78].

67 It should be noted that Cliff Richard was never arrested nor charged.

68 [2007] EWCA Civ 295; [2008] Q.B. 103 at [61].

69 [2006] EWCA Civ 1714 at [54].

70 They were also awarded £7,000 for the cost and inconvenience of
making a hurried selection of photographs for OK! Magazine, which
represented their commercial interest in exploiting private information
about their wedding: see R. Bagshaw, “Unauthorised wedding photographs”
(2005) 121 L.Q.R. 550. The House of Lords, on appeal by OK! Magazine
only, made it clear that the ordinary principles of breach of confidence
would apply to claims to protect commercial confidential information,
which did not concern privacy rights: see Lord Hoffmann, who adopts a
pragmatic commercial approach to such claims: OBG Ltd v Allan [2007]
UKHL 21; [2008] A.C. 1 at [118].

71 Douglas v Hello! Ltd (No.3) [2005] EWCA Civ 595; [2006] Q.B. 125 at
[249]. See G. Jones, “Restitution of Benefits Obtained in Breach of
Another’s Confidence” (1970) 80 L.Q.R. 463; N. Witzleb, “Justifying gain-
based remedies for invasion of privacy” (2009) 29 O.J.L.S. 325. The
availability of this remedy remains controversial.

72 [2008] EWHC 1777 (QB). Mr Mosley subsequently brought a case to

the European Court of Human Rights, arguing for a prior notification rule
by which newspapers, intending to publish details of an individual’s private
life, must notify the individual in advance and thereby give him or her the
opportunity to apply for an interlocutory injunction to block publication.
The court ruled unanimously, however, that ECHR art.8 does not require a
legally binding pre-notification requirement: Mosley v United Kingdom
(48009/08) (2011) 53 E.H.R.R. 30.

73 The availability of exemplary damages was discussed by the Supreme

Court in PJS v News Group Newspapers Ltd [2016] UKSC 26, but not
resolved. Lord Mance commented that it remained open to argument at
higher levels whether exemplary damages and an account of profits should
be recoverable in misuse of private information actions ([42]) and Lord
Toulson doubted whether the view of Eady J in Mosley would be the final
word on the subject ([92]).

74 Eady J remarked at [2008] EWHC 1777 (QB) at [236] that: “[Mr

Mosley] is hardly exaggerating when he says that his life was ruined”.

75 [2015] EWCA Civ 1291; [2017] Q.B. 149.

76 Gulati v MGN Ltd [2015] EWCA Civ 1291; [2017] Q.B. 149 at [89] per
Arden LJ.

77 [2004] UKHL 44; [2005] 1 A.C. 253.

78 [1975] A.C. 396 at 407–408 per Lord Diplock.

79 [2005] 1 A.C. 253 at [22] (emphasis added). For examples, see

Rocknroll v News Group Newspaper Ltd [2013] EWHC 24 (Ch) (interim
injunction granted where R had a substantially better than even chance of
establishing a reasonable expectation of privacy in relation to the
photographs and their contents and nothing in his conduct gave rise to a
matter of public debate) and Hutcheson v News Group Newspapers Ltd
[2011] EWCA Civ 808 (application dismissed where tenuous claim to
privacy and very real likelihood that H would fail at trial). Contrast with the
treatment of interlocutory injunctions in defamation: see LNS v Persons
Unknown [2010] EWHC 119 (QB); [2010] 2 F.L.R. 1306.
80 See Browne v Associated Newspapers Ltd [2007] EWCA Civ 295;
[2008] Q.B. 103.

81 [2016] UKSC 26; [2016] A.C. 1081. Comment: K. Yoshida [2016]

E.H.R.L.R. 434. The case was later settled with the claimant and claimant’s
partner remaining anonymous: [2016] EWHC 2770 (QB).

82 PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] A.C. 1081
at [35] per Lord Mance (with whom Lord Neuberger, Baroness Hale and
Lord Reed agreed).

83 Baroness Hale paid particular attention to the interests of the children.

84 PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] A.C. 1081
at [88].

85 PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] A.C. 1081
at [71] (with whom Baroness Hale, Lord Mance and Lord Reed agreed).

86 Ms Ash was a long-term confidant of Ms McKennitt and had at one

stage signed a contract with her containing express obligations of
confidence.

87 See Lord Toulson in Michael v Chief Constable of South Wales Police

[2015] UKSC 2; [2015] A.C. 1732 at [124].

88 See C v Holland [2012] 3 N.Z.L.R. 672 (liability found). For a

discussion, see J. Hartshorne, “The need for an intrusion upon seclusion
privacy tort within English law” (2017) 46 C.L.W.R. 287; N. Moreham,
“Beyond information: Physical privacy in English law” (2014) 73 C.L.J.
350.

89 Wragg has argued recently that this is possible in that informational

privacy and intrusion occupy the same conceptual space and that the barrier
between informational and physical privacy should be broken down: P.
Wragg, “Recognising a privacy-invasion tort” (2019) 78 C.L.J. 409.
90 [2019] EWHC 246 (Ch); [2019] Ch 369 at [174]. See J. Morgan (2019)
78 C.L.J 273.

91 [2020] EWCA Civ 104.

92 [2020] EWCA Civ 104 at [84].

 16

General Defences and

Extinction of Liability

Introduction
16–001 This chapter will examine defences generally and a number of
ways in which the defendant’s liability can be extinguished. We
have already considered a number of defences in this book, for
example defences to defamation claims in Ch.14, defences such
as act of God or statutory authority in Ch.10 on nuisance, and
necessity in Ch.11 on trespass. They will therefore not be
considered here. This chapter will examine the remaining
general defences in tort and should therefore be used in
conjunction with earlier chapters outlining the requirements of
the tort in question. Each defence will be examined in turn.1 It
should be noted that, in general, the burden of proof in
establishing a defence will rest on the defendant on the balance
of probabilities. There is no limit on the number of defences a
defendant may allege.
The second part of this chapter deals with ways in which the
defendant’s liability can be extinguished. The primary method is
limitation. The Limitation Act 1980 imposes strict time limits
within which the claimant must start his or her action. If these
time limits are missed, then, subject to certain statutory
discretions, the court will refuse to hear the claimant’s action,
 however strong the claim. This ensures that claimants do not
bring stale claims which it would be difficult for the defendant
to defend. We shall also consider the effect of death of either
party to the action. We begin by examining the main general
defences in the law of torts.

Defences
(1) Consent
16–002 We saw the defence of “consent” in Ch.11 on trespass to the
person where the surgeon, for example, operates on a patient.
The surgeon is not committing a trespass if he or she has
obtained the patient’s consent to the procedure in question. In
negligence, the terminology is different, and the courts prefer the
term volenti non fit injuria or “voluntary assumption of risk”. In
relation to property, it is usually termed “leave” or “licence”.
Although the courts may use the terms interchangeably,2 the
defence is applied differently and we shall therefore divide
consent into three categories:
▮ consent;
▮ voluntary assumption of risk; and
▮ leave or licence.

Each category will be examined in context. Therefore, consent

will be considered in the context of trespass to the person,
voluntary assumption of risk in relation to negligence and leave
or licence in relation to property torts.3

◗ (i) Consent
16–003 The defendant will not be liable for trespass to the person where
the claimant has consented to such actions. Consent may be
express or implied. For example, by presenting your arm for an
injection, you are impliedly showing that you consent to the
physical contact involved. Following Freeman v Home Office
(No.2),4 the burden is on the claimant to show the absence of
consent. Although ordinarily the burden is on the defendant to
establish a defence, the nature of trespass to the person is such
that the claimant must show that the physical contact was
incurred without his or her consent. In reality, however, the
defendant is more likely to produce evidence showing consent
than rely on the hope that the claimant will be unable to
establish absence of consent. Practically, therefore, it works as a
defence. This topic is discussed fully in Ch.11 and therefore
readers are advised to refer further to the section on “Consent”
in that chapter.

◗ (ii) Voluntary assumption of risk

16–004 In the tort of negligence, consent takes the form of an agreement
to run the risk of the defendant’s negligence. It may be express
or implied and forms an absolute defence. There are traditionally
said to be three main requirements for the defence:
▮ agreement to the risk;
▮ full knowledge of the nature and extent of the risk; and
▮ voluntary choice by the claimant.

The three requirements will be examined below.

(A) AGREEMENT
16–005 There is mixed authority as to what is meant by “agreement”.
Lord Denning in Nettleship v Weston5 took a very formalistic
view, holding that “nothing will suffice short of an agreement to
waive any claim for negligence”.6 This clearly did not exist on
the facts of the case. It may be recalled from earlier chapters that
a friend, who had been teaching the defendant to drive, had been
injured by the defendant’s negligent driving. The court held that
the friend had not agreed to take the risk of this happening as he
had specifically asked, prior to the lesson, whether he would be
protected by the car-owner’s insurance policy. It is unclear,
however, whether such a stringent test for agreement applies
generally. Such a test would rarely be satisfied, and his
Lordship’s view would severely limit the application of this
defence. A more flexible approach was clearly evident in the
House of Lords’ decision in ICI v Shatwell.7
In this case, the plaintiff and his brother worked together at
the defendant’s quarry. With complete disregard to their
employer’s safety instructions (and certain statutory duties
imposed on them) which required them to test detonators from a
proper shelter, they decided to test the detonators in the open to
save time. There was an explosion in which the plaintiff was
seriously injured. He sued his employer as vicariously liable for
his brother’s negligence. The House of Lords was not prepared
to allow him to recover damages. It was held that the plaintiff
had voluntarily assumed the risk, having fully appreciated the
potential danger which led to the injury. Although it is possible
to explain this decision in terms of an implied agreement
between the two brothers, little attention was paid by their
Lordships to the requirement of agreement.8 A clearer example
of the artificiality of a formal requirement of express or implied
agreement may be found in the House of Lords case of Titchener
v British Railways
Board.9 In this case, a 15-year-old girl had been struck by a train
while crossing a railway line. She was seriously injured. She
was a trespasser, having passed through a gap in the boundary
fence, and it was held that she clearly knew of the risk of being
hit by trains when crossing the line. She had nevertheless taken
that risk and, had the train driver been negligent, a defence of
voluntary assumption of risk would have applied. In this case, it
is difficult to see how any agreement (express or otherwise)
could be found between the plaintiff and the train driver. The
 defence seemed to be based simply on her free acceptance of the
risks involved.
“Agreement” should thus be interpreted loosely to mean that
the claimant has clearly consented to the risk.10 Obviously, this
will be easier to establish where the claimant has openly agreed
with the defendant to undertake the risk, but this is not a
necessary requirement. On this basis, “agreement” cannot be
considered as a separate requirement. It is simply part of the
question whether the defendant has fully consented to the risk,
which also involves an examination of the claimant’s knowledge
and understanding of the risks involved. It is submitted therefore
that (a) and (b) should be merged to form a single requirement
that the claimant has full knowledge of and has accepted the
nature and extent of the risks involved.

(B) FULL KNOWLEDGE AND ACCEPTANCE OF

THE NATURE AND EXTENT OF THE RISK
16–006 This is the key issue. To lose the right to sue for negligence, it is
not sufficient that the claimant simply consented to the
defendant’s activities. Such consent will only provide a defence
if it is of a particular quality: it is given with a full understanding
and acceptance of the nature and extent of the risks involved.
For example, if I agree to attend your barbecue, I accept the risk
of smoke and perhaps even the risk of undercooked food.
However, unless you tell me, I do not accept the risk that you
will try to set the barbecue alight with petrol, causing a massive
explosion. My agreement to attend the barbecue was not with
the full knowledge of the risks involved. This can lead to
difficult questions of fact and has given rise to a number of
controversial decisions, none more so than the Court of Appeal
decision in Dann v Hamilton.11
In this case, the plaintiff and her mother had accepted a lift
from Hamilton to see the coronation decorations. During the
evening, Hamilton had consumed a certain amount of alcohol,
but the plaintiff nevertheless accepted a lift home. This was
despite the warning from a fellow passenger, who refused to
travel any further in the car, that she should find an alternative
means of transport. Due to Hamilton’s negligent driving, the
vehicle was involved in an accident in which Hamilton was
killed and the plaintiff injured. The question arose whether the
plaintiff had voluntarily assumed the risk of negligent driving.
When warned by her friend, she had merely responded: “You
should be like me. If anything is going to happen, it will
happen”. Was this statement sufficient to establish the defence?
Perhaps surprisingly, Asquith J held that it was not. He
distinguished between knowledge of a risk and consent to the
risk. The plaintiff clearly knew that the driver was intoxicated,
but
Asquith J held that this did not mean that she had accepted the
risk of him driving negligently. However, the judge did concede
that if the drunkenness of a driver was so extreme and glaring
that to travel with him would be to engage in an intrinsically and
obviously dangerous occupation, such as meddling with an
unexploded bomb, or walking on the edge of an unfenced cliff,
the defence would be established.
This decision draws the defence very narrowly indeed.12
One explanation is the fact that it is a driving case where, of
course, the driver is required to be insured.13 The insurance
cover ensures that the victim is fully compensated whilst the
cost is spread throughout the driving community. This
explanation is nowadays further supported by the Road Traffic
Act 1988 s.149, which excludes the defence of voluntary
assumption of risk in all road traffic cases. It provides that when
a person uses a motor vehicle which is required by law to be
insured:

“any antecedent agreement or understanding

between them (whether intended to be legally
binding or not) shall be of no effect so far as
it purports or might be held:
(a) to negative or restrict any such
liability of the user in respect of
 persons carried in or upon the vehicle
as is required . . . to be covered by a
policy of insurance, or
(b) to impose such conditions with
respect to the enforcement of any
such liability of the user.”

The defence will therefore never work against car passengers,

who should be regarded as in a category of their own. This
provision does not, however, prevent other defences applying,
such as contributory negligence. In Owens v Brimmell,14 for
example, the plaintiff had accompanied the defendant to a
number of public houses and finally to a club. Both men had
drunk about eight to nine pints of beer. Driving home, the
defendant lost control of the car, which collided with a lamp-
post. The plaintiff suffered severe injuries and brain damage.
Watkins J held that where a passenger rides in a car with a driver
whom he knows has consumed enough alcohol to impair to a
dangerous degree his ability to drive properly and safely, the
passenger will be found to be contributorily negligent. This will
obviously apply where a passenger, knowing that he is relying
on the driver for a lift home, accompanies him on a bout of
drinking which diminishes the driver’s ability to drive properly
and safely. On this basis, although the defence of voluntary
assumption of risk was not available, damages were reduced by
20%.
In addition, s.149 does not mean that the defence of
voluntary assumption of risk will not work in relation to other
types of vehicle. The leading modern case on the nature and
extent
of the risk is now Morris v Murray.15 In this case, the plaintiff
chose to fly in a light aircraft piloted by his friend, with whom
he had consumed a considerable amount of alcohol prior to the
flight.16 The aircraft crashed shortly after take-off, killing the
pilot and badly injuring the plaintiff. The Court of Appeal found
 in such circumstances that the defence had been established. The
plaintiff was well aware of the extreme risk involved in flying
with his friend. It was so dangerous that it amounted to an
intrinsically dangerous activity, such as that outlined by Asquith
J in Dann v Hamilton. Such an adventure was wildly
irresponsible.17

(C) VOLUNTARY CHOICE BY THE CLAIMANT

16–007 Even if the claimant has clearly consented, with full knowledge
of the risks involved, the defence will not be established if the
consent cannot be said to be voluntary. Whilst this may seem
obvious, the question of “voluntary choice” has at times been
contentious. For example, in the nineteenth century the courts
held that the defence applied to employees working under
dangerous conditions, and refused to acknowledge that an
employee’s desire to keep his or her job might force him or her
to agree to work under appalling conditions. In such
circumstances, the employee, in the absence of statutory rights,
was in no position to threaten the employer that unless working
conditions improved, he or she would leave. The employer
would simply accept the employee’s resignation. The House of
Lords’ decision in Smith v Charles Baker & Sons18 marked
welcome recognition of the injustice of this approach. Here, the
plaintiff was an employee, who worked on the construction of a
railway where a crane would swing heavy stones above his head
without warning. The employee was fully aware of the danger of
stones falling, but carried on working. He was seriously injured
when a stone fell from the crane. The House of Lords (Lord
Bramwell dissenting) held the employer liable. Their Lordships
refused to accept the argument that by continuing to work, the
employee had voluntarily accepted the risk of the stones falling.
Nevertheless, it was recognised that a balance had to be struck.
If the work was intrinsically dangerous, despite reasonable steps
by the employer to minimise risks, the employee would be
deemed to accept those risks.19 Here, this was not the case, and
so the employer would be found liable.
 No such risk of pressure was found in ICI v Shatwell20
where the brothers, testing the detonators in the quarry, had been
clearly instructed to take precautions, but nevertheless chose to
accept the risk. The court held that, in the light of Smith v Baker,
it would apply the rule very carefully to employees and be alert
to pressure from employers. However, on the facts of this case,
no such pressure had been exerted.
16–008 Consent is equally not voluntary if the claimant is so drunk
that he or she is incapable of understanding the nature and extent
of the risk. Again, this is a fine line. In Morris v Murray,
despite his consumption of alcohol, it seems that the plaintiff
was capable of realising the risks of flying with an intoxicated
pilot,21 but if he had drunk even more, the defence might not
have been established. It has equally been questioned whether a
defendant should be liable where, due to the defendant’s
negligence, the claimant has been given the opportunity to
commit suicide. There is a clear argument that where the
claimant has deliberately decided to end his or her life, the
defence of voluntary assumption of risk should stand. This issue
has been raised in two cases where the suicide took place when
the deceased was under the care of the police or custodial
authorities. In Kirkham v Chief Constable of Greater
Manchester,22 the plaintiff’s husband had committed suicide
while in a remand centre. The plaintiff had warned the police at
time of his arrest of her husband’s suicidal tendencies, but the
police had negligently failed to pass on this information to the
remand authorities. The Court of Appeal held that in the light of
her husband’s clinical depression, he could not be held to have
voluntarily accepted the risk. This must be correct. If you are
found to be of unsound mind, then an argument that you
weighed up and decided to assume the risks of injury can hardly
stand.
However, Lloyd LJ indicated (obiter) that the defence would
apply if the deceased had been of sound mind at the time of the
suicide.23 This was not followed by the House of Lords in the
later case of Reeves v Metropolitan Police Commissioner.24 In
this case, Martin Lynch had committed suicide in police custody
by hanging himself from a cell door. Although a doctor had
found Lynch to be of sound mind, the police had known that he
was a suicide risk and had kept him under frequent observation.
Nevertheless, they had failed to take all adequate precautions to
prevent the suicide. In an action for negligence under the Fatal
Accidents Act 1976, the majority of the House of Lords (Lord
Hobhouse dissenting) found the police liable. They had
undertaken a specific duty to protect Lynch from the risk of
suicide and this they had failed to do. Any defence of voluntary
assumption of risk would be inconsistent with such a duty:

“If the defence were available in

circumstances such as the present where a
deceased was known to have suicidal
tendencies it would effectively negative the
effect of any duty of care in respect of such
suicide.”25

It made no difference whether the victim was of sound or

unsound mind at the time of the suicide.
The limitations of this decision should be noted:
▮ The police admitted to owing a specific duty to protect
Lynch from the risk of suicide. If it was simply a duty
to take reasonable care of him, voluntary assumption of
risk could
still be argued. This duty will only arise where the
police knew or ought to have known that the individual
was a suicide risk.26
▮ The House of Lords stressed that such a specific duty of
care would be rare.
 ▮ Their Lordships were far from happy in treating Lynch
as being of sound mind (the main reason for departing
from the view of Lloyd LJ in Kirkham). Lord Hoffmann
remarked that “I confess to my unease about this
finding, based on a seven minute interview with a
doctor of unstated qualifications”.27 This highlights the
practical difficulties which would arise if liability were
held to depend on whether the deceased was of sound
or unsound mind.
▮ The damages were reduced in any event by 50% for
contributory negligence (see below).

A final example of where the courts have considered the

“voluntariness” of the assumption of risk is in relation to
rescuers. We have considered liability towards rescuers in Ch.4,
but one argument against liability would be that, in relation to
non-professional rescuers at least, they have chosen to act. They
are under no obligation to intervene but have chosen to do so
freely and so (arguably) have voluntarily accepted the risk of
injury involved. If I choose to go into a burning building to save
a baby, I must have appreciated the risk of injury and so
(arguably) I have voluntarily accepted the risk and cannot sue.
The courts have rejected this argument. In this situation, the
rescuer is not regarded as acting voluntarily. The legal, social or
moral duty which forces the rescuer to intervene is such that he
or she does not act voluntarily in the circumstances. On this
basis, the defence of voluntary assumption of risk will not work
against rescuers.
A good example is the well-known case of Haynes v
Harwood.28 Here, a police officer had been injured whilst
stopping runaway horses attached to a van in a crowded street.
The defendant had negligently left the horses unattended on the
highway and they had bolted when a boy had thrown a stone at
them. The Court of Appeal held that the police officer’s reaction
had been reasonably foreseeable in the circumstances and
refused to accept a defence of voluntary assumption of risk.29 It
 was also held that the reaction need not be instinctive to be
reasonable. This seems sensible. It is surely better to intervene
having considered the dangers than to jump in immediately.

◗ Other uses of “consent” in negligence

16–009 The courts have not always approached consent in negligence on
a consistent basis. In addition to the defence of voluntary
assumption of risk, the claimant’s consent has been used by the
courts in two further ways. First, the claimant’s consent may
limit the standard of care owed to the claimant by the defendant.
Secondly, the claimant may consent to a clause excluding
liability. These will be examined below. In both situations, the
courts deny that they are applying the defence of voluntary
assumption of risk, but the dividing line, as will be seen, is far
from clear.

(A) SETTING THE STANDARD OF CARE IN

NEGLIGENCE
16–010 Here, the claimant’s acceptance of risk does not go to establish a
defence but lowers the standard of care owed by the defendant to
the claimant. This is particularly relevant to injuries suffered in
the course of sporting activities. Here, in establishing the
standard of care, the court will look at all the circumstances of
the case, including the fact that a competitive sport, with
associated risks to participants, is taking place. This is illustrated
by the case of Wooldridge v Sumner.30 In this case, a
professional photographer at a horse show had been knocked
down by a galloping horse whose rider had taken the corner too
fast.31 The Court of Appeal held that the question in issue was
the standard of care expected of a jockey in a race. In setting the
standard, regard would be had to the fact that any reasonable
spectator would: (a) expect the jockey to concentrate his
attention on winning the race, and (b) accept the existence of
certain risks, provided the jockey stayed within the rules of the
race and was not reckless. On this basis, the jockey was not in
breach of his duty of care to the spectator. The Court of Appeal
 in Blake v Galloway32 extended this approach to informal games
which could be said to be played subject to a tacitly agreed
understanding or convention—in this case, a group of 15-year-
old friends, throwing twigs and pieces of bark chipping at each
other. In examining such “horseplay”, Dyson LJ found that a
breach of duty would only occur where the defendant’s conduct
amounted to recklessness33 or a high degree of carelessness,
which was not the case here.
The dividing line between “no breach of duty” and the
defence of voluntary assumption of risk is unclear. The principle
on which they rest is the same: the defendant is not liable where
the claimant knows and assents to a particular risk. The courts
utilise both approaches, and Fox LJ in Morris v Murray34 held
that the gap between the two approaches is not a wide one.

(B) EXCLUSION CLAUSES

16–011 There is an obvious similarity between an express agreement to
assume the risk of negligence and an exclusion clause, in which
the claimant agrees to exclude or limit the defendant’s liability.
However, they are treated as distinct. White v Blackmore35 is a
good example of this distinction in operation. The plaintiff’s
husband had been killed in an accident at a race meeting for old
cars. He had been thrown in the air when the rope behind which
he was standing had been pulled away by an accident some
distance away. Buckley LJ held that the defendants (who
organised the meeting) had successfully excluded liability by
notices which absolved them from all liability for accidents
howsoever caused. The circumstances did not, however, support
the defence of voluntary assumption of risk. By simply standing
behind a rope to observe a race, the spectator did not accept the
risk of such injury due to the defendants’ negligence. Buckley
LJ nevertheless admitted the close relationship between the
defence and the operation of exclusion clauses.
The distinction between voluntary assumption of risk and
exclusion clauses is nevertheless important, particularly in the
light of the strict legal requirements applied to exclusion clauses.
For example, to be valid an exclusion clause must be
incorporated either by writing, custom or reasonable notice.
Equally, exclusion clauses are now regulated by statute: the
Consumer Rights Act 2015 (CRA 2015) (if you are a
“consumer” dealing with a trader) and the Unfair Contract
Terms Act 1977 (UCTA 1977) (if not a consumer). Section 2(3)
of the 2015 Act specifies that a consumer is an individual who is
“acting for purposes that are wholly or mainly outside that
individual’s trade, business, craft or profession.” So, a notice in
a sweet shop excluding liability to customers for any injuries
caused by the negligence of staff would fall under the 2015, not
the 1977, Act. The CRA 2015 regulates contract terms and
“consumer notices” which seek to exclude or restrict the liability
of a trader36 to its consumers. Under s.62:
▮ An unfair consumer notice or term is not binding on the
consumer.
▮ A notice is unfair if, contrary to the requirement of
good faith, it causes a significant imbalance in the
parties’ rights and obligations to the detriment of the
consumer.
▮ Whether a notice is unfair is to be determined—(a)
taking into account the nature of the subject matter of
the notice, and (b) by reference to all the circumstances
existing when the rights or obligations to which it
relates arose and to the terms of any contract on which
it depends.

Section 65(1) further adds that a trader cannot by a consumer

notice exclude or restrict liability for death or personal injury
resulting from negligence. Where a consumer notice tries to
exclude or restrict a trader’s liability for negligence, a person is
not to be taken to have voluntarily accepted any risk merely
because the person agreed to or knew about the notice: s.65(2).
Section 65 mirrors that of UCTA 1977 s.2, discussed below.
Where the notice relates to loss or damage to property or other
damage caused by negligence, the s.62 test will apply.
For non-consumer situations, the Unfair Contract Terms Act
1977 applies. It regulates the ability of the defendant to rely on
exclusion clauses to exclude or limit liability for negligence as
follows37:
▮ The Act regulates exclusion clauses dealing with
business liability, i.e. where liability arises:
(a) from things done or to be done by a person in the
course of a business (whether his own business or
another’s); or
(b) from the occupation of premises used for business
purposes of the occupier.38
▮ Negligence is dealt with in s.2. This provides that a
person cannot by reference to any contract term or
notice exclude or restrict liability for death or personal
injury resulting from negligence.39 If the claim is for
property or other damage, s.2(2) provides that a person
cannot exclude or restrict liability for negligence except
in so far as the term or notice satisfies the requirement
of reasonableness.
▮ The reasonableness test is set out in s.11 and Sch.2.
These provide that the term must be reasonable having
regard to all the circumstances at the time liability
arose, including the relative bargaining positions of the
parties, any inducement to agree to the clause and,
where liability is limited, the resources available to the
defendant to meet such liability and the ability of the
defendant to obtain insurance cover.
▮ Section 2(3) deals specifically with the defence of
voluntary assumption of risk and distinguishes the
defence from exclusion clauses generally. It states:
“Where a contract term or notice purports to exclude or
restrict liability for negligence, a person’s agreement to
or awareness of it is not of itself to be taken as
 indicating his voluntary acceptance of any risk” (see
also CRA 2015 s.65(2) above). Therefore, the
defendant cannot necessarily ensure that the defence
will apply by means of a notice excluding liability. It
will remain a question of fact, although it may be
questioned what extra element is required to establish
the defence of voluntary assumption of risk where the
claimant has by contract agreed to exclude liability.

◗ (iii) Leave or licence

16–012 Consent in relation to claims for property torts such as trespass
to land or private nuisance has been mentioned in earlier
chapters. As stated earlier, the courts prefer to use the terms
“leave” or “licence” in this context. Reference should be made
to the relevant chapter.

(2) Illegality

16–013 This defence is also known by its Latin name, ex turpi causa non
oritur actio, which means that an action cannot be founded on a
base cause.40 As Lord Mansfield classically explained in
Holman v Johnson: “No Court will lend its aid to a man who
founds his cause of action upon an illegal or an immoral act”.41
It is essentially then a matter of public policy and prevents a
claimant from obtaining compensation for the consequences of
his own criminal act.42 It is obviously a matter of degree. If you
are attacked when your car is parked on a double yellow line,
then a court is not going to dismiss your claim for trespass to the
person because you were parked illegally. However, if you were
involved in a burglary and seriously injured by your fellow
burglar negligently handling explosives while trying to blow
open the safe, the court would not tolerate your claim.43 As the
Court of Appeal commented in Joyce v O’Brien,44 the doctrine
is one of public policy and so must operate flexibly, albeit that
 there may be on occasion some uncertainty whether the offence
is sufficiently serious to attract the ex turpi doctrine.45 The key
question is whether the criminal or immoral act is the basis for
the claim or simply background information. This can be a
matter of degree. In Ashton v Turner,46 the plaintiff and two
other men had been in a car crash which was due to the
negligent driving of the defendant. All three men were involved
in a burglary, and the crash occurred while driving away from
the scene of the crime. The court held that any negligence during
the course of the burglary and the
subsequent flight in the getaway car would be met by the
defence of illegality. The plaintiff’s claim was therefore rejected.

16–014 It should be noted, however, that illegal activities will not

always obstruct the claimant’s action in tort. In Revill v
Newbery,47 for example, the plaintiff was a burglar who had
been shot whilst attempting to enter the defendant’s shed to steal
his property. The owner of the shed, who was 76, had been
concerned about the spate of burglaries in the area and had
resolved to wait in his shed with a shotgun to defend his
property. The burglar sued the defendant for negligence and the
court rejected the defence of illegality. Parliament, in enacting
the Occupiers’ Liability Act 1984,48 had clearly indicated that in
future trespassers, including burglars, should not be treated as
outlaws by the occupiers of land. The illegal activities of the
burglar therefore did not affect his claim. It should be noted that
the court did reduce the damages awarded to the burglar by two-
thirds, under the principle of contributory negligence.

◗ Establishing the test for illegality

16–015 Attempts to provide a single test for the illegality defence have
proved inconclusive. In Jetivia SA v Bilta (UK) Ltd,49 Lord
Neuberger noted that there were strongly held differing views as
to the proper approach to be adopted to the defence of illegality
and that it needed to be addressed by the Supreme Court, with a
panel of seven or even nine justices, “as soon as appropriately
possible”. The tension, he noted, was caused by the need to
provide a rule giving clarity and certainty and one which
achieved a fair and appropriate result in each case.
Two main tests may be identified: one based on public policy
and one examining whether the claim is “founded” on (or
“linked to”) the illegal act. Beldam LJ in Pitts v Hunt50 (a case
involving an underage, uninsured and drunk motorcyclist
driving recklessly) favoured a test based on public policy and
whether it would be an affront to the public conscience to
compensate the claimant (riding pillion on the cycle), although
his view was not shared by the rest of the court.51 In Tinsley v
Milligan,52 however, the House of Lords was openly critical of
the uncertainty inherent in the public conscience test. The
majority in the later Court of Appeal decision of Vellino v Chief
Constable of the Greater Manchester Police53 examined
whether the
claimant’s injuries could be said to be inextricably linked to his
criminal conduct. Here, the police had attempted to arrest
Vellino at his second floor flat. He had previously evaded arrest
by climbing out of a window and lowering himself onto the
ground. On this occasion, however, his escape had tragic
consequences when he fell badly and was left with severe brain
damage and tetraplegia. In response to his claim against the
police for negligence in allowing him to escape, it was held that
his claim was inextricably linked to his criminal act of escaping
lawful custody. Further:

“to suggest that the police owe a criminal

the duty to prevent the criminal from
escaping, and that the criminal who hurts
himself while escaping can sue the police
for the breach of that duty, seems to me
self-evidently absurd.”54
16–016 The nature of the test for illegality was considered again by
the House of Lords in 2009 in Gray v Thames Trains Ltd.55
Here, Gray, whilst suffering from post-traumatic stress disorder
(PTSD), had stabbed to death a drunken pedestrian, who had
stepped in front of his car. He was found guilty of manslaughter
on the grounds of diminished responsibility and detained in a
hospital indefinitely as a result. The PTSD, however, had been
caused by the negligence of the defendants (Mr Gray had been
involved in the Ladbroke Grove rail crash in which 31 people
had been killed) and Gray argued that, despite his conviction for
manslaughter, he should be able to recover for ongoing loss of
earnings caused by the accident. The defendants argued that any
claim for loss of earnings must terminate once he had been
imprisoned and that the defence of illegality would bar any
claim for financial losses resulting from his conviction for
manslaughter.
Their Lordships found in favour of the defendants. Lord
Hoffmann in his leading judgment addressed the question of
when the illegality defence would apply and preferred arguments
based on public policy. His Lordship rejected the tests,
mentioned in earlier case law, of “an inextricable link”56
between the claim and the illegality, or the claim arising
“directly ex turpi causa”57 as unhelpful.58 The defence of
illegality applied where it would be inconsistent with the
sentence of the criminal court. Here a criminal court had held
Gray responsible for his crime albeit whilst suffering from
diminished responsibility. It would be inconsistent for a civil
court to
compensate him for an injury or disadvantage resulting from the
punishment for the crime.59 Further, it rejected Gray’s claim for
an indemnity against any claims brought against him by the
victim’s family and damages for feelings of guilt and remorse
consequent on the killing. These, held Lord Hoffmann, were
caused by Gray’s own crime, not the defendants’ negligence.60
 In so doing, their Lordships approved the earlier Court of
Appeal decision of Clunis v Camden & Islington Health
Authority.61 In this case, Clunis had been convicted of
manslaughter on the grounds of diminished responsibility when
he had, for no reason, attacked and killed a man at an
underground station. He had a long history of mental illness and
seriously violent behaviour, but had been discharged from
hospital, with after-care services in the community to be
provided by the defendant health authority. The plaintiff claimed
that, due to the negligence of the health authority, his condition
had not been properly assessed and he was therefore not
prevented from committing the attack. The Court of Appeal
rejected this claim. The criminal court had found Clunis to be of
diminished responsibility, rather than insane, which indicated
that he had appreciated what he was doing and that it was
wrong. It would be contrary to public policy to support such a
claim arising out of commission of a crime.62
Much would, however, depend on the facts. Lord Hoffmann
acknowledged that in each case the policy reasons must be
considered against the facts of the case to reach a fair outcome.63
His Lordship identified narrow and broad forms of the illegality
defence:
▮ Narrow policy ground: you cannot recover for damage
which flows from loss of liberty, a fine or other
punishment lawfully imposed upon you in consequence
of your own unlawful act. The policy here is to avoid
inconsistency between criminal and civil law and is
used in both Gray and Clunis. (inconsistency argument)
▮ Wide policy ground: you cannot recover compensation
for loss which you have suffered in consequence of
your own criminal act. It would be offensive to public
notions of the fair distribution of resources to permit
compensation in such circumstances. An example of
such reasoning may be seen in Vellino above. (causation
argument).
 THE WIDE POLICY GROUND AND JOINT CRIMINAL
ENTERPRISE
16–017 Although the facts of Gray did not cover joint criminal
activities, it has been established that the wide policy ground
will apply whether the criminal is acting alone or as part of a
joint enterprise.

In Joyce v O’Brien,64 the Court of Appeal applied Gray to a case

of joint criminal enterprise: here the theft of ladders transported
in a van driven so recklessly by the defendant that the claimant,
holding onto the ladders in the back of the van, fell out suffering
serious injuries. On this basis, the defence would apply “where
the character of the joint criminal enterprise is such that it is
foreseeable that a party or parties may be subject to unusual or
increased risks of harm as a consequence of the activities of the
parties in pursuance of their criminal objectives”.65 The focus is
therefore on the risks associated with the criminal activity in
question and whether the injury falls within the scope of these
risks: if the risk materialises, then the claimant’s injury can be
said to be caused by his or her criminal act even if it results from
the negligent or intentional act of another party to the illegal
enterprise.

◗ Rationalising the illegality defence: the Law

Commission and Patel v Mirza
16–018 Following Gray, the illegality defence was raised in two
important Supreme Court decisions— Allen v Hounga66 and Les
Laboratoires Servier v Apotex Inc.67 Commentators noted that
two differently constituted divisions of the Court had handed
down, within four months of each other, leading judgments
which embodied radically different (and potentially conflicting)
approaches to the defence and that a detailed review of this area
of law was badly needed.68 Two earlier papers of the Law
Commission had tried to suggest a way forward but had not been
adopted. The Law Commission’s 2001 Consultation Paper, The
Illegality Defence in Tort,69 had found the law relating to
illegality to be at times confusing, lacking a clear rationale. It
therefore proposed a structured statutory discretion directing the
court to ask itself whether the claim should be allowed in the
light of the rationale behind the illegality defence—in general, it
stated, to maintain the internal consistency of the law in the
interest of promoting the integrity of justice—and taking certain
factors into account. In its later 2009 Consultative Report, the
Law Commission suggested that relevant policy factors would
be: (a) furthering the purpose of the rule which the illegal
conduct has infringed; (b) consistency; (c) that the claimant
should not profit from his or her own wrong; (d) deterrence; and
(e) maintaining the integrity of the legal system.70 It also
concluded that whenever the illegality defence is successful, the
court should make clear the justification for its application. This
Consultation Paper received, however, a mixed reception. There
was a fear that a statutory discretion would introduce greater
uncertainty to the law. The Law Commission, in its final report
of March 2010,71 concluded that, in the light of recent case law
such as Gray v Thames Trains which expressly took into account
the policy factors which underlie the illegality defence, no
proposals for reform would be made. The Government in March
2012 confirmed that no change would be made: “reform of this
area of the law cannot be considered a pressing priority for the
Government at present”.72
Finally, in Patel v Mirza in 2016,73 a nine justice Supreme
Court intervened. The majority of the court gave its support to
the structured discretion approach favoured by the Law
Commission. The case itself involved an illegal contract—the
claimant paying the defendant £620,000 to bet on the movement
of shares using insider information contrary to the Criminal
Justice Act 1993 s.52. The information never materialised, and
the claimant unsurprisingly wanted his money back. Was he
barred due to the illegality? Although all nine justices agreed to
the result—Mr Patel should get his money back—they had
different views as to the basis for the illegality defence. The
majority (Lords Toulson, Kerr, Hale, Wilson and Hodge JJSC)
favoured a policy rationale: it would be contrary to the public
interest to enforce a claim if to do so would be harmful to the
integrity of the legal system.74 Lord Toulson, giving the lead
judgment, found:

“In assessing whether the public interest

would be harmed in that way, it is
necessary (a) to consider the underlying
purpose of the prohibition which has been
transgressed and whether that purpose will
be enhanced by denial of the claim, (b) to
consider any other relevant public policy on
which the denial of the claim may have an
impact and (c) to consider whether denial
of the claim would be a proportionate
response to the illegality, bearing in mind
that punishment is a matter for the
criminal courts . . . The public interest is
best served by a principled and transparent
assessment of the considerations identified,
rather by than the application of a formal
approach capable of producing results
which may appear arbitrary, unjust or
disproportionate.”75

This gives the courts discretion to ascertain what the “other

relevant public policies” are in each case, although Lord Toulson
warned that it would be a mistake to suggest that the court
would be free to decide each case in an undisciplined way. Lord
Neuberger equally came to the conclusion that, despite initial
doubts, a structured discretion was the best test the courts
could offer at this moment in time. In contrast, Lords Sumption,
Mance and Clarke (dissenting) were critical of this “range of
factors” approach which they predicted would lead to
complexity, uncertainty, arbitrariness and a lack of transparency.
Lord Sumption argued, in particular, that “We would be doing
no service to the coherent development of the law if we simply
substituted a new mess for the old one”.76 It remains to be seen
whether such predictions are proven to be correct or whether, as
the majority argue, the only viable test is one based on a
structured discretion which will allow the courts the flexibility
they need to reach a just result.
We do, however, have one important tort case. Patel, as
noted above, was not a tort case, but decided in contract/unjust
enrichment. The Court of Appeal in Henderson v Dorset
Healthcare University NHS Foundation Trust77 considered its
application in a tort situation. Here a mentally ill patient under
the care of the NHS Trust had stabbed her mother to death. It
was admitted that, but for the NHS Trust’s breach of duty, the
tragic event would not have happened. Ms Henderson was
convicted of manslaughter by reason of diminished
responsibility. She sought damages which included claims for
compensation for her compulsory detention and loss of her share
of her mother’s estate.78 The Court held that Clunis was still
good law. Gray made it clear that, for policy reasons, you could
not recover damages in tort where punishment had been imposed
by criminal law and nor could you recover for losses which were
a consequence of your criminal act. It could not be said that the
patient did not know the quality and nature of her act when she
did not run an insanity defence. The Court did, however, state
that it still felt bound by Gray, placing greater emphasis on this
case than the more general discussion in Patel, arguing that
considerable caution must be taken in relying on cases decided
in contract and unjust enrichment law rather than the law of
tort.79 Todd argues that the decision in Henderson “leaves the
potential impact of Patel in tort cases generally somewhat up in
 the air.”80 Students should therefore still pay attention to Gray
when applying the illegality defence in tort.

(3) Contributory negligence81

16–019 It is convenient to refer to the principle of contributory

negligence as a “defence”, although, as will be seen, it can no
longer operate as a complete defence to a claimant’s action.
Contributory negligence is generally raised in cases involving
the tort of negligence, although it has a wider
application, for example in breach of statutory duty.82 It permits
a defendant to argue that the damages awarded in favour of the
claimant should be reduced because some of the damage was
caused by the fault of the claimant. It has obvious links with
causation, examined in earlier chapters. Indeed, it is impossible
to have 100% contributory negligence for the very reason that
this in fact amounts to a statement that the claimant is the cause
of the accident (or the novus causa interveniens) and has no
right to sue the defendant.83
The principle of contributory negligence is now found in the
Law Reform (Contributory Negligence) Act 1945 s.1(1). The
common law position prior to 1945 was complicated. The rule at
common law was that the claimant could recover nothing if he
or she was contributorily negligent.84 The obvious injustice of
this rule led the courts to modify this rule to:
▮ First, the rule of last opportunity. This was where the
court found that although both parties were negligent,
the defendant had the last chance to avoid the
accident.85 If so, the claimant would recover in full.
▮ Secondly, the rule of constructive last opportunity. This
is where the defendant would have had the last
opportunity to avoid the accident, but for his or her own
negligence.86 If proved, the claimant again would
recover in full.
 Such solutions served only to complicate the law, and of course
did not remove the injustice of the former rule. Instead of the
claimant’s action failing, the claimant recovered full damages.
This ignored his or her fault entirely. Neither the old rule nor the
courts’ modifications were fair to both parties. The law is now
stated in the Law Reform (Contributory Negligence) Act 1945
(the Act).

◗ The statutory position

16–020 Section 1(1) of the Act provides:

“Where any person suffers damage as the

result partly of his own fault and partly of
the fault of any other person or persons, a
claim

in respect of that damage shall not be

defeated by reason of the fault of the person
suffering the damage, but the damages
recoverable in respect thereof 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.”

This section finally allowed the courts to apportion damages as

they deem “just and equitable” and marked a welcome move
away from the technicalities of the common law. Damages will
be reduced according to the claimant’s responsibility for the
damage (not the accident). On this basis, damages may be
reduced in a car crash when the claimant has failed to wear a
seatbelt.87 This may not have led to the accident, but may have
added to the injury suffered.
“Damage” is defined in s.4 to include loss of life and
personal injury, and it continues to include property damage. It
would also appear to cover claims for pure economic loss.88
Section 4 also defines “fault” as:

“. . .negligence,89 breach of statutory duty

or other act or omission that gives rise to
liability in tort or would, apart from the
Act, give rise to the defence of contributory
negligence.”

This is not particularly clear. The accepted view is that s.1 refers
to “fault” both in relation to the claimant and the defendant. On
this basis, the first part of the definition refers to the nature of
the claim against the defendant, which can be for negligence,
breach of statutory duty or any other act or omission giving rise
to liability in tort. The second part of the definition refers to
negligence, breach of statutory duty or the acts or omissions of
the claimant which would at common law have given the
defendant an absolute defence. On this basis, tortious conduct by
the claimant that would not at common law have given rise to a
defence of contributory negligence—the classic example being
deceit/fraud—would not affect the claim.90
A very broad interpretation of s.4 was adopted by the
majority of the House of Lords in Reeves v Metropolitan Police
Commissioner,91 where their Lordships held that it included
intentional acts by the claimant. On this basis, the deliberate act
of the deceased in committing
suicide in police custody amounted to contributory negligence
within the Act. This is a very generous interpretation of
“fault”—it can hardly be termed “negligent” to deliberately
 commit suicide—and it is somewhat artificial to claim that a
person’s act of suicide “contributed” to the damage, i.e. his
death. However, the section is broadly phrased, and in view of
the defendant’s duty to prevent this very act occurring, the
majority held that a “common sense” approach should prevail.
Both the deceased’s intentional act and the negligence of the
police had contributed to his death and so a 50:50 division of
responsibility was appropriate.92
It should be noted that the aim of this section is not to show
that the claimant owes the defendant a duty of care to protect
him or her against liability, but to show that the claimant failed
to exercise reasonable care and this added to his or her
injuries.93 In applying the test the court will have regard both to
the relative blameworthiness of the parties and the causal
“potency” of the claimant’s acts, that is, the relative importance
of his or her acts in causing the damage apart from his or her
blameworthiness.94 It will be a question of fact in each case.
There are three main questions the court should address:
▮ Was the claimant acting negligently?
▮ Did his or her actions contribute to the damage
suffered?
▮ To what extent should his or her damages be reduced?
These questions will be examined below.

◗ (i) Was the claimant acting negligently?

16–021 As we have seen above, the question is whether the claimant has
exercised reasonable care. As Lord Denning stated in Jones v
Livox Quarries:

“A person is guilty of contributory

negligence if he ought reasonably to have
foreseen that, if he did not act as a
 reasonable, prudent man, he might hurt
himself; and in his reckonings, he must take
into account the possibility of others being
careless.”95

It is clearly an objective test, but the courts will make

allowances for children96 and the aged and infirm. In the recent
case of Ellis v Kelly,97 the court clarified that there was no hard
and fast rule when a child could be found to be contributory
negligence—it would depend on what could reasonably be
expected of a child of the same age, intelligence and experience.
Here an 8-year-old crossing a road unaccompanied near a
pedestrian crossing was not found to be contributory negligent
when he had assumed (wrongly) that a speeding car would stop
for him. The courts will equally recognise that in an emergency
(which is due to the fault of the defendant), some allowance
must be made for decisions taken in the heat of the moment. In
Jones v Boyce,98 for example, the plaintiff was a passenger on
top of the defendant’s coach. In realising correctly that the coach
was in danger of being overturned due to a defective coupling
rein, he decided to jump off and broke his leg. The coach, in
fact, did not overturn. The court nevertheless held that it was a
question of whether the plaintiff had acted reasonably, and
allowances should be made for the actions of parties placed in
such a dangerous predicament. However, the reaction must be
reasonable and respond to some danger. In Adams v Lancashire
and Yorkshire Ry Co,99 for example, it was not deemed
reasonable to deal with the inconvenience of a draft from an
open train door by leaning out of the moving train to close it.
The court held that the plaintiff should simply have moved seats
or waited until the next station.100 He therefore had no right to
sue the defendant for negligence when he fell out of the train.
The same approach applies to rescuers. Whilst allowances
will be made for the heat of the moment, the rescuer cannot
 claim for injuries which are due to his or her unreasonable
response to the danger. For example, in Harrison v British
Railways Board,101 a misguided train guard attempted to assist a
passenger who was trying to join a moving train by signalling
the driver to stop. Unfortunately, he gave the wrong signal and
the driver continued to accelerate. He then tried to pull the
passenger into the rapidly accelerating train, but both of them
fell out. The guard sued the passenger for negligence. The court
held that the passenger did owe the guard a duty of care when,
through lack of care for his own safety, he had put himself in a
situation of danger in which it was reasonably foreseeable that
someone would intervene to help, but that a reasonable guard
would have applied the emergency brake. On this basis, the
guard’s damages were reduced by 20%. Boreham J warned,
however, that rescuers should be treated leniently: “One has a
feeling of distaste about finding a rescuer guilty of contributory
negligence. It can rarely be appropriate to do so”.102

◗ (ii) Did the claimant’s actions contribute to the

damage suffered?
16–022 The classic case is that of Stapley v Gypsum Mines Ltd.103
Stapley had been killed in a mining accident when a large piece
of the roof where he was working fell upon him. He, and another
miner, Dale, had been instructed earlier to make that part of the
mine safe by bringing down a section of the roof. The men tried
unsuccessfully to bring down the roof and then carried on
working. In an action by Stapley’s widow, it was argued that
Stapley’s own negligence had been the substantial cause of his
death. The majority of the House of Lords held that Dale had
also been responsible for the accident, for whom the employers
were vicariously liable, but that damages should be reduced by
80% for contributory negligence. Lord Reid found the question
of who had contributed to the damage to be one of common
sense, depending on the facts of each particular case. Where a
number of people had been at fault, it would be a matter of
 isolating those parties whose fault had led to the accident and
was not too remote. Here, the question was whether the fault of
Dale was so mixed up with the accident that, as a matter of
common sense, his actions must be regarded as having
contributed to his accident. On the facts, there was insufficient
separation of time, place or circumstance to find that Dale had
not contributed to the accident.
It is also important that the claimant’s negligence exposed
him or her to the particular type of damage suffered. For
example, if I drive without a seatbelt and suffer injuries whilst
stationary when a lorry negligently drops its load on my car, it
cannot be said that my failure to wear a seatbelt exposed me to
that particular risk of damage. Conversely, the damages were
reduced in Jones v Livox Quarries,104 where the plaintiff had
been injured when, whilst riding on the back of a vehicle to the
works canteen, he was struck from behind by the driver of a
dumper truck. Riding on the back of the vehicle was contrary to
his employers’ express instructions and what materialised was
precisely the type of danger to be expected from such conduct.
However, if a passing sportsman had negligently shot him in the
eye, he could hardly be said to be contributorily negligent since
this was not a risk to which his negligent actions exposed
him.105

◗ (iii) To what extent should the claimant’s

damages be reduced? What is “just and equitable” in
these circumstances?
16–023 This is generally a matter of the court’s discretion and therefore
will depend on the facts of the case. The wording of the Act
gives the courts considerable flexibility, which they utilise to the
full.106 In Jackson v Murray, the majority of the Supreme Court
admitted that:
 “the apportionment of responsibility is
inevitably a somewhat roughand ready
exercise (a feature reflected in the judicial
preference for round figures) . . . That is
consistent with the requirement under
s.1(1) to arrive at a result which the court
considers ‘just and equitable’.”107

As a result, it is difficult critically to evaluate the court’s

assessment of contributory negligence, because the courts
generally give a bald figure, with little guidance as to the
reasoning underlying the sum. The courts have given some
indications that they will be influenced by the relative
blameworthiness of each party in addition to considering the
degree to which their fault contributed towards the damage
suffered.108 Recent case law has also indicated that car-drivers
will generally be deemed to have greater “causal potency” than
pedestrians because a car can do more damage to a person than a
person to a car.109 However, in certain circumstances, guideline
figures have been given to provide some certainty and
consistency, and these are generally followed.

(A) FAILURE TO WEAR A SEATBELT

16–024 Guidelines were given by the Court of Appeal in Froom v
Butcher.110 In this case, despite driving carefully, Mr Froom had
been struck head-on by a speeding car overtaking in the opposite
direction. He suffered head and chest injuries, which were found
to have been caused by his failure to wear a seatbelt. At the time,
it was not compulsory to wear a seatbelt, and Froom had argued
that he had made a conscious decision not to wear one, having
seen a number of accidents where drivers wearing seatbelts had
been trapped in the vehicle following an accident. The Court of
Appeal held that his failure to wear a seatbelt did amount to
contributory
negligence. It had added to the injury suffered and it was
irrelevant that Froom believed that it would be safer not to wear
a seatbelt—the test was of the reasonable person who would,
according to the court, wear a seatbelt. Damages were therefore
reduced by 20%.
The court gave general guidance as to the appropriate
reduction for not wearing a seatbelt:
▮ 25% if the injury would have been prevented altogether;
▮ 15% if the injury would have been less severe; and
▮ 0% if wearing the seatbelt would not have prevented
injury.

This will tend to be followed save in exceptional cases; the

courts acknowledging the value of having clear guidelines which
will encourage parties to reach sensible settlements.111 The
binding nature of these guidelines was recently reaffirmed in
Stanton v Collinson,112 where the Court of Appeal
acknowledged the powerful public interest in there being no
intensive inquiry into fine degrees of contributory negligence so
that the vast majority of cases could be settled according to a
well-understood formula and that exceptional cases did not get
out of control.
It should be noted that seatbelt wearing is now compulsory
for front and back seats (where available).113 Although Lord
Denning also suggested in Froom that exceptions may be made
for pregnant women or “unduly fat” passengers,114 pregnant
women are not exempt, unless their doctor certifies that they
should be for medical reasons.115 A doctor may exempt any
party if he or she decides that it is warranted and issue a formal
“Certificate of Exemption from Compulsory Seat Belt
wearing”.116 This must be produced on request by the police.117
 (B) FAILURE TO WEAR A CRASH HELMET
16–025 Capps v Miller118 applied the Froom guidelines to crash
helmets,119 although the majority held that a reduction of only
10% would be appropriate where a crash helmet had been worn
but not fastened. Road Traffic Act 1988 s.16 provides that it is
compulsory to wear protective head
gear when riding a motor bike. It should be noted that
exceptions are made for Sikhs wearing turbans.120
Apart from this guidance, the court is free to assess what is
just and equitable. It should be remembered that the reduction
cannot be 100%, as this is essentially a denial of causation.121
Croom-Johnson LJ in Capps v Miller122 also advised the courts
against making fine distinctions in percentages, although he
disapproved of dicta indicating that an award of less than 10%
should not be given.123

(C) NEGLIGENT VALUATION CASES

16–026 The House of Lords in Platform Home Loans Ltd v Oyston
Shipways Ltd124 dealt with the application of the defence of
contributory negligence in the wake of the House of Lords’
decision in South Australia Asset Management Corp v York
Montague Ltd (commonly known as SAAMCO).125 This decided
that damages for a negligent valuation would not extend to
losses due to a fall in market price,126 but would be capped at
the amount of the overvaluation at the time the valuation takes
place. Here, the lender was found to be contributorily negligent
in making the loan without having obtained from the borrower
information required by its own form, and in advancing as much
as 70% of the valuation of the property. Due to the negligent
valuation of the property and fall in the market, it had lost
£611,748 (“the basic loss”). However, under SAAMCO, this
would be capped at the overvaluation: the property was valued
at £1.5 million but actually worth at that time £1 million,
therefore £500,000. Controversially, the majority of the House
deducted 20% contributory negligence from the whole losses
suffered by the claimant (£611,748). In the view of the majority,
 the damage referred to in s.1(1) was the damage suffered by the
claimant as a result of the transaction (the basic loss). Although
the claimant’s damages would be capped under SAAMCO, the
majority held that it was not just and equitable to reduce the
capped amount by 20%. This left the claimants with damages of
£489,398.

◗ Multiple defendants
16–027 One final problem we must address before moving on to the next
defence is how to approach a situation where the claimant is
suing more than one defendant. For example, the claimant
(C) is suing two defendants (D and T) for negligence. C’s
contributory negligence is assessed at 20%. How will this sum
be deducted from the defendants’ liability for damages?
The first point is that the two defendants are treated as
jointly and severally liable at law.127 This means that the
claimant is entitled to sue one or both of the defendants for the
full sum due. Under the Civil Liability (Contribution) Act 1978
s.1, if only one defendant is sued, he or she is fully liable, but is
entitled to claim a contribution from any other person liable in
respect of the same damage. The contribution, under s.2, will be
assessed by the court as the sum which is “just and equitable
having regard to the extent of that person’s responsibility for the
damage in question”. This is therefore a matter for the
defendants to sort out and not for the claimant to worry about.
Secondly, the contributory negligence of the claimant will be
compared with the total responsibility of the defendants. In our
example, the 20% contributory negligence of C would be
compared with the 80% liability of D and T, and C would be
awarded 80% of the damages due. This is irrespective of
whether C is suing D, T, or D and T together. It is irrelevant at
this stage to what extent D and T are individually responsible.
Thirdly, it is for D and T to argue their individual degree of
responsibility.
By this means, the claimant is fully compensated, and it is
for the defendants to sort out the division of responsibility
 between them. This is seen in practice in Fitzgerald v Lane,128 a
case mentioned in Ch.6. Here, the plaintiff had stepped out into
traffic on a busy road when the lights at the pedestrian crossing
had been against him. He had been struck by a vehicle driven by
the first defendant, which pushed him into the path of the second
defendant’s car. Both the defendants were negligent, but the
plaintiff had also been contributorily negligent in not looking
properly before crossing the road. The House of Lords adopted
the reasoning outlined above. First of all, to what extent was the
plaintiff contributorily negligent in comparison with the fault of
both defendants? Here, it was found to be 50%. Secondly, how
should the remaining 50% be divided between the two
defendants?
Contributory negligence is a popular defence. Under the
statute, the courts now have flex-ibility to allocate damages
according to the fault of the parties involved. Unlike the
defences of voluntary assumption of risk and illegality, this
defence gives the courts the power to reduce damages without
removing the claim altogether, and therefore is more readily
used than the former, more drastic, defences.

General defences: conclusion

16–028 We can therefore conclude that out of the defences referred to in

this chapter, contributory negligence is the most flexible,
permitting the courts to limit the claimant’s damages, but to not
disallow the claim altogether. This is preferred by the courts to
more drastic defences which provide a full defence to the
claimant’s action for damages. As stated earlier, these are not the
only defences, and reference should be made to defences which
apply to particular torts, discussed in the relevant chapters.
The second part of this chapter will consider other means by
which the claimant’s right of action can be lost. If a claim is
extinguished, for example, there is no further scope for the
claim, however strong the claim may be. The main grounds for
extinction will be set out below. The primary example is that of
 limitation, essentially where the claimant has run out of time to
bring his or her claim. It should be noted that this is a significant
source of negligence claims against solicitors, who are
frequently sued by their clients for failing to commence
proceedings within the time limits set by law.

Extinction of Liability
(1) Limitation of Actions for personal
injury
16–029 Limitation is the main reason why claims in tort are
extinguished.129 It should be noted that it is a procedural, not a
substantive, bar to the claimant’s action. Its rationale is clear: it
would cause obvious problems if there were no time limit within
which the claimant should bring an action in tort. For example,
if the victim of a car accident were able to claim damages in tort
20 years after the accident, a number of problems would arise:
▮ witnesses would be unlikely to remember the event;
▮ witnesses may have disappeared or have died;
▮ documentation would be lost; and
▮ the defendant, for an indeterminate time, would have to
live with the possibility of being sued.

As Lord Wilson commented in the Supreme Court, there are two

main reasons for statutes of limitation: one is to protect
defendants from being vexed by stale claims and the other is to
require claims to be put before the court at a time when the
evidence necessary for their fair adjudication is likely to remain
 available.130 In view of these reasons, the law sets a time limit
on such claims.131 The Limitation Act 1980 contains the main
provisions. Section 2 of the Act provides that actions founded on
a tort132 should be brought within six years of the date when the
cause of action accrued, i.e. when the cause of action arises
against a potential defendant. Where the tort is actionable on
proof of damage, for example negligence, then the cause of
action will only arise when the damage has taken place. Where
the tort is actionable per se (i.e. without proof of damage), the
cause of action will arise on the date of the defendant’s act or
omission.
However, not all tort claims are within s.2. This part will
focus on the special provisions for personal injury claims.133

◗ Limitations Act 1980 ss.11, 14, 12 and 33

SECTION 11 (THE THREE YEAR TIME LIMIT)

16–030 This provides that where, due to negligence, nuisance or breach
of duty,134 the claimant’s action for damages consists of or
includes damages for personal injury, the claim must be brought
within three years from the date on which:
▮ the action accrued; or

▮ the date of knowledge (if later) of the injured person.135

“Personal injury” is defined in s.38 as including any disease or
impairment of a person’s physical or mental condition and will
thus extend to psychiatric injuries, including dyslexia.136 If the
injured person dies before the expiration of either of these
periods, then the action will run for the benefit of the estate for
three years from: (a) the date of death; or (b) the date of the
personal representative’s knowledge; whichever is later.137 It
should be noted that s.11 covers claims which include damages
for personal injury. The time limit will therefore apply to any
additional claims, for example for property damage.
 SECTION 14 (DATE OF KNOWLEDGE)
16–031 Section 14 defines “the date of knowledge”.138 This is deemed
to be the date on which the claimant first had knowledge:
▮ that the injury in question was significant;
▮ that the injury was attributable in whole or in part to the
act or omission which is alleged to constitute
negligence, nuisance or breach of duty139;
▮ of the identity of the defendant; and
▮ if it is alleged that the act or omission was that of a
person other than the defendant, of the identity of that
person and the additional facts supporting the bringing
of an action against the defendant.
It is irrelevant that the claimant is unaware that, as a matter of
law, the acts or omissions in question gave her a legal right to
sue.140 The majority of the Supreme Court in AB v Ministry of
Defence141 also found it a legal impossibility for a claimant to
argue she lacked s.14 knowledge after she had issued
proceedings.142 Section 14(2) provides that the injury is
“significant” if the claimant would reasonably have considered it
sufficiently serious to justify instituting proceedings for damages
against a defendant who did not dispute liability and was able to
satisfy
judgment. After some debate,143 this has been found to set an
impersonal standard144—in the words of Lord Hoffmann in A v
Hoare:

“you ask what the claimant knew about the

injury he had suffered, you add any
knowledge about the injury which may be
imputed to him under section 14(3) and you
then ask whether a reasonable person with
 that knowledge would have considered the
injury suf-ficiently serious to justify his
instituting proceedings for damages against
a defendant who did not dispute liability
and was able to satisfy a judgment.”145

Section 14(3) provides for constructive knowledge, which

includes knowledge which the claimant might reasonably be
expected to acquire from facts observable or ascertainable by the
claimant, or from facts ascertainable with the help of medical or
other professional advice it is reasonable to expect the claimant
to seek.146 The majority of the House of Lords in Adams v
Bracknell Forest BC held that this would be a mainly objective
test: what would a reasonable person, placed in the situation in
which the claimant was placed, have said or done?147 This may,
however, take account of the effect of the injury on the claimant,
for example, if it renders the claimant blind, the court will not
assume that the claimant should have acquired knowledge by
seeing something, or if it causes celebral palsy, the level of
disability of the claimant.148
As Lord Hoffmann made clear in A v Hoare,149 more
subjective matters, such as the victim’s character or intelligence,
should not be considered under s.14. They will still be relevant,
however, under the s.33 discretion, discussed below.150

SECTION 12 (DEPENDANTS)
16–032 Section 12 makes special provision for dependants claiming
under the Fatal Accidents Act 1976 (which will be discussed in
Ch.17).151 Section 12(1) requires the dependant to show that the
deceased had a valid cause of action on death. If the action had
been lost, for example due to a time limit or any other reason,
the claim under the Fatal Accidents Act is lost. If the deceased
did have a valid cause of action on death, then the dependant has
three years to bring the action starting from:
 ▮ the date of death; or
▮ the date of knowledge of the person for whose benefit
the action is brought; whichever is the later.
(“Knowledge” is as defined in s.14, discussed above.)

SECTION 33 (EXTENSION)
16–033 It can be seen that, generally, claims for personal injury, or under
the Fatal Accidents Act 1976, are subject to the short time limit
of three years. This, however, must be considered in the light of
the discretion provided under s.33 of the Act.152 Section 33
permits the court to override the statutory time limits if it
appears equitable to the court to allow the case to proceed,
having regard to the prejudice of denying the claim to the
claimant153 and the prejudice of allowing the claim to the
defendant.154 Section 33(3) directs the court, in considering
whether to exercise its discretion, to have regard to all the
circumstances of the case and in particular to:
▮ the length of, and the reasons for, the delay on the part
of the claimant;
▮ the extent to which, having regard to the delay, the
evidence in the case is likely to be less cogent;
▮ the conduct of the defendant after the cause of action
arose, including (when relevant) the response made to
any reasonable request by the claimant for information
or inspection for the purpose of ascertaining facts which
were or might be relevant to the claimant’s cause of
action against the defendant;

▮ the duration of any disability155 of the claimant arising

after the date of the accrual of the cause of action;
▮ the extent to which the claimant acted promptly and
reasonably once he or she knew that there was a
possible action for damages; and
 ▮ the steps, if any, taken by the claimant to obtain
medical, legal or other expert advice and the nature of
any such advice he or she may have received.

The House of Lords, in Thompson v Brown156 and Donovan v

Gwentoys157 indicated at an early stage that s.33 was not
confined to exceptional cases and that the courts could adopt a
broad approach to its provisions. The judge is therefore given a
broad and unfettered discretion to assess the matter generally
with reference to the factors highlighted in s.33(3).158 The
burden, however, of showing that it would be equitable to
disapply the limitation period lies on the claimant. While the
claimant is seeking the indulgence of the court in applying an
exception in her favour, the Court of Appeal has reminded courts
that the weight of the burden on the claimant will depend on the
facts of each particular case.159
16–034 One particular issue which has arisen relates to the courts’
treatment of so-called “windfall defence” claims where the
claimant (having otherwise a good case) issues proceedings out
of time due to the negligence of his solicitor. The Court of
Appeal in the conjoined road traffic cases of Cain v Francis;
McKay v Hamlani160 took the opportunity to lay down
guidelines. In both cases, there was no dispute over liability, but
in Cain proceedings had been issued one day late and in McKay
just under a year late. The Court of Appeal ruled that in such a
case, where the defendant had had early notice of the claim, the
accrual of a limitation defence would be regarded as a complete
windfall to the defendant and he could not argue that losing this
defence would itself amount to prejudice to be considered under
s.33.161 The relevant prejudice was harm to the defendant’s
ability to defend his claim. Equally, the existence of an
alternative claim against the claimant’s solicitor for negligence
would not necessarily signify that the time limit should not be
disapplied. On the facts, the slight delay was deemed to have no
prejudicial effect—the defendants had had early notification of a
claim and every possible opportunity to
investigate and to collect evidence. Section 33 would therefore
be exercised in the claimants’ favour.
A second issue which has arisen is that s.33 only applies to
claims for personal injury or under the Fatal Accidents Act 1976
under s.11. It has no application to tort claims outside these
sections. Until recently, the House of Lords had found that it did
not apply to actions for intentional harm (trespass to the person)
which were solely governed by s.2.162 This led to difficulties in
relation to claims by adults for child abuse. Even with the
provision under s.28 (see below) that time will only run from the
age of majority, the trauma of childhood sexual abuse may take
many years to manifest itself or to be appreciated by the victim.
However, the courts only have the discretion to extend the time
limit under s.33 if it is classified as a personal injury claim under
s.11. The House of Lords in A v Hoare finally overruled its
previous decision in Stubbings v Webb and accepted that all
personal injury claims, caused by negligence or trespass to the
person, should fall within s.11.163 In A v Hoare itself, the
defendant had been convicted in 1989 of the attempted rape of
the claimant and sentenced to life imprisonment. Only when he
won £7 million on the lottery, whilst on day release in 2004, did
the victim consider it worthwhile pursing a claim for
compensation, only to face the argument that she was out of
time. Their Lordships confirmed that, having suffered personal
injury from the assault, she was entitled to rely on s.11 and ask
the court to exercise its discretion in her favour under s.33.164
This is an important ruling. As Case has commented:

“[t]he strict construction of section 14

required by A v Hoare . . . will mean that
most claimants seeking compensation for
historic abuse will be reliant on a generous
application of the court’s discretion under
 section 33 if they are to defeat the limitation
defence.”165

The claimant will, however, still have to satisfy the criteria of

s.33 which will not always be easy.166

◗ Limitation problems

(I) DELIBERATE CONCEALMENT

16–035 One obvious problem with limitation periods is where the
defendant has concealed the damage. Section 32 deals directly
with this problem. If the action is based on fraud or mistake, or
where the defendant has deliberately concealed any fact relevant
to the cause of action from the claimant, the limitation period
will only start when the claimant has discovered the fraud,
mistake or concealment or could, with reasonable diligence,
have discovered it. An example of concealment may be found in
the case of Kitchen v RAF Assoc167 where a claim was made
against a firm of solicitors for negligence. It was held that the
solicitors’ failure to inform Mrs Kitchen of her possible claim
against the local electricity board, when her husband had been
electrocuted by a defectively installed cooker, did not amount to
concealment. It was certainly negligent, but there was no
evidence to show deliberate concealment of this fact. However,
their failure to inform her of an offer by the electricity board to
pay £100 was within the relevant section, as it amounted to
deliberate concealment (basically to cover up for their mistake).
This interpretation of s.32 was confirmed by the House of
Lords in Cave v Robinson Jarvis & Rolf,168 which overturned
the Court of Appeal ruling in Brocklesby v Armitage & Guest.169
In Brocklesby, the court had interpreted s.32 very broadly,
notably relying on s.32(2) which defines deliberate concealment
as the “deliberate commission of a breach of duty in
circumstances in which it is unlikely to be discovered for some
 time”. The Court of Appeal held that, in view of s.32(2),
deliberate concealment could be proved by showing simply that
the defendant’s negligence consisted of an intentional act or
omission in circumstances where the negligence would not be
immediately apparent. It was not necessary to show that the
defendant was aware of the breach of duty in question.170 The
House of Lords in Cave rightly pointed out that this would
disapply the limitation period in every case where a professional
had acted on behalf of a client and was subsequently found to be
negligent. This would extend dramatically professional liability,
and force such defendants to defend every action, however stale.
Lord Millett considered such a result to be “neither just, nor
consistent with the policy of the Limitation Acts”.171 “Deliberate
concealment” should therefore be interpreted as requiring the
defendant to be aware of the breach of duty, and to conceal or
fail to disclose the wrongdoing in circumstances where it is
unlikely to be discovered for some time.172
The section does also seek to protect innocent third parties.
Section 32(3) states that nothing in the section shall extend the
limitation period for actions (a) to recover property or recover its
value or (b) to enforce a charge against any property or set aside
a transaction affecting property, when the action is brought
against an innocent third party who purchased the property for
valuable consideration after the fraud, mistake or concealment
had taken place.

(II) DISABILITY
16–036 A further problem arises where the claimant cannot sue due to a
disability. This is dealt with in s.28 which provides that if the
person is under a disability on the date on which the action
accrues, the limitation period will only start when he or she has
ceased to be under a disability or has died (whichever occurs
first). By “disability”, we mean that a person is under 18 or lacks
capacity (within the meaning of the Mental Capacity Act 2005)
to conduct legal proceedings.173 The main problem arises when
the disability affects the claimant after the cause of action has
 arisen. In such cases, there is nothing in s.28 to stop the ordinary
limitation period applying.174

◗ The burden of proof

16–037 The issue of limitation will generally be raised by the defendant.
However (although the law is not clear on this point), it seems
that it is the claimant who bears the burden of proof, and who
has to establish that the cause of action arose during the
limitation period.175 Claimants should note that it is not always
enough to start the action within the limitation period. The court
retains the power to dismiss a claim for want of prosecution
where there has been prolonged or “inordinate and inexcusable”
delay in the prosecution of the action. It should be noted that this
is now governed by the Civil Procedure Rules r.3.4(2) and the
courts have discouraged judges from seeking guidance from
case law prior to the implementation of the Rules.176 In practice,
it would seem that, in keeping with the strict timetables
established by the Rules, the courts will be less tolerant of
delays in pursuing a claim. Further, a court may find that a
failure to proceed promptly amounts to an abuse of process, for
example, where the claimant has commenced and continued
litigation which he or she has no intention of bringing to a
conclusion.177

◗ Reform?
16–038 There has been much criticism of the limitation regime. In AB v
Ministry of Defence178 Baroness Hale commented that:

“[t]he current law of limitation is

complicated and incoherent . . . largely
because it has been subjected to a wide
range of ad hoc reforms, following the
 recommendations of reform bodies charged
with recommending reforms of particular
pockets of law.”

There have been, however, attempts to improve the current

regime. Following a 1998 Consultation Paper,179 the Law
Commission produced a report in 2001 that came to the
conclusion that “the present law on limitation suffers from a
number of defects: it is incoherent, needlessly complex,
outdated, uncertain, unfair and wastes costs”.180 It put forward a
simpli-fied regime based on a primary limitation period of three
years for the majority of claims in tort (including defamation),
extending to contract, unjust enrichment and trust law. This
would be subject to a long-stop of 10 years. Its main
recommendations are outlined below:
▮ The primary or “core” limitation period of three years
should run from the date on which the claimant knows,
or ought reasonably to know: (a) the facts which give
rise to the cause of action, (b) the identity of the
defendant, and (c) that the injury suffered is significant.
▮ Personal injury should continue to be treated differently.
The Commission backed down on its more radical
proposals in the Consultation Paper that personal injury
claims should be included within the core regime,
subject only to an extended long-stop of 30 years.181 It
proposed instead that the courts should continue to have
a discretion to disapply the three-year limitation period
and that no long-stop should apply.182
▮ The long-stop would not apply to deliberate
concealment, but only where the concealment is
dishonest.
 The proposals received considerable criticism, not least the
recommendation to reverse the one year limitation period for
defamation and malicious falsehood which had recently been
introduced. Ultimately no legislation followed, and the House of
Lords intervened itself in A v Hoare183 in 2008 (as discussed
above) to resolve the limitation problems facing abuse victims
suing for trespass to the person. There are currently no proposals
for reform despite the concerns raised by Baroness Hale above.

(2) Judgment

16–039 Note also that final judgment in a case will extinguish the right
of future action. The action effectively merges into the
judgment. This is primarily on public policy grounds and
prevents the parties to litigation disputing the validity of the
decision. The rule only applies where the decision is final, and it
does not of course prevent either party appealing that the
decision is wrong, in terms of law or fact, up until final
judgment.

(3) Death
16–040 At common law, the general rule was that the death of either
party extinguished any existing cause of action in tort (actio
personalis moritur cum persona). It was not until 1934 that the
problems arising from this rule forced the legislature to act. The
growth of road traffic, and its accompanying accidents, led to
complaints that it was unjust that where the defendant’s
negligent driving had led to an accident in which the defendant
had been killed, the claimant would receive nothing from the
defendant’s estate or insurers. Law Reform (Miscellaneous
Provisions) Act 1934 s.1(1) now provides for the general
survival of actions in tort. It states that:
 “. . .all causes of action subsisting against or
vested in [any person on death] shall
survive against, or, as the case may be, for
the ben-efit of [the] estate.”

This does not provide a cause of action for death itself. It is

simply a question of the survival of actions existing at the time
of death. This leaves one remaining problem. The claimant is
penalised if the defendant dies before the claimant suffers
damage due to the defendant’s wrongful actions. For example, I
negligently bake a cake which is contaminated, but die before
you eat it. An action for negligence is dependent on proof of
damage and so your action would only arise after my death.
Section 1(4) deals with this problem. It provides that where
damage
has been suffered as a result of a wrongful act which would have
allowed the claimant to sue the defendant if the wrongdoer had
not died before or at the same time as the damage was suffered,
an action will nevertheless subsist against him as if he had died
after the damage had been suffered.
Section 1(1) does not apply to defamation claims. It was
deemed too controversial to allow an action for defamation once
the person defamed had died. However, there is no real reason
why an action should not continue just because the defendant
making the defamatory remarks is deceased. The harm to the
reputation may still continue. The Faulks Committee184 made
some proposals for the survival of claims against the estate of
the deceased defamer, and for limited recovery when the
defendant has defamed a person now dead, but such
recommendations have not been implemented.185

General defences and extinction of

liability: conclusion
16–041 This chapter has examined a number of defences and considered
ways in which the claimant can lose his or her claim due to
extinction of liability. The courts, as we have seen, have a
number of alternatives open to them when considering defences,
and will tend to favour those defences which allow them to take
a flexible approach to the claim. The Limitation Act 1980 forms
a considerable barrier to claims where the claimant has delayed
and, as we have shown, provides rules of considerable
complexity.
The next chapter considers the matter most important to
claimants: what remedies will the law award them for the torts
committed against them?

1 For a theoretical analysis of tort law defences, see J. Goudkamp, Tort Law
Defences (Hart, 2013).

2 See, e.g. Arthur v Anker [1997] Q.B. 564 at 572.

3 The term “property torts” indicates torts protecting land such as private
nuisance and trespass to land: see D. Nolan, “‘A Tort Against Land’:
Private Nuisance as a Property Tort” in D. Nolan and A. Robertson (eds),
Rights and Private Law (Hart, 2011).

4 [1984] 2 W.L.R. 130; affirmed [1984] 1 Q.B. 524.

5 [1971] 2 Q.B. 691.

6 [1971] 2 Q.B. 691 at 701.

7 [1965] A.C. 656, see, in particular, Lord Reid.

8 Although Lord Pearce referred to a genuine full agreement at 687.

9 [1983] 1 W.L.R. 1427.

10 Note, however, A. J. E. Jaffey, ‘Volenti non fit injuria’ (1985) 44 C.L.J.

87.
11 [1939] 1 K.B. 509. See D. M. Gordon, “Drunken drivers and willing
passengers” (1966) 82 L.Q.R. 62 for criticism.

12 The decision was questioned by the Court of Appeal in Pitts v Hunt

[1991] 1 Q.B. 24 who suggested that riding pillion on a motorbike after the
plaintiff and the driver had been drinking for hours would, but for the Road
Traffic Act 1988 s.149, have amounted to voluntary assumption of risk. In
any event, the court found a good defence of illegality and the case will be
considered fully in that section.

13 The Road Traffic Act 1930 first introduced compulsory third party
insurance.

14 [1977] Q.B. 859.

15 [1991] 2 Q.B. 6. Comment: K. Williams (1991) 54 M.L.R. 745.

16 The pilot was found to have consumed 17 whiskies.

17 See Fox LJ at 17.

18 [1891] A.C. 325 HL.

19 See Lord Herschell [1891] A.C. 325 HL at 360.

20 [1965] A.C. 656.

21 He had in fact driven from the public house to the airfield and had
helped start the aircraft and fuel it.

22 [1990] 2 Q.B. 283.

23 [1990] 2 Q.B. 283 at 290.

24 [2000] 1 A.C. 360 HL.

25 Lord Jauncey [2000] 1 A.C. 360 HL at 375–376.

26 See Orange v Chief Constable of West Yorkshire Police [2001] EWCA
Civ 611; [2002] Q.B. 347 CA. cf. Keenan v United Kingdom (27229/95)
(2001) 33 E.H.R.R. 38 (no breach of ECHR art.2).

27 [2000] 1 A.C. 360 at 372. See also Lord Hope at 385.

28 [1935] 1 K.B. 146.

29 [1935] 1 K.B. 146 at 156–157 per Greer LJ. See also Baker v TE
Hopkins [1959] 1 W.L.R. 966.

30 [1963] 2 Q.B. 43. See also Condon v Basi [1985] 1 W.L.R. 866 CA,
Caldwell v Maguire [2001] EWCA Civ 1054; [2002] P.I.Q.R. P6 and C.
Gearty, “Tort: Liability for injuries incurred during sports and pastimes”
[1985] C.L.J. 371.

31 Who went on to win!

32 [2004] EWCA Civ 814; [2004] 1 W.L.R. 2844.

33 There is some debate as to whether “reckless disregard” sets too low a

standard—compare Wooldridge v Sumner with Caldwell v Maguire [2001]
EWCA Civ 1054. See para.5–019.

34 [1991] 2 Q.B. 6 at 15.

35 [1972] 2 Q.B. 651.

36 Trader is defined, in Consumer Rights Act 2015 s.2(2), as a “person

acting for purposes relating to that person’s trade, business, craft or
profession, whether acting personally or through another person acting in
the trader’s name or on the trader’s behalf”.

37 We list here only the main provisions of the Act relevant to this topic.
Further reference should be made to works on the law of contract.

38 Unfair Contract Terms Act 1977 s.1(3).

39 Unfair Contract Terms Act 1977 s.2(1).

40 The defence does not, however, operate to bar a claim based on the
European Convention on Human Rights and so is inapplicable to claims
under the Human Rights Act 1998: Al Hassan-Daniel v Revenue and
Customs Commissioners [2010] EWCA Civ 1443; [2011] Q.B. 866,
“Human rights are not just for the virtuous” per Sedley LJ at [12].

41 (1775) 1 Cowp. 341 at 343; 98 E.R. 1120.

42 See Lord Hoffmann in Gray v Thames Trains Ltd [2009] UKHL 33;
[2009] 1 A.C. 1339 at [24].

43 See National Coal Board v England [1954] A.C. 403 at 429. Contrast,
however, the approach of criminal law which is prepared to find
manslaughter due to gross negligence where the victim has participated in
the unlawful activity: see R. v Wacker [2002] EWCA Crim 1944; [2003]
Q.B. 1207, where a lorry driver was convicted for the manslaughter of 58
illegal immigrants who suffocated when he closed the air vent in the back
of his lorry.

44 [2013] EWCA Civ 546; [2014] 1 W.L.R. 70.

45 [2013] EWCA Civ 546 at [51] per Elias LJ (defence applied to theft of
ladders—an imprisonable offence carrying a seven year maximum
sentence). Contrast Wallett v Vickers [2018] EWHC 3088 (QB); [2019]
P.I.Q.R. P6: racing with another car down a dual carriage way amounted to
dangerous driving, but without joint enterprise, it was not sufficiently
serious to give rise to the illegality defence, although it clearly amounted to
contributory negligence.This was despite the defendant being sentenced to
six months’ imprisonment for dangerous driving. 46 [1981] Q.B. 137.

47 [1996] Q.B. 567.

48 See Ch.8.

49 Also known as Bilta (UK) Ltd v Nazir (No.2) [2015] UKSC 23; [2016]
A.C. 1 at [13]–[15].

50 [1991] 1 Q.B. 24.

51 Balcombe LJ argued that due to the nature of the joint illegal activity
undertaken by the plaintiff and Hunt, it was impossible for the court to
determine the standard of care which is appropriate to this situation (see
also Jackson v Harrison (1978) 138 C.L.R. 438). Unfortunately, the
Balcombe test is by its nature limited in application to the tort of
negligence.

52 [1994] 1 A.C. 340. Tinsley was overturned by the Supreme Court in

Patel v Mirza [2016] UKSC 42 (discussed below).

53 [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218. Comment C. A. Hopkins

[2002] C.L.J. 257. See also Sacco v Chief Constable of the South Wales
Constabulary unreported 15 May 1998 CA.

54 See Schiemann LJ [2002] 1 W.L.R. 218, 224.

55 [2009] UKHL 33; [2009] 1 A.C. 1339. There was also some discussion
of illegality in Stone & Rolls Ltd (in liquidation) v Moore Stephens (a firm)
[2009] UKHL 39; [2009] 1 A.C. 1391, but in view of the disparate
reasoning of their Lordships, it is difficult to ascertain any clear guidance
from this case: for criticism, see P. S. Davies, “‘Auditors’ liability: No need
to detect fraud?” [2009] C.L.J. 505.

56 The “inextricable link” test was suggested by Judge LJ in Cross v Kirkby

The Times 5 April 2000 and adopted by Sir Murray Stuart-Smith in Vellino
v Chief Constable of the Greater Manchester Police [2001] EWCA Civ
1249.

57 Saunders v Edwards [1987] 1 W.L.R. 1116 at 1134.

58 See Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339 at
[54]. See also Lord Rodger at [74].

59 Their Lordships rejected the argument that the conviction for

manslaughter should be disregarded in assessing damages for loss of
earnings. The court would examine the facts as they happened, not a
counter-factual scenario. His loss of earnings was thus caused by his
conviction for manslaughter.
60 [2009] UKHL 33; [2009] 1 A.C. 1339 at [51].

61 [1998] Q.B. 978.

62 The court refused to follow Meah v McCreamer [1985] 1 All E.R. 367
where a convicted rapist had been allowed to recover damages when a head
injury in a road accident had led to a dramatic personality change (see also
Gray v Thames Trains Ltd [2009] UKHL 33 per Lord Rodger at [65]).

63 [2009] UKHL 33 at [30]–[31].

64 [2013] EWCA Civ 546; [2014] 1 W.L.R. 70. Contrast Delaney v Pickett
[2011] EWCA Civ 1532; [2012] 1 W.L.R. 2149 (joint criminal enterprise of
transporting drugs with intent to supply) where the defence failed.

65 [2013] EWCA Civ 546 at [29].

66 [2014] UKSC 47; [2014] 1 W.L.R. 2889 (concerning statutory tort of

unlawful discrimination).

67 [2014] UKSC 55; [2015] A.C. 430 (concerning patent law).

68 See, e.g. R. A. Buckley, “Illegality in the Supreme Court” (2015) 131

L.Q.R. 341. See also J. C. Fisher, “The ex turpi causa principle in Hounga
and Servier” (2015) 78 M.L.R. 854.

69 Law Commission Consultation Paper No.160 (2001).

70 Law Commission, The Illegality Defence, CP No.189 at para.7.69.

71 Law Commission, The Illegality Defence, Law Com. No.320, (2010).

72 Report on the implementation of Law Commission proposals HC 1900

(2012) at para.52.

73 [2016] UKSC 42; [2017] A.C. 467. Comment: J. Goudkamp, “The end
of an era? Illegality in private law in the Supreme Court” (2017) 133 L.Q.R.
14.
74 Relying on the test stated by McLachlin J in Hall v Herbert (1993) 2
S.C.R. 159 at 178 Supreme Court of Canada.

75 [2016] UKSC 42 at [120]. In relation to proportionality, potentially

relevant factors include the seriousness of the conduct, its centrality to the
contract, whether it was intentional and whether there was marked disparity
in the parties’ respective culpability: [107].

76 [2016] UKSC 42 at [265].

77 [2018] EWCA Civ 1841; [2018] 3 W.L.R. 1651 (on appeal to Supreme
Court).

78 Lost under the Forfeiture Act 1982.

79 [2018] EWCA Civ 1841 at [87]. See also Day v Womble Bond Dickinson
(UK) Ltd [2020] EWCA Civ 447 at [34] (professional negligence case):
“There can be no doubt that the rule in Gray was not undermined by the
decision in Patel”.

80 S. Todd (2019) 35 P.N. 6 at 31.

81 See N. Gravells, “Three heads of contributory negligence” (1977) 93

L.Q.R. 581. For an empirical study of the operation of the contributory
negligence defence, see J. Goudkamp and D. Nolan, “Contributory
negligence in the twenty-first century: An empirical study of first instance
decisions” (2016) 79 M.L.R. 575.

82 Although it cannot be used in deceit (Alliance and Leicester BS v

Edgestop Ltd [1994] 2 All E.R. 38 and Standard Chartered Bank v Pakistan
National Shipping Corp (Nos 2 and 4) [2002] UKHL 43; [2003] 1 A.C.
959) nor for intentional torts such as trespass to the person: Co-operative
Group (CSW) Ltd v Pritchard [2011] EWCA Civ 329; [2012] Q.B. 320. The
Torts (Interference with Goods) Act 1977 s.11(1) also provides that it is not
a defence to proceedings founded on conversion or intentional trespass to
goods.
83 See Pitts v Hunt [1991] 1 Q.B. 24 and Anderson v Newham College of
Further Education [2002] EWCA Civ 505; [2003] I.C.R. 212.

84 See Butterfield v Forrester (1809) 11 East 60; 103 E.R. 926.

85 Davies v Mann (1842) 10 M. & W. 546; 152 E.R. 588.

86 British Columbia Electric Ry v Loach [1916] 1 A.C. 719.

87 See Froom v Butcher [1976] Q.B. 286.

88 See Platform Home Loans v Oyston Shipways Ltd [2000] 2 A.C. 190
HL.

89 This has raised problems whether contributory negligence can be a

defence when the claimant alleges that the defendant’s negligence amounts
to breach of contract. The leading case of Forsikringsaktieselskapet Vesta v
Butcher [1989] A.C. 852 limits the defence to where the defendant’s
liability in contract is the same as his liability in the tort of negligence
independently of the existence of any contract. See also Barclays Bank Plc
v Fairclough Building Ltd [1995] Q.B. 214 and Raflatac Ltd v Eade [1999]
1 Lloyd’s Rep. 506.

90 This was confirmed by the House of Lords in Standard Chartered Bank

v Pakistan Shipping Corp (Nos 2 and 4) [2002] UKHL 43; [2003] 1 A.C.
959. In deceit, it is irrelevant that the claimant may have allowed himself or
herself to be influenced by other factors or has failed to verify the statement
in question: Edgington v Fitzmaurice (1885) L.R. 29 Ch. D. 459 and
Redgrave v Hurd (1881–82) L.R. 20 Ch.D. 1.

91 [2000] 1 A.C. 360.

92 But note the divergence in the House of Lords in Corr v IBC Vehicles
Ltd [2008] UKHL 13; [2008] 1 A.C. 884 as to the correct approach to use
when a victim, driven by severe depression caused by the defendant’s
negligence, takes his own life. Lords Scott, Mance and Neuberger were all
prepared to contemplate a reduction for contributory negligence, but argued
in favour of a more nuanced approach which would take into account to
what extent the deceased’s personal autonomy had been overborne by the
impairment to his mind attributable to the defendant. 93 Nance v British
Columbia Electric Ry Co Ltd [1951] 2 All E.R. 448.

94 See Lord Reid in Stapley v Gypsum Mines Ltd [1953] A.C. 663 at 682.

95 [1952] 2 Q.B. 608 at 615. Reference will be made to changes in the

public perception of risk. On this basis, the reasonable man, warned that
there was a substantial risk that smoking would seriously damage his
health, would stop smoking: Badger v Ministry of Defence [2005] EWHC
2941 (QB); [2006] 3 All E.R. 173 (contributory negligence to fail to give up
smoking when risk to health known).

96 Depending on the age of the child, see Yachuk v Oliver Blais Co Ltd
[1949] A.C. 386, Gough v Thorne [1966] 3 All E.R. 398 and Probert v
Moore [2012] EWHC 2324 (QB) (decision of 13 year old child to walk
along unlit road in the dark without high visibility jacket or torch was ill-
advised but not negligent). 97 [2018] EWHC 2031 (QB); [2018] 4 W.L.R.
124.

98 (1816) 1 Stark 493; 171 E.R. 540.

99 (1869) L.R. 4 C.P. 739.

100 The next station was 3 minutes away.

101 [1981] 3 All E.R. 679.

102 [1981] 3 All E.R. 679 at 686.

103 [1953] A.C. 663. Note, however, P.S. Atiyah, “‘Causation,

Contributory Negligence and Volenti Non Fit Injuria” (1965) 43 Can. Bar.
Rev. 609, who criticises the court’s analysis of causation, and the discussion
of this point in Ch.6.

104 [1952] 2 Q.B. 608.

105 Lord Denning’s somewhat graphic example [1952] 2 Q.B. 608 at 616.
This was, however, cited in St George v Home Office [2008] EWCA Civ
1068; [2009] 1 W.L.R. 1670 (drug addict, who suffered brain damage due
to the negligence of the prison service when suffering withdrawal
symptoms whilst in custody, at fault in becoming addicted to drugs from the
age of 16, but such fault was too remote in time, place and circumstances to
be sufficiently connected with the negligence of the prison staff and to be
regarded as a cause of the injury).

106 An appeal court will only overturn a finding of contributory negligence

where it finds that the judge had gone wrong in principle, misunderstood
the facts or was clearly wrong: see Kerry v Carter [1969] 1 W.L.R. 1372 at
1376.

107 [2015] UKSC 5; [2015] 2 All E.R. 805 at [28] per Lord Reed.

108 See Davies v Swan Motor Co (Swansea) Ltd [1949] 2 K.B. 291 at 326
per Lord Denning. Hale LJ more recently recognised that the role of the
court is to compare the claimant’s share in responsibility for the damage
with that of the defendant: “to do what is ‘just and equitable’ . . . includes
being fair to the claimant as well as to the defendant. Realistically,
therefore, the court has to compare the one with the other”: Eagle v
Chambers (No.1) [2003] EWCA Civ 1107; [2004] R.T.R. 9 at [14].

109 Jackson v Murray [2015] UKSC 5; [2015] 2 All E.R. 805 at [26]),
Sabir v Osei-Kwabena [2015] EWCA Civ 1213; [2016] R.T.R. 9.

110 [1976] Q.B. 286.

111 See Keene LJ in J (a minor) v Wilkins [2001] P.I.Q.R. P12.

112 [2010] EWCA Civ 81; [2010] R.T.R. 26.

113 For adults, see Road Traffic Act 1988 s.14 (Seat belts: adults), as
amended. Motor Vehicles (Wearing of Seat Belts) Regulations 1993 (SI
1993/176) reg.5 requires adults and children aged 14 and over to wear seat
belts where available in the rear of all classes of motor vehicle (as amended
by Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2006
(SI 2006/1892)). For children under 14, see Road Traffic Act 1988 s.15 (as
amended) and the Motor Vehicles (Wearing of Seat Belts) (Amendment)
Regulations 2006 (SI 2006/1892).

114 [1976] Q.B. 286 at 295.

115 See Road Traffic Act 1988 s.14(2)(b)(iii) and Motor Vehicles (Wearing
of Seat Belts) Regulations 1993 (SI 1993/176) reg.6 and Sch.1
(exemptions).

116 See Motor Vehicles (Wearing of Seat Belts) Regulations 1993 (SI
1993/176) Sch.1.

117 Road Traffic Act 1988 s.14(4).

118 [1989] 1 W.L.R. 839. See also O’Connell v Jackson [1972] 1 Q.B. 270.

119 This is now authority that failure to wear a bicycle helmet, which is
recommended by the Highway Code but not legally required, may be
treated as contributory negligence: Smith v Finch [2009] EWHC 53 (QB)
(but not causative of injury on the facts). Fulbrook commented in 2004 that,
in practice, a 25% deduction was becoming the standard response in
settlements of traffic accidents in any event: [2004] J.P.I. Law 171.

120 Road Traffic Act 1988 s.16(2).

121 See Pitts v Hunt [1991] 1 Q.B. 24 at 48 per Beldam LJ and Anderson v
Newham College of Further Education [2002] EWCA Civ 505; [2003]
I.C.R. 212 (breach of statutory duty).

122 [1989] 1 W.L.R. 839 at 849.

123 As suggested by the Court of Appeal in Johnson v Tennant Bros Ltd

unreported 19 November 1954.

124 [2000] 2 A.C. 190 (Lord Cooke dissenting). For criticism, see J.
Stapleton, “Risk taking by commercial lenders” (1999) 115 L.Q.R. 527.

125 [1997] A.C. 191 HL.

126 Such losses are not within the scope of the duty owed to the lender by
the valuer.

127 This is discussed more fully in Ch.17. A more complicated situation is

where not all defendants can plead contributory negligence against the
claimant (e.g. where one defendant is liable for deceit for which
contributory negligence is not a defence): see Nationwide Building Society
v Dunlop Haywards (DHL) Ltd (t/a Dunlop Heywood Lorenz) [2009]
EWHC 254 (Comm); [2010] 1 W.L.R. 258 where Christopher Clarke J
applied the contributory negligence deduction to the “relevant damage”
before apportioning liability.

128 [1989] A.C. 328.

129 The term “extinguished” is used for convenience, but generally,

limitation only amounts to a statutory bar to the claim.

130 AB v Ministry of Defence [2012] UKSC 9; [2013] 1 A.C. 78 at [6].

131 It should be noted that limitation periods are purely statutory. Statutes
of limitation may be traced back to the Act of Limitation 1540 (actions to
recover property) with the first statute of limitations dealing with common
law actions in 1623. There were no time limits imposed at common law.

132 “Tort” is defined widely by Toulmin QC in R. v Secretary of State for

Transport Ex p. Factortame (No.7) [2000] EWHC (Tech) 179; [2001] 1
W.L.R. 942, QBD (T & CC) at 171 to cover: “breach of non-contractual
duty which gives a private law right to the party injured to recover
compensatory damages at common law from the party causing the injury”.

133 For defective products and defamation/malicious falsehood, see Chs 9

and 14 respectively. The limitation period for claims under the Human
Rights Act 1998 is one year, although this may be extended if equitable in
the circumstances: s.7(5).

134 This can be breach of statutory duty or contractual duty or any other
breach of duty. It covers breach of contract, whether the duty is strict or to
take reasonable care: Foster v Zott GmbH & Co Unreported 24 May 2000
CA.

135 Limitation Act 1980 s.11(4). Section 11(1A) provides that s.11 does not
apply to damages under the Protection from Harassment Act 1997 s.3
which will be governed by s.9. Section 9 deals with sums recoverable by
statute and sets a 6 year limitation period.

136 See Phelps v Hillingdon LBC [2001] 2 A.C. 619, Robinson v St Helens
MBC [2002] EWCA Civ 1099; [2003] P.I.Q.R. P9 and Adams v Bracknell
Forest BC [2004] UKHL 29; [2005] 1 A.C. 76.

137 Limitation Act 1980 s.11(5).

138 For guidance, see Spargo v North Essex District Health Authority
[1997] P.I.Q.R. P235 at P242 per Brooke LJ and the majority in AB v
Ministry of Defence [2012] UKSC 9; [2013] 1 A.C. 78.

139 “Attributable” has been interpreted as directed to a real possibility of a

causal link and not a fanciful one: Haward v Fawcetts [2006] UKHL 9;
[2006] 1 W.L.R. 682 at [11] per Lord Nicholls.

140 Limitation Act 1980 s.14(1).

141 [2012] UKSC 9; [2013] 1 A.C. 78.

142 [2012] UKSC 9; [2013] 1 A.C. 78 at [6] per Lord Wilson: “It is in my
view heretical that a claimant can escape the conventional requirement to
assert his cause of action for personal injuries within three years of its
accrual by establishing that, even after his claim was brought, he remained
in a state of ignorance entirely inconsistent with it”.

143 See McCafferty v Receiver for the Metropolitan Police District [1977]
1 W.L.R. 1073, which is no longer good authority.

144 For a recent application, see Albonetti v Wirral MBC [2008] EWCA
Civ 783: A person who had been raped must know that he or she had
suffered not only a grave wrong but also a significant injury for the
purposes of the Limitation Act 1980 s.14.

145 [2008] UKHL 6; [2008] 1 A.C. 844 at [34]. See also McCoubrey v
Ministry of Defence [2007] EWCA Civ 17; [2007] 1 W.L.R. 1544 in which
Neuberger LJ noted at [44] that this means that s.14(2) has a comparatively
limited application, having been enacted to extend the limitation period for
personal injury victims who were effectively unaware that they had been
injured at all or who had suffered an injury originally thought (reasonably)
to be minor but which subsequently turned out to be very serious.

146 The claimant will not be fixed with expert knowledge which he or she
has failed to obtain despite taking all reasonable steps to consult (and,
where appropriate, to act on) expert advice.

147 [2004] UKHL 29; [2005] 1 A.C. 76 (Baroness Hale, in contrast to the
majority, favoured a more subjective approach). Constructive knowledge
may arise when claimant given reasonable opportunity to acquire
information but declines to do so: Pierce v Doncaster MBC [2008] EWCA
Civ 1416; [2009] 1 F.L.R. 1189. See A. McGee, “Triggering the date of
knowledge in personal injury” (2015) 31 P.N. 95.

148 Whiston v London SHA [2010] EWCA Civ 195. The court also noted
that account should also be taken of the fact that a claimant born with a
disability was likely to be less curious about the reasons for his disability
than one who had become disabled in adulthood following an adverse
incident: at [60]–[63].

149 [2008] UKHL 6; [2008] 1 A.C. 844 at [45].

150 Notably Limitation Act 1980 s.33(3)(a): “In acting under this section
the court shall have regard to all the circumstances of the case and in
particular to the length of, and the reasons for, the delay on the part of the
plaintiff”.

151 See also Limitation Act 1980 s.13.

152 In narrowing its interpretation of Limitation Act 1980 s.14, the courts
have assumed that there will be a more generous exercise of the s.33
discretion in future: see Lord Hoffmann in Adams v Bracknell Forest BC
[2004] UKHL 29; [2005] 1 A.C. 76 at [45].

153 Or any person he or she represents.

154 Or any person he or she represents.

155 Limitation Act 1980 s.38(2) provides that “For the purposes of this Act
a person shall be treated as under a disability while he is an infant, or lacks
capacity (within the meaning of the Mental Capacity Act 2005) to conduct
legal proceedings”.

156 [1981] 1 W.L.R. 744.

157 [1990] 1 W.L.R. 472. See also the Court of Appeal in Nash v Eli Lilly
& Co [1993] 1 W.L.R. 782 and Firman v Ellis [1978] Q.B. 886.

158 See also Horton v Sadler [2006] UKHL 27; [2007] 1 A.C. 307. In
Robinson v St Helens MBC [2002] EWCA Civ 1099; [2003] P.I.Q.R. P9,
the Court of Appeal refused to exercise its discretion to support a claim by a
33-year-old claimant that the local authority had negligently failed to treat
his dyslexia during his primary and secondary schooling where there was
no cogent medical evidence showing serious injury and the long delay
would place the defendant in great difficulty in contesting the claim.

159 Sayers v Hunters [2012] EWCA Civ 1715; [2013] 1 W.L.R. 1695 at
[55]; Chief Constable of Greater Manchester v Carroll [2017] EWCA Civ
1992; [2018] 4 W.L.R. 32 at [42].

160 [2008] EWCA Civ 1451; [2009] Q.B. 754, notably at [69]–[74].
Contrast McDonnell v Walker [2009] EWCA Civ 1257; [2010] P.I.Q.R. P5
(inexcusable delay causing prejudice to defendant and little if any prejudice
to claimant in suing solicitors).

161 At most it was slight prejudice as in the case of Donovan v Gwentoys

Ltd [1990] 1 W.L.R. 472.
162 See Stubbings v Webb [1993] A.C. 498 which held that the ordinary s.2
6-year limit would apply. Stubbings was upheld by the European Court of
Human Rights in Stubbings v United Kingdom (22083/93) (1997) 23
E.H.R.R. 213.

163 [2008] UKHL 6; [2008] 1 A.C. 844.

164 Discretion was ultimately exercised in the claimant’s favour on the

basis of its exceptional circumstances: [2008] EWHC 1573 (QB); (2008)
152(29) S.J.L.B. 29 per Coulson J.

165 See P. Case, “Limitation periods and sexual abuse” (2009) 25 P.N. 22,
25.

166 The Court of Appeal delivered guidance as to the correct approach to

the application of s.33 to historic sexual abuse claims in B v Nugent Care
Society [2009] EWCA Civ 827; [2010] 1 W.L.R. 516. See F. Burton,
“Limitation, vicarious liability and historic actions for abuse: a changing
legal landscape” [2013] J.P.I. Law 95. In some cases, however, the delay in
bringing the action may mean that the courts will not exercise their
discretion to extend the time limit if deemed disproportionately prejudical
to the defendant: see, e.g JL v Bowen [2017] EWCA Civ 82; [2017] P.I.Q.R.
P11.

167 [1958] 1 W.L.R. 563 (concerning Limitation Act 1939 s.26, the
statutory predecessor of s.32).

168 [2002] UKHL 18; [2003] 1 A.C. 384 HL. Comment; T. Dugdale (2002)
18 P.N. 156.

169 [2002] 1 W.L.R. 598.

170 In Brocklesby, e.g. the solicitors’ negligence in failing to secure the

claimant’s release from his mortgage obligations had not become apparent
until much later. The solicitors had not been aware that they had been
negligent, but were nevertheless found to have acted “deliberately” in that
they had intended to act for the claimant.
171 [2002] UKHL 18; [2003] 1 A.C. 384 at [15]. The Law Commission in
its report, Limitation of Actions (2001), was also critical at 3.136:
“Brocklesby . . . ignores the rationale of s.32, which is that the defendant
should not be able to profit from his own behaviour in concealing facts
relevant to the claimant’s claim”.

172 See Williams v Fanshaw Porter & Hazelhurst [2004] EWCA Civ 157;
[2004] 1 W.L.R. 3185 (if the defendant appreciated that he or she had
committed a serious mistake or had been negligent and made a conscious
decision not to disclose that fact, this amounted to deliberate concealment
even though the defendant had acted to avoid embarrassment or for some
other innocent reason).

173 Limitation Act 1980 s.38(2).

174 See Limitation Act 1980 s.28(1) and (2) and Purnell v Roche [1927] 2
Ch. 142. However, disability is expressly mentioned as a ground for
extending the time limit for personal injury under s.33 above.

175 See Crocker v British Coal Corp (1996) 29 B.M.L.R. 159 and the Law
Commission Report No.270 (2001), Limitation of Actions, para.5.29,
although it is for the defendant in his or her defence to raise the question of
limitation: Practice Direction to Civil Procedure Rules Pt 16 para.13.1.

176 See, for example, Biguzzi v Rank Leisure Inc [1999] 1 W.L.R. 1926.

177 Grovit v Doctor [1997] 1 W.L.R. 640; Arbuthnot Latham Bank Ltd v
Trafalgar Holdings Ltd [1998] 1 W.L.R. 1426, but contrast Aktas v Adepta
[2010] EWCA Civ 1170; [2011] Q.B. 894 (something more than a single
negligent oversight in timely service of claim form was required).

178 [2012] UKSC 9; [2013] 1 A.C. 78 at [163].

179 Law Commission Consultation Paper No.151 (1998), Limitation of

Actions.

180 Law Commission Report No.270 (2001), Limitation of Actions.

181 This was largely due to evidence which indicated that the long-term
effects of sexual abuse and mesothelioma, caused by exposure to asbestos,
could manifest themselves over a period greater than 30 years: paras 3.102–
3.104.

182 This was subject to a number of exceptions, for example, where an

adult claimant is suffering from a disability and under the Consumer
Protection Act 1987. Claims under the Fatal Accidents Act 1976 and under
the Law Reform (Miscellaneous Provisions) Act 1934 would equally be
subject to the statutory discretion to disapply the primary limitation period
and will not be subject to a long-stop.

183 [2008] UKHL 6.

184 Cmnd.5909 (1975), Ch.15.

185 The Neill Committee on defamation found the recommendations

problematic and resolved that the law should not be changed.
 17

Remedies

Introduction
17–001 This chapter will examine the remedies available to claimants in
actions in tort. It will concentrate on three main remedies:
damages, injunctions and self-help. Readers will note that other
remedies specific to particular torts have been discussed in
earlier chapters. The main subject of this chapter will be
damages. The courts have developed a complex framework of
rules which govern the assessment of damages, which will be set
out below. Readers should not forget, however, that for certain
torts, such as nuisance, the equitable remedy of an injunction
may prove more effective than damages, for example where the
claimant wishes to prevent further interference with his or her
enjoyment of land.

Damages

17–002 Damages are the most commonly sought remedy in the law of
tort. They provide a means by which the courts can vindicate the
 rights of the claimant against the defendant by means of a
financial award. They can therefore be awarded for torts which
are actionable without proof of damage, such as trespass, where
they vindicate the claimant’s right to be free from interference
with his or her person, land and goods. They are equally
significant, however, where the claimant has suffered actual
damage or loss. Here, the claimant seeks not only to vindicate
his or her rights, but a financial award which compensates the
claimant for his or her losses (provided they are not too remote).
In such circumstances, it can be said that compensatory damages
serve a dual purpose in that they both compensate for the loss
and vindicate the right that has been infringed, although the
courts have not gone so far as to recognise a distinct award of
vindicatory damages.1 The claimant may also seek a sum which
compensates for any additional distress, and which punishes the
defendant for particularly bad misconduct. The rules as to the
assessment of such awards are complex and will be set out
below, but first we shall outline the different types of damages
available to the claimant. Although the claimant will generally
seek compensatory damages, these are not the only form of
damages available. We will also examine damages awarded
under the Human Rights Act 1998.

Types of damages

17–003 The court may award six different kinds of damages:

▮ compensatory;
▮ contemptuous;
▮ nominal;
▮ aggravated;
▮ exemplary or punitive; and
▮ restitutionary.
 We shall examine all six types of damages in turn and then
damages under the Human Rights Act 1998.

◗ (1) Compensatory
17–004 Tort law seeks to fully compensate the victim. The underlying
principle is expressed by the term restitutio in integrum. This is
explained by Lord Blackburn in Livingstone v Rawyards Coal
Co2 as:

“the sum of money which will put the party

who has been injured, or who has suffered,
in the same position as he would have been
in if

he had not sustained the wrong for which

he is now getting his compensation or
reparation.”

The aim is therefore to award a sum in compensation to the

claimant which puts the claimant in his or her pre-tort position.
Obviously, this is not always possible. If the claimant has
suffered personal injury, a court cannot literally return the
claimant to his or her pre-tort position. The court therefore seeks
to find a financial sum which, as far as possible, will compensate
the claimant. There is also a duty to mitigate loss in tort. The
courts will not allow a claimant to recover losses which he or
she could have reasonably avoided. Although the main
authorities on mitigation are in contract law (where the same
rule applies), it seems clear that a court in tort will not require
strenuous attempts by the claimant to reduce the loss suffered.3
The old rule that losses incurred due to lack of funds were
irrecoverable, e.g. expensive hire charges where it would have
 been more economical to purchase a new vehicle4 has been
overturned.5

17–005 Assessing compensation, particularly for personal injury, is often

a far from easy task. While financial losses before trial can be
estimated with some exactitude, the claimant may seek damages
for future financial loss due to the tort, and again the court is
forced to produce an approximate figure which it believes will
cover this head of loss. The problems that arise in relation to the
assessment of compensation for personal injury and death will
be examined in more detail from para.17–019 onwards. For the
moment, it is worth noting that courts will generally award
damages in one lump sum. This gives a claimant one chance to
go to court to obtain damages, and the court will not allow a
claimant to go back to court to recover a further award of
damages, even if his or her loss has significantly increased,
unless:
▮ the claimant is suing for breach of a separate and
distinct legal right6;
▮ the injury continues, such as under a continuing
nuisance where a fresh cause of action occurs (see
Ch.10);
▮ a provisional award of damages has been made under
the Senior Courts Act 1981 s.32A (see below); or
▮ the first award was an interim award prior to trial made
under the Senior Courts Act 1981 s.32 (see below).
Compensatory damages are often divided in personal injury
claims into special and general damages. These are terms used
by the parties in their case statements. General damages are
damages which cannot be precisely quantified, for example loss
of future earnings or pain and suffering. Special damages are
claimed for particular forms of pre-trial loss resulting from the
tort, which the claimant can quantify, for example medical
 expenses and loss of earnings prior to trial. These should be set
out clearly.

◗ (2) Contemptuous
17–006 This is a derisory award of the lowest coin in the land—now one
penny—by which the court indicates that although the claimant
has a good cause of action, it is a bare technical victory. Such
awards have, for example, been found in the past in libel
actions.7 The court, more drastically, can deny the claimant his
or her costs, and this imposes a greater penalty on the claimant.
In English law, costs usually follow the event, so the losing
defendant will have to pay not only his or her own costs but also
those of the claimant. However, under the Senior Courts Act
1981 s.51, the award of costs is at the discretion of the court, and
contemptuous damages may lead a court to exercise its
discretion to order the claimant to pay his or her own costs. In
such circumstances, any victory is wholly illusory.

◗ (3) Nominal
17–007 Nominal damages are a token amount which recognises that the
claimant’s legal right has been infringed, but that no actual
damage has been caused.8 They therefore generally will apply to
torts actionable per se (i.e. without proof of damage) such as
trespass to the person or land. An award of nominal damages
should not affect the ordinary rule as to costs, as it does not
indicate any negative finding.

◗ (4) Aggravated
17–008 These form a further level of compensatory damages granted by
the courts to compensate for additional mental distress inflicted
on the claimant due to the malicious, high-handed, insulting or
oppressive conduct of the defendant.9 The manner in which the
tort is committed or the motives of the defendant may therefore
justify an award of aggravated damages.10 For example, in libel,
if the defendant has published the statement out of malice, or has
persisted at trial with an insupportable plea of truth, an
additional sum on top of compensatory damages may be
awarded to the claimant. Such damages are not available for all
torts. The courts will award aggravated damages for torts where
the injury to the claimant’s feelings and self-esteem are closely
connected to the type of damage for which compensation is
awarded. On this basis, they are not awarded for negligence,11
but are commonly awarded for intentional torts such as
trespass12 and for libel.13 This raises a potential problem of
double recovery. The Court of Appeal in Richardson v Howie14
suggested that, in view of their compensatory nature, this should
be dealt with by including the award of damages for injury to
feelings within the general damages award and only in
exceptional cases making a separate award of aggravated
damages. Nevertheless, the Court of Appeal in Rowlands v Chief
Constable of Merseyside Police15 remained willing to impose an
award of aggravated damages where police misconduct in the
arrest and prosecution of Mrs Rowlands had induced feelings of
humiliation and resentment, which had been exacerbated by the
willingness of the police to give false evidence in support of an
unjustified prosecution. The court warned, however, that
attention should be paid to the dangers of compensating the
claimant twice in respect of the same harm.
The sum awarded is at the discretion of the court but is
usually moderate. Some guidelines exist. For example, the Court
of Appeal in Thompson v Metropolitan Police Commissioner16
indicated the level of awards suitable for damages against the
police for false imprisonment and malicious prosecution. Indeed,
claims against the police form a major reason for the award of
aggravated damages. Recent authority indicates also that they
will not be awarded in favour of companies which are unable,
subjectively, to experience injury to feelings or distress.17

◗ (5) Exemplary (or punitive)

17–009 The leading case here is that of Rookes v Barnard.18 In this case,
Lord Devlin distinguished punitive damages19 from aggravated
damages and set out when punitive damages would be granted in
English law. The concept of punitive damages may seem odd in
tort. They are a form of damages which punish the defendant for
his or her conduct and attempt to deter the defendant and others
from undertaking such conduct in future. Punitive damages are
concerned with the conduct of the defendant rather than the
damage suffered by the claimant. Although they are sometimes
confused with aggravated damages, there is a clear division.
Aggravated damages seek to compensate the claimant for any
additional injury due to the manner in which the tort was
committed. In contrast, punitive damages aim to punish the
defendant.
In Rookes v Barnard, Lord Devlin restricted punitive
damages to three kinds of case. His Lordship doubted the
legitimacy of such damages, which, in his view, confused the
civil and criminal functions of the law, and brought punishment
into civil law without the procedural safeguards of criminal law.
However, his Lordship admitted that punitive damages were
firmly established in English law and therefore decided not to
abolish this head of damages but held that a restrictive approach
should be taken in future. Further, juries (if present) should be
directed that they should only award punitive damages when
ordinary compensatory damages are inadequate to punish the
defendant for his or her outrageous conduct, to show that tort
does not pay, and to deter others.20 The means of the parties
would be taken into consideration in determining any award.
This approach was approved by the House of Lords in the later
case of Cassell v Broome.21

◗ The three kinds of punitive damages

17–010 Lord Devlin recommended that punitive damages should only be
awarded in the three following situations:
 ▮ oppressive, arbitrary or unconstitutional actions by
government servants;
▮ conduct calculated by the defendant to make a profit,
which may well exceed any compensation payable to
the claimant; and
▮ when expressly authorised by statute.

These will be examined below.

(I) OPPRESSIVE, ARBITRARY OR

UNCONSTITUTIONAL ACTIONS BY
GOVERNMENT SERVANTS
17–011 Here, the defendant is penalised for the abuse of executive
power. It is therefore no excuse, as in Huckle v Money,22 that the
claimant was only wrongfully detained for no more than six
hours, had been treated well, and provided with beefsteaks and
beer. The court held that “to enter a man’s house by virtue of a
nameless warrant, in order to procure evidence, is worse than the
Spanish Inquisition”.23 However, punitive damages will not be
awarded on this basis against private individuals or corporations,
however powerful they may be. They will also not be awarded
against public bodies such as a nationalised water authority
which is not exercising an executive function.24 However, they
may be awarded against the police or local government
officials.25 The court in Holden v Chief Constable of
Lancashire26 held that not all false arrests will merit punitive
damages and that this will be a matter for the jury.27 The court
did find, however, that the claimant was not required to show
oppressive, arbitrary and unconstitutional conduct by the
official. Punitive damages could therefore be awarded where
there was no oppressive behaviour by the arresting officer. Nor,
it would seem, is it necessary to prove that the official’s conduct
was malicious, fraudulent, insolent, cruel, or other similar
conduct. It must simply be outrageous and thus require punitive
 damages to mark disapproval, to deter and to vindicate the
strength of the law.28
There is no clear reason why punitive damages under this
head should be confined to misconduct by the executive. In
modern times, where much power lies with private individuals
or corporations, the distinction between public and private
bodies seems increasingly arbitrary. This, however, is the
inevitable result of the approach taken by Lord Devlin in Rookes
v Barnard, which sought to limit punitive damages to the bare
minimum required by existing case law. It would be too much to
expect analytical consistency from such an approach.

(II) CONDUCT CALCULATED BY THE DEFENDANT

TO MAKE A PROFIT WHICH MAY WELL EXCEED
ANY COMPENSATION PAYABLE TO THE
CLAIMANT
17–012 The aim here is to teach the defendant that tort does not pay and
to deprive the defendant of the fruits of his or her tort. However,
it is approached in a rough and ready way, and the court will not
require the claimant to set out the profit obtained by the
defendant from the tort. The real question is whether the conduct
of the defendant was “calculated” to make a profit. To prove
this, the claimant must show something calculated and deliberate
in the defendant’s actions, although it is not necessary that the
defendant engaged in any precise balancing of the chances of
profit and loss.29 What matters is that the defendant decided to
commit the wrong because they considered the prospective gain
would outweigh any potential liability.30 Examples are
frequently found in libel and, more recently, insurance fraud.31
In Cassell v Broome,32 the House of Lords held that the court
should investigate whether the defendant was aware of the fact
that what he was planning to do was against the law (or had
shown reckless disregard as to whether the proposed conduct
was legal or illegal) and had nevertheless decided to carry on
because the prospects of material advantage outweighed the
prospects of material loss. In Axa Insurance UK Plc v Financial
 Claims Solutions Ltd,33 punitive damages were awarded where
motor accidents had been faked in order to extract large sums of
money from an insurance company by making fraudulent
claims. Such a cynical and abusive misuse of the court system
was regarded as a paradigm case for punitive damages.

(III) EXPRESSLY AUTHORISED BY STATUTE

17–013 This is very rare. It has been argued that the Copyright, Designs
and Patents Act 1988 s.97(2)34 authorises punitive damages by
virtue of its reference to “additional damages”,35 although its
statutory predecessor did not.36 The House of Lords in Redrow
Homes Ltd v Bett Brothers Plc37 left this question expressly
open, although Lord Clyde suggested obiter that they should be
regarded as aggravated only.38 More recently, Pumfrey J in
Nottinghamshire Healthcare
National Health Service Trust v News Group Newspapers Ltd39
has found that the section permits only aggravated damages, but
on a basis far wider than that admitted at common law, and
contains an element of restitutionary damages. It may be
questioned whether “a wider form of aggravated damages”
which expressly addresses the flagrancy of the breach can be
viewed as distinct from punitive damages or, more likely, the
statute in reality gives a discretion to award damages which
include a punitive element.40

◗ The “cause of action” test

17–014 The Court of Appeal decision in AB v South West Water
Services41 imposed one further restriction on punitive damages:
they should only be awarded for torts which had received
punitive awards at the time of Rookes v Barnard (the “cause of
action” test). If no such case had been reported, then no award
would be given. This excluded punitive damages awards for
torts such as negligence, public nuisance, deceit and for sex and
race discrimination. This rule had no basis in principle and was
simply a crude method of limiting claims. It predictably received
well-deserved criticism in the Law Commission report on
Aggravated, Exemplary and Restitutionary Damages.42 The
House of Lords in Kuddus v Chief Constable of Leicestershire
Constabulary43 finally overturned this “arbitrary and irrational
restriction”.44 In future, the court would examine the facts of the
case and would not be deflected by the claimant’s cause of
action. In the case itself, the fact that no-one had received
punitive damages for the tort of misfeasance in public office
prior to Rookes v Barnard did not preclude the claimant from
recovering such damages. Subsequent courts have also been
ready to grant punitive damages for deceit.45
The House in Kuddus expressed concern, however, that
counsel had not raised the fundamental question of the role of
punitive damages in English tort law. Views varied from the
critical approach of Lord Scott46 to the more positive view of
Lord Nicholls who considered that punitive damages perform an
important function in buttressing civil liberties, for example
in relation to claims of false imprisonment and wrongful arrest
by the police.47 It is an ongoing question whether punitive
damages should continue to be part of English law. The Law
Commission felt that they still played a valuable role and that
they should be available for all torts or equitable wrongs (but not
for breach of contract) where the defendant, in committing the
tort, or by his or her subsequent conduct, has deliberately and
outrageously disregarded the claimant’s rights.48 The Law
Commission recommended, nevertheless, that punitive damages
should remain a last resort remedy, and should not be awarded
when other remedies adequately punish the defendant for his or
her conduct.
Such suggestions are helpful, although the government at the
time decided not to implement the reforms.49 Although the
primary aim of the law of tort is compensation, this does not
mean that tort law cannot have other objectives, including
deterrence of particularly reprehensible behaviour. Indeed, other
Commonwealth countries, such as Canada,50 Australia51 and
New Zealand52 have adopted a more generous treatment of
 punitive damages. A problem arises, however, in relation to
vicarious liability. Lord Scott in Kuddus maintained that no
defendant should pay punitive damages unless he or she had
committed punishable behaviour and that, on this basis, an
employer should not be vicariously liable for the punitive
damages awarded against an errant employee.53 To allow such
damages would be to punish the wrong person and to allow the
guilty party to escape punishment. However, the Law
Commission has argued that punitive damages may play a
positive role in encouraging employers to exercise greater
control over their workforce and will assist claimants who are
unable to identify which member of the employer’s workforce
had committed the tort. In Rowlands v Chief Constable of
Merseyside Police,54 the Court of Appeal confirmed that an
employer could be vicariously liable for punitive damages.
Despite arguments to the contrary,
it was felt desirable to make such an award which would ensure
that the victim received damages of an adequate amount which
would be paid by those who bore ultimate responsibility for the
tortfeasor’s conduct. It is submitted that such an award is
contentious. It subverts the punitive element of the damages and
places an extra burden on the employer, who is not at fault. The
Supreme Court of Canada in Blackwater v Plint55 rejected
punitive damages in this context, although there is no
Commonwealth consensus on this controversial issue.56

17–015 Further concerns may be raised. Punitive damages are paid, not
to the State as is the case with criminal fines, but to the claimant.
The victim thus receives a windfall irrespective of his or her
actual loss. In addition, there is the potential for double or
excessive punishment if the defendant’s conduct amounts to a
crime for which he or she has been prosecuted. This problem
was addressed by the court in Archer v Brown,57 which held that
if the defendant had already been prosecuted and sentenced in a
criminal court for precisely the conduct which forms the basis of
the suit, no punitive award should be made. Peter Pain J stated
 that a man should not be punished twice for the same offence.58
The Law Commission, in their 1997 report, proposed that the
courts should have a discretion in such circumstances to refuse
to consider or make an award of punitive damages where a
defendant had already been convicted by a criminal court.59

◗ (6) Restitutionary (or gain-based damages)

17–016 For some torts, the claimant will have the option to choose
between compensatory and restitutionary damages.
Restitutionary damages are assessed not on the loss caused to
the claimant, but on the gain obtained by the defendant at the
claimant’s expense. It should be noted, however, that not all torts
allow for restitutionary damages. The courts seem more willing
to award restitutionary damages for what they call “proprietary
torts”, that is torts such as trespass to land or goods which
involve the defendant misappropriating the claimant’s property
rights.60 However, there remains a lack of clarity here.61 The
Law Commission, in their 1997
report, decided that no attempt should be made at present to state
comprehensively in legislation the situations in which torts
should trigger restitutionary damages, and this should be left to
common law development.62 They nevertheless proposed
legislation which would allow the courts to award restitutionary
damages as an alternative to punitive damages.63 The nature and
availability of restitutionary damages has been a topic of active
debate for scholars and further reference should be made to
works on the law of restitution.64

◗ (7) Damages under the Human Rights Act 199865

17–017 Section 8(1) of the Act sets out the judicial remedies which arise
when a public authority has acted in a way which is
incompatible with a Convention right.66 It states that, in such a
case, the court “may grant such relief or remedy, or make such
order, within its powers as it considers just and appropriate”.
This broad discretion, which includes the award of damages, has
three main limitations:
▮ damages can only be awarded where the court has the
power to award damages in civil proceedings67;
▮ no award of damages can be made unless, taking
account of all the circumstances of the case,68 the court
is satisfied that the award is necessary to afford just
satisfaction to the claimant; and
▮ in determining whether to award damages or the
amount of the award, the court must take into account
the principles applied by the European Court of Human
Rights.69

There is thus no right to damages. The courts will examine all

the circumstances of the case and consider whether “just
satisfaction” has been achieved, even in the absence of an award
of damages under the Act. Damages are thus a residual remedy.
There is some dispute as to how such damages should be
assessed. It was argued that damages under the Act should differ
from the ordinary compensatory damages discussed above and
be lower than those awarded for any comparable tort.70 Lord
Bingham in R. (on the application of Greenfield) v Secretary of
State for the Home Department71 agreed, stating that damages
would indeed be distinct from those awarded in ordinary tort
law:

“the 1998 Act is not a tort statute. Its

objects are different and broader. Even in a
case where a finding of violation is not
judged to afford the applicant just
satisfaction, such a finding will be an
important part of his remedy and an
 important vindication of the right he has
asserted . . . Secondly, the purpose of
incorporating the Convention in domestic
law through the 1998 Act was not to give
victims better remedies at home than they
could recover in Strasbourg but to give
them the same remedies without the delay
and expense of resort to Strasbourg.”72

This is consistent with s.8(4), which instructs the court to take

account of the principles applied by the European Court of
Human Rights. On this basis, the Supreme Court ruled in R. (on
the application of Sturnham) v Parole Board that in awarding
damages under the Human Rights Act s.8, the courts should
primarily be guided (but were not bound) by any clear and
consistent practice of the Strasbourg court.73 In particular, the
value (or quantum) of such awards should broadly reflect the
level of awards made by that court in comparable cases brought
by
applicants from the UK or (note the limitation) other countries
with a similar cost of living.74 In practice, however, it remains a
difficulty that the European Court of Human Rights rarely gives
guidance as to the principles adopted or even a breakdown of the
award in question.75 This means that the courts can only aim to
pitch their awards so far as is possible at the general level of
damages awarded by the Strasbourg Court in comparable cases.

17–018 A number of observations may be made. The primary objective

(in common with English law) is that the victim76 should, as far
as possible, be placed in the same position as if the violation of
his or her rights had not occurred. The European Court of
Human Rights is, however, clearly more willing to award
damages for distress and disappointment than the English courts,
although it has been suggested that such injury must be
significant and of sufficient intensity before it could sound in
damages.77 The Strasbourg court is equally willing to consider
the character and conduct of the parties and the scale and
manner of the violation of rights in deciding on the most
appropriate response. The court does not, however, award
punitive damages.78 Ultimately it will be a matter of judgment
for the court, reflecting the facts of the individual case and
taking into account such guidance as is available from awards
made by the Strasbourg court, and, as more claims are brought
in the domestic courts, comparable national awards of damages.
Lord Reed in the Supreme Court predicted that:

“[A]s the practice of the European court

comes increasingly to be absorbed into our
own case law . . . the remedy should become
natu-ralised. While it will remain necessary
to ensure that our law does not fall short of
Convention standards, we should have
confidence in our own case law under
section 8 once it has developed sufficiently,
and not be perpetually looking to the case
law of an international court as our
primary source.”79

In other words, over time, enough English cases will be decided

to give the courts clearer guidance as to how to assess damages
for breach of s.8. Nevertheless, English judges continue to
complain that there is limited guidance to the assessment of the
level of awards which appear to be “highly fact sensitive”.80 The
recent Supreme Court decision in DSD v Commissioner of
Police of the Metropolis81 reminded judges that any award of
compensation serves a distinctly different purpose to an award
 of damages in tort law. In a case where the police had failed to
properly investigate a series of rapes due to systemic and
operational failures, any award of damages would be geared
principally to the upholding of standards concerning the police’s
failure to conduct proper investigations into criminal conduct
leading to a breach of art.3 ECHR (inhuman and degrading
treatment). Damages of £22,500 were awarded in favour of D.
One final point should be noted. Proceedings for damages
must be brought quickly under the Act, normally within one year
of the act complained of.82

Actions for Personal Injury

17–019 Having discussed the different kinds of damages available to

claimants, we now focus on a specific type of action: a claim for
compensation for personal injury. As highlighted above, the
courts experience particular problems in assessing such awards.
It is impossible to put a financial price on the loss of a limb, or
the pain and suffering endured during an accident. Further, even
financial losses cause difficulties when future financial loss is
claimed. The courts are required to predict the future financial
position of the claimant if the tort had not taken place. For
example, if the claimant wishes to recover future loss of
earnings, a court should take account of the fact that he or she
may have been dismissed or made redundant, or taken a career
break, or even promoted to run the company. Such prospects
should be brought into the calculation of any compensatory sum,
but achieving this with any degree of accuracy is obviously
difficult. As Lord Scarman commented in Lim v Camden AHA83:
“There is really only one certainty: the future will prove the
award to be either too high or too low”.
 The courts have adopted a number of principles which seek
to achieve the goal of full compensation, which will be
considered below, but a number of matters should be noted.
First, the courts assess the claimant’s loss on an individual basis.
They therefore have no
problem with the fact that claimant X, who is a company
director living in a large house in Surrey, will receive far more
damages for loss of earnings than claimant Y, a worker in a fast
food outlet living in rented accommodation, even though they
have received exactly the same injuries due to the tort.84 X will
have suffered greater financial losses than Y and will therefore
deserve a larger award. The courts have also traditionally been
wary of the use of actuarial evidence in the calculation of
awards. Actuarial evidence is used by insurance companies to
calculate premiums, and it has been suggested that it may form a
more accurate basis for assessing future financial losses in tort.
The courts have in the past been reluctant to embrace such
evidence, a judge commenting in 1985 that “the predictions of
an actuary can be only a little more likely to be accurate (and
will almost certainly be less interesting) than those of an
astrologer”.85 Nevertheless, in the House of Lords decision in
Wells v Wells86 (which will be discussed in more detail below),
Lord Lloyd adopted a far more positive view of actuarial
evidence, holding that whilst such evidence should not govern
personal injury claims, it should certainly be referred to, and
used as a starting-point rather than a check.
We shall look first at how the courts assess past and future
financial losses (or pecuniary loss). This will be followed by an
examination of the most difficult category to assess: non-
pecuniary loss.

Pecuniary loss

17–020 If the claimant has suffered severe injuries, the largest part of the
claim is likely to be for finan-cial loss, including loss of
earnings, cost of care and expenses. As stated above, while
 financial losses before trial can be assessed with some degree of
accuracy, future losses are very difficult to calculate. This is not
assisted by the general rule that the courts will award a once-
and-for-all lump sum. The court must find a sum which, if
properly invested, will cover the claimant for all future losses
incurred due to the tort. The best the courts can do is to make a
“guesstimate” of future losses. The difficulties in assessing the
different types of financial loss suffered by the claimant will be
examined below.

◗ (1) Loss of earnings

17–021 While loss of earnings before trial can be assessed with a degree
of accuracy, calculation of loss of future earnings is obviously
more problematic. The method used by the courts is known as
the “multiplier/multiplicand method”. Essentially, a figure is
reached by the court multiplying the multiplier by the
multiplicand.

MULTIPLIER × MULTIPLICAND = future loss of earnings

The multiplicand is the claimant’s net annual loss.87 This is his

or her gross annual salary, less income tax and National
Insurance contributions.
The multiplier is the number of years for which this loss will
continue. However, this is not a question of the difference
between the claimant’s age at the time of the accident and the
age he or she resumes work or retires. The courts will take
account of the possibilities of unemployment, redundancy and
other factors reducing salary (although they will also take
account of promotion prospects, etc to increase the figure). They
will also note the fact that the claimant is being paid “up front”.
On this basis, the multiplier will be discounted to take account
of accelerated receipt, mortality risks and, in relation to claims
for loss of earnings and pension, discounts for contingencies
other than mortality. The multiplier will therefore usually be set
 at a rate far lower than the actual number of years during which
the injury will be suffered.
This formula is stated to give a lump sum sufficient, if
invested, to produce an income equal to the loss of income
suffered by the claimant.88 Whether in fact this is achieved is
highly questionable and in fact most unlikely. It is on this
principle, however, that the courts award a lump sum.
Pressure has mounted, however, for the courts to adopt a
more scientific approach. The Ogden Tables, which first
appeared in 1984,89 have made a considerable impact in
persuading the courts of the merits of actuarial evidence. These
are a set of actuarial tables, prepared by a working party of
lawyers, insurers, accountants and actuaries for use in personal
injury and fatal accident cases, which are published by the
Government Actuary’s Department. They assist in identifying
the most appropriate multiplier, based on the most recent
mortality rates produced by the Office for National Statistics.
The Ogden Tables are now regularly cited in court, and the Civil
Evidence Act 1995 s.10 provides that they are admissible as
evidence in court.90 Any doubts about using the Tables were laid
to rest in Wells v Wells where Lord Lloyd argued that the tables
should be a starting point in assessing damages for future loss.91
Yet, reference to the Ogden Tables has only added to the
criticism of the courts’ refusal to take account of inflation when
establishing the multiplier.92 In setting up the multiplier, the
courts assume that the interest on the lump sum will cover
inflation, and so this can be ignored.93

DISCOUNT RATE
17–022 The discount rate is the rate used by the courts in the UK to
calculate the amount by which an award of damages for personal
injuries paid by way of a lump sum should be reduced to allow
for the accelerated payment of future pecuniary loss. This will
be factored into the calculation of the multiplier. The courts had
in the past presumed a return on investments of 4 to 5%.94 It was
questioned whether this was a realistic figure, since it assumed
that the successful claimant would invest in equities which, in an
unstable stock market, could prove a risky investment. With the
advent of index-linked government securities (gilts), a safer
alternative existed. These are bonds under which the return on
capital is fully protected against inflation. On this basis, if
inflation increases and so the lump sum is worth less, the
claimant will be protected by the bond. However, greater
security comes at a price, and the interest on such bonds is less
than the general commercial rate. The Law Commission, in its
1994 report Structured Settlements and Interim and Provisional
Damages,95 recommended that the courts, in assessing the
multiplier, should use the rate for index-linked government
securities unless there are special reasons affecting the
individual case. While legislation at that time allowed the Lord
Chancellor to alter the discount rate,96 no steps were taken and
the House of Lords intervened in 1998 in Wells v Wells,97
holding that it was no longer appropriate to act on the
assumption that the claimant will invest his or her damages in
equities and to apply a discount rate of 4 to 5%. Rather, the
courts should recognise the suitability of index-linked
government securities for a prudent investment of a large lump
sum of damages, and, in the light of this, their Lordships applied
a discount rate of 3%.
This led to a dramatic increase in multipliers, previously
capped at 18. In the case of Thomas v Brighton Health Authority
(which was joined in Wells), serious injuries had been suffered
by a child at birth, and the court raised the multiplier from 17 to
26.58. The Court of Appeal held in Warren v Northern General
Hospital Trust98 that the discount rate should remain at 3% until
the Lord Chancellor set a rate under the Damages Act 1996 s.1.
This was regardless of the fact that the net yield of index-linked
government securities was found to have dropped to 2.5%. In
2001, the Lord Chancellor intervened, and the rate was set at
2.5%.99 As a result of these changes, damages for future
pecuniary loss rose considerably. This brought with it a
consequential rise in liability insurance premiums.100
17–023 Criticism continued, however, that this rate was still too high.101
In 2012–2013 the Ministry of Justice undertook a two-part
consultation into the methodology used to set the discount rate
for personal injury damages and the legal basis on which it is
set.102 The outcome of the government review was published in
2017 and a reduction of the discount rate to minus 0.75% was
announced.103 This reflected the fact that since 2001 the real
yields on index-linked gilts investments has fallen, but was
regarded by many (notably insurers) as an over-reaction. The
Civil Liability Act 2018 added a new section A1 to the Damages
Act 1996.104 This states that in assessing damages for future
pecuniary loss, the court must take into account the rate of return
set by the Lord Chancellor following the procedure set out in
Schedule A1.105 Different rates of return may be prescribed for
different classes of cases e.g. one rate for loss of future earnings
and another for the cost of future care.106 The 2018 Act seeks to
provide a new methodology that better reflected the investments
actually made by claimants and to provide a rate that is fairer to
both claimants and defendants.107 Notably the rate would be set
by reference to “low” rather than “very low risk” investments.
In July 2019, the Lord Chancellor announced that the
prescribed discount rate would be increased from minus 0.75%
to minus 0.25% with effect from 5 August 2019.108 The
Government justified the change on the basis that the 2017 order
had produced a rate that was too favourable to claimants, as
compared to defendants. Subsequent reviews of the rate will be
undertaken at least every five years. Lump sum payments of
damages for future loss can thus be expected to be lower than
they would have been had the law remained unchanged.
One final point. Current policy should also be considered in
the light of the fact that the courts do not check what the
claimant actually does with the sum awarded. It is accepted that,
in reality, it is unlikely that a claimant would place the entire
award of damages in index-linked government securities.
Nevertheless, if the claimant chooses to invest all the lump sum
in the stock market or in his or her bank account, this is
 disregarded and will not affect the court’s calculation of
damages.109

◗ (2) Lost years

17–024 This is a claim for loss of earnings during the period the
claimant would have been able to work, but for the fact that his
or her life has been shortened by the defendant’s tort. In other
words, suppose that claimant A was expected to live to 70.
Following the tort, A will only live to 40. The claim will be for
the loss of earnings from the age of 40. In the past, A could have
claimed damages for loss of expectation of life for which the
courts awarded a small sum, even though the claimant might be
unaware of the loss or had been killed instantaneously.110 In
view of this award, the court in Oliver v Ashman111 held that no
additional award for loss of earnings during the “lost years”
would be allowed. However, damages for loss of expectation of
life were abolished by the Administration of Justice Act 1982
s.1(1)(a). In 1980, the majority of the House of Lords in Pickett
v British Rail Engineering Ltd112 finally overturned Oliver v
Ashman and accepted that a claim for loss of earnings during the
“lost years” should stand. Their Lordships were influenced by
the predicament of dependants, for whom the victim would have
provided financial support during this period. If the victim
cannot claim, and the dependants are unable to bring a claim in
their own right under the Fatal Accidents Act 1976 (see
below),113 then this head of damage would go uncompensated.
This was held to be contrary to logic and justice.114 In assessing
the award, the court will look at the claimant’s life expectancy
before the accident and deduct the sum the claimant would have
spent on supporting him or herself, including a proportion of the
household bills.115 The sum awarded will vary. Croke v Wiseman
holds that for a very young child any such loss is highly
speculative and the court is likely to award nil damages.116
While this has been criticised as unduly harsh by both the Court
of Appeal and more recently the High Court, the general view is
 that it will take a decision of the Supreme Court to overturn the
ruling in Croke.117

◗ (3) Loss of earning capacity

17–025 This is a claim for losses due to the fact that, although the
claimant can carry on working, his or her ability to obtain
employment is hindered by the continuing effects of the
accident. For example, claimants disabled due to the accident
may find it more difficult to obtain a new job if their
employment ends for some reason, particularly if they were
employed in a physically demanding job. This is often difficult
to assess118 and, particularly in relation to children,119 highly
speculative.

◗ (4) Deductions
17–026 In assessing the claimant’s compensation, the court seeks to
compensate the victim fully, but is also careful to avoid over-
compensation which may unnecessarily penalise the defendant
for his or her tort and be a wasteful use of resources. The
problem of over-compensation arises when it is shown that,
following the accident, the claimant has received sums of money
which also compensate him or her for the loss suffered.
Consider, for example, where, due to the tort, the defendant
cannot work and seeks compensation from the defendant for her
loss of earnings. Prior to trial, the claimant may be forced to rely
on government social security payments or, if she is lucky, may
be entitled to statutory sick pay or payments due under an
insurance policy providing critical illness cover. Should these
payments be taken into account in the action against the
defendant for loss of earnings, reducing the burden on the
defendant? If they are not, the claimant gets too much
compensation. If they are, the defendant pays less at the expense
of other innocent parties. There are a number of possible options
open to the courts:
 ▮ Make the defendant liable only for the actual losses
suffered by the claimant, deducting social security
payments, etc received. This option means that the
State, employer or insurance company which has
provided financial support is effectively subsidising the
defendant who is at fault.
▮ Ignore other benefits and make the defendant fully
liable. Here, it is accepted that the claimant is over-
compensated.
▮ Make the defendant liable only for the actual losses
suffered by the claimant but make the defendant liable
to repay all those who supported the claimant prior to
trial.

The courts confusingly adopt all three approaches. Lord Reid in

Parry v Cleaver explains the rules as depending on justice,
reasonableness and public policy,120 but this takes us little
further. This section will therefore set out how these rules work.
Essentially, it depends on the nature of the benefit received by
the claimant. The principles involved are not particularly clear.
The general approach seems to be that when the claimant has
received a benefit which reduces the actual loss suffered, it
should be deducted, but that the claimant should keep all
“collateral payments”. This distinction is not, however, always
clear. The simplest way is to examine each individual benefit in
turn.

(I) CHARITY
17–027 The law is reluctant to reduce the damages payable to the
claimant due to receipt of charitable payments. There is a no
doubt realistic fear that individuals would be reluctant to donate
money to charity if the net result was to reduce the defendant’s
liability for damages at trial. Policy therefore dictates that such
sums should not be deducted.121

(II) VOLUNTARY PAYMENTS BY THE DEFENDANT

17–028 If the defendant has given any money to the claimant, or
provided facilities such as a wheelchair, this will be deducted
from the award. This will not include a company pension, as this
is distinguishable from compensation for lost wages (see 17–031
below).122 In Williams v BOC Gases Ltd,123 an ex gratia
payment from the defendant employers, given as an advance
against any damages awarded, was deducted. The Court of
Appeal held that, as a matter of public policy, employers ought
to be encouraged to make payments of this kind. This would not
be treated as a charitable payment, even if given for benevolent
reasons, unless the employer explicitly spelt out that it should be
ignored if damages were awarded in future litigation.124

(III) INSURANCE
17–029 Again, if the claimant has had the foresight to purchase an
insurance policy to cover some of his or her losses, the courts
are reluctant to penalise the claimant.125 It would seem wrong
that a claimant who has paid no premiums should obtain a
higher damages award. Arguably this could be met by giving the
claimant a credit for the premiums paid, but the courts have not
chosen this path. In any event, if the insurance policy is one of
indemnity (for example property insurance is usually indemnity
insurance), the insurer is likely to seek to recover the monies
paid by exercising its right of subrogation. The action will then
be brought by the insurance company in the claimant’s name.
However, personal injury insurance is not generally indemnity
insurance, and the claimant will be able to recover both the
proceeds of the policy and the damages awarded by the court.126

(IV) SICK PAY

17–030 This is deductible from damages for loss of earnings, whether or
not it is paid by the defendant. It is not treated as insurance
against loss of earnings, but as a substitute for wages. This
extends to long-term sickness benefit paid by the employer.127

(V) PENSION
17–031
If, as a result of the injury, the claimant retires from his or her
job and receives a pension, this is not deductible from the claim
for loss of earnings, because the pension is not deemed to be of
the same nature as lost wages, but a form of insurance. In Parry
v Cleaver, a 35-year-old policeman had been severely injured in
a road accident and was discharged from the police force.
However, whilst in employment, he had made compulsory
contributions to a police pension fund, and he became entitled to
a pension for life on being discharged. The question was
whether this pension should be taken into account when
assessing the policeman’s loss of earnings following the
accident. The majority of the House of Lords held that it should
be ignored. A contributory pension scheme was treated as a form
of insurance, rather than sick pay, and should not be taken into
account when assessing future loss of earnings. It would,
however, be taken into account in assessing the loss suffered on
reaching police retirement age, when there would be a
diminution in pension entitlement. Lord Reid stressed that it was
simply a case of comparing “like with like”.128 The minority
favoured deduction. Lord Morris (dissenting) held that where
there is no discretionary element, and the arrangements leading
to the pension are an essential part of the contract, then the
pension payments should be taken as a form of deferred pay, and
deducted.129 The majority view, however, was approved by the
House of Lords in Smoker v London Fire and Civil Defence
Authority.130 Lord Templeman approved Lord Reid’s statement
in Parry that:

“a pension is the fruit, through insurance,

of all the money whichwas set aside in the
past in respect of [an employee’s] past
work.”131
 The House of Lords, in Hussain v New Taplow Paper Mills
Ltd,132 however, distinguished payments under a permanent
health insurance scheme set up by the employer, to which
employees were not required to contribute. Lord Bridge,
delivering the unanimous opinion of the House, viewed such
payments as the very opposite of a pension, and
indistinguishable from long-term sick pay. On this basis, such
payments were deductible. His Lordship commented:

“It positively offends my sense of justice

that a plaintiff, who has certainly paid no
insurance premiums as such, should receive
full wages during a period of incapacity to
work from two different sources, his
employer and the tortfeasor.”133

It would therefore seem that, in his Lordship’s view at least, the

claimant must have contributed to the pension to avoid any
deduction of this benefit.

(VI) SOCIAL SECURITY BENEFITS

17–032 For political reasons, deduction of social security benefits is
largely governed by statute. When the National Health Service
was introduced in the late 1940s, this matter was governed by
the Law Reform (Personal Injuries) Act 1948.134 Section 2
provided for a deduction from damages for loss of earnings of
one-half the value of certain benefits, such as sickness benefit
and invalidity benefit, receivable by the claimant in the five
years following the accident. This did not include all benefits,
however, and the common law developed complementary rules
deducting these other benefits in full for the period of the
disability.135
 The current legal position modifies the rules to resemble the
third option mentioned above.136 It represents a political
decision to ensure that the overstretched welfare state is not
subsidising defendants, and that social security payments made
to claimants should be recovered whenever possible. Social
Security (Recovery of Benefits) Act 1997 s.6 now provides for
the defendant to pay to the Department for Work and Pensions
an amount equal to the total amount of specified social security
benefits137 payable to the victim in respect of his or her injury
during the five years immediately following the accident (or
until the making of the compensation payment whichever is
earlier138). The claimant will get the difference (if any) between
the damages awarded and recoverable benefits.139 Section 4
provides that the defendant should not make any compensation
payment in consequence of an accident, injury or disease
suffered by the claimant until he or she has applied to the
Secretary of State for a certificate of recoverable benefits. These
are processed by the Compensation Recovery Unit
(CRU) of the Department for Work and Pensions.140 The
provisions apply not only to court judgments, but extend to out-
of-court settlements.141
The 1997 Act is more generous to claimants than the earlier
Social Security Act 1989 it replaced.142 Benefits are now
deducted only from certain heads of damages, namely loss of
earnings, cost of care and loss of mobility, which are set out in
Sch.2. This Schedule helpfully lists the relevant benefits to be
deducted from each individual head. On this basis, income
support will be deducted from any award for loss of earnings,
and attendance allowance from damages for the costs of nursing
and care. The State can no longer deduct any sum from damages
awarded for pain and suffering and loss of amenity, because
there is no equivalent state benefit. The defendant, who remains
liable to the Secretary of State for “an amount equal to the total
amount of the recoverable benefits”,143 may therefore be in a
difficult position. Consider the following example. The claimant
suffers injuries in an accident caused by the defendant’s
 negligence. Damages are assessed at £10,000 (£7,000 loss of
earnings and £3,000 non-pecuniary losses). The claimant has
received £8,000 in income support. Under the 1997 Act, the
defendant is liable to pay £8,000 to the State, although the
claimant’s award will only be reduced by £7,000 as no deduction
can be made against non-pecuniary losses. The claimant will in
such circumstances receive £3,000 damages (£10,000 minus
£7,000). The defendant will be liable to pay £11,000 in total
(£8,000 to the State and £3,000 to the claimant).144
Summing up, the current law on deductions demonstrates no
clear overall policy. Whilst trying to prevent over-compensation,
the courts are generous in relation to charitable donations,
insurance and pensions, but tough in relation to sick pay. The
current distinction between a disablement pension and sick pay
also demonstrates the confusion existing in this area of law.145
The strict line taken in relation to recovery of social security
benefits may additionally
be criticised. The system involves administration costs and may
leave the successful claimant without any damages and the
defendant incurring considerable costs in ascertaining his or her
liability to the State. In examining the current legal position, the
Law Commission concluded that in view of the lack of
consensus as to any reform, it could not at present recommend
any changes to the law.146 Nevertheless, the Commission hoped
that its report might assist the judiciary, and also the
Government, in developing this area of law. The confusion is
therefore likely to continue in the immediate future.

◗ (5) Expenses
17–033 The claimant can also recover reasonably incurred expenses,
which will include medical expenses, increased living expenses
and the cost of transport to and from hospital.147 These will
include past and future expenses incurred due to the injury. It is
not unreasonable to choose private medical treatment instead of
treatment under the National Health Service. Law Reform
 (Personal Injuries) Act 1948 s.2(4) provides that the claimant is
not obliged to use the NHS to mitigate loss.148 Equally, provided
that there is no risk of double recovery, claimants are entitled to
claim cost of future private health care even where a local
authority would have a statutory obligation to care and
accommodate them.149 Controversially, the Supreme Court
recently found it reasonable, and not contrary to public policy, to
seek the cost of commercial surrogacy arrangements overseas
(here California), provided the costs were reasonable and there
was a reasonable prospect of success.150 However, any saving
the claimant makes due to being wholly or partly maintained at
public expense in a hospital, nursing home or other institution
will be set off against any loss of income due to the injury.151
The courts are careful to avoid overcompensation, and therefore
will deduct the cost of food, heating, etc from the award.152

COST OF A CARER
17–034 A further expense following a serious accident may be the cost
of a carer.153 The court again will award compensation for the
cost of a carer if such expense is reasonably incurred. However,
the carer in question may not be a professional carer, but a close
relative or partner who wishes to care for their loved one. Such
relatives are unlikely to charge a fee, but of course make
considerable sacrifice in both financial and emotional terms. The
Court of Appeal in Donnelly v Joyce154 recognised that such
carers should not go unrewarded.
In Donnelly v Joyce, the victim’s mother had given up her
part-time job to nurse her six-year-old son. The court awarded a
sum for her nursing services, but held that the loss was suffered
by the victim, namely the need to receive nursing services due to
the tort. It was not the loss of the mother which was being
compensated. The court held, however, that it was unnecessary
to show a contract between the victim and his mother to obtain
the award.155
Donnelly was taken a step further by the House of Lords in
Hunt v Severs.156 In this case, the victim had been injured when
riding as a pillion passenger on a motorbike driven by the
defendant, who later became her husband. In claiming damages,
she requested a sum for her carer, namely her husband. The
House of Lords held that although the sum was awarded to the
victim, it would be held on trust for the carer.157 Here, the carer
and the defendant were the same person. On this basis, the court
held that there was no ground in public policy or otherwise to
justify requiring the defendant to pay a sum to the claimant to be
held on trust for himself.
On its face, the decision of the House of Lords seems
entirely correct. It would be ridiculous to force the defendant to
pay a sum to the claimant to be paid back to the defendant, but
this ignores the reality of the situation. The husband was
insured, and therefore the person paying the money (the real
defendant) was not the husband, but his insurance company.158
On this analysis, there is nothing wrong with an insurance
company paying a sum to the wife to compensate her carer,
whoever he or she may be. Following Hunt v Severs, if the carer
is the tortfeasor, in order to obtain full compensation, the victim
is forced to contract for a carer or use a different relative, even
though the best person to care for the victim may be the
tortfeasor.
Certain disabilities render the victim very wary of strangers, and
it seems a worrying development for the law to penalise a victim
financially for choosing to be cared for by a loved one who
happened to have caused the accident in question. The Law
Commission, in their 1999 report, recommended that there
should be a legislative provision reversing the result in Hunt,
and that the carer should have a legal entitlement to the
claimant’s damages for past (although not future) care.159 The
Labour Government in its 2007 Consultation Paper, The Law on
Damages160 proposed that the claimant should be under a
personal obligation to account to the carer for damages awarded
for past and future care, but that where services were provided
by the defendant, damages could only be awarded for future
gratuitous services. These recommendations were, however,
never followed.
 The cost of a carer is generally assessed at the commercial
rate for such services.161 If a mother gives up a highly paid
employment, the loss will be capped at the commercial rate for
the services provided.162 Equally, if, due to the accident, a
person cannot undertake the household tasks undertaken prior to
injury, the reasonable cost of substitute services should be
awarded.163

◗ (6) Other damages

17–035 The examples of expenses listed above are not exhaustive, and
damages claims will often consist of a large number of claims,
depending on the particular facts of the case. For example, a
claimant may wish to sue for the loss of pension rights or the
inability to continue a profitable hobby. Subject to the rules of
remoteness, the claimant may sue for any losses which are due
to the defendant’s tort.

Non-pecuniary loss

◗ (1) Pain and suffering

17–036 The court will award a sum which represents the pain and
suffering experienced by the claimant. The two are generally
considered together. The Law Commission in 1995 defined
“pain”
as “the physical hurt or discomfort attributable to the injury
itself or consequent on it”, whilst “suffering” was defined as
“mental or emotional distress which the plaintiff may feel as a
consequence of the injury: anxiety, worry, fear, torment,
embarrassment and the like”.164 It is a subjective test, and no
sum will be awarded if the claimant is unconscious or unable to
experience pain or suffering due to his or her condition.165 The
courts will concentrate on the actual condition of the victim and
consider past, present and future suffering.
 Administration of Justice Act 1982 s.1(1)(b) also permits an
award of damages to victims suffering or likely to suffer on the
realisation that their expectation of life has been reduced as a
result of the injuries.166 This will form part of the award for pain
and suffering. As the award is subjective, the claimant must be
aware of his or her condition. Damages will be refused if the
victim is rendered permanently unconscious either immediately
or within a short time of the injury. In Hicks v Chief Constable
of South Yorkshire,167 for example, where medical evidence
indicated that the plaintiffs’ daughters, crushed in the
Hillsborough disaster, would have lost consciousness within a
matter of seconds and would have died within five minutes, the
court rejected a claim for the distress suffered by the girls in
their last moments.

◗ (2) Loss of amenity

17–037 This is distinct from pain and suffering and is a claim for the
loss of enjoyment of life experienced after the injury. For
example, suppose that due to an injury to her leg, the claimant
cannot play tennis or go for long country walks as she could
prior to the accident. An objective test is applied, so the fact that
the claimant is unable to appreciate this loss is irrelevant. This is
clearly seen in H West & Son Ltd v Shephard.168 Here, the
plaintiff had been badly injured in a road traffic accident and had
sustained severe head injuries, resulting in cerebral atrophy and
paralysis of all four limbs. Due to her injuries, her ability to
appreciate her condition was severely limited. She was 41 at the
time of accident, but had no prospect of improvement, and
required full-time hospital nursing for the rest of her life, which
was estimated as five years. The majority of the House of Lords
held that she had suffered loss of amenity and approved the trial
judge’s award of £17,500.169 The court was not prepared to treat
such a victim as dead and reduce the damages on this basis.
This was approved by the House of Lords in Lim v Camden
AHA.170 In this case, a 36-year-old senior psychiatric registrar
 had suffered extensive and irremediable brain damage following
a minor operation. As a result, Dr Lim was barely conscious and
totally dependent on others. She was awarded £20,000 for pain
and suffering and loss of amenity. This was approved by the
House of Lords, which held that West could only be reversed by
a comprehensive Act of Parliament which dealt with all aspects
of damages for personal injury. The court was not prepared to
overturn a decision which had formed the basis for settlements
and damages awards for almost 20 years. A review of the
position was undertaken by the Law Commission which, in its
April 1999 Report No.257, Damages for Personal Injury: Non-
Pecuniary Loss, did not recommend changing the rules for
damages for non-pecuniary loss in respect of permanently
unconscious or conscious but severely brain-damaged
claimants.171

◗ (3) Injury itself

17–038 This is difficult to assess. The courts have developed a system of
tariffs which guide judges. Reference is made to previous case
law and to the Judicial College guidelines,172 with the stated aim
of ensuring uniformity whilst keeping the level of such claims
within reasonable bounds.

◗ Assessment
17–039 The Law Commission in its 1999 report stated that damages for
non-pecuniary loss in cases of serious personal injury were
generally too low, and should be increased generally by a factor
of at least 50% for awards over £3,000.173 It was recommended
that this should be achieved by guidelines set down by the Court
of Appeal or House of Lords, but if this was not achieved within
a reasonable period, then legislation should follow. A five judge
Court of Appeal responded in March 2000 in Heil v Rankin.174
In dealing with eight conjoined appeals, Lord Woolf MR
proposed a more modest increase in awards than that suggested
by the Law Commission. His Lordship suggested that in seeking
to make compensation awards for non-pecuniary losses which
were fair, reasonable and just, the awards should be subject to a
tapered increase, from a maximum of one third, to nil when the
award was below £10,000. Such increases would take account of
the fact that people now live longer, but his Lordship
also noted the impact of any increase on the level of insurance
premiums.175 This decision gave rise to a considerable increase
in the level of awards. However, the threshold of £10,000, rather
than the £3,000 suggested by the Law Commission, limited the
impact of the decision and excluded a large number of claims for
minor injuries. In the case itself, Heil lost his appeal because the
award was less than £10,000.
More recently, the Court of Appeal in Simmons v Castle176
announced a further increase of 10% from 1 April 2013 on the
level of general damages in all civil claims. This expressly
covers damages for pain and suffering, loss of amenity, physical
inconvenience and discomfort, social discredit and mental
distress.177 The increase is primarily a reaction to the changes to
the funding of civil litigation introduced by the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 Pt 2
(discussed in Ch.1). The Act prevents claimants, who fund their
claim by relying on a conditional fee agreement (a “no win no
fee” agreement) from recovering any success fee charged by
their lawyer or the cost of an “after the event” insurance policy
from the losing party.178 From 1 April 2013, these costs will be
deducted from the damages awarded to the claimant for general
(and past) damages. As the Court of Appeal commented in
Simmons, the quid pro quo for this change was that the courts
would be expected to increase the amount of general damages
awarded, which, indeed, the court did in that case. It should be
noted, however, the Simmons goes far beyond tort claimants
suing under conditional fee agreements and applies to all civil
litigation.179

Interest
17–040 Interest will be added to damages depending on the nature of the
injury suffered. Unless the claimant is awarded interim damages,
he or she will be deprived of the damages award until the case is
finally heard in court, which unfortunately may take a
considerable amount of time. Senior Courts Act 1981 s.35A
provides for interest in actions for personal injuries in which the
claimant recovers more than £200, unless the court is satisfied
that there are special reasons why interest should not be
given.180 The rates are as follows.

◗ (1) Pecuniary loss

17–041 No interest will be awarded for future pecuniary loss, because
there has been no delay in receipt. For sums due from the date of
the accident up to the date of trial, interest will be awarded at
half the current short-term rate during that period to reflect the
gradual nature of the loss.181

◗ (2) Non-pecuniary loss

17–042 Interest will be awarded at 2% from the date of service of
proceedings to the date of trial.182 The figure is deliberately low,
because the only loss suffered is the inability to use the money
prior to trial.183

Alternatives to lump sum payments

17–043 Damages will usually be awarded, as stated earlier, in the form

of a lump sum. This does possess, however, a number of
disadvantages. There is a distinct danger that a lump sum may
run out due to poor investment, reckless spending, a higher than
expected life expectancy, or inflation, leaving the claimant with
insufficient funds to meet his or her needs. The lump sum is a
“once-and-for-all” payment. This has led to calls for alternative
forms of award which more closely reflect the actual needs of
 the claimant. Although there is already provision for provisional
damages and interim awards, there is growing support for the
use of periodical payments in certain cases. These will be
examined below.

◗ (1) Provisional damages

17–044 Senior Courts Act 1981 s.32A184 provides for provisional
damages where it is proved or admitted that there is a chance
that, at some definite or indefinite time in the future, the injured
person will develop some serious disease, or suffer some serious
deterioration in his or her physical or
mental condition. Damages will be awarded on the basis that the
claimant’s condition will not deteriorate, but that the claimant
can return to court for further damages if this occurs. The
claimant is only entitled, however, to apply once for further
damages, and these must be for a disease or type of injury
specified in the original action.185
In Willson v Ministry of Defence,186 the plaintiff sued his
employer following an injury to his ankle at work when he
slipped on a polished floor. He applied for an award of
provisional damages on the basis that there was a possibility that
he would develop arthritis, which might require surgery. Scott
Baker J refused to award provisional damages. The judge asked
three questions:
▮ Was there a chance of deterioration?
▮ Would the deterioration be serious?
▮ Should the court exercise its discretion in the claimant’s
favour in the circumstances of the case?

Whilst the plaintiff had shown a chance of deterioration which

was measurable, rather than fanciful, the judge held that “serious
deterioration” required more than the ordinary progression of a
disease. A clear and severable risk was required which would
trigger entitlement to further compensation. Arthritis following
 an ankle injury was not such an event. Epilepsy following a head
injury would, however, seem to satisfy this test.187 In practice,
therefore, provisional damages will very rarely be awarded.

◗ (2) Interim payments

17–045 The court has also, under the Senior Courts Act 1981 s.32, a
discretion to make an interim award prior to trial where the
defendant has admitted liability to pay damages, the claimant
has obtained judgment against the defendant with damages to be
assessed, or where it is sat-isfied that claimant will obtain
substantial damages at trial.188 The court may order an interim
payment to be paid in one sum or by instalments.189

◗ (3) Periodical payments and structured

settlements
17–046 The option of a structured settlement has been available to
claimants from 1988. Here, the idea is to structure the payment
of damages such that the traditional lump sum would be
replaced by an annuity (a form of insurance/investment which
provides an annual sum of money over a period of time)
purchased by the tortfeasor and managed by an assurance
company.190 The concept of the structured settlement received a
boost in 1987 when the Inland Revenue indicated that the
revenue from such annuities would not be taxed. On this basis,
the recipient would receive income free from tax, and, if an
index-linked annuity was chosen, protected against inflation. If
the claimant’s disability continued for a long time, there was
also the possibility that the annuity as a whole might exceed any
lump sum. It would also benefit the defendant’s insurers, who
might be able to negotiate a lower settlement to produce the
necessary annual income. Lewis noted in 2006 that since 1988,
more than 1500 seriously injured people had received part of
their compensation via a structured settlement.191
 Despite this, support subsequently arose for a more radical
proposal, namely to give the court the power to award periodical
payments instead of/in conjunction with a lump sum award.192
Originally, the Damages Act 1996 s.2 provided that such awards
could only be made with the consent of both parties.193 As
recognised by Lord Steyn, this provision was effectively a dead
letter as the consent of both parties was virtually never
forthcoming.194 The majority of the Pearson Commission had
recommended that the court should be obliged to award damages
for future pecuniary loss caused by death or serious and lasting
injury in the form of periodical payments, unless it is satisfied,
on the application of the claimant, that a lump sum award would
be more appropriate.195 This proposal was not, however,
adopted.
From 2000, however, the Lord Chancellor’s Department in
two Consultation Papers recommended that the courts should be
given the power to order periodical payments for sig-nificant
future financial loss, which should be reviewable in the light of
changing medical or other exceptional circumstances.196 These
proposals formed the basis for the Courts Act 2003
ss.100–101, which came into force in April 2005, and replace
the Damages Act 1996 ss.2, 4 and 5. The revised Damages Act
1996 s.2 now states that a court, in awarding damages for future
pecuniary loss due to personal injury, “(a) may order that the
damages are wholly or partly to take the form of periodical
payments, and (b) shall consider whether to make that order”.197
With respect to other forms of damages, the rule remains that the
consent of the parties is required.198 In considering whether
periodical payments are appropriate for all or part of an award of
damages, the courts will look at all the circumstances of the case
and in particular the form of award which best meets the
claimant’s needs.199
One particular concern has been the security of these future
payments. What will happen, for example, if the defendant (or
his or her insurers) becomes insolvent? Section 2(3) of the Act
 provides that no order should be made unless the court is
satisfied that the continuity of payments is reasonably secure.200

Indexation

17–047 Controversy has arisen over one particular provision. Once the
court considers that a periodical payment order is appropriate,
the question of indexation, that is, the rate by which the payment
should be increased to cover inflation, needs to be resolved.
Section 2(8) provides that:

“An order for periodical payments shall be

treated as providing for the amount of
payments to vary by reference to the retail
prices index.”

but is qualified by s.2(9) which allows for an order to include a

provision which disapplies or modifies subs.(8). This raises the
question as to the extent to which s.2(9) allows claimants to
argue for a different index by which their payments should be
updated.201 Despite strong arguments that the RPI should be the
ordinary index of choice until Parliament indicated
otherwise,202 the Court of Appeal in Thompstone v Tameside
and Glossop Acute Services NHS Trust203 sought to provide
general guidance for future courts and accepted that in deciding
what order would best meet the claimant’s needs, the court
should consider the RPI in the light of other alternative
indexes.204 In the cases before the court, the claimants had
suffered severe injuries at birth as a result of negligence. In such
actions, the main claim is likely to be for future care costs and
expert evidence suggested that the wages of carers would
increase at a faster rate than the RPI. There was thus a danger of
the claimant receiving insufficient funds. In such circumstances,
the principle of full compensation indicated that use of the
ASHE 6115 index (annual earnings survey for care assistants
and home carers) would be appropriate, fair and reasonable.
The Court of Appeal in Thompstone expressed its wish that
the NHS and other defendants would now accept the
appropriateness of indexation on the basis of ASHE 6115 in
catastrophic injury cases and only seek to reopen the issue on
production of significantly different evidence.205 Its decision has
undoubtedly rendered PPOs more popular with future
claimants.206
Section 2B also provides for variation of orders and
settlements. If there is a chance that at some time in the future
the claimant will, as a result of the tortious act, develop some
serious disease or suffer some serious deterioration or enjoy
some significant improvement, the court may provide that the
order for periodical payments may be varied.207 These
provisions largely reflect those which apply to provisional
damages (see above), except significant improvements will also
allow for variation and the defendant, as well as the claimant,
may apply. It is anticipated that the use of such orders would be
very limited.208
The aim of these reforms is to promote the widespread use of
periodical payments for awards for future pecuniary loss in
personal injury cases. It was described at the time as a
“revolutionary change”.209 It is important to recognise, however,
that such payments are aimed at
claimants with long-term or permanent personal injuries where a
significant award for future care costs and loss of earnings will
be made. They offer few advantages where the level of future
loss is low or where the care is only needed for a short time.
Most claimants will thus continue to be awarded lump sums.
Nevertheless, in a 2013 consultation paper, the Ministry of
Justice highlighted the benefits of periodical payments in
rendering claimants more secure with a lifetime of payments as
opposed to a lump sum whose estimation is often inaccurate,210
and there is evidence post-Thompstone that PPOs are gaining in
 popularity in relation to most catastrophic injury claims.211 The
former Chair of Personal Injuries Bar Association has
commented that PPOs are likely to be ordered for future care
(and case management) in the vast majority of high value
personal injury claims.212

Actions on Death

17–048 The death of a victim of a tort gives rise potentially to two

different claims: claims from the deceased’s estate and from
those who were financially dependent on the deceased. Both will
be examined below.

(1) Action by the deceased’s estate

17–049 In Ch.16, we looked at the survival of actions for or against the
deceased’s estate. Such claims are governed by the provisions of
the Law Reform (Miscellaneous Provisions) Act 1934. Section
1(1) of the 1934 Act provides for the general survival of actions
in tort:

“. . .all causes of action subsisting against or

vested in [any person on death] shall
survive against, or, as the case may be, for
the ben-efit of [the] estate.”

It is important to remember that this does not give the estate a

cause of action for death itself. It simply means that the estate
 may pursue actions existing at the time of victim’s death.
Damages for pecuniary and non-pecuniary losses up to the
date of death may be recovered under the 1934 Act. Any claim
for non-pecuniary loss will consist of pain and suffering and loss
of amenity during any significant period between injury and
death. No sum will be
awarded if death is instantaneous or quick.213 Pecuniary loss
may be claimed, but s.1(2)(a) excludes a claim for damages for
loss of income in respect of any period after a person’s death.
Section 1(2)(a) also excludes any award of punitive damages.214
Any loss or gain to the estate consequent on death will not be
taken into account, but a sum in respect of funeral expenses may
be claimed.215 The Law Reform (Contributory Negligence) Act
1945 will also apply to such claims.

(2) Action by the deceased’s dependants

17–050 There is a second possible claim arising from the death of the
victim. This is a claim not by the deceased’s legal
representatives, but by those for whom the deceased provided
financial support. For example, the death of a victim who is a
father is likely to affect his family financially as well as
emotionally. At common law, the rule was that the victim’s death
would not give a cause of action to other persons, even when
they were financially dependent on the deceased.216 However,
legislation has intervened, first in the Fatal Accidents Act 1846
(also known as Lord Campbell’s Act)217 and more recently in
the form of the Fatal Accidents Act 1976.

◗ Fatal Accidents Act 1976

17–051 This consolidates earlier legislation. Sections 1(1) and (2)
provide that:
 “(1) If death is caused by any wrongful act,
neglect or default which is such as
would (if death had not ensued) have
entitled the person injured to maintain
an action and recover damages in
respect thereof, the person who would
have been liable if death had not
ensued shall be liable to an action for
damages, notwithstanding the death of
the person injured.
(2) . . . every such action shall be for the
benefit of the dependants of the person
(‘the deceased’) whose death has been
so caused.”

This is not particularly clear, but s.1 essentially provides an

action for damages for the deceased’s “dependants”, i.e. the
group of persons, defined in s.1(3), who were financially
dependent on the deceased. The statute creates a hybrid action: it
is the action of the dependants but relies on the fact that the
deceased could have sued the tortfeasor. If the deceased’s action
would have failed, for example because the defendant had a
good defence or could rely on a valid exclusion clause (unlikely
in the event of death),218 the dependants have no claim. Equally,
if the deceased had settled the claim219 or obtained judgment220
prior to death,221 then the dependants have no right of action.
Under s.5 of the Act, any damages may be reduced due to the
contributory negligence of the deceased. If the dependant has
also contributed to the accident, the share of that particular
dependant will also be reduced, but this will not affect other
dependants.222
The dependants will not usually sue in their own right.
Section 2 provides for the action to be brought by and in the
 name of the executor or administrator of the deceased. If there is
no such person, or no action has been brought within six months
after the demise of the deceased, then an action may be brought
by and in the name of all or any of the dependants.223
The action, as stated above, is brought on behalf of the
deceased’s dependants. The court must be satisfied that each
dependant:
▮ is a dependant within s.1(3) of the Act; and
▮ was, as a matter of fact, financially dependent on the
deceased.
Only if the court is satisfied on (1) and (2) will any sum be
awarded. Each question will be examined in turn.

◗ (1) Is the claimant a dependant within s.1(3) of

the Act?
17–052 Section 1(3) (as amended by the Administration of Justice Act
1982 and Civil Partnership Act 2004) gives a statutory list of
those parties classified by law as dependants, namely:

▮ the spouse or former spouse of the deceased224;

▮ the civil partner or former civil partner of the
deceased225;
▮ a common law spouse, i.e. a person who was living
with the deceased in the same household immediately
before the date of the death and had been living with the
deceased in the same household for at least two years
before that date and was living during the whole of that
period as the husband or wife or civil partner of the
deceased;
▮ the deceased’s parents, ascendants or anyone treated by
the deceased as a parent;
 ▮ the deceased’s children (including any person treated as
a child of the family in relation to a marriage/civil
partnership to which the deceased was at any time a
party) and other descendants; and
▮ any person who is, or is the issue of, a brother, sister,
uncle or aunt of the deceased.

Section 1(5) adds that for the purposes of subs.(3) above:

▮ any relationship by marriage or civil partnership shall
be treated as a relationship of consanguinity (i.e. blood),
any relationship of the half blood as a relationship of
the whole blood, and the stepchild of any person as his
child; and
▮ an illegitimate person shall be treated as (i) the
legitimate child of his mother and reputed father or (ii)
in the case of a person who has a female parent by
virtue of s.43 of the Human Fertilisation and
Embryology Act 2008,226 the legitimate child of his
mother and that female parent.

As can be seen, the above list has been extended to cover

stepchildren, adopted and illegitimate children, some cohabitees
and, from 2005, civil partners. The provision in relation to
cohabitees, brought in under the 1982 amendment, still leaves
much to chance,227 and is further weakened by s.3(4), which
states that under s.1(3)(b) [iii above], in assessing damages:

“there shall be taken into account . . . the

fact that the dependant had no enforceable
right to financial support by the deceased
as a result of their living together.”228
 This means that the award for a cohabitee is likely to be lower
than for a lawful spouse or civil partner. The Law Commission,
in its 1999 report, Claims for Wrongful Death, recommended
adding a further class of claimant to the s.1(3) list, namely any
individual:

“who was being wholly or partly

maintained by the deceased immediately
before the death or who would, but for the
death, have been so maintained at a time
beginning after the death.”229

This would be a considerable improvement, fitting neatly with

the Commission’s stated aim of bringing this area of law into
line with the values of modern society. The then government, in
its 2007 response, supported only the first part of this test:
persons wholly or partly maintained by the deceased
immediately before death.230 Subsequent governments have not,
however, implemented these changes.231

◗ (2) Was the claimant financially dependent on the

deceased?
17–053 Even if the individual is within s.1(3), the court will only make
an award if it is shown that the individual was financially
dependent on the deceased. It is the financial, not emotional,
dependency of the claimant on the deceased which is in
question.232 The assessment of damages is dealt with under s.3,
which provides that damages should be awarded “as are
proportioned to the injury resulting from the death to the
dependants respectively”. This is far from clear. It seems that the
courts will examine whether the individual had a reasonable
expectation of pecuniary benefit, as of right or otherwise, from
the deceased.233 This will be assessed at the
date of death.234 Public policy will exclude some forms of
benefit, for example if the deceased provided for his family by
means of armed robberies.235 It will be a matter of common
sense. For example, if the deceased child helped out in the
family business, or the deceased spouse cared for the children
and the home, the court will award a sum representing the
benefit given to the family. However, if the child was employed
by the family business and received a wage, then it would be a
different matter, since the family has not suffered any financial
loss.236 The court will have to look at the prospects of the
deceased (as we saw in personal injury claims), but also this
time the prospects of the dependants. For example, if a husband
dies and leaves an elderly wife who was financially dependent
on him, then the length of the dependency is unlikely to be long.
Equally, children are (hopefully) not financially dependent
forever, and account must be made for their increasing
independence as they grow older.
One point of controversy has been in estimating the likely
period of dependency of a widow. If she remarries, then she has
a right to be supported by her new husband and would be
overcompensated if she could also claim loss of dependency
under the Act. However, the only way to prevent this
overcompensation was for the court to estimate the widow’s
likelihood of remarrying and reduce damages accordingly. It is
clearly somewhat objectionable for the court to be seen to assess
the widow’s possible value on the marriage market, and in view
of this, the law was changed by the Law Reform (Miscellaneous
Provisions) Act 1971. Fatal Accidents Act 1976 s.3(3) now
provides that the court should not take into account the
remarriage of the widow or her prospects of remarriage.
Arguably, this goes too far in ignoring the fact that the widow
may have remarried prior to trial, but if this was not included,
the inevitable result would be the postponement of such
marriages until after the trial.
 Again, this problem was addressed by the Law Commission
in their 1999 report, Claims for Wrongful Death whose proposals
were considered by the then government in its 2007
Consultation Paper, The Law on Damages. The Commission
recommended that s.3(3) should be repealed, and the fact of a
marriage or financially supportive cohabitation taken into
account when relevant.237 This removes the problem of
overcompensation,but does not mean a return to pre–1971 law.
The Commission proposed that unless a person is engaged to be
married at the time of trial, the prospect that he or she will
marry, remarry, or enter into financially supportive cohabitation
with a new partner, should not be taken into account when
assessing the claim.238 Neither should the prospect of divorce or
breakdown in the relationship be taken
into account, unless the couple were no longer living together at
the time of death, or one of the couple had petitioned for
divorce, judicial separation or nullity.239 The then government
agreed in part to these proposals. It endorsed the proposals on
divorce or breakdown of the relationship and recommended that
the fact of a person’s remarriage, entry into a civil partnership
and, possibly, financially supportive cohabitation of at least two
years following death should be taken into account. This seems a
valid compromise and would have been a welcome
development. Nevertheless, subsequent governments have not
proceeded with these reforms.

◗ Assessment
17–054 The courts adopt an approach similar to that used in the
assessment of awards for future pecuniary loss in a personal
injury claim. Again, the claimant will receive a lump sum, which
represents the loss of dependency of that particular claimant
(although a court in practice will tend to determine the total
liability of the defendant and then apportion damages between
the various dependants). The court will use the
multiplier/multiplicand method. This time the multiplicand will
be the net loss of support, namely the deceased’s net income less
 expenditure on his or her own behalf.240 This will be multiplied
by the multiplier. The multiplier will take account of the possible
duration of the support, based on the likelihood of continued
provision by the deceased and factors such as the life expectancy
of the dependant (for example, if the dependant is a widow) or
likely period of dependency (for example, if the dependant is a
child). It will also be reduced for accelerated receipt.
The multiplier will be set at the date of trial as is the case in
personal injury claims. In Knauer v Ministry of Justice, the
Supreme Court overturned previous authority suggesting that it
should be set at the date of death due to the added uncertainty of
what would have happened to the deceased prior to trial.241 The
previous rule, while straightforward, had created a problem of
under-compensation for pre-trial losses which, under the
multiplier, would be discounted for early receipt which, of
course, did not in fact occur.242 Bearing in mind that the courts
now have access to actuarial evidence or tables and more
sophisticated methods of calculating damages, the Supreme
Court unanimously took the view that it was right to change the
law.

◗ Deductions
17–055 Again, concerns as to overcompensation arise when the
deceased’s dependants receive money, such as insurance or a
widow’s pension, from other sources which reduce their
financial losses. Here the position is far simpler than for
personal injury. Section 4 of the Act provides that:

“benefits which have accrued or will or

may accrue to any person from his estate or
otherwise as a result of his death shall be
disregarded.”243
 In Arnup v MW White Ltd,244 Smith LJ clarified that all benefits
received as a result of death were to be disregarded. A defendant
providing dependants with ex gratia financial support could only
avoid this result and have the payment taken into account when
damages are assessed if the payment was made subject to the
stipulation that it was a conditional payment on account. This is
very generous (and may be contrasted with the position relating
to damages for personal injury described above). Whilst it may
be welcomed for its simplicity, it will result in some dependants
being overcompensated at the expense of the State or insurance
company.
Unfortunately, the apparent simplicity of s.4 has been
thrown into question by two Court of Appeal decisions which
interpret the meaning of “benefit” in that section somewhat
differently. In Stanley v Saddique,245 the Court of Appeal was
asked whether, in awarding a child damages under the Act
following the death of his mother, account should be taken of
the fact that his father had remarried soon after his mother’s
death, and that he received better care from his stepmother. It
was argued that this was a benefit which accrued as a result of
his mother’s death and should be disregarded under s.4. Such a
benefit is indirect at best, but the court was prepared to give
“benefit” a wide meaning and held that it was not confined to
direct payments in money or money’s worth. It would include
the benefit of absorption into a new family unit of father,
stepmother and siblings. On this basis, the child was able to
recover damages for the loss of his mother’s care, even though
he was currently receiving better care from his stepmother. A
further implication of Stanley is that the benefit of a widow or
widower remarrying should be regarded as a “benefit” under
s.4 and disregarded. This renders s.3(3) defunct.
17–056 Stanley can be contrasted with the court’s decision in Hayden v
Hayden.246 Here, the child’s mother had been killed in an
accident caused by the negligent driving of the defendant, the
child’s father. As a result, the defendant gave up work and
looked after the child himself, who was four years old at the
time of the accident. The majority (McCowan LJ dissenting)
held that s.4 did not apply in this case, and therefore the care
given by the father would be taken into account when assessing
loss of care. The majority judges adopted different reasoning,
however. Croom-Johnson LJ (who had also given judgment in
Stanley) held that Stanley could be distinguished on the facts. In
Stanley, death had led to an unstable relationship being replaced
by a successful marriage, whereas in Hayden the child remained
in the family home with her father, who continued to look after
her. The continuing care of a father could not be regarded as a
benefit accruing as a result of death. Parker LJ, in contrast,
chose not to follow Stanley in reaching his conclusion,247 and
found that no loss had in fact been suffered when the child
enjoyed uninterrupted care.
The law was left far from clear after Hayden. The Divisional
Court in R. v Criminal Injuries Compensation Board Ex p. K248
reviewed the conflict between the two cases and preferred the
decision in Stanley. Hayden was distinguished on its own
particular facts, namely that it concerned a situation where the
replacement care was provided by the tortfeasor who was an
existing carer, who had been looking after the child prior to her
mother’s death. Hayden was further isolated by the Court of
Appeal in the later case of H v S.249 Again, the children had been
cared for by their father after the death of their mother, but in
this case, the parents had been divorced, and the father had lived
separately with his new wife. He had, in fact, offered no
financial support to the children prior to their mother’s death.
The court distinguished Hayden. It could not be argued that the
father was discharging pre-existing parental obligations where
he had not supported his children in the past and had shown no
real likelihood of doing so in the future. On such a basis, his care
was a “benefit” resulting from death which could be disregarded
by the court. The situation would have been different, however,
if the parents had been living together before the death, or there
 had been a financial order250 or actual/potential support in place
before the mother died.251
H v S thus supports the general proposition that the tortfeasor
should not be allowed to benefit from the generosity of a third
party volunteering to care gratuitously for the victim’s
dependants by a reduction in the damages awarded. The term
“benefit” is thus a disguised claim for the cost of care to be held
on trust for the carer by the claimant (see Hunt v Severs, above).
Yet, in this light, it becomes increasingly difficult to understand
why an immediate
family member (as in Hayden) undertaking greater parental
duties should be denied the cost of his care whilst an uncle or
estranged father will succeed, unless his claim is to be excluded
due to the fact he or she is the tortfeasor.252 It would seem to
penalise parents taking their parental responsibilities seriously.
Clarification of the status of cost of care claims for dependants,
removed from the artificial wording of s.4, would be a welcome
addition to the law.
The operation of s.4 was examined by the Law Commission
in their report, Claims for Wrongful Death. The Commission’s
proposal was radical. Section 4 should be repealed and the
position in fatal accident claims made consistent with that in
personal injury claims. On this basis, charity, insurance,
survivors’ pensions and inheritance would continue to be
nondeductible.253 The Commission also recommended
extending the recoupment of social security benefits to claims
under the Fatal Accidents Act. Whilst this makes economic
sense and would clarify the law, it is unlikely to prove popular
with the public, as it would have a significant impact on the
level of dependants’ claims. It was not adopted by the then
government in its 2007 Consultation Paper on damages.

◗ Damages for bereavement

17–057 It should be noted that under s.1A of the Act (as inserted by the
Administration of Justice Act 1982 s.3 and amended by the Civil
Partnership Act 2004), bereavement damages will be awarded
to:
▮ the spouse or civil partner of the deceased (s.1A(2)(a));
or
▮ the parents (the mother only if the child is illegitimate)
of a minor who was never married or a civil partner
(s.1A(2)(b)).254

This is a rare example of a third party succeeding in a claim for

mental distress, which is generally not recoverable in the law of
torts, although it is important to note that the claimant need not
prove actual distress.255 It is in reality a form of consolatory
damages. This is shown
by the relatively low amount awarded, which is increased
periodically: the current figure as at May 2020 is £15,120.256
The sum will be awarded to the spouse/civil partner or between
the parents equally257 and the claim does not survive for the
benefit of the recipient’s estate on death.258
Section 1A does not, unlike s.1(3), extend to cohabitees. In
Smith v Lancashire Teaching Hospitals NHS Trust,259 Ms Smith
had lived with the deceased for 11 years prior to his death and
claimed that denying her bereavement damages was contrary to
Art.14 ECHR (prohibition of discrimination) read in conjunction
with art.8 (respect for family life). The Court of Appeal agreed
and made a declaration of incompatibility under s.4 Human
Rights Act 1998 between s.1A(2)(a) of the FAA 1976 and the
ECHR on the basis that it excluded cohabitees of more than two
years. Declarations of incompatibility, however, do not change
the law—it is up to Parliament whether it wishes to respond and
change the law. To date, no such change has been made despite
strong calls that, in the light of Smith, s.1A is no longer fit for
purpose.
Calls for change are not, however, new. In 1999, the Law
Commission, in its report, Claims for Wrongful Death, proposed
a significant reform of bereavement damages. First of all, their
availability should be extended to include the child of the
deceased (including adoptive children), the parents of the
deceased (including adoptive parents), a fiancé(e), a brother or
sister of the deceased (including adoptive brothers and sisters)
and a cohabitee who lived with the deceased for not less than
two years immediately prior to the accident.260 This latter
provision would include same sex relationships. Secondly, the
Commission recommended that the sum should be increased and
linked to the Retail Prices Index.261 The award would be
reduced if the deceased had been contributorily negligent.
In its 2007 consultation paper, The Law on Damages, the
then Labour Government announced its intention to increase the
award of bereavement damages on a regular basis in line with
the Retail Prices Index (rounded to the nearest £100). By
increasing the sum every three years in line with inflation, the
Government sought to ensure a regular and consistent increase
which would assist insurers and the NHS in building the effect
of future increases into their reserves and financial plans.
Consistent with this intention, the amount has been consistently
raised. It also proposed, in the light of the 2005 extension of
bereavement damages to civil partners, a more limited extension
to that put forward by the Law Commission: to children of the
deceased under 18 at the time of death half the full award and
the full award to any person living with the deceased as
spouse/civil partner for at least two years immediately
prior to the accident262 and to unmarried fathers with parental
responsibility.263 The proposal to extend the category of
recipients has not been implemented.

Actions for Loss or Damage to

Property
17–058 This will be dealt with briefly. Loss or damage to property is
subject to the same compensatory principles outlined above: to
put, as far as possible, the claimant in the position as if the tort
had not taken place.264 Where the property has been totally
destroyed, the courts will assess the market value of the property
at the time and place of its destruction. The market value is the
sum of money required to enable the claimant to purchase a
replacement in the market at the price prevailing at the date of
destruction or as soon thereafter as is reasonable. The claimant
will also be able to claim consequential damages, provided they
are not too remote. A good example may be found in the case of
Liesbosch Dredger v SS Edison.265 Here, the plaintiffs’ dredger
had been sunk as a result of the defendants’ negligence. The
court awarded the plaintiffs the market value of a comparable
dredger, the cost of adapting the new dredger, insuring it and
transporting it to where they were working, and compensation
for disturbance and loss in carrying out their contract work from
the date of the loss until a substitute dredger could reasonably
have been available for use. A claimant will also be able to
claim for such things as the reasonable amount of hire of a
substitute until a replacement can be bought.266 The claimant is
unlikely to be awarded the cost of restoration of the property,
unless there are exceptional circumstances, for example that
there is no market for the property destroyed.267
If the property is merely damaged, then the court will award
a sum for the diminution in value of the property, normally
assessed as the cost of repair.268 The cost of repair will normally
be calculated at the time of damage, but there are exceptions to
this rule where it would lead to injustice,269 for example where it
is reasonable for the claimant to postpone repairs
to a later date.270 The cost of repair will only be awarded if
reasonable in the circumstances. Consistent with the duty to
mitigate, the court will not award such damages if they exceed
the market value of the goods, although allowance is made if the
goods are unique.271 If the claimant reasonably intends to sell
the property in its damaged state, the court will not award the
 cost of repair, but a sum representing the diminution in capital
value of the property. Consequential damages may be awarded,
such as cost of substitute hire272 and loss of use during the
period of repairs.

Joint and Several Liability

17–059 So far, we have looked at damages generally. This section will

examine the legal position where two or more defendants are
liable for the same damage,273 that is, where two or more
defendants have committed concurrent torts which lead to a
single indivisible injury.274 This is distinct from the situation
where the claimant has suffered different injuries due to the
independent actions of two or more people—here it is for the
claimant to bring independent claims against each of them. Our
situation is where A has suffered one set of injuries resulting
from an incident where both D1 and D2 are at fault, for example
A was hit when crossing the road because of a car crash between
two cars negligently driven by D1 and D2. Here the defendants
are said to be jointly and severally liable. This means that the
claimant has the choice to sue one or all of the defendants. In
either case, the claimant will receive the full amount of
damages. Therefore, if A suffered damages assessed at
£300,000, A could sue D1 for this sum. If successful, D1 would
then have to bring a claim against D2 for his share of the
damages due.
Alternatively, A could sue both D1 and D2 for this sum. The aim
is that the claimant can sue any of the defendants without
worrying whether all the possible defendants are in court and is
able to avoid defendants who have no funds or are uninsured. It
 is of no concern to the claimant that one defendant is paying for
liability for which he or she is only partially at fault.
It will, however, be seen differently from the perspective of
the defendant who is the only person sued, but in fact only
partially at fault. This situation is now governed by the Civil
Liability (Contribution) Act 1978.275 Section 1(1) provides that:

“any person liable in respect of any damage

suffered by another person may recover a
contribution from any other person liable
in respect of the same damage.”

Liability includes liability in tort, for breach of contract, breach

of trust or otherwise.276 The defendant (D1) may therefore claim
a contribution from any other wrongdoer (D2) responsible for
the “same damage” for the amount by which his payment to the
claimant exceeds his responsibility for the loss.277 The
contribution must be claimed, however, within the limitation
period of two years.278

Assessment
17–060 Section 2 deals with assessment of contribution. Section 2(1)
provides that:

“in any proceedings under s.1 above the

amount of the contribution recoverable
from any person shall be such as may be
found by the court to be just and equitable
having regard to the extent of that person’s
responsibility for the damage in question.”
This is very similar to the wording of the Law Reform
(Contributory Negligence) Act 1945 s.1 and the same principles
seem to apply.279 The courts will look at causation, and at times,
the
blameworthiness of the defendants involved.280 The court has a
considerable discretion and may even, if it considers it
appropriate, at one extreme, exempt the defendant from any
liability to make a contribution or, at the other extreme, direct
that the contribution to be recovered from any person shall
amount to a complete indemnity.281 The court will also take into
account any defence of contributory negligence, any enforceable
exclusion clause282 and any statutory limits on liability which
the other wrongdoer could have used against the original
claimant.283 The Act also does not stop any tortfeasor
contracting to indemnify him or herself against liability for
contribution.284
By this means, the claimant is fully compensated, and it is
for the defendants to sort out the division of responsibility
between them. A good example is Fitzgerald v Lane,285
discussed in Chs 6 and 16, where the plaintiff had negligently
stepped out into traffic on busy road and had been struck by a
vehicle driven by the first defendant, which pushed him into the
path of the second defendant’s car. Both the defendants were
negligent, but the plaintiff had also been contributorily negligent
in not looking properly before crossing the road. The House of
Lords held the plaintiff to be 50% contributorily negligent. It
then examined the position of the two defendants and found that
they were jointly and severally liable, but that each of them was
25% responsible for the injuries. Thus, if only one defendant had
been sued, he would have been liable to the claimant for 50% of
the damages due, but could have claimed a contribution from the
other driver of 25%. In practice, the parties will attempt to get
all other relevant parties before the court, and a defendant may
take advantage of the “third party” procedure to add a defendant
 to the case, even when that person has not been mentioned in the
claimant’s statement of case.286

Settlements

17–061 The 1978 Act also makes special provision for settlements. A
settlement does not deprive a defendant, who has agreed to make
a payment in bona fide settlement or compromise of the claim,
from seeking a contribution from any other parties he or she
believes liable for the
same damage.287 However, a settlement with one defendant
which is “full and final and in satisfaction of all causes of
action” may prevent the claimant from pursuing other tortfeasors
responsible for the same damage,288 although much depends on
the context and the actual words used.289

Other Remedies

Self-help

17–062 Reference should be made to earlier chapters which discussed

other remedies available for specific torts. Readers should
specifically note occasions where the claimant can resort to self-
help. In Ch.10, we looked at abatement in nuisance, and in
Ch.11 we saw that the claimant may use reasonable force to
resist trespass. However, such rights should be exercised with
extreme caution. Overstepping the mark can lead to legal action,
as the householder found in Revill v Newbery290 when he was
found liable to a burglar while seeking to defend his allotment
 shed with a gun (see Chs 8, 11 and 16). This section will
concentrate on the equitable remedy of an injunction.

Injunctions

17–063 Injunctions are an important tool by which the court can order
the defendant to stop a continuing or recurring act, or order the
defendant to act in a certain way. The courts will only grant an
injunction if the claimant has a good cause of action; the most
obvious examples being nuisance or trespass.291 It is an
equitable remedy and so lies at the discretion of the court. An
injunction cannot be demanded as of right and will not be
awarded where damages are an adequate remedy, or where the
claimant’s conduct is such that it would not be equitable to make
such an award. The court also has the option to award damages
in addition to or in substitution for an injunction,292 but the
courts have traditionally only awarded damages instead
of (or “in lieu of”) an injunction in exceptional circumstances. In
Shelfer v City of London Electric Lighting Co,293 A.L. Smith LJ
indicated four conditions which would lead a court to grant
damages in lieu of an injunction:
▮ where the injury to the claimant’s legal rights is small;
▮ where the injury is capable of being estimated in
money;
▮ where it can be adequately compensated by a small
money payment; and
▮ where it would be oppressive to the defendant to grant
an injunction.

The court in Shelfer was keen to resist greater use of damages in

lieu of an injunction, as it would amount to a licence to commit
a nuisance. For example, if drilling at night entitled the claimant
to an injunction, but the court chose to award damages of
£5,000, this would entitle the defendant to drill at a cost of
£5,000. The court felt that damages should not be used to
legalise a wrongful act by placing a premium on the right to
injure the claimant’s legal rights.294 Carnwath LJ in Barr v Biffa
Waste Services Ltd295 argued, however, that a more flex-ible
approach might be needed where important public interest issues
were at stake. More recently, the Supreme Court (which by then
included Lord Carnwath) in Coventry v Lawrence296 argued that
the time had come to signal a move away from a strict
application of Shelfer, particularly where an injunction would
have serious consequences for third parties, such as employees
of the defendant’s business, or, in the case itself, members of the
public using or enjoying a speedway racing stadium. While it
accepted the claimants would still be prima facie entitled to an
injunction to restrain the defendant from committing a nuisance
in the future, it held that it was important not to fetter the
discretion of judges. Lord Sumption added:

“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.
The whole jurisprudence in this area will
need one day to be reviewed in this
court.”297
 It is likely, therefore, that courts will now be more willing to
award damages in lieu of an injunction. A court should not feel
bound to grant an injunction simply because all four of the
Shelfer conditions are not satisfied.298
Nevertheless, injunctive relief remains important. There are
a number of different types of injunction, which will be
discussed below.

◗ Prohibitory and mandatory injunctions

17–064 A prohibitory injunction is an injunction which orders the
defendant not to act in a certain way. This is the most common
injunction granted, and deals with situations where, unless it is
granted, the defendant is likely to continue acting in a tortious
manner. A mandatory injunction, in contrast, is an injunction
ordering the defendant to act in a certain way and is granted
more rarely. The courts will look at the facts of the case and
decide whether damages would be appropriate. For example, the
courts are generally more likely to award damages in lieu of an
injunction where the defendant has erected a building in breach
of a restrictive covenant, although inevitably much will turn on
the facts of each case.299 The court must also be careful that, in
granting an injunction, it ensures that the defendant knows
exactly what in fact he or she has to do or not to do.300

◗ Interim injunctions301

17–065 Prohibitory and mandatory injunctions can be given

provisionally prior to the final hearing (interim injunctions), or
at the final hearing (perpetual injunctions). The court, faced with
an application for an interim injunction, is in a difficult position.
The rights of the parties have yet to be determined, and the full
facts of the case have yet to be set out. Nevertheless, due to the
likely harm of letting the defendant’s conduct continue, the court
may award an interim injunction but place conditions on its
grant. For example, it is common for the court to require the
 claimant to give an undertaking to pay damages to the defendant
for any loss suffered while the injunction is in force, should it
prove to be wrongfully issued. This may be expensive. For
example, the claimant (C) obtains an interim injunction which
prevents the defendant (D) from operating his car plant during
the night. At the full hearing of C’s claim for nuisance, it is
found that the area is classified as an industrial zone and the
conduct does not amount to a nuisance. C therefore had no right
to an interim injunction and may find himself liable for the loss
of profits experienced by D during the period of the injunction.
The principles for the grant of an interim injunction are set out
in American Cyanamid Co v Ethicon Ltd,302 and reference
should
be made to specific practitioners’ texts. It should be noted that,
as seen in Ch.14, the courts are very reluctant to impose interim
injunctions for claims for libel, despite American Cyanamid. If
the defendant has pleaded truth, honest opinion or qualified
privilege, the court will only grant such an injunction when
convinced that the defence will fail. The Court of Appeal in
Greene v Associated Newspapers Ltd303 confirmed that such a
rule was consistent with the European Convention of Human
Rights and that a lesser test would seriously weaken the effect of
art.10. It will, however, be marginally easier to obtain an interim
injunction for breach of confidence/misuse of private
information.304 In Cream Holdings Ltd v Banerjee,305 the House
of Lords found, having regard to the Human Rights Act 1998
s.12(3),306 that, in most cases, an interim injunction should only
be awarded where it is more likely than not that the applicant
will succeed at trial, although there could be no single, rigid
standard governing all applications in such cases.307

◗ Quia timet injunctions

17–066 These are injunctions granted to prevent a legal wrong before it
occurs. This is obviously an extreme remedy, and the courts will
be careful to ensure that the conduct of the defendant is such that
 substantial damage to the claimant is almost bound to occur, and
that damages are not an adequate remedy. As may be expected,
the court uses the power to grant such an injunction rarely. The
main authority here is Lord Upjohn’s judgment in Redland
Bricks Ltd v Morris,308 which held that quia timet injunctions
are granted in two particular types of case:
▮ Where the defendant has, as yet, not harmed the
claimant, but is threatening and intending to do so, and
if the defendant acts it will cause irreparable harm to
the claimant or his or her property; and
▮ Where the claimant has been compensated for past
damage, but alleges that the earlier actions of the
defendant may lead to future causes of action.

Remedies: conclusion

17–067 The courts therefore employ a number of remedies in dealing

with claims in tort. Although the primary remedy is that of
compensatory damages, the courts will also use injunctions to
meet the needs of claimants or rely on damages to punish the
misconduct of the defendant or vindicate his or her rights. The
claimant may seek to use self-help remedies but should be
careful to stay within the remit of the law. In the field of
damages for personal injury and death, there have been
proposals for reform, notably by the Law Commission, but
disappointingly the majority of the proposals for change have
not been implemented. It is to be hoped that reform of damages
for personal injury and death will return to the government’s
agenda at a future date. In particular, while the Civil Partnership
Act 2004 has led to recognition of the rights of civil partners,
cohabitees still remain vulnerable. Given that non-marital
relationships are common, legal recognition is a necessary step
forward. Equally, as medical science improves and life
expectancies increase, compensatory principles must adapt to
these new conditions. A system of tort law which is responsive
 to such needs, and sufficiently flexible to change, is one which
will hopefully thrive and continue to develop in the twenty-first
century and beyond.

1 See R. (on the application of Lumba) v Secretary of State for the Home
Department [2011] UKSC 12; [2012] 1 A.C. 245 where the majority
rejected the option of awarding vindicatory damages on the basis that it
would lead to undesirable uncertainty: see Lord Dyson JSC at [101]. See J.
Edelman, “Vindicatory damages” in K. Barker et al, Private Law in the 21st
Century (Hart, 2017).

2 (1880) 5 App. Cas. 25 at 39 per Lord Blackburn.

3 See British Westinghouse Electric & Manufacturing Co Ltd v

Underground Electric Railways Co of LondonLtd (No.2) [1912] A.C. 673
HL. The burden of proof rests on the defendant to show that the claimant
has unreasonably neglected to mitigate the damages.

4 See The Liesbosch [1933] A.C. 449.

5 Lagden v O’Connor [2003] UKHL 64; [2004] 1 A.C. 1067. Comment: B.

Coote (2004) 120 L.Q.R. 382.

6 See Brunsden v Humphrey (1884–85) L.R. 14 Q.B.D. 141 where the

plaintiff was able to claim for damage to hisvehicle and later for personal
injury. However, note the rule in Henderson v Henderson (1843) 3 Hare
100; 67 E.R. 313 that it would be an abuse of process if the claimant did not
bring forward their whole case in the first action. The court in Talbot v
Berkshire CC [1994] Q.B. 290 cast doubt on Brunsden for not considering
Henderson in itsdecision. See also Johnson v Gore Wood & Co [2002] 2
A.C. 1.

7 For example, the jury award in Reynolds v Times Newspapers Ltd [2001]
2 A.C. 127 (see Ch.14).

8 See, e.g. Constantine v Imperial Hotels Ltd [1944] K.B. 693, and, more
controversially, the false imprisonment case of R. (on the application of
Lumba) v Secretary of State for the Home Department [2011] UKSC 12;
[2012] 1 A.C. 245 (where principles of public law rendered detention
unlawful, despite the fact that the claimant could have been detained if the
correct procedures had been followed, no more than nominal damages
would be awarded). For criticism of Lumba, see S. Steel (2011) 127 L.Q.R.
527.

9 See Law Commission Report No.247, Aggravated, exemplary and

restitutionary damages (1997) which recommended at para.6.1 that for
clarity, these damages should in future be termed “damages for mental
distress”

10 See Lord Devlin in Rookes v Barnard [1964] A.C. 1129 at 1221 and
Lord Diplock in Cassell v Broome [1972] A.C. 1027 at 1124.

11 Kralj v McGrath [1986] 1 All E.R. 54. See, however, J. Murphy, “The
nature and domain of aggravated damages” [2010] C.L.J. 353, who argues
that aggravated damages provide compensation for violation of dignitary
interests and on that basis should extend to high-handed and malicious
breaches of contract and negligence.

12 e.g. Appleton v Garrett [1996] P.I.Q.R. P1 where a dentist had

deliberately undertaken unnecessary dental work on unsuspecting young
patients. The Privy Council in Horsford v Bird [2006] UKPC 3 held that
“[i]t is well established that trespass to land accompanied by high-handed,
insulting or oppressive conduct may warrant an award of aggravated
damages”: [14].

13 See John v MGN Ltd [1997] Q.B. 586 at 607. Pearson LJ gives an
excellent summary of the law in McCarey v Associated Newspapers Ltd
[1965] 2 Q.B. 86 at 104–105.

14 [2004] EWCA Civ 1127; [2005] P.I.Q.R. Q3.

15 [2006] EWCA Civ 1773; [2007] 1 W.L.R. 1065.

16 [1998] Q.B. 498.

17 Eaton Mansions (Westminster) Ltd v Stinger Compania de Inversion SA
[2013] EWCA Civ 1308; [2014] 1 P & C.R. 5, overturning Messenger
Newspaper Group v National Graphical Assoc (NGA) [1984] I.R.L.R. 397.

18 [1964] A.C. 1129. See P. R. Ghandi, “Exemplary Damages in the

English Law of Tort” (1990) 10 L.S. 182; J. Goudkamp and E.
Katsampouka, “An empirical study of punitive damages” (2018) 38
O.J.L.S. 90 and H. Koziol and V. Wilcox (eds), Punitive damages: Common
law and civil law perspectives (Tort and Insurance Law) (Springer, 2009).

19 The Law Commission recommended that the term “punitive” should be

used in future rather than “exemplary” in their 1997 Report No.247. It will
therefore be used in this section.

20 [1964] A.C. 1129 at 1228. Punitive damages cannot be awarded where

there is no material damage to be compensated: Watkins v Secretary of State
for the Home Department [2006] UKHL 17; [2006] 2 A.C. 395.

21 [1972] A.C. 1027.

22 (1763) 2 Wils. K.B. 206; 95 E.R. 768.

23 (1763) 2 Wils. K.B. 206 at 207.

24 AB v South West Water Services [1993] Q.B. 507.

25 See Cassell v Broome [1972] A.C. 1027.

26 [1987] Q.B. 380.

27 False imprisonment being one of the few torts usually heard by a judge
and jury.

28 Muuse v Secretary of State for the Home Department [2010] EWCA Civ
453 at [67]–[71] per Thomas LJ.

29 See Cassell v Broome [1972] A.C. 1027 at 1094 per Lord Morris.
30 Axa Insurance UK Plc v Financial Claims Solutions Ltd [2018] EWCA
Civ 1330; [2019] R.T.R. 1 at [27].

31 Awards are also frequently made against landlords evicting tenants to

obtain a higher level of rent from a new tenant (see Drane v Evangelou
[1978] 1 W.L.R. 455). For trespass generally, see Ramzan v Brookwide Ltd
[2011] EWCA Civ 985; [2012] 1 All E.R. 903 (neighbour deliberately
expropriating part of his neighbour’s property).

32 [1972] A.C. 1027. See also John v MGN Ltd [1997] Q.B. 586 at 618 per
Bingham MR.

33 [2018] EWCA Civ 1330; [2019] R.T.R.1.

34 “(2) The court may in an action for infringement of copyright having

regard to all the circumstances, and in particular to—(a) the flagrancy of the
infringement, and (b) any benefit accruing to the defendant by reason of the
infringement, award such additional damages as the justice of the case may
require.”

35 See also Reserve and Auxiliary Forces (Protection of Civil Interests) Act
1951 s.13(2).

36 Copyright Act 1956 s.17(3).

37 [1999] 1 A.C. 197.

38 [1999] 1 A.C. 197 at 207. For a contrary view, see C. Michalos,

“Copyright and punishment: the nature of additional damages” (2000) 22
E.I.P.R. 470.

39 [2002] EWHC 409 (Ch); [2002] E.M.L.R. 33. See also Pumfrey J in
Phonographic Performance Ltd v Reader [2005] EWHC 416 (Ch); [2005]
E.M.L.R. 26.

40 Gray J in Collins Stewart Ltd v Financial Times Ltd (No.2) [2005]

EWHC 262 (QB); [2006] E.M.L.R. 5 at [33] described them as having
more in common with punitive damages than aggravated damages.
41 [1993] Q.B. 507. In any event, the defendants had been convicted for
contamination of the water supply and fined (see Archer v Brown [1985]
Q.B. 401, below). See generally A. S. Burrows, “The Scope of Exemplary
Damages” (1993) 109 L.Q.R. 358.

42 Law Commission Report No.247 (1997).

43 [2001] UKHL 29; [2002] 2 A.C. 122.

44 See Lord Nicholls [2001] UKHL 29; [2002] 2 A.C. 122 at [55].

45 See Axa Insurance UK Plc v Financial Claims Solutions Ltd [2018]

EWCA Civ 1330. Eady J ruled out, however, the award of exemplary
damages for invasion of privacy (discussed in Ch.15) in Mosley v News
Group Newspapers Ltd [2008] EWHC 1777 (QB).

46 [2001] UKHL 29; [2002] 2 A.C. 122 at [119]–[121]. Note also the view
of A. Beever, “The structure of aggravated and exemplary damages” (2003)
23 O.J.L.S. 87, who argues that punitive damages are an anomaly which
should be expunged from the law.

47 [2001] UKHL 29; [2002] 2 A.C. 122 at [63].

48 Law Commission Report No.247 (1997) at para.6.3.

49 Hansard (HC Debates), 9 November 1999 col.502. The Government

suggested that further judicial development of the law in this area might
help clarify the issues.

50 Hill v Church of Scientology of Toronto (1995) 126 D.L.R. (4th) 129 and
Whiten v Pilot Insurance Co (2002) 209 D.L.R. (4th) 257. See M. Graham,
“Exemplary and punitive damages in contract and tort” [2002] L.M.C.L.Q.
453.

51 Uren v John Fairfax & Sons Pty Ltd (1966) 117 C.L.R. 118, High Court
of Australia. Note, however, that in some Australian jurisdictions, the
circumstances in which punitive damages may be awarded have been
drastically limited by legislation, e.g. the Personal Injuries (Liabilities and
Damages) Act 2003 (NT) s.19 abolishes them entirely.

52 Note, however, that the Supreme Court of New Zealand in Couch v Att-
Gen (No.2) [2010] NZSC 27; [2010] 3 N.Z.L.R. 149 overturned the earlier
Privy Council decision in A v Bottrill [2002] UKPC 44; [2003] 1 A.C. 449
and now requires at least conscious awareness of the risk, or subjective
recklessness, to be shown when suing for exemplary damages in negligence
claims (Elias CJ dissenting). This issue is particularly contentious in New
Zealand in the light of the no-fault compensation scheme, discussed in
Ch.1, which serves to exclude any common law claim for personal injury
but permits a claim for exemplary damages. Comment: H. Wilberg [2010]
P.L. 809.

53 [2001] UKHL 29; [2002] 2 A.C. 122 at [123[–[137]. Such comments

were, however, obiter.

54 [2006] EWCA Civ 1773; [2007] 1 W.L.R. 1065. Comment: H. Gow, “A

sorry tale” (2007) 157 N.L.J. 164.

55 (2005) 258 D.L.R. (4th) 275. The Court dealt with the point in only one
paragraph, commenting that “The trial judge . . . . correctly stated that
punitive damages cannot be awarded in the absence of reprehensible
conduct specifically referable to the employer”: at [91].

56 See the High Court of Australia in State of New South Wales v Ibbett
[2006] HCA 57; (2007) 231 A.L.R. 485 (punitive damages may be awarded
against the police).

57 [1985] Q.B. 401.

58 [1985] Q.B. 401 at 423. Contrast Borders (UK) Ltd v Commissioner of

Police of the Metropolis [2005] EWCA Civ 197; [2005] Po. L.R. 1 (award
of punitive damages did not duplicate criminal penalties).

59 Law Commission Report No.247 paras 5.112–5.115.

60 Devenish Nutrition Ltd v Sanofi-Aventis SA [2008] EWCA Civ 1086;
[2009] Ch. 390 held that non-proprietary torts are still bound by Court of
Appeal authority in Stoke on Trent City Council v W&J Wass Ltd (No.1)
[1988] 1 W.L.R. 1406 that only compensatory damages could be awarded.

61 e.g. the damages awarded for trespass to land in Horsford v Bird [2006]
UKPC 3; [2006] 1 E.G.L.R. 75 have been described by some authors as
restitutionary (Edelman (2006) 122 L.Q.R. 391), but by others as
compensatory: Severn Trent Water Ltd v Barnes [2004] EWCA Civ 570;
[2004] 2 E.G.L.R. 95 and Eaton Mansions (Westminster) Ltd v Stinger
Compania de Inversion SA [2013] EWCA Civ 1308. See also Lord Scott,
“Damages” [2007] L.M.C.L.Q. 465, 467.

62 At para.6.2.

63 At paras 3.48–3.57. See para.3.51: “We therefore recommend that:

legislation should provide that restitutionary damages may be awarded
where: (a) the defendant has committed: (i) a tort or an equitable wrong, or
(ii) a civil wrong (including a tort or an equitable wrong) which arises under
an Act, and an award of restitutionary damages would be consistent with
the policy of that Act, and (b) his conduct showed a deliberate and
outrageous disregard of the plaintiff’s rights. (Draft Bill, cl.2(1), 12(3))”.

64 See, e.g. G. Virgo, The Principles of the Law of Restitution, 3rd edn
(OUP, 2015) Chs 16 and 17, S. Watterson, “Gain-Based Remedies for Civil
Wrongs in England and Wales” in E. Hondius and A. Janssen (eds),
Disgorgement of Profits (Springer, 2015), pp.29–69.

65 See, generally, the Law Commission Report No.266 (2000), Damages

under the Human Rights Act 1998, J. Steele, “Damages in tort and under the
Human Rights Act: remedial or functional separation?” [2008] C.L.J. 606
and J. Varuhas, Damages and Human Rights (Hart, 2016).

66 The cause of action is set out in s.7(1): “(1) A person who claims that a
public authority has acted (or proposes to act) in a way which is made
unlawful by section 6(1) may—(a) bring proceedings against the authority
under this Act in the appropriate court or tribunal, or (b) rely on the
Convention right or rights concerned in any legal proceedings, but only if
he is (or would be) a victim of the unlawful act”.

67 Human Rights Act 1998 s.8(2).

68 These include: (a) any other relief or remedy granted, or order made, in
relation to the act in question (by that or any other court), and (b) the
consequences of any decision (of that or any other court) in respect of that
act: Human Rights Act 1998 s.8(3).

69 Human Rights Act 1998 s.8(4). These are set out under art.41 of the
Convention.

70 See Lord Woolf CJ, “The Human Rights Act 1998 and Remedies” in M.
Andenas and D. Fairgrieve (eds), Judicial Review in International
Perspective: II (Kluwer Law International, 2000), pp.429–436.

71 [2005] UKHL 14; [2005] 1 W.L.R. 673 at [19].

72 This has led to relatively modest awards: see Savage v South Essex
Partnership NHS Foundation Trust [2010] EWHC 865 (QB); [2010]
P.I.Q.R. P14 (£10,000 for breach of art.2 in permitting compulsorily
detained mental patient to escape and commit suicide) and R. (on the
application of Pennington) v Parole Board [2010] EWHC 78 (Admin)
(£1,750 for breach of art.5(4) due to 3 month delay in informing prisoner
that he was to be released on licence, rejecting the argument raised by
Varuhas (2009) 72 M.L.R. 750 for a tort-based approach to damages under
the Human Rights Act).

73 [2013] UKSC 23; [2013] 2 A.C. 254 at [13] per Lord Reed giving the
leading judgment with Lord Carnwath concurring (violation of ECHR
art.5(4)). Followed by R. (on the application of Lee-Hirons) v Secretary of
State for Justice [2016] UKSC 46; [2017] A.C. 52.

74 M. Andenas, E. Bjorge and D. Fairgrieve (2014) 130 L.Q.R. 48

comment that Lord Reed thus regarded the economic context of the award
as a relevant concern.
75 See Law Commission Report No.266; para.3.4: “Perhaps the most
striking feature of the Strasbourg case-law, to lawyers from the UK, is the
lack of clear principles as to when damages should be awarded and how
they should be measured”.

76 HRA 1998 s.7(7) provides that a person is a “victim” of an unlawful act

only if he would be a victim under art.34 of the Convention. The definition
of victim under the Convention is quite broad. For example, there is clear
authority that family members (and not simply the deceased) may bring
claims in their own right for breach of ECHR art.2 (right to life): applied,
recently, in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2;
[2012] 2 A.C. 72.

77 R. (on the application KB) v Mental Health Review Tribunal [2003]

EWHC 193 (Admin); [2004] Q.B. 936, relying on Silver v United Kingdom
(1983) 6 E.H.R.R. 62. The court is equally more willing to award damages
for negligently-incurred pure economic loss than in English law: see Ch.3.

78 See Law Commission Report No.266 para.3.47 which examined the case
law of the European Court of Human Rights.

79 R. (on the application of Sturnham) v Parole Board [2013] UKSC 23 at

[29].

80 Theis J in Kent CC v M [2016] EWFC 28; [2016] 4 W.L.R. 97 at [79]

(breach of ECHR arts 6 and 8).

81 [2018] UKSC 11; [2019] A.C. 196 at [64]–[65].

82 See Human Rights Act s.7(5): “Proceedings under subs.7(1)(a) must be

brought before the end of—(a) the period of one year beginning with the
date on which the act complained of took place; or (b) such longer period as
the court or tribunal considers equitable having regard to all the
circumstances, but that is subject to any rule imposing a stricter time limit
in relation to the procedure in question”. Such an extension was granted in
Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2.

83 [1980] A.C. 174 at 183.

84 See H West & Son Ltd v Shephard [1964] A.C. 326.

85 Auty v National Coal Board [1985] 1 All E.R. 930 at 939 per Oliver LJ.

86 [1999] 1 A.C. 345.

87 See British Transport Commission v Gourley [1956] A.C. 185 HL.

88 Assuming the claimant will draw on the income and part of the capital
from the sum invested so that the lump sum is exhausted at the end of the
relevant period.

89 Now in their 7th edn (October 2011), with online supplementary tables
(2019). As well as providing tables of multipliers, the publication provides
explanatory notes as to how the tables should be used: see
http://www.gad.gov.uk/services/Other%20Services/Compensation_for_injur
y_and_death.html [Accessed 1 August 2020]. 90 This provision has,
however, never been brought into force.

91 [1999] 1 A.C. 345 at 379.

92 In Lim Poh Choo v Camden and Islington AHA [1980] A.C. 174 at 193,
Lord Scarman held that only in exceptional circumstances would any
allowance be made for inflation.

93 This process was affirmed by the Court of Appeal in Cooke v United

Bristol Health Care [2003] EWCA Civ 1370; [2004] 1 W.L.R. 251.

94 Since Mallett v McMonagle [1970] A.C. 166 HL.

95 Law Commission Report No.224 paras 2.25–2.28.

96 Damages Act 1996 s.1 (now repealed and replaced by s.A1).

97 [1999] 1 A.C. 345. A case described as “one of the most important

decisions in personal injury litigation since the Second World War”: D.
Kemp (1998) 114 L.Q.R. 570, 571.

98 [2000] 1 W.L.R. 1404.

99 Damages (Personal Injury) Order 2001 (SI 2001/2301) art.2.

100 The Lord Chancellor’s Department March 2000 Consultation Paper

para.14, reported that insurance industry sources estimated that reducing the
guideline rate of return from 4.5% to 3% would increase by £115 million
the sum needed to be paid out in damages.

101 C. Daykin, “Fair compensation needs actuaries” [2009] J.P.I. Law 48.

102 See Joint Consultations by the Ministry of Justice, the Scottish

Government and the Department of Justice, Northern Ireland, Damages Act
1996: The Discount Rate—How should it be set? (Consultation Paper CP
12/2012) and Damages Act 1996: The Discount Rate—Review of the Legal
Framework (Consultation Paper CP 3/2013).

103 Damages (Personal Injury) Order 2017 (SI 2017/206) art.2. This
change became effective on 20 March 2017.

104 Civil Liability Act 2018 s.10 (Assumed rate of return on investment of
damages). In force from 1 July 2019, replacing s.1.

105 Schedule A1 introduces a requirement for the Lord Chancellor to

review the discount rate on a regular basis according to the procedure set
out in the Schedule. The objective of every review is to decide whether the
rate should be retained or changed.

106 Damages Act 1996 ss.A1(3) and (4).

107 Explanatory notes to Damages (Personal Injury) Order 2019 (SI

2019/1126) [7].

108 Damages (Personal Injury) Order 2019 (SI 2019/1126) art.2.

109 Wells v Wells [1999] 1 A.C. 345 at 365 per Lord Lloyd.

110 e.g. £200 in Benham v Gambling [1941] A.C. 157.

111 [1962] 2 Q.B. 210.

112 [1980] A.C. 136.

113 A claim by dependants under the Fatal Accidents Act 1976 can only
stand when the deceased’s claim has not proceeded to judgment or settled.

114 This action does not, however, survive for the benefit of the claimant’s
estate. Law Reform (Miscellaneous Provisions) Act 1934 s.1(2)(a) (as
amended by the Administration of Justice Act 1982 s.4) provides that the
estate cannot recover any damages for loss of income in respect of any
period after the victim’s death. This prevents any possibility of double
recovery by the claimant as the executor of the estate and dependant.

115 See Harris v Empress Motors Ltd [1984] 1 W.L.R. 212. This is far
stricter than the approach under the Fatal Accidents Act 1976 which will be
discussed below.

116 Croke v Wiseman [1982] 1 W.L.R. 71. Comment: P. J. Davies (1982) 45

M.L.R. 333.

117 Croke was followed unenthusiastically by the Court of Appeal in Iqbal

v Whipps Cross University Hospital NHS Trust [2007] EWCA Civ 1190;
[2008] P.I.Q.R. P9 and by the High Court in Totham v King’s College
Hospital NHS Foundation Trust [2015] EWHC 97 (QB) at [42]–[47] where
the judge argued that Croke is inconsistent with the principle of full
compensation and the policy reasoning in Pickett v British Rail. See also JR
v Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245
(QB); [2017] 1 W.L.R. 4847 (Croke distinguished on questionable ground
that although the claimant was injured at birth, claim was brought as an
adult making it less speculative: at [33]).

118 See Smith v Manchester Corp (1974) 17 K.I.R. 1 CA. For a classic
recent example of such an award, see Billett v Ministry of Defence [2015]
EWCA Civ 773; [2016] P.I.Q.R. Q1.

119 See, e.g. Croke v Wiseman [1982] 1 W.L.R. 71 where the plaintiff was
21-months-old at the time of the accident.

120 [1970] A.C. 1 at 13.

121 See Parry v Cleaver [1970] A.C. 1; Hussain v New Taplow Paper Mills
Ltd [1988] A.C. 514; and Gaca v Pirelli General Plc [2004] EWCA Civ
373; [2004] 1 W.L.R. 2683.

122 See Parry v Cleaver [1970] A.C. 1.

123 [2000] I.C.R. 1181.

124 See Gaca v Pirelli General Plc [2004] EWCA Civ 373; [2004] 1
W.L.R. 2683, overruling McCamley v Cammell Laird Shipbuilders Ltd
[1990] 1 W.L.R. 963.

125 See Bradburn v Great Western Rail Co (1874) L.R. 10 Ex 1.

126 See, generally, P. Cane and J. Goudkamp, Atiyah’s Accidents,

Compensation and the Law, 9th edn (CUP, 2018), para.15.4.3.

127 Hussain v New Taplow Paper Mills Ltd [1988] A.C. 514.

128 [1970] A.C. 1 at 21.

129 [1970] A.C. 1 at 32.

130 [1991] 2 A.C. 502. See also Longden v British Coal Corp [1998] A.C.
653 HL: contributory incapacity and disability pensions are non-deductible.

131 [1991] 2 A.C. 502 at 543.

132 [1988] A.C. 514.

133 [1988] A.C. 514 at 532.

134 This still applies to torts which occurred before 1 January 1989 and
which are not barred by the Limitation Act 1980.

135 See Hodgson v Trapp [1989] A.C. 807. These rules still apply for
benefits not covered by the 1997 Act, e.g. statutory payments under the
Pneumoconiosis etc (Workers’ Compensation) Act 1979 or housing benefit
(Clenshaw v Tanner [2002] EWCA Civ 1848).
136 Namely that the defendant is liable only for the actual losses suffered
by the claimant, but the defendant is rendered liable to repay all those who
supported the claimant prior to trial.

137 They are listed in Social Security (Recovery of Benefits) Act 1997
Sch.2, col.2 and cover most benefits. There are exemptions, however, such
as payments made under the Criminal Injuries Compensation Scheme and
charitable trusts: see Sch.1, Pt I. Claims under the Fatal Accidents Act 1976
are also excluded: Social Security (Recovery of Benefits) Regulations 1997
(SI 1997/2205) reg.2(2)(a).

138 Social Security (Recovery of Benefits) Act 1997 s.3. This is inserted to
encourage early settlements.

139 Social Security (Recovery of Benefits) Act 1997 s.8(2).

140 See https://www.gov.uk/government/collections/cru [Accessed 1 August

2020]. The CRU seeks to recover social security benefits paid as a result of
an accident, but also costs incurred by NHS hospitals and Ambulance
Trusts for treatment from injuries from road traffic accidents and personal
injury claims: see Health and Social Care (Community Health and
Standards) Act 2003 Pt 3. There is a limit to the amount of NHS charges
that can be recovered: see Personal Injuries (NHS Charges) (Amounts)
Regulations 2015 (SI 2015/295). Contrast the position of the local
authority: Islington LBC v University College Hospital NHS Trust [2005]
EWCA Civ 596; [2006] P.I.Q.R. P3.

141 See s.1(3) of the 1997 Act.

142 Later incorporated in the Social Security Administration Act 1992. The
1997 Act came into force on 6 October 1997.

143 Social Security (Recovery of Benefits) Act 1997 s.6(1).

144 The Court of Appeal in Griffiths v British Coal Corp [2001] EWCA
Civ 336; [2001] 1 W.L.R. 1493 modified this result slightly by allowing
defendants to offset their liability to the State against any award of interest
under each head. Further potential difficulties arise due to the failure of the
1997 Act to make allowances for any reduction in the claimant’s damages
for contributory negligence.

145 See Law Commission Report No.262, Damages for Personal Injury:
Medical, Nursing and Other Expenses; Collateral Benefits (1999). The
Commission rejected (at paras 11.51–11.52) treating pensions and sick pay
alike and deducting both. It felt that there would be practical difficulties in
distinguishing between some disablement pensions and some insurance
policies.

146 Law Commission Report No.262, Damages for Personal Injury:

Medical, Nursing and Other Expenses; Collateral Benefits (1999),
para.11.53.

147 Cunningham v Harrison [1973] Q.B. 942.

148 The Government in its Consultation Paper, The Law on Damages (CP
09/07, May 2007) queried whether the time had come to repeal this section
to prevent litigants claiming the cost of medical care and then using the
NHS free of charge, although there seems little empirical evidence to
suggest this is widespread in practice.

149 Peters v East Midland Strategic Health Authority [2009] EWCA Civ
145; [2010] Q.B. 48. Where the claimant lacks capacity (as in Peters) the
court held that the Court of Protection could provide against the risk of
double recovery e.g. by requiring notification of any future application for
public funding of the claimant’s care.

150 Whittington Hospital NHS Trust v XX [2020] UKSC 14; [2020] 2

W.L.R. 972 at [53] per Lady Hale. This is despite the fact that commercial
surrogacy is not permitted in the UK.

151 Administration of Justice Act 1982 s.5. Lim Poh Choo v Camden and
Islington AHA [1980] A.C. 174 applies the same rule to private care.

152 See Housecroft v Burnett [1986] 1 All E.R. 332.

153 One decision has suggested that this may extend to the cost of palliative
care prior to death, despite the fact that hospices do not charge for care but
request a voluntary contribution from relatives: Drake v Foster Wheeler Ltd
[2010] EWHC 2004 (QB); [2011] 1 All E.R. 63 (criticism: N. Cooksley
[2010] J.P.I. Law C203).

154 [1974] Q.B. 454.

155 The Court of Appeal in Hardwick v Hudson [1999] 3 All E.R. 426
distinguished this situation from where the victim’s wife had provided
commercial services for the claimant’s business. Different considerations
apply in a commercial environment where such services are usually paid for
and the victim could only recover if there was evidence of an express or
implied contract for the work. This approach is approved by the Law
Commission in their Report No.262, Damages for Personal Injury:
Medical, Nursing and Other Expenses; Collateral Benefits (1999).

156 [1994] 2 A.C. 350. Comment: D. Kemp (1994) 110 L.Q.R. 524.

157 Adopting the view of Lord Denning MR in Cunningham v Harrison

[1973] Q.B. 942 at 951–952.

158 Lord Bridge held that at common law the fact that the defendant is
insured can have no relevance in assessing damages: [1994] 2 A.C. 350 at
363.

159 Law Commission Report No.262 (1999) paras 3.76 and 3.62. The High
Court of Australia has refused to follow Hunt and followed the principle of
Donnelly v Joyce: Kars v Kars (1996) 141 A.L.R. 37.

160 Government Consultation Paper, The Law on Damages (CP 09/07, May
2007), paras 114–120.

161 This is usually subject to a discount to represent non-payment of tax

and national insurance and the belief that care provided out of love and care
makes commercial considerations less relevant: Evans v Pontypridd
Roofing Ltd [2001] EWCA Civ 1657; [2002] P.I.Q.R. Q5.
162 Housecroft v Burnett [1986] 1 All E.R. 332 at 343 per O’Connor LJ.

163 See Daly v General Steam Navigation Co Ltd [1981] 1 W.L.R. 120. In
Lowe v Guise [2002] EWCA Civ 197; [2002] Q.B. 1369, the Court of
Appeal extended recovery to a claimant who, due to the injury, was unable
to continue to provide gratuitous care for his disabled brother on which the
family depended.

164 Law Commission Consultation Paper No.140, Damage for Personal

Injury: Non-Pecuniary Loss (1995), para.2.10. The Law Commission
Report No.257, Damages for Personal Injury: Non-Pecuniary Loss (April
1999) recommended that the present system of assessment by judges should
continue and made no proposals for reform.

165 H West & Son Ltd v Shephard [1964] A.C. 326; Lim Poh Choo v
Camden and Islington AHA [1980] A.C. 174 in contrast to loss of amenity
which is assessed objectively.

166 Administration of Justice Act 1982 s.1(1)(a) abolished a claim for loss
of expectation of life per se.

167 [1992] 2 All E.R. 65. See also Grieves v FT Everard & Sons Ltd [2007]
UKHL 39; [2008] 1 A.C. 281 (no recovery for anxiety caused by fear of
future life-threatening disease).

168 [1964] A.C. 326 at 368–369 per Lord Pearce. See also Wise v Kaye
[1962] 1 Q.B. 638.

169 The minority (Lords Reid and Devlin) favoured a far smaller award.

170 [1980] A.C. 174.

171 See paras 2.19 and 2.24.

172 Since 1992, the Judicial Studies Board (now Judicial College) has
published Guidelines for the Assessment of General Damages in Personal
Injury Cases (latest edition: 15th edn, OUP, 2019) and summaries of awards
may be found in Kemp & Kemp: Quantum of Damages (Sweet and
Maxwell).

173 See para.5.8.

174 [2001] Q.B. 272. Comment: R. Lewis (2001) 64 M.L.R. 100 and D.
Campbell, “The Heil v Rankin approach to law-making: Who needs a
legislature?” (2016) 45 C.L.W.R. 340.

175 The Times 24 March 2000 reported that the Association of British
Insurers believed that, following Heil v Rankin, the likely rise in premiums
would be less than 10%.

176 [2012] EWCA Civ 1288; [2013] 1 W.L.R. 1239, amending earlier
judgment: [2012] EWCA Civ 1039.The increase will not apply to claimants
falling under the Legal Aid, Sentencing and Punishment of Offenders Act
2012 s.44(6), that is, claimants under pre-April 2013 CFA agreements who
are still able to recover the success fee from the losing party.

177 [2012] EWCA Civ 1288 at [50].

178 LASPO Act 2012 ss.44 and 46, which amended the Courts and Legal
Services Act 1990 (see ss.58 58A and 58C) in line with recommendations
made by the Jackson Review.

179 Confirmed in Summers v Bundy [2016] EWCA Civ 126; [2016]

P.I.Q.R. Q6 (no discretion to judges in relation to 10% uplift in award of
general damages).

180 County Courts Act 1984 s.69 makes similar provision for actions in the
county court. The interest awarded will be simple interest, although the Law
Commission has recommended that the court should have a discretion to
award compound interest: Law Commission Consultation Paper No.167,
Compound Interest (2002) and Report No.287, Pre-judgment Interest on
Debts and Damages (2004).

181 See Jefford v Gee [1970] 2 Q.B. 130 at 151. Cookson v Knowles [1979]
A.C. 556 applies the decision to fatal accident cases; guidelines approved in
A Train & Sons Ltd v Fletcher [2008] EWCA Civ 413; [2008] 4 All E.R.
699.

182 See Birkett v Hayes [1982] 1 W.L.R. 816 and Wright v British Railways
Board [1983] 2 A.C. 773. Affirmed in L (a patient) v Chief Constable of
Staffordshire [2000] P.I.Q.R. Q349 CA, which rejected the argument based
on Lord Lloyd’s reasoning in Wells v Wells [1999] 1 A.C. 345 that the rate
should also be set at the index-linked government securities rate.

183 Damages for non-pecuniary loss being assessed as at the date of trial.

184 Inserted by Administration of Justice Act 1982 s.6. See also CPR r.41.

185 Damages Act 1996 s.3 provides that a provisional award will not stop
the victim’s dependants from bringing a claim under the Fatal Accidents
Act 1976, but any part of the provisional award which was intended to
compensate the victim for pecuniary loss during a period that in the event
falls after his or her death shall be taken into account in assessing the
amount of any loss of support suffered by the dependants under the Act.

186 [1991] 1 All E.R. 638.

187 See Wan v Fung [2003] 7 CL 113 (QBD)—1–2% risk sufficient on the
facts. See also Chewings v Williams [2009] EWHC 2490 (QB); [2010]
P.I.Q.R. Q1 (real and not just fanciful chance that claimant would suffer
further extremely serious physical damage as a result of chance he would
seek surgery with real risk of complications leading to amputation of lower
leg).

188 See CPR rr.25.6–25.9.

189 CPR r.25.6(7).

190 See R. Lewis, Structured Settlements: the Law and Practice (Sweet and
Maxwell, 1993) and Law Com. No.224 (1994), Structured Settlements and
Interim and Provisional Damages. Following the Law Commission Report,
structured settlements received legislative support in the Finance Act 1995
and Damages Act 1996.
191 See R. Lewis, “The politics and economics of tort law: Judicially
imposed periodical payments of damages” (2006) 69 M.L.R. 418, 420.

192 Periodical payment orders (PPOs) are distinct from structured

settlements in that damages do not have to be calculated as a lump sum
which is then “structured” to purchase an annuity. Instead, the courts adopt
a “bottom up” approach by which the court assesses the periodical payment
the claimant will need for the future, regardless of the capital cost.

193 Damages Act 1996 s.2(1): “A court awarding damages in an action for
personal injury may, with the consent of the parties, make an order under
which the damages are wholly or partly to take the form of periodical
payments”.

194 Lord Steyn in Wells v Wells [1999] 1 A.C. 345 at 384.

195 Royal Commission on Civil Liability and Compensation for Personal

Injury, Cmnd.7054 (1978), vol.1 para.576.

196 The discount rate and alternatives to lump sum payments (March 2000)
and Damages For Future Loss: Giving the Courts the Power to Order
Periodical Payments for Future Loss and Care Costs in Personal Injury
Cases (March 2002). Note also recommendations of the Master of the
Rolls’ Working Party on Structured Settlements in August 2002.

197 Damages Act 1996 s.2(1). Note, however, that this power only arises
when the matter is before the court, that is, the court is giving judgment on
damages or required to approve a settlement made on behalf of a minor or a
person lacking capacity. It will not arise when the parties settle out of court.

198 Damages Act 1996 s.2(2).

199 CPR r.41.7. This directs the courts to have regard to the factors set out
in the Practice Direction 41B(1) which include the scale of the annual
payments taking into account any deduction for contributory negligence,
and the form of award preferred by the claimant and defendant.
200 See E. Tomlinson and H. Smith, “Periodical payment orders” [2016]
J.P.I. Law 243. See also ss.2(4)–(5).

201 Such an argument seems to conflict with the approach taken by the
Court of Appeal in Cooke v United Bristol Health Care [2003] EWCA Civ
1370; [2004] 1 W.L.R. 251 discussed at 17–021 above. The latter issue was
resolved in Thompstone (see below) by distinguishing Cooke on the basis
that lump sums raised distinct investment questions to periodical payments.

202 W. Norris [2005] J.P.I. Law 59.

203 [2008] EWCA Civ 5; [2008] P.I.Q.R. Q2, approving Flora v Wakom
(Heathrow) Ltd (formerly Abela Airline Catering Ltd) [2006] EWCA Civ
1103; [2007] 1 W.L.R. 482. Comment: R. Lewis, “The indexation of
periodical payments of damages in tort: the future assured?” (2010) 30 L.S.
391.

204 Suitability should be tested by the following criteria: (i) Accuracy of

match of the particular data series to the loss or expenditure being
compensated; (ii) Authority of the collector of the data; (iii) Statistical
reliability; (iv) Accessibility; (v) Consistency over time; (vi)
Reproducibility in the future; and (vii) Simplicity and consistency in
application: [2008] EWCA Civ 5 at [75].

205 [2008] EWCA Civ 5 at [100]. ASHE 6115 was split in 2012 into two
new codes: ASHE 6145 (care workers and carers) and ASHE 6146 (senior
care workers).

206 See N. Bevan, “Future proof: Part 1” (2008) 158 N.L.J. 283: “This
decision will propel the periodical payments regime from the backwaters
into the mainstream as a means of delivering compensation for future loss
in personal injury claims”. See also C. Daykin, “Fair compensation needs
actuaries” [2009] J.P.I. Law 48.

207 See Damages (Variation of Periodical Payments) Order 2005 (SI

2005/841) art.2.
208 See DCA Guidance at para.11. It should also be noted that art.7 of the
Order provides that: “A party may make only one application to vary a
variable order in respect of each specified disease or type of deterioration or
improvement”.

209 H. McGregor, McGregor on Damages, 17th edn (Sweet and Maxwell,

2003).

210 Damages Act 1996: The Discount Rate—Review of the Legal

Framework (Consultation Paper CP 3/2013), para.83.

211 C. Malla, “PPOs in catastrophic injury claims” [2013] J.P.I. Law 169.

212 R. Weir, “Periodical payment orders—where are we now?” [2014] J.P.I.

Law 16.

213 Hicks v Chief Constable of South Yorkshire [1992] 2 All E.R. 65.

214 Law Commission Report No.247, Aggravated, exemplary and

restitutionary damages (1997), para.6.3 proposed that this should be
repealed and the Act amended to allow claims to survive for the benefit of
the estate of a deceased victim, but that they should not be available against
a wrongdoer’s estate.

215 Law Reform (Miscellaneous Provisions) Act 1934 s.1(2)(c).

216 See Baker v Bolton (1808) 1 Camp. 493; 170 E.R. 1033 where the
plaintiff failed despite the fact that he “was much attached to his deceased
wife and that, being a publican, she had been of great use to him in
conducting his business”. See also The Amerika (Admiralty Commissioners
v SS Amerika) [1917] A.C. 38 HL.

217 For historical background, see P. Handford, “Lord Campbell and the
Fatal Accidents Act” (2013) 129 L.Q.R. 420.

218 Unfair Contract Terms Act 1977 s.2(1) and Consumer Rights Act 2015
s. 65(1) render invalid notices excluding liability in negligence for personal
injury and death in relation to business and consumer liability respectively
— see para.16–011.

219 Read v Great Eastern Ry (1868) L.R. 3 Q.B. 555.

220 Murray v Shuter [1976] Q.B. 972.

221 But not where the deceased’s solicitors had negligently discontinued
his action after his death which does not extinguish the dependants’ FAA
claim: Reader v Molesworths Bright Clegg [2007] EWCA Civ 169; [2007]
1 W.L.R. 1082.

222 Dodds v Dodds [1978] Q.B. 543.

223 s.2(2), although not more than one action shall lie for and in respect of
the same subject matter of complaint (s.2(3), but note broader interpretation
under Cachia v Faluyi [2001] EWCA Civ 998; [2001] 1 W.L.R. 1966).

224 Including a person whose marriage to the deceased had been annulled
or declared void as well as a person whose marriage to the deceased has
been dissolved: s.1(4). See also s.1(4A) for former civil partners.

225 s.1(3)(aa), as inserted by the Civil Partnership Act 2004. This includes
a person whose civil partnership with the deceased has been annulled as
well as a person whose civil partnership with the deceased has been
dissolved: s.1(4A).

226 s.1(5)(b)(ii) was added by virtue of the Marriage (Same Sex Couples)
Act 2013 (Consequential and Contrary Provisions and Scotland) Order
2014 (SI 2014/560).

227 See, e.g. Kotke v Saffarini [2005] EWCA Civ 221; [2005] 2 F.L.R. 517
(claimant unable to obtain compensation for the death of her partner,
despite the fact that the relationship had lasted some years and they had a
child together due to failure to satisfy s.1(3)(b) test). Section 1(3)(b) has,
however, been found to be consistent with ECHR arts 8 and 14: Swift v
Secretary of State for Justice [2013] EWCA Civ 193; [2014] Q.B. 373.
228 The Government in its 2007 Consultation Paper, The Law on Damages
had proposed that s.3(4) should be repealed and replaced by a provision to
the effect that the prospect of breakdown in the relationship between the
deceased and his or her partner should not be taken into account when
assessing damages under the FAA.

229 para.3.45; Draft Bill, cl.1. A person is treated as being wholly or partly
maintained by another if that person “otherwise than for full valuable
consideration, was making a substantial contribution in money or money’s
worth towards his reasonable needs”.

230 The Law on Damages, Ch.1 (CP 09/07, May 2007). The second part of
the definition was rejected as meeting no significant need, being too open-
ended and encouraging loosely framed and speculative claims: at para.8.

231 Ministry of Justice, “Civil Law Reform Bill: Response to Consultation”

(2011).

232 See Latham LJ in Thomas v Kwik Save Stores Ltd The Times 27 June
2000.

233 See, e.g. Davies v Taylor [1974] A.C. 207 where a wife, who had
deserted her husband, failed to show some significant prospect, rather than
a mere speculative possibility, of a reconciliation with her husband had he
lived. Consider also Welsh Ambulance Service NHS Trust v Williams [2008]
EWCA Civ 81, family members, who worked for family business but
received benefits far exceeding the value of their services due to profits
created by deceased, deemed dependants.

234 On this basis, a dependant cannot by his own conduct after death
reduce the value of the dependency: Welsh Ambulance Service NHS Trust v
Williams [2008] EWCA Civ 81, dependency of family members not
reduced despite the fact they had successfully taken over the family
business.

235 See Burns v Edman [1970] 2 Q.B. 541.

236 Sykes v North Eastern Ry (1875) 44 L.J.C.P. 191.

237 Note also the compromise position taken by the High Court of
Australia in De Sales v Ingrilli (2002) 193 A.L.R. 130.

238 para.4.53, Draft Bill, cll.4 and 6(5).

239 para.4.66, Draft Bill, cl.4.

240 See Harris v Empress Motors [1984] 1 W.L.R. 212 at 216–217 per
O’Connor LJ.

241 [2016] UKSC 9; [2016] A.C. 908, overturning Cookson v Knowles

[1979] A.C. 556 and Graham v Dodds [1983] 1 W.L.R. 808.

242 For criticism, see Nelson J in White v ESAB Group (UK) Ltd [2002]
P.I.Q.R. Q6 and the 1999 Law Commission Report, Claims for Wrongful
Death.

243 As amended by Administration of Justice Act 1982 s.3(1). Social

Security (Recovery of Benefits) Regulations 1997 (SI 1997/2205) reg.2(2)
(a) also provides that the recovery provisions for social security benefits do
not apply to fatal accidents claims. See McIntyre v Harland & Wolff Plc
[2006] EWCA Civ 287; [2006] 1 W.L.R. 2577 for a literal interpretation of
the section.

244 [2008] EWCA Civ 447; [2008] I.C.R. 1064: refusal to deduct sums
paid to dependants from death in service benefit scheme and discretionary
trust by defendant employer.

245 [1992] Q.B. 1.

246 [1992] 1 W.L.R. 986.

247 Relying on the pre-s.4 case of Hay v Hughes [1975] Q.B. 790 CA. This
was disapproved by the Divisional Court in R. v Criminal Injuries
Compensation Board Ex p. K [1999] Q.B. 1131. Parker LJ also added as a
postscript that difficulties would arise in any event where the carer was in
fact the tortfeasor; a reason which the Divisional Court did support (see
below).
248 [1999] Q.B. 1131. It may be noted that the case concerned a claim to
the Criminal Injuries Compensation Board. However, the courts use similar
criteria to those adopted in ordinary civil claims for damages and so the
issue was in point.

249 [2002] EWCA Civ 792; [2003] Q.B. 965.

250 There was a maintenance order in place against the father, but solely
for a nominal sum which the court decided to ignore.

251 See also L v Barry May Haulage [2002] P.I.Q.R. Q3.

252 Assuming, of course, the correctness of Hunt v Severs [1994] 2 A.C.

350.

253 para.5.39, Draft Bill, cl.5.

254 Parents of an adult deceased may, however, be able to claim damages

under the Human Rights Act 1998 against a public authority for breach
ECHR art.2: see Rabone v Pennine Care NHS Foundation Trust [2012]
UKSC 2; [2012] 2 A.C. 72. It may be questioned whether the Supreme
Court was correct to see the remedy granted under the HRA 1998 as an
alternative action to that in tort or whether the HRA 1998 claim potentially
undermines the policy underlying the bereavement provisions of the FAA
1976: see A. Tettenborn, “Wrongful death, human rights, and the Fatal
Accidents Act” (2012) 128 L.Q.R. 327.

255 For claims for mental distress in tort generally, see P. Giliker, “A ‘new’
head of damages: damages for mental distress in the English law of torts”
(2000) 20 L.S. 19; E. Descheemaeker, “Rationalising Recovery for
Emotional harm in tort law” (2018) 134 L.Q.R. 602.

256 See Damages for Bereavement (Variation of Sum) (England and Wales)
Order 2020 (SI 2020/316) art.2 (from 1 May 2020). This is an increase from
the previous sum of £12,980: see Damages for Bereavement (Variation of
Sum) (England and Wales) Order 2013 (SI 2013/510) art.2. 257 s.1A(4).

258 Law Reform (Miscellaneous Provisions) Act 1934 s.1(1A).

259 [2017] EWCA Civ 1916; [2018] Q.B. 804.

260 para.6.31, Draft Bill, cl.2.

261 Such damages would be capped at £30,000 and, if there are more than
three claimants, apportioned accordingly: paras 6.41–6.51, Draft Bill, cl.2.

262 Should the deceased have both a spouse/partner from whom s/he is
separated and a cohabiting partner of over 2 years duration, the sum will be
divided between the 2: at para.64.

263 Government Consultation Paper, The Law on Damages (CP 09/07, May
2007) Ch.2.

264 Livingstone v Rawyards Coal Co (1880) 5 App. Cas. 25 at 39 per Lord

Blackburn.

265 [1933] A.C. 449. The case is also authority for the rule that losses
incurred due to impecuniosity are not recoverable. This rule was overturned
by the House of Lords in Lagden v O’Connor [2003] UKHL 64; [2004] 1
A.C. 1067 on the basis that the law has moved on and that such a rule
would be inconsistent with the general rules of remoteness: see Lord Hope
at [61]–[62].

266 See Moore v DER Ltd [1971] 1 W.L.R. 1476.

267 Hall v Barclay [1937] 3 All E.R. 620.

268 The London Corp [1935] P. 70.

269 See Lord Wilberforce in Miliangos v George Frank (Textiles) Ltd

[1976] A.C. 443 at 468.

270 Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 W.L.R.
433 where it made commercial good sense to delay repairs until the time
when the action had been heard and liability decided. See also Alcoa
Minerals of Jamaica Inc v Broderick [2002] 1 A.C. 371 PC.
271 See O’Grady v Westminster Scaffolding [1962] 2 Lloyd’s Rep. 238:
1938 MG car known as Mademoiselle Hortensia!

272 Although the court will seek proof that the goods were indeed hired and
that the price paid was reasonable: HL Motorworks (Willesden) Ltd v
Alwahbi [1977] R.T.R. 276 CA. On the use of credit hire companies, see the
House of Lords in Dimond v Lovell [2002] 1 A.C. 384 and Lagden v
O’Connor [2003] UKHL 64; [2004] 1 A.C. 1067 (cost of credit hire
agreement recoverable when claimant could not afford hire of a private car
while his car was being repaired, but note the limitations: Beechwood
Birmingham Ltd v Hoyer Group UK Ltd [2010] EWCA Civ 647; [2011]
Q.B. 357 (motor dealer with substantial stock of alternative vehicle denied
cost of hire)).

273 “Same damage” is be interpreted according to its natural and ordinary

meaning and does not extend to substantially or materially similar damage:
Royal Brompton Hospital NHS Trust v Hammond (No.3) [2002] UKHL 14;
[2002] 1 W.L.R. 1397. For discussion of the application of the principle of
joint and several liability to victims of mesothelioma and asbestosis, see
Ch.6.

274 Rahman v Arearose Ltd [2001] Q.B. 351 CA, although the application
of the rule in this case is questionable: comment T. Weir [2001] C.L.J. 237.

275 See generally T. Dugdale, “The Civil Liability (Contribution) Act”

(1979) 42 M.L.R. 182 and Law Commission, Report on Contribution No.79
(1977).

276 Civil Liability (Contribution) Act 1978 s.6(1).

277 D1 is entitled to recover a contribution “notwithstanding that he has

ceased to be liable in respect of the damage in question since the time when
the damage occurred, provided that he was liable immediately before he
made or was ordered or agreed to make the payment in respect of which the
contribution is sought”: s.1(2).

278 Limitation Act 1980 s.10. Time runs from the date on which the right to
a contribution accrues, which is the date on which the judgment is given,
the date of the arbitration award or the date on which the amount of
settlement is agreed between the defendant and the person to whom the
payment is to be made: ss.10(3), (4) of the 1980 Act.

279 In Hughes v Williams (deceased) [2013] EWCA Civ 455; [2013]

P.I.Q.R. P17, e.g. the Court of Appeal found that the trial judge had been
correct to apply the guidelines found in the contributory negligence case of
Froom v Butcher [1976] Q.B. 286 (discussed in Ch.16).

280 See Madden v Quirk [1989] 1 W.L.R. 702; Re-Source America

International Ltd v Platt Site Services Ltd [2004] EWCA Civ 665; [2004]
N.P.C. 89 and Brian Warwicker Partnership Plc v HOK International Ltd
[2005] EWCA Civ 962; [2006] P.N.L.R. 5: causative responsibility is likely
to be the most important factor, but the court can consider non-causative
fault.

281 Civil Liability (Contribution) Act 1978 s.2(2). Apportionment by the

trial judge will only be interfered with on appeal where it is clearly wrong
or where there has been an error in principle or a mistake of fact: Kerry v
Carter [1969] 1 W.L.R. 1372 at 1376.

282 Subject to the statutory controls discussed in Ch.16.

283 Civil Liability (Contribution) Act 1978 s.2(3).

284 Civil Liability (Contribution) Act 1978s.7(3).

285 [1989] A.C. 328.

286 See now Civil Procedure Rules Pt 19: Parties and group litigation.

287 Provided the defendant would have been liable assuming that the
factual basis of the claim against him could be established: see s.1(4). For
the impact of a settlement on potential claims by the victim’s dependants,
see Jameson v CECB (No.1) [2000] 1 A.C. 455.

288 See Jameson v CECB (No.1) [2000] 1 A.C. 455 HL.

289 Heaton v Axa Equity & Law Life Assurance Society Plc [2002] UKHL
15; [2002] 2 A.C. 329.

290 [1996] Q.B. 567.

291 Injunctive relief is not generally granted for negligence, but see J.
Murphy, “Rethinking injunctions in tort law” (2007) 27 O.J.L.S. 509.

292 See now Senior Courts Act 1981 s.50.

293 [1895] 1 Ch.287. See also J. A. Jolowicz, “Damages in equity” [1975]

C.L.J. 224 and the discussion in Ch.10.

294 But see Jaggard v Sawyer [1995] 1 W.L.R. 269.

295 [2012] EWCA Civ 312; [2013] Q.B. 455 at [124].

296 [2014] UKSC 13; [2014] A.C. 822.

297 [2014] UKSC 13 at [161].

298 [2014] UKSC 13 at [123] per Lord Neuberger (who gave the leading
judgment in this case).

299 Jaggard v Sawyer [1995] 1 W.L.R. 269 at 284.

300 per Lord Upjohn in Redland Bricks Ltd v Morris [1970] A.C. 652 at
666.

301 See CPR Pt 25.

302 [1975] A.C. 396.

303 [2004] EWCA Civ 1462; [2005] Q.B. 972.

304 The courts accept that there is a difference between the treatment of
interlocutory injunctions in defamation and privacy law: see LNS v Persons
Unknown [2010] EWHC 119 (QB); [2010] 2 F.L.R. 1306 (nub of
applicant’s true complaint was protection of reputation rather than private
life and so defamation rule in Bonnard v Perryman would be applied).

305 [2004] UKHL 44; [2005] 1 A.C. 253 (discussed in more detail in
Ch.15).

306 Human Rights Act 1998 s.12(3): “No such relief is to be granted so as
to restrain publication before trial unless the court is satisfied that the
applicant is likely to establish that publication should not be allowed”.

307 Lord Nicholls accepted in Cream Holdings Ltd v Banerjee [2004]

UKHL 44; [2005] 1 A.C. 253 at [22], that there will be cases where the
courts will be required to depart from this general approach and require a
lesser degree of likelihood, for example, where the potential adverse
consequences of disclosure are particularly grave or where a short-lived
injunction is needed to enable the court to hear and give proper
consideration to an application for interim relief pending the trial or any
relevant appeal.

308 [1970] A.C. 652 at 665–666.

 Index

This index has been prepared using Sweet and Maxwell’s Legal Taxonomy. Main index entries
conform to keywords provided by the Legal Taxonomy except where references to specific
documents or non-standard terms (denoted by quotation marks) have been included. These
keywords provide a means of identifying similar concepts in other Sweet & Maxwell publications
and online services to which keywords from the Legal Taxonomy have been applied. Readers may
find some minor differences between terms used in the text and those which appear in the index.
Suggestions to [email protected].

Absolute privilege
court reports, 14–013
generally, 14–009
judicial proceedings, 14–012
officers of state, 14–014
parliamentary privilege, 14–010—14–011
Act of God
Rylands v Fletcher liability, 10–061
Advisory bodies
defendants, 2–055—2–058
Aggravated damages
generally, 17–008
Ambulance service
defendants, 2–051
Animals
conclusion, 9–051
dangerous species, 9–043, 9–044
defences
generally, 9–047
trespassers, 9–050
victim’s fault, 9–048
voluntary acceptance of risk, 9–049
generally, 9–042
non-dangerous species, 9–043, 9–045—9–046
trespassers, 9–050
Armed forces
defendants, 2–054
Assault
 generally, 11–007
immediate and direct, 11–010
intention, 11–009
reasonable apprehension of harm, 11–008
words, 11–011
Assumption of responsibility
economic loss
generally, 3–026
objective test, 3–033—3–034, 3–045—3–046
when arises, 3–027—3–030
Authority
trespass to the person, 11–026
Battery
direct, 11–005
generally, 11–003
immediate force, 11–006
intention, 11–004
Bereavement
actions by dependants, 17–057
damages, 17–057
Breach of confidence
privacy, 15–005—15–007
Breach of duty of care
see also Duty of care; Standard of care
conclusion, 5–036
Donoghue v Stevenson, 9–006
introduction, 5–001
proof of
Civil Evidence Act 1968, 5–029
generally, 5–028
res ipsa loquitor, 5–030—5–035
standard of care
hypothetical not average, 5–004
objective test, 5–003
professional standard of care, 5–020—5–027
reasonable person, 5–002
relevant factors, 5–005—5–015
special standard of care, 5–016—5–019
Breach of statutory duty
consumer protection, 9–040
employers’ liability
alternative remedies, 7–015—7–016
causation, 7–020
defences, 7–022
EU law, 7–023—7–024
extent of duty owed, 7–018
generally, 7–011
nature of damage, 7–021
nature of legislation, 7–014
parliamentary intention, 7–012—7–016
 proof of breach, 7–019
protection of class, 7–013
“But for” test
see Causation
Care
pecuniary loss, 17–034
Causation
see also Remoteness
conclusion, 6–035
concurrent causes
consecutive causes, 6–009—6–010
cumulative causes, 6–008
generally, 6–006
indeterminate causes, 6–007
successive causes, 6–009—6–010
consumer protection, 9–036
Donoghue v Stevenson, 9–007
employers’ liability, 7–020
factual causation
“but for” test, 6–004—6–005
generally, 6–002
pragmatic approach, 6–003
intervening events
claimants’ acts, 6–026
generally, 6–021
instinctive intervention, 6–023
intentional wrongdoing, 6–025
negligent intervention, 6–024
third party acts, 6–022—6–025
introduction, 6–001
proof
all or nothing, 6–012—6–014
contribution between defendants, 6–018
generally, 6–011
material increase in risk, 6–015, 6–017, 6–019, 6–020
vindication of rights, 6–016
successive causes, 6–009—6–010
Causes of action
remedies, 17–014—17–015
Causing loss by unlawful means
case law, 12–023—12–026
generally, 12–016
intention, 12–019
interference with contracts, 12–021
intimidation, 12–022
methods of committing, 12–020—12–022
third party affected, 12–018
unlawful, 12–017
Charities
pecuniary loss, 17–027
Children
occupiers’ liability, 8–021
standard of care, 5–017
Civil servants
ambulance service, 2–051
armed forces, 2–054
coastguards, 2–050
fire services, 2–049
generally, 2–043
NHS, 2–052—2–053
police, 2–044—2–048
Claimants
psychiatric harm, 4–003
Classification societies
ships, 2–056
Coastguards
defendants, 2–050
Common law
consumer protection
defective products, 9–009—9–011
Donoghue v Stevenson, 9–004—9–008
generally, 9–003
reform, 9–012
qualified privilege
examples, 14–019— 14–021
generally, 14–016
interest, 14–018
legal, moral or social duty 14–017
reform, 14–023
Reynolds, application of, 14–022
Companies
defamation, 13–021
Compensation
tortious liability, 1–004
Compensatory damages
generally, 17–004—17–005
Components
consumer protection, 9–032
Concealment
limitations, 16–035
Concurrent causes
see also Causation
consecutive causes, 6–009—6–010
cumulative causes, 6–008
generally, 6–006
indeterminate causes, 6–007
successive causes, 6–009—6–010
Conduct
standard of care, 5–012
Consent
 exclusion clauses, 16–011
generally, 16–002
leave or licence, 16–012
meaning, 16–003, 16–009
Rylands v Fletcher liability, 10–063
setting standard of care, 16–010
trespass to the person, 11–019—11–021
voluntary assumption of risk, 16–004—16–008
Conspiracy
generally, 12–027
lawful means conspiracy, 12–032
unlawful means conspiracy, 12–028—12–031
Consumer protection
1987 Act
causation, 9–036
contributory negligence, 9–033
damage, 9–024
defect, meaning of, 9–021—9–023
defences, 9–025—9–032
exclusion clauses, 9–034
introduction, 9–013
liability, 9–015—9–019
limitation periods, 9–035
practical problems, 9–037
product, meaning of, 9–020
remoteness, 9–036
settlements, 9–039
standard and non-standard products, 9–038
title to sue, 9–014
breach of statutory duty, 9–040
common law
defective products, 9–009—9–011
Donoghue v Stevenson, 9–004—9–008
generally, 9–003
reform, 9–012
defective products
interference, 9–010
manufacturer design distinction, 9–011
product, meaning of, 9–009
defences
compliance with legal requirement, 9–026
components, 9–032
development risk, 9–030—9–031
generally, 9–025
lack of supply, 9–027
supply not in course of business, 9–028
timing of defect, 9–029
Donoghue v Stevenson
breach of duty of care, 9–006
causation, 9–007
 duty of care, 9–005
generally, 9–004
recoverable losses, 9–008
remoteness, 9–007
introduction, 9–002
liability
generally, 9–015
importers, 9–018
own brands, 9–017
producers, 9–016
suppliers, 9–019
Product Liability Directive, 9–041
“Contemptuous damages”
generally, 17–006
Contract
tortious liability distinguished, 1–018
Contract terms
vicarious liability, 7–028
Contribution
proof of causation, 6–018
Contributory negligence
consumer protection, 9–033
contribution to damage suffered, 16–022
failure to wear crash helmet, 16–025
failure to wear seat belt, 16–024
generally, 16–019
multiple defendants, 16–027
reasonableness, 16–023—16–026
statutory position, 16–020—16–021
trespass to the person, 11–025
valuation, 16–026
Control
vicarious liability, 7–029
Costs
generally, 1–024
Criminal conduct
vicarious liability, 7–035—7–036
Damage
consumer protection, 9–024
Damages
bereavement, 17–057
defamation
control of damages, 14–038—14–040
pecuniary loss, 17–035
remedies
aggravated damages, 17–008
compensatory damages, 17–004—17–005
contemptuous damages, 17–006
exemplary damages, 17–009—17–013
nominal damages, 17–007
 provisional damages, 17–044
restitutionary damages, 17–016
Dangerous species
liability for animals, 9–043, 9–044
Death
deceased’s estate actions by, 17–049
dependants meaning of, 17–052
dependants’ actions
assessment, 17–04
bereavement, 17–057
deductions, 17–055—17–056
fatal accidents, 17–051
financial dependence, 17–053
generally, 17–050
extinction of liability by, 16–040
generally, 17–048
Deductions
actions by dependants on death, 17–055—17–056
pecuniary loss, 17–026—17–032
Defamation
companies, 13–021
conclusion, 13–024, 14–045
defences
absolute privilege, 14–009—14–014
honest opinion, 14–004—14–007
innocent dissemination, 14–032—14–035
introduction, 14–001
limitation, 14–036
offer of amends, 14–031
privilege, 14–008—14–030
qualified privilege, 14–015—14–030
statements of truth, 14–002—14–003
government bodies, 13–022
interim injunctions, 14–042
introduction, 13–001
libel, 13–002
malicious falsehood, 14–043—14–044
political parties, 13–023
public authorities, 13–022
remedies
control of damages, 14–038—14–040
generally, 14–037
interim injunctions, 14–042
procedural reform, 14–041
requirements
generally, 13–008
group defamation, 13–017
innuendo, 13–013—13–014
judge, role of, 13–009
jury, role of, 13–009
 publication to third party, 13–018—13–019
whether statement
defamatory,
13–010—13–015
whether statement refers to claimant, 13–015—13–017
slander
generally, 13–002
imputation of contagious disease, 13–007
imputation of criminal offence, 13–004
imputation of professional unfitness or incompetence, 13–005
imputation of unchastity or adultery, 13–006
types of, 13–003
title to sue
companies, 13–021
persons, 13–020
Default
Rylands v Fletcher liability, 10–059
Defective premises
economic loss, 3–021
Defective products
consumer protection
interference, 9–010
manufacturer design distinction, 9–011
product, meaning of, 9–009
economic loss, 3–011, 3–013, 3–014, 3–016
Defects
meaning of, 9–021—9–023
Defences
act of God, 10–061
claimant’s default, 10–059
conclusion, 16–028
consent
exclusion clauses, 16–011
generally, 16–002
leave or licence, 16–012
meaning, 16–003, 16–009
Rylands v Fletcher liability, 10–063
setting standard of care, 16–010
voluntary assumption of risk, 16–004—16–008
consumer protection
compliance with legal requirement, 9–026
components, 9–032
development risk, 9–030—9–031
generally, 9–025
lack of supply, 9–027
supply not in course of business, 9–028
timing of defect, 9–029
contributory negligence
contribution to damage suffered, 16–022
failure to wear crash helmet, 16–025
 failure to wear seat belt, 16–024
generally, 16–019
multiple defendants, 16–027
reasonableness, 16–023—16–026
statutory position, 16–020—16–021
trespass to the person, 11–025
valuation, 16–026
defamation
absolute privilege, 14–009—14–014
honest opinion, 14–004—14–007
innocent dissemination, 14–032—14–035
introduction, 14–001
limitation, 14–036
offer of amends, 14–031
privilege, 14–008—14–030
qualified privilege, 14–015—14–030
statements of truth, 14–002—14–003
employers’ liability, 7–022
generally, 16–041
illegality
generally, 16–013—16–017
reform, 16–018
introduction, 16–001
occupiers’ liability, 8–038
private nuisance
generally, 10–031
ineffective defences, 10–036—10–040
inevitable accident, 10–034
prescription, 10–033
statutory authority, 10–032
third party acts, 10–035
procuring breach of contract, 12–012—12–015
psychiatric harm, 4–043
statutory authority, 10–062
third party acts, 10–035, 10–060
trespass to goods, 11–050
trespass to land
generally, 11–037
justification, 11–040
licence, 11–038
necessity, 11–039
trespass to the person
consent, 11–019—11–021
contributory negligence, 11–025
generally, 11–018
lawful authority, 11–026
necessity, 11–022
provocation, 11–024
self-defence, 11–023
windfall defence
 solicitors’ negligence, 16–034
Defendants
advisory bodies, 2–055—2–058
ambulance service, 2–051
armed forces, 2–054
coastguards, 2–050
fire services, 2–049
generally, 2–030
legal profession, 2–059—2–065
local authorities, 2–031—2–043
NHS, 2–052—2–053
police, 2–044—2–048
regulatory bodies, 2–055—2–058
scientific advisers, 2–057
ship classification societies, 2–056
sports regulators, 2–058
Dependants
meaning of, 17–052
Deterrence
tortious liability, 1–007
Disabilities
limitations, 16–036
Donoghue v Stevenson
breach of duty of care, 9–006
causation, 9–007
duty of care, 9–005
generally, 9–004
recoverable losses, 9–008
remoteness, 9–007
Due process
tortious liability, 1–016
Duty of care
see also Breach of duty of care; Negligence; Standard of care
application of neighbour principle
Dorset Yacht case, 2–011
generally, 2–009
Hedley Byrne case, 2–010
two-stage test, 2–012
Caparo criteria
application of, 2–021
foreseeability, 2–016—2–018
generally, 2–015
proximity, 2–019
reasonableness, 2–020
conclusion, 2–067
defendants
advisory bodies, 2–055—2–058
ambulance service, 2–051
armed forces, 2–054
coastguards, 2–050
 fire services, 2–049
generally, 2–030, 2–043
legal profession, 2–059—2–065
local authorities, 2–031—2–043
NHS, 2–052—2–053
police, 2–044—2–048
regulatory bodies, 2–055—2–058
scientific advisers, 2–057
ship classification societies, 2–056
sports regulators, 2–058
Donoghue v Stevenson, 9–005
foreseeability, 2–016—2–018
history, 2–006
identification of general
principle, 2–007—2–008
introduction, 2–001
meaning, 2–002
modern approach, 2–014
occupiers’ liability, 8–019—8–020
overview, 2–005
proximity, 2–008, 2–019
reasonableness, 2–020
retreat from Anns, 2–013
Economic loss
assumption of responsibility
generally, 3–026
objective test, 3–033—3–034, 3–045—3–046
when arises, 3–027—3–030
conclusion, 3–047
consequential economic loss
pure economic loss distinguished, 3–003
contractual intentions undermined
generally, 3–011
Junior Books, 3–013—3–015
third party rights, 3–015
defective premises, 3–021
defective products, 3–011, 3–013, 3–014, 3–016
introduction, 3–001
meaning, 3–002
negligent activity
Anns v Merton LBC, 3–012
contractual intentions undermined, 3–011—3–015
defective products, 3–011, 3–013, 3–014, 3–016
Junior Books, 3–013—3–015
modern law principles, 3–016—3–017
period of expansion, 3–011—3–015
traditional approach, 3–010
negligent misstatement
assumption of responsibility, 3–026—3–034
generally, 3–023
 Hedley Byrne principle, 3–025 old law, 3–024
reliance, 3–035—3–037
special relationships, 3–026—3–034
policy considerations
contract law, 3–008
crushing liability, 3–007
financial loss, 3–009
generally, 3–006
pure economic loss
consequential economic loss distinguished, 3–003
Spartan Steel case, 3–004—3–005
special relationships
assumption of responsibility, 3–033—3–034
employment references, 3–039
generally, 3–026
in business of giving advice, 3–032
pensions advice, 3–043
provision of services, 3–038
social contexts, 3–031
when arises, 3–027—3–030
will drafting, 3–040—3–042
Economic torts
causing loss by unlawful means
case law, 12–023—12–026
generally, 12–016
intention, 12–019
interference with contracts, 12–021
intimidation, 12–022
methods of committing, 12–020—12–022
third party affected, 12–018
unlawful, 12–017
conclusion, 12–033
conspiracy
generally, 12–027
lawful means conspiracy, 12–032
unlawful means conspiracy, 12–028—12–031
introduction, 12–001
procuring breach of contract
defences, 12–012—12–015
generally, 12–003
inducement, 12–011
intention, 12–008—12–010
knowledge of existence of contract, 12–004
knowledge that conduct will result in breach, 12–005—12–007
scope of inducing, 12–011
regulating competition, 12–002
Egg shell skull
remoteness, 6–033—6–034
Emergencies
standard of care, 5–018
Employees
psychiatric harm, 4–032
Employers’ liability
breach of statutory duty
alternative remedies, 7–015—7–016
causation, 7–020
defences, 7–022
EU law, 7–023—7–024
extent of duty owed, 7–018
generally, 7–011
nature of damage, 7–021
nature of legislation, 7–014
parliamentary intention, 7–012—7–016
proof of breach, 7–019
protection of class, 7–013
conclusion, 7–041
development of, 7–002
introduction, 7–001
personal liability
employees’ competence, 7–005
generally, 7–003
nature of duty, 7–004—7–007
occupational stress, 7–009—7–010
safe place of work, 7–006
safe systems of work, 7–007
scope of, 7–008
vicarious liability
acting in course of employment, 7–033—7–037
commission of tort by employee, 7–026
employer/employee relationship, 7–027—7–032
generally, 7–025
independent contractors, 7–039
justification, 7–040
summary, 7–038
Employment handicap
pecuniary loss, 17–025
EU law
employers’ liability, 7–023—7–024
tortious liability, 1–020
Exclusion clauses
consumer protection, 9–034
Exclusion of liability
occupiers’ liability, 8–026—8–032
Exemplary damages
generally, 17–009—17–013
Expenses
pecuniary loss, 17–033
Extinguishment
extinction of liability
death, 16–040
 final judgment, 16–039
personal injury claims, 16–029—16–038
False imprisonment
complete restriction of freedom of movement, 11–013—11–014
generally, 11–012
knowledge of claimant, 11–015
without legal authorisation, 11–016
Family provision
dependants limitations, 16–032
Fatal accidents
actions by dependants, 17–051
consent as a defence, 16–011
limitations, 16–033
Fault
tortious liability, 1–005
Fire services
defendants, 2–049
Foreseeability
duty of care, 2–016—2–018
extent of damage, 6–032
kind of damage, 6–030
psychiatric harm, 4–014—4–015
Rylands v Fletcher liability, 10–055
standard of care, 5–006
way damage is caused, 6–031
Government bodies
see Public authorities
Harassment
meaning, 11–029
protection from
generally, 11–028
remedies, 11–030
Honest opinion
defamation, defences to, 14–004—14–007
Human rights
duty of care
local authorities, 2–037—2–042
negligence claims, 2–066
nuisance, 10–072
privacy, 15–003
private nuisance, 10–017
remedies, 17–017—17–018
tortious liability, 1–020
Illegality
defamation, defences to generally, 16–013—16–017 reform, 16–018
Importers
consumer protection, 9–018
Independent contractors
occupiers’ liability, 8–024
vicarious liability, 7–039
Inevitable accident
nuisance, defences to, 10–034
Injunctions
generally, 17–063
interim injunctions, 17–065
mandatory injunctions, 17–064
nuisance, 10–065
prohibitory injunctions, 17–064
quia timet actions, 17–066
Innocent dissemination
defamation, defences to, 14–032—14–035
Innuendos
defamation, 13–013—13–014
Insurance
pecuniary loss, 17–029
tortious liability, 1–032
Intention
assault, 11–009
battery, 11–004
causing loss by unlawful means, 12–019
procuring breach of contract, 12–008—12–010
Interest
generally, 17–040
non-pecuniary loss, 17–042
pecuniary loss, 17–041
Interim injunctions
defamation, 14–042
generally, 17–065
Interim payments
personal injury, 17–045
Intervening events
causation
claimants’ acts, 6–026
generally, 6–021
instinctive intervention, 6–023
intentional wrongdoing, 6–025
negligent intervention, 6–024
third party acts, 6–022—6–025
Intimidation
causing loss by unlawful means, 12–022
Invitees
occupiers’ liability, 8–004
Joint and several liability
assessments, 17–060
generally, 17–059
settlements, 17–061
Journals
qualified privilege
academic journals, 14–025
scientific publications, 14–025
Judgments and orders
extinction of liability by, 16–039
Judicial proceedings
absolute privilege, 14–012
qualified privilege, 14–028
Justification
trespass to land, 11–040
Knowledge
date of knowledge, 16–031
procuring breach of contract, 12–004—12–007
Landlords
private nuisance, 10–016, 10–025—10–029
Legal profession
defendants, 2–059—2–065
Libel
defamation, 13–002
Licensees
occupiers’ liability, 8–005
Licences
consent as a defence, 16–012
trespass to land, 11–038
Limitations
defamation, defences to, 14–036
Limitation periods
consumer protection, 9–035
Limitations
burden of proof, 16–037
concealment, 16–035
date of knowledge, 16–031
disability, 16–036
fatal accidents, 16–033
generally, 16–029
personal injury, 16–029—16–038
provision for dependants, 16–032
reform, 16–038
windfall defence, 16–034
Local authorities
duty of care
assumption of responsibility, 2–035—2–036
generally, 2–031
human rights, 2–037—2–042
intention of Parliament, 2–033
policy and operational maters distinguished, 2–034
policy objections, 2–032
statutory interpretation, 2–033
Loss of amenity
non-pecuniary loss, 17–037
Loss of earnings capacity
see Employment handicap
Loss of earnings
 pecuniary loss, 17–021—17–023
Loss of expectation of life
pecuniary loss, 17–024
Lump sum payments
alternatives to, 17–043—17–047
Malice
private nuisance, 10–012
Malicious falsehood
defamation, 14–043—14–044
Malicious prosecution
generally, 11–031—11–033
Mandatory injunctions
generally, 17–064
Medical negligence
standard of care, 5–027
Misfeasance
nonfeasance distinguished, 2–022
Necessity
trespass to land, 11–039
trespass to the person, 11–022
Negligence
see also Duty of care
duty of care
application of neighbour principle, 2–009—2–012
Caparo criteria, 2–015—2–021
conclusion, 2–067
defendants, 2–030—2–065
Dorset Yacht case, 2–011
Hedley Byrne case, 2–010
history, 2–006
identification of general principle, 2–007—2–008
introduction, 2–001
meaning, 2–002
modern approach, 2–014
neighbour principle, 2–008, 2–009—2–012
overview, 2–005
retreat from Anns, 2–013
two-stage test, 2–012, 2–013
human rights, 2–066
misfeasance
nonfeasance distinguished, 2–022
nonfeasance
misfeasance distinguished, 2–022
preventing others from causing damage, 2–024—2–029
rescuing, 2–023
overview, 2–004
private nuisance, 10–042
study of, 2–003
Negligent misstatement
assumption of responsibility
 generally, 3–026
objective test, 3–033—3–034
when arises, 3–027—3–030
generally, 3–023
Hedley Byrne principle, 3–025
old law, 3–024
reliance
actual reliance, 3–037
generally, 3–035
reasonableness, 3–036
special relationships
assumption of responsibility, 3–033—3–034
employment references, 3–039
generally, 3–026
in business of giving advice, 3–032
pensions advice, 3–43
provision of services, 3–038
social contexts, 3–031
when arises, 3–027—3–030
Neighbour principle
see Proximity
NHS
defendants, 2–052—2–053
Nominal damages
generally, 17–007
Nonfeasance
misfeasance distinguished, 2–022
preventing others from causing damage, 2–024—2–029
rescuing, 2–023
Non-pecuniary loss
injuries, 17–038—17–039
interest, 17–042
loss of amenity, 17–037
pain and suffering, 17–036
Nuisance
conclusion, 10–073
human rights, 10–072
introduction, 10–001—10–002
private nuisance
defences, 10–031—10–040
defendant’s land, emanating from, 10–030
generally, 10–003
liability, 10–018—10–029
meaning, 10–004
negligence, 10–042
reasonable user, 10–005—10–012
title to sue, 10–013—10–017
trespass, 10–043
public nuisance
generally, 10–044
 obstruction of highway, 10–045
particular damage, 10–047
projections over highway, 10–046
remedies
abatement, 10–066
chattels, 10–070
economic loss, 10–069
generally, 10–064
injunctions, 10–065
personal injury, 10–068
remoteness, 10–071
Rylands v Fletcher
defences, 10–058—10–063
generally, 10–048
liability under, 10–051—10–055
persons capable of being sued, 10–057
significance of, 10–049—10–050
title to sue, 10–056
Occupational stress
employers’ liability, 7–009—7–010
Occupiers
meaning of, 8–012
private nuisance, 10–019—10–024
Occupiers’ liability
defences, 8–038
introduction, 8–001
non-visitors
generally, 8–033
old law, 8–034
Occupiers Liability Act 1957
children, 8–021
duty of care, 8–019—8–020
exclusion of liability, 8–026—8–032
generally, 8–008
independent contractors, entrusting work to, 8–024
occupier, meaning of, 8–012
premises, meaning, of, 8–013
professionals, 8–022
scope of Act, 8–009—8–011
visitors, meaning, of, 8–014—8–018
warnings, 8–023
Occupiers Liability Act 1984
application, 8–037
generally, 8–035
Tomlinson v Congleton BC, 8–036
old law
contractual entrants, 8–003
generally, 8–002
invitees, 8–004
licensees, 8–005
 trespassers, 8–006
reform, need for, 8–007
Offer of amends
defamation, defences to, 14–031
Omissions
liability for
misfeasance and nonfeasance distinguished, 2–022
preventing others from causing damage, 2–024—2–029
rescuing, 2–023
Own brands
consumer protection, 9–017
Pain and suffering
non-pecuniary loss, 17–036
Parliamentary proceedings
absolute privilege, 14–010—14–011
qualified privilege, 14–027
Pecuniary loss
care costs, 17–034
charities, 17–027
deductions, 17–026—17–032
expenses, 17–033—17–034
generally, 17–020
insurance, 17–029
interest, 17–041
loss of earning capacity, 17–025
loss of earnings, 17–021—17–023
lost years, 17–024
other damages, 17–035
pensions, 17–031
sick pay, 17–030
social security benefits, 17–032
voluntary payments by defendants, 17–028
Pensions
pecuniary loss, 17–031
Periodical payments
personal injury, 17–046—17–047
Personal injury
generally, 17–019
extinction of liability, 16–029—16–038
interest
generally, 17–040
non-pecuniary loss, 17–042
pecuniary loss, 17–041
interim payments, 17–045
limitations, 16–029—16–038
non-pecuniary loss
injuries, 17–038—17–039
interest, 17–042
loss of amenity, 17–037
pain and suffering, 17–036
 pecuniary loss
care costs, 17–034
charities, 17–027
deductions, 17–026—17–032
expenses, 17–033—17–034
generally, 17–019
insurance, 17–029
interest, 17–041
loss of earning capacity, 17–025
loss of earnings, 17–021—17–023
lost years, 17–024
other damages, 17–035
pensions, 17–031
sick pay, 17–030
social security benefits, 17–032
voluntary payments by defendants, 17–028
periodic payments, 17–046—17–047
provisional damages, 17–044
Police
defendants 2–044—2–048
Political parties
defamation, 13–023
Premises
meaning, of, 8–013
Prescription
private nuisance, 10–033
Primary victims
psychiatric harm
actual danger, 4–019
fear for own safety, 4–018, 4–020
generally, 4–016—4–017
Privacy
breach of confidence, 15–005—15–007
conclusion, 15–014
human rights, 15–003
information in the public domain, 15–010
introduction, 15–001
protection of, 15–002
public domain, 15–010
rejection of new tort, 15–004
remedies, 15–011—15–013
two-stage test, 15–008—15–009
Private nuisance
defences
act of a stranger, 10–035
generally, 10–031
ineffective defences, 10–036—10–040
inevitable accident, 10–034
prescription, 10–033
statutory authority, 10–032
 defendant’s land, emanating from, 10–030
generally, 10–003
liability
generally, 10–018
landlords, 10–025—10–029
occupiers, 10–019—10–024
meaning, 10–004
negligence, 10–042
reasonable user
abnormal sensitivity, 10–010—10–011
duration, 10–008
factors determining, 10–006
frequency, 10–008
locality, 10–007
malice, 10–012
meaning, 10–005
utility of defendant’s conduct, 10–009
title to sue
actionable nuisance, 10–013
generally, 10–013
human rights, 10–017
landlords, 10–016
losses prior to acquisition of land, 10–015
rights in land, 10–014 trespass, 10–043
Privilege
see also Absolute privilege; Qualified privilege
defamation, defences to, 14–008—14–030
Procuring breach of contract
defences, 12–012—12–015
generally, 12–003
inducement, 12–011
intention, 12–008—12–010
knowledge of existence of contract, 12–004
knowledge that conduct will result in breach, 12–005—12–007
Producers
consumer protection, 9–016
Product Liability Directive
consumer protection, 9–041
Products
meaning of, 9–020
Professional opinion
standard of care, 5–023
Professionals
occupiers’ liability, 8–022
Prohibitory injunctions
generally, 17–064
Proof
causation
all or nothing, 6–012—6–014
contribution between defendants, 6–018
 generally, 6–011
material increase in risk, 6–015, 6–017, 6–019, 6–020
vindication of rights, 6–016
employers’ liability, 7–019
limitations, 16–037
Property
tortious liability, 1–013
Provisional damages
personal injury, 17–044
Provocation
trespass to the person, 11–024
Proximity
duty of care, 2–008, 2–019
psychiatric harm, 4–023—4–024
Psychiatric harm
Alcock control mechanisms
generally, 4–022
live links, 4–028
means by which illness caused, 4–025—4–029
merely informed of accident, 4–026—4–027
proximity of relationship, 4–023
proximity of time and space, 4–024
self harm, 4–029
sudden shock requirement, 4–030
White, impact of, 4–031—4–038
claimants, 4–003
conclusion, 4–044
employees, 4–032
historical development
emergence of modern law, 4–008—4–009
expansion of law, 4–006
impact theory, 4–005
no further expansion, 4–007
old law, 4–004
introduction, 4–001
meaning, 4–002
modern law elements
foreseeability, 4–014—4–015
generally, 4–010
illness resulting from personal injury, 4–011
illness resulting from property damage, 4–012
policy considerations, 4–013
primary victims
actual danger, 4–019
fear for own safety, 4–018, 4–020
generally, 4–016—4–017
reform proposals
actual danger, 4–042
close ties of love and affection, 4–040
defences, 4–043
 generally, 4–039
just and reasonable, 4–041
rescuers, 4–034—4–038
secondary victims
Alcock control mechanisms, 4–022—4–030
generally, 4–021
unwitting agents, 4–033
Public authorities
defamation, 13–022
Public domain
privacy, 15–010
Public interest
defamation
qualified privilege, 14–024
Public nuisance
generally, 10–044
obstruction of highway, 10–045
particular damage, 10–047
projections over highway, 10–046
Qualified privilege
common law
examples, 14–019—14–021
generally, 14–016
interest, 14–018
legal, moral or social duty 14–017
reform, 14–023
Reynolds, application of, 14–022
generally, 14–015
statutory
academic journals, 14–025
generally, 14–026
other matters, 14–030
publication on matter of public interest, 14–024
registers, 14–029
reports of judicial proceedings, 14–028
reports of parliamentary proceedings, 14–027
scientific journals, 14–025
Quia timet actions
generally, 17–066
Reasonable skill and knowledge
standard of care, 5–002, 5–022
Reasonable user
private nuisance
abnormal sensitivity, 10–010—10–011
duration, 10–008
factors determining, 10–006
frequency, 10–008
locality, 10–007
malice, 10–012
meaning, 10–005
 utility of defendant’s conduct, 10–009
Reasonableness
contributory negligence, 16–023—16–026
duty of care, 2–020
psychiatric harm, 4–041
Recovery
assumption of responsibility, 3–045—3–046
rule against recovery exceptions, 3–018—3–022 generally, 3–016—3–017
Registers
qualified privilege, 14–029
Regulatory bodies
defendants, 2–055—2–058
Reliance
negligent misstatement
actual reliance, 3–037
generally, 3–035
reasonableness, 3–036
Remedies
conclusion, 17–067
damage to property, 17–058
damages
aggravated damages, 17–008
causes of action, 17–014—17–015
compensatory damages, 17–004—17–005
contemptuous damages, 17–006
exemplary damages, 17–009—17–013
generally, 17–002
human rights, 17–017—17–018
nominal damages, 17–007
restitutionary damages, 17–016
types of, 17–003
death
deceased’s estate, 17–049
dependants, 17–050—17–057
generally, 17–048
defamation
control of damages, 14–038—14–040
generally, 14–037
interim injunctions, 14–042
procedural reform, 14–041
injunctions
generally, 17–063
interim injunctions, 17–065
mandatory injunctions, 17–064
nuisance, 10–065
prohibitory injunctions, 17–064
quia timet actions, 17–066
introduction, 17–001
joint and several liability
assessments, 17–060
 generally, 17–059
settlements, 17–061
nuisance
abatement, 10–066
chattels, 10–070
economic loss, 10–069
generally, 10–064
injunctions, 10–065
personal injury, 10–068
remoteness, 10–071
personal injury
alternatives to lump sum, 17–043—17–047
generally, 17–019
interest, 17–040—17–042
interim payments, 17–045
non-pecuniary loss, 17–036—17–039
pecuniary loss, 17–020—17–035
periodic payments, 17–046—17–047
provisional damages, 17–044
privacy, 15–011—15–013
protection from harassment, 11–030
self-help, 17–062
trespass to land
generally, 11–041
mesne profits, 11–044
possession claims, 11–043
self-help, 11–042
Remoteness
see also Causation
conclusion, 6–035
consumer protection, 9–036
Donoghue v Stevenson, 9–007
egg shell skull, 6–033—6–034
foreseeability
extent of damage, 6–032
kind of damage, 6–030
way damage is caused, 6–031
generally, 6–027
introduction, 6–001
modern law, 6–029
old law, 6–028
Reputation
tortious liability, 1–014
Res ipsa loquitor
conditions for application of, 5–031—5–033
effect of, 5–035
generally, 5–030
Rescuers
psychiatric harm, 4–034—4–038
Restitution
 tortious liability distinguished, 1–019
Restitutionary damages
generally, 17–016
Retribution
tortious liability, 1–006
Rylands v Fletcher
defences
act of God, 10–061
claimant’s default, 10–059
consent, 10–063
generally, 10–058
statutory authority, 10–062
third party acts, 10–060
foreseeability, 10–055
generally, 10–048
liability under, 10–051—10–055
persons capable of being sued, 10–057
significance of, 10–049—10–050
title to sue, 10–056
Safe place of work
employers’ liability, 7–006
Safe systems of work
employers’ liability, 7–007
Scientific advisers
defendants, 2–057
Scientific publications
qualified privilege, 14–025
Secondary victims
psychiatric harm
Alcock control mechanisms, 4–022—4–030
generally, 4–021
Self-defence
trespass to the person, 11–023
Self harm
psychiatric harm, 4–029
Self-help
remedies, 17–062
Service provision
employment references, 3–039
generally, 3–038
pensions advice, 3–043
proving reliance, 3–044
will drafting, 3–040—3–042
Settlements
consumer protection, 9–039
Ships
classification societies, 2–056
Sick pay
pecuniary loss, 17–030
Slander
 generally, 13–002
imputation of contagious disease, 13–007
imputation of criminal offence, 13–004
imputation of professional unfitness or incompetence, 13–005
imputation of unchastity or adultery, 13–006
types of, 13–003
Social security
benefits
pecuniary loss, 17–032
Special relationships
negligent misstatements
assumption of responsibility, 3–033—3–034
employment references, 3–039
generally, 3–026
in business of giving advice, 3–032
pensions advice, 3–043
provision of services, 3–038
social contexts, 3–031
when arises, 3–027—3–030
Sports
regulators
defendants, 2–058
standard of care, 5–019
Standard of care
common practice, 5–014, 5–023
Compensation Act 2006, 5–013
conduct of defendant, 5–012
foreseeability, 5–006
hypothetical not average, 5–004
learned hand, 5–015
likelihood of harm, 5–008
magnitude of risk, 5–007—5–009
objective test, 5–003
potential liability, 5–013
precautions, requirement to take, 5–010—5–011
professional standard of care
Bolam test, 5–021
common practice, 5–023
disclosure of risks of treatment, 5–025—5–026
generally, 5–020
limits of Bolam test, 5–024
medical negligence, 5–027
professional opinion, 5–023
reasonable skill and knowledge, 5–022
reasonable skill and knowledge, 5–002, 5–022
special standard of care children, 5–017
emergencies, 5–018
sporting participants, 5–019
Statements of truth
defamation, defences to, 14–002—14–003
Statutory authority
private nuisance, 10–032
Rylands v Fletcher liability, 10–062
Strict liability
see also Consumer protection
Animal Act 1971
conclusion, 9–051
dangerous species, 9–043, 9–044
defences, 9–047—9–050
generally, 9–042
non-dangerous species, 9–043, 9–045—9–046
trespassers, 9–050
consumer protection
breach of statutory duty, 9–040
common law, 9–003—9–012
introduction, 9–002
1987 Act, 9–013—9–039
Product Liability Directive, 9–041
introduction, 9–001
Successive causes
see also Causation
generally, 6–009—6–010
Suppliers
consumer protection, 9–019
Third party acts
causation, 6–022—6–025
Rylands v Fletcher liability, 10–060
Third party rights
economic loss, 3–015
Title to sue
consumer protection, 9–014
defamation
companies, 13–021
persons, 13–020
private nuisance
actionable nuisance, 10–013
generally, 10–013
human rights, 10–017
landlords, 10–016
losses prior to acquisition of land, 10–015
rights in land, 10–014
Rylands v Fletcher liability, 10–056
Tortious liability
conclusion, 1–033
contract distinguished, 1–018
EU law, 1–020
human rights, 1–020
interests protected
due process, 1–016
financial interests, 1–015
 introduction, 1–011
personal harm, 1–012
property, 1–013
reputation, 1–014
issues with
absence of litigation consciousness, 1–028
costs, 1–024
difficulty, 1–027
generally, 1–023
risk, 1–026
time, 1–025
meaning, 1–001—1–002
modern society
introduction, 1–021
other compensation systems, 1–022
principles
compensation, 1–004
conclusion, 1–010
deterrence, 1–007
economic efficiency, 1–008
fault, 1–005
introduction, 1–003
loss distribution, 1–009
retributive justice, 1–006
reform proposals
generally, 1–029
insurance, 1–032
mixed system, 1–030
no–fault liability, 1–031
restitution distinguished, 1–019
Trespass to goods
defences, 11–050
generally, 11–045
requirements
actionable per se, 11–048
direct and immediate, 11–047
intention, 11–046
possession, 11–049
Trespass to land
defences
generally, 11–037
justification, 11–040
licence, 11–038
necessity, 11–039
direct and unjustifiable interference, 11–035
introduction, 11–001, 11–034
possession of land, 11–036
private nuisance, 10–043
remedies
generally, 11–041
 mesne profits, 11–044
possession claims, 11–043
self-help, 11–042
Trespass to the person
assault
generally, 11–007
immediate and direct, 11–010
intention, 11–009
reasonable apprehension of harm, 11–008
words, 11–011
battery
direct, 11–005
generally, 11–003
immediate force, 11–006
intention, 11–004
defences
consent, 11–019—11–021
contributory negligence, 11–025
generally, 11–018
lawful authority, 11–026
necessity, 11–022
provocation, 11–024
self-defence, 11–023
false imprisonment
complete restriction of freedom of movement, 11–013—11–014
generally, 11–012
knowledge of claimant, 11–015
without legal authorisation, 11–016
introduction, 11–001—11–002
negligence, 11–027
Wilkinson v Downton, rule in, 11–017
Trespassers
liability for animals, 9–050
occupiers’ liability, 8–006
Valuation
contributory negligence, 16–026
Vicarious liability
acting in course of employment
application of Lister, 7–037
criminal conduct, 7–035—7–036
generally, 7–033—7–034
prohibited acts, 7–035—7–036
commission of tort by employee, 7–026
employer/employee relationship
contract terms, 7–028
control, 7–029
generally, 7–027
lending employees, 7–032
relationship as a whole, 7–030
relationships akin to employment, 7–031
 generally, 7–025
independent contractors, 7–039
justification, 7–040
summary, 7–038
Visitors
meaning, 8–014—8–018
Volenti non fit injuria
consent, 16–004—16–008
Voluntary assumption of risk
see Volenti non fit injuria
Warnings
occupiers’ liability, 8–023
Wills
drafting
economic loss, 3–040—3–042